HKSAR v. Jen Kin

HCMA652/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 652 OF 2006

(ON APPEAL FROM KCS 7511 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 16 November 2006

Date of Judgment : 16 November 2006

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374 and was fined $1,500.  He now appeals his conviction. 

2.PW1, a police officer, was riding his motorcycle along Lei Yue Mun Road on the second lane at about 30 kmph at the material time.  There were originally five lanes at the place where the incident occurred, but at that time, according to the prosecution evidence, the fourth and fifth lanes were closed due to a police roadblock.  The appellant’s private car, about 2 or 3 metres in his front on the third lane, was seen to have turned on his left indicator light and suddenly cut into the second lane in the front of PW1 causing him to brake abruptly to avoid a collision.

3.PW1 said he sounded his horn and that the closest distance between the motorcycle and the appellant’s car was about half a metre.  He eventually stopped the appellant’s car further along Tseung Kwan O Road.  When spoken to by PW1, the appellant denied the offence.

4.PW2 said that he was on duty at the roadblock.  He confirmed that the roadblock occupied two lanes.  He testified that he had witnessed the appellant’s vehicle pulling direct in front of PW1’s motorcycle, causing it to brake sharply.

5.The appellant testified and said that on the day in question he was driving his private car on the said road.  He said that he had stopped at a set of traffic lights before the police roadblock.  It was his case that the roadblock only occupied one lane.  He said he had stopped in the offside lane at the traffic lights and PW1’s motorcycle was behind a stationary vehicle in the nearside lane.  He admitted he did change lanes as he was so directed by a police officer when he was 30 metres from the roadblock.  He stressed that before he did so he had signalled and turned to ensure that it was safe before he changed lanes.  He also said that when he changed lane, PW1 was four to five metres behind him. 

Grounds of appeal

6.The appellant stressed today that the police officers, i.e. PW1 and PW2, were not honest and reliable witnesses.  He said that the sketches produced by the police officers were untrue and he wished to produce new photographs which had not been produced at the trial to show that the prosecution witnesses were lying.  He said that the prosecution witnesses had conspired to make up a case against him and the magistrate was wrong to accept their evidence. 

Respondent’s reply

7.Counsel for the respondent submitted that this case turned on the credibility of witnesses.  The magistrate had fully considered and evaluated the prosecution witnesses’ evidence and the appellant’s evidence.  He found PW2’s evidence supported that of PW1’s and there was no inherent improbabilities or significant inconsistencies.  He rejected the evidence of the appellant as self-contradictory and lacking in reliability and he was entitled to make the findings as he did. 

My judgment

8.The present case turns on credibility.  The magistrate heard and saw the witnesses.  He was obviously in a far better placed position than an appeal court in judging matters pertaining to credibility.

9.The magistrate found PW1 and PW2 honest and credible.  Both of them told the court that the police roadblock occupied two lanes instead of the one lane as alleged by the appellant.  The evidence of PW2 further revealed that no police officer was directing vehicles to change lanes at the material time as opposed to the evidence of the appellant.

10.In rejecting the evidence of the appellant, the magistrate said this in his Statement of Findings :

“Initially the appellant said he was traveling at 30 kmph before changing lanes and later said it was 15 kmph.  He said that PW1 was riding his motorcycle at 15 kmph at the time of his changing lanes.  The police officer said he was traveling at 30 kmph and I could see no reason for the officer to travel at 15 kmph.  The defendant said he changed lanes because he was directed to do so by a police officer at the roadblock ahead of where the incident occurred.  Not only was this refuted by the evidence of PW1 and PW2, the defendant would have been required to change lanes in any event as he was in the 5^th lane originally and needed to change to the first lane in order to effect the left turn to Tseung Kwan O Road from Lei Yue Mun Road shortly after the police roadblock – see plans produced as Exhibits D1 and D2.”

The approach of the magistrate and the assessment of credibility was based on sound observation and reasoning.

11.There is ample evidence to support the conviction and I dismiss this appeal against conviction.

Mr Gavin Shiu, SADPP of the Department of Justice, for the Respondent

The Appellant, in person