Cheng Fung v. The Queen
Read the full judgment text of CACC 109/1971 on BabelCite. This Court of Appeal judgment.
1. The appellant was convicted upon two charges preferred against him: one of driving a public car and using that public car for the purpose of soliciting and carrying passengers for hire or reward in circumstances other than those under which he was permitted so to do; and, secondly, driving that same motor vehicle without having the requisite third party insurance policy in force which was required in the circumstances in which he was using that public car at that time.
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CACC000109/1971 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 109 OF 1971 -----------------
----------------- Coram: Rigby, C.J. Date of Judgment: 7th April, 1971. ----------------- JUDGMENT ----------------- 1. The appellant was convicted upon two charges preferred against him: one of driving a public car and using that public car for the purpose of soliciting and carrying passengers for hire or reward in circumstances other than those under which he was permitted so to do; and, secondly, driving that same motor vehicle without having the requisite third party insurance policy in force which was required in the circumstances in which he was using that public car at that time. 2. The case for the prosecution rested solely upon the evidence of one police constable. That police constable was at the time on what was described as anti-illegal public transport duty. He was on the morning of the 28th of October on plain-clothes duty standing in Argyle Street with the specific purpose of apprehending persons who might solicit passengers for hire or reward whilst driving private vehicles or public cars in circumstances in which they were not allowed so to solicit passengers. According to his evidence, a red-plated public car approached him and stopped in front of him. The appellant who was the driver of that vehicle, asked him if he wanted a car. He replied in the affirmative, got into the car and was then driven to the destination which he had mentioned, namely, Wing Lee Mansion. On arrival there, according to his evidence, the appellant asked him for the sum of $2. He handed it over to the appellant and then disclosed his identity and told the appellant that he was apprehending him for driving the car for the purpose of carrying passengers for hire or reward. 3. The defence put forward by the appellant was an entirely different version of the facts. He made an unsworn statement in his own defence. In that statement he said that his car was producing excessive smoke. He stopped the car to have a look at it, and the single prosecution witness then approached him, told him that he was a policeman, that he had to be driven very urgently to a particular destination, that he had been waiting unsuccessfully for a taxi for over half an hour and requested the appellant to do him a favour by driving him to his destination. The appellant did so, and when he got to the Wing Lee Mansion the policeman then arrested him, threw his arms around his neck and, indeed, handcuffed him. He denied that he had at any time solicited any passenger for hire or that he had received any payment in respect of reward or hire from the witness. 4. The learned magistrate accepted and believed the evidence of the police constable and convicted the appellant. Mr. Smart, who appeared for the appellant both at the trial and on this appeal, submitted that the verdict was unreasonable because it was based solely upon the uncorroborated evidence of a single witness and it was therefore unsafe and unsatisfactory to record a conviction. Mr. Smart has said that before the case commenced the police inspector prosecuting the case had told him that the evidence would consist of two police officers. He, therefore, cross-examined the first police officer as considerable length and in considerable detail with the object of testing his credibility and in anticipation, of course, of the other police constable being called as a witness. Mr. Smart points out that the testimony of the single prosecution witness who was called contradicts itself in certain respects, for example, Mr. Smart elicited from the witness in cross-examination that other members of the police party came up to the car at the time the police constable was actually handing over the money to the appellant, and immediately before he arrested him. Subsequently in the latter part of his evidence the constable went back on that testimony and said that he had in fact completed handing over the money before the other members of the party come up. Again, it is pointed out by Mr. Smart that the constable said in cross-examination that there were in fact other members of the party who came up to the car whereas in re-examination he said that there was only one other person - P.C. 11428 - who was to be called as the other witness - at Wing Lee Mansion at that time. 5. At the conclusion of the case for the prosecution, the police officer prosecuting the case then said that he did not intend to call any further prosecution witnesses. Mr. Smart complains, by no means without some justification, that in those circumstances he was prevented from testing the credibility of the single prosecution witness by not being in a position to cross-examine the only other prosecution witness who might be of assistance and who, he submits, in those circumstances should have been called as a witness. He says that this placed the defence in a very difficult position. 6. Crown Counsel has conceded that it would have been preferable that the second witness, who was at the court and who was ready and available and who, it is clear, the prosecuting officer had intended to call, had been called. As Crown Counsel conceded it would have been better if this witness had either been called, or tendered to give evidence, particularly having regard to the fact, as I say, that he was a witness who would have been, or could have been, of assistance to the prosecution. But Crown Counsel points out, and I think rightly so that it was open to the defence itself to have called this other police officer as a witness. 7. Quite clearly, there were two entirely conflicting stories before the learned magistrate: one story given by the constable on affirmation; and the other version of the events given by the appellant himself in the form of an unsworn statement. The learned magistrate made it quite clear in his grounds of decision that he was satisfied that the police officer was in fact telling the truth, and it seems to me that there are really no grounds upon which this court can properly interfere with this conviction. 8. However, before leaving this case, I would wish to refer to the observations made by the same magistrate in a later case of an identical nature which came before me. It seems to me that those observations are both relevant and important. He was referring to the original practice of police prosecutors in these cases of calling the two police officers who were usually picked up as passengers in these cases and also of calling the evidence of other police officers who were present at the pre-arranged destination to which the police passengers were driven, and he then goes on to say:-
In this case, of course, the police constable who might have been called and who would have been of assistance one way or the other, was in fact waiting at the destination. The magistrate went on to say:-
I would respectfully agree with these remarks. 9. The learned magistrate then goes on to say at a later stage:-
Again, I agree with those observations and I direct that a copy of this judgment be sent to the Superintendent in charge of Traffic, Kowloon, in the hope and expectation that consideration in future cases be given to putting into effect the constructive comments made by the magistrate. Representation: |