Lo Kwong-sun v. The Queen
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CACC000681/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 681 OF 1970 -----------------
Coram: Rigby, C.J. Date of Judgment: 27th April, 1971. ----------------- JUDGMENT ----------------- 1. This is a case which has caused me a great deal of anxiety. The appellant, aged 25, was convicted upon two charges preferred against him, one of driving a private car for the carriage of passengers for hire or reward contrary to the provisions of the Road Traffic (Registration & Licensing of Vehicles) Regulations, and the second charge of driving a motor vehicle without having in force, in the circumstances in which he was so driving, a third party policy of insurance. 2. The facts of the case were of a kind which are only too common in charges of this nature. A police constable gave evidence that at about 10.40 a.m. on the morning of the 3rd of August he was on plain-clothes duty in Nam Cheong Street, Kowloon. He was standing there on the kerb. He was on what is known as anti Pak Pai duty and, of course, there is no doubt that he was actively on the lookout for persons driving private cars who sought to pick up passengers for hire or reward. Sure enough, whilst he was so standing at the kerbside waiting for someone to commit an offence of the nature for which he was on the lookout, a red private car drove up. According to the evidence of the police constable, the driver of the car stopped and asked him if he wanted a lift. The driver of the car was in fact the present appellant. According to the evidence of the police constable he said "Yes", he wished to be taken to Tat Chi Road near Bernard College. He was driven there by the appellant. According to the evidence of the constable, when the car stopped at its destination the appellant turned to him and asked for $1, being the cost of the journey. The constable gave him $1 and then took out his police warrant card, disclosed his identity and told the appellant that he was charging him for the offences of driving a private car for the carriage of passengers for hire or reward and driving under such circumstances without having the requisite third party policy of insurance. That was the evidence given by the police constable. 3. He was cross-examined at some length and in considerable detail by Mr. Smart who represented the appellant at the trial. It was put to the constable that he had himself signalled to the appellant to stop. It was further put to him that he was dressed in civilian clothes and was carrying an umbrella and two steering wheels at the time. Both these suggestions or allegations the constable denied. It was further put to him that it was a public holiday on that day. Indeed, it was in fact a public holiday, being the first Monday in August. However, the constable said that he could not remember whether or not it was a holiday. It was put to him that it was raining hard and that a typhoon was expected that day. Again, the constable said he could not remember whether or not it was raining hard and he could not remember whether or not a typhoon was expected. On the one hand, one might have thought that if in fact it was a public holiday, if in fact it was raining hard, and if in fact a typhoon was expected a police constable would have remembered these matters. On the other hand, it is of course to be said that the evidence given by the constable was some 3 1/2 months after the incident had occurred. 4. The constable also said in cross-examination that he was one of the party of police officers who were on what is known as anti Pak Pai duty that day; the other police officers being a police inspector and a constable who were waiting for him at the arranged destination which was in fact the place where he was put down by the appellant, namely, at Tat Chi Road near Bernard College. It is a matter for comment that neither the constable nor the police inspector were called as witnesses for the prosecution. The case depended solely upon the uncorroborated testimony of the police constable. 5. The case for the defence was in fact that the police constable had deliberately prevailed upon a reluctant person, namely, the appellant, to give him a lift and then quite falsely charged him with the commission of these offences. The evidence given by the appellant was that it was raining heavily at the time and a typhoon was expected. He said that he was driving to the factory where he worked and that as he was driving along the road a man in civilian clothes stepped out on to the zebra crossing and waved to him to stop. The man was carrying two steering wheels at the time. The man, according to the evidence of the appellant, asked to be given a lift because it was raining hard at the time. The appellant said that he was going to his factory at Kwun Tong. However, the man prevailed upon the appellant to give him a lift, and asked him to put him down near Bernard College. He did so. It was then that the constable falsely accused him of having taken him as a passenger for hire or reward. He denied that he had received any money from the constable and he denied that he had at any time solicited the constable as a passenger for reward. 6. Those were the two conflicting stories which were put before the learned magistrate. As I have said, it is a matter for comment that the prosecution did not think fit to call the police inspector who, after all, was in charge of this anti-Pak-pai squad and was present when the vehicle arrived at its destination near Bernard College. The evidence of the police constable, as I have said, was that the inspector was at that destination. 7. In connection with this matter, it is perhaps of relevance to make reference to the judgment of another magistrate who made certain observations with which I am in complete agreement. These observations were made by the magistrate, Mr. Barnett, in the case of The Queen v. LAU Ho on the 15th of February. In that case the magistrate said:-
The magistrate then went on to say that originally the evidence given in this type of case consisted of one or two constables who boarded the "pak pai" and the police inspector who was present at the destination to which the car, by a pre-arrangement, was driven and who then, therefore, was able to see what happened at the final destination. The learned magistrate went on to say:-
In the present case the defence put forward was that this charge was a complete fabrication. The learned magistrate then went on to say:-
8. Those were the observations made by the magistrate and they were observations with which I am in complete agreement. 9. Turning now to the facts of this case: the learned magistrate has said that the police constable impressed him as an honest and accurate witness. That is an expression of opinion which quite clearly was made by the magistrate on the basis of the evidence which was given before him and after he had seen and heard the witness give evidence. Although it is regrettable that further and additional evidence was not given in this case, the fact remains that here there was a direct conflict of evidence between the two witnesses: the police officer who gave evidence for the prosecution and the appellant himself. Either the constable was a bare-faced perjurer who is clearly not fit to be a police officer and ought to be imprisoned for fabricating a false charge against a perfectly innocent person, or he was telling the truth. There is no room for any possibility of mistake. 10. The learned magistrate, having heard the evidence, was satisfied beyond reasonable doubt that the evidence given by the police officer was the truth. In those circumstances, in my view there are no grounds upon which this court can justifiably say that the learned magistrate ought not to have believed that evidence or, indeed, that the case was not proved beyond reasonable doubt. For these reasons, I am satisfied that this appeal must be dismissed. Representation: |