Ma Kwai Pak v. The Queen
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 689 OF 1970 -----------------
----------------- Coram: Rigby, C.J., Huggins & Pickering, JJ. Date of Judgment: 28 September 1971 ----------------- JUDGMENT ----------------- Pickering, J.: This appeal has been referred to the Full Court by a single judge under the provisions of s.118(1)(d) of the Magistrates Ordinance. This was done not because of any inherent difficulty raised by the grounds of appeal but because the case was associated with Criminal Appeal No. 689 of 1970 which did raise issues suitable for the consideration of the Full Court. It was convenient that the two appeals should be heard upon the same occasion. 2. The appellant was charged at the Western Magistracy with driving a private car for hire or reward and with driving a private car without third party insurance. Upon his trial he was apparently willing to give evidence but his counsel, Miss Fung, submitted that it was unnecessary for him to do so and in the event the appellant neither gave evidence nor made any statement from the dock before his counsel addressed the Court on his behalf. At a resumed hearing however, counsel asked that he be allowed, even at that late stage, to make an unsworn statement and we consider that the learned magistrate acted wisely in exercising his discretion to permit such a statement to be made and so extending a considerable measure of latitude to the appellant. 3. The facts of the case as they emerge from the unsworn statement of the appellant are that a lady whom he knew, a Madam CHUNG Shuk-kuen, boarded his car which he drove to Cadogan Street where he was going to do some work and where he asked his passenger to alight. At that stage the lady gave him a ten-dollar note which he refused to accept, whereupon she said that she was embarrassed and threw a dollar coin on to the seat of the car saying that this was to buy the appellant a cup of coffee. The appellant says that he picked the coin up and threw it back to her at which juncture a Chinese man ran across the road from the opposite side and identified himself as a policeman, displaying his warrant a card and asking the appellant to stop the engine of his car, which the appellant did. After a short interval a second Chinese man came along accompanied by the lady to whom the appellant had given a lift. After identifying himself as a police inspector the second man walked away with the lady to a distance of about twelve feet at which distance a conversation, not overheard by the appellant, took place for a period of more than fifteen minutes. At the end of this period the appellant, still seated in his car, heard an elderly lady telling the inspector in a loud voice that "things should not be done in such a way" as the erstwhile passenger had denied on several occasions that she had paid money; the same comment was made by a man who was standing by. The appellant, having obtained the consent of a policeman who was watching over him, then walked up to the inspector and told him that he knew the lady who had been in his car and that she had tried to give him money but that he had refused to accept it. It was after this, according to the appellant, that the inspector wrote a few sentences in Chinese after some English phrases in his notebook; the Chinese characters being to the effect that one dollar had been given but that the driver denied this. The appellant was then taken to Western Police Station where two one-dollar coins and ten cents were found in his left trouser pocket together with a bag containing coins and seven hundred and twenty dollars in bank notes, which latter the appellant claims was the payrool for factory workers. The police retained the two dollars ten cents and the bag of coins but gave the seven hundred and twenty dollars back to the appellant who was then released upon police bail. 4. The first witness for the appellant was the lady passenger, Madam CHUNG Shuk-kuen whom, upon an application by the prosecution, the learned magistrate permitted to be treated as hostile. 5. The remaining evidence for the prosecution came from Inspector LEUNG Tat-yan and P.C. 10247, CHEUNG Yung-lun, who were the police officers who had spoken to the appellant in Cadogan Street. Both gave evidence to the effect that when the car stopped at Cadogan Street they could clearly see the movements of the persons inside it and saw the lady occupant in the rear seat hold out a one-dollar coin with her right hand to the driver who received it with his left hand by holding his left hand palm upwards over his left shoulder and then transferred the coin to his left trouser pocket. 6. Upon this evidence the learned magistrate convicted the appellant upon the two charges and sentenced him on the first charge to a fine of eighty dollars, coupled with disqualification from driving for a period of twelve months, and upon the second charge to a fine of one hundred and fifty dollars. Against these convictions the appellant now appeals, having abandoned his appeal against sentence at the hearing of the appeal. 7. The first ground of appeal consisted of a bald statement that "The conduct of the trial by the Learned Magistrate was such that justice was neither done nor seen to have been done." We repeat the unanimous opinion of the members of this Court, already stated in Court, that without being supported by any particulars, the alleged ground is not so much a ground of appeal as an unwarranted reflection upon the learned magistrate. In merely ignoring this ill-chosen, ill-phrased and under-nourished "ground of appeal" we are, we consider, treating it with generosity. Many would say that it deserve stricture. 8. The second and third grounds of appeal, which may conveniently be dealt with together, were to the effect that the learned magistrate was wrong in ignoring evidence from the appellant and his passenger that there was no prior agreement for carriage for hire or reward between them and insufficient evidence from which he could or should have drawn the inference of such an agreement. As to this, there was the plainest eye-witness evidence from two witnesses of the passing of money from the lady passenger to the appellant and the acceptance of that money by the appellant; and it was this version of events, rather than the tossing to and fro of a coin as related by the appellant and his passenger, which the learned magistrate believed. There was ample evidence to substantiate the finding that the coin passed between the two and we are quite unable to quarrel with the learned magistrate's inference that the money was handed over as payment for carriage or with his further inference that this was done pursuant to the existence of an agreement, tacit or express, that the carriage of the lady should be rewarded. 9. That is quite possibly sufficient to dispose of this appeal though in deference to the efforts of Mr. Jackson-Lipkin to assist the Court we will not pass over the remaining grounds. 10. Having said that, it is nonetheless impossible to linger upon the fourth and fifth grounds which were to the effect that the learned magistrate was wrong in failing to detect or to appreciate the significance of major conflicts in the evidence of Inspector Leung and Police Constable Cheung, such discrepancies being of such gravity and magnitude that the learned magistrate ought to have rejected their evidence or alternatively ought not to have relied upon it to convict the appellant. In our view, there were no "major conflicts" and we are wholly unable to perceive any "gravity" or "magnitude" in such discrepancies as did exist in the evidence of these two police officers. Indeed, some of these alleged discrepancies, notably those in regard to estimates of distance, were not pressed by Mr. Jackson-Lipkin in court. 11. The sixth ground of appeal was that
12. This ground was based upon the learned magistrate's comment that he accepted the evidence of the police officers and in so far as the defendant's statement conflicted with such evidence, directly or indirectly, he rejected it. This assertion, Mr. Jackson-Lipkin contended, vitiated the entire decision since a magistrate should not look at the prosecution evidence and then the defence evidence but at the evidence as a whole before deciding whether he is satisfied beyond reasonable doubt of the guilt of an accused. That proposition is unexceptionable. But we do not consider that the learned magistrate's remark was directed, at the stage at which it was made, to anything more than credibility, and in that context it was a commonplace remark. He had not then reached the stage of considering satisfaction beyond reasonable doubt and we have no reason to think that when he came to do so he did not apply that test to the evidence as a whole. 13. The final ground of appeal was that the learned magistrate misdirected himself as to the nature and extent of the evidence for the prosecution and that, having rejected entirely the evidence of the passenger, there was no evidence upon which he could have held that she was even travelling in the car. Madam Chung, the passenger, having been declared a hostile witness, the learned magistrate was, of course, perfectly correct in treating her evidence as being of negligible importance (see R. v. Harris, 20 C.A.R. 144). This ground of appeal, as stated, completely misses the fact that there was other evidence of Madam Chung having been driven by the appellant in his car. Both Inspector Leung and P.C. Cheung saw the car in motion, saw it come to a halt and saw the appellant in the driving seat and Madam Chung in the rear seat and it is wholly misconceived to suggest that, because negligible weight should have been, and was, attached to Madam Chung's evidence, there was no evidence of her having been a passenger in the appellant's car. Moreover, the appellant himself did not seek to deny this. 14. Considerable emphasis was placed by Mr. Jackson-Lipkin upon the circumstance that both the appellant and his passenger were acquainted with each other and that the destination to which he drove her was not Wah Fu Estate, where she has her home and where she was intent upon going, but Cadogan Street, which was in fact his own destination. We see nothing in the fact that the two were acquainted to negative an agreement to carry and be carried for reward and, whilst it is not for us to speculate upon the reason for the lady being driven to a destination which was not her eventual destination but the immediate destination of the appellant, there can be no overlooking the eyewitnesses' evidence and no gainsaying the inferences which could be drawn, and in our view were properly drawn, by the learned magistrate from that evidence. 15. As to the matter of it being difficult or impossible for the police officers to have seen the coin placed in the appellant's left hand trouser pocket as he sat in the car, the action of placing the coin into the palm of the appellant's hand was one which they could plainly have seen and the subsequent manoeuvre whereby it was transferred to his trouser pocket as he sat in the driving seat could certainly be seen in its initial stages, the eventual destination of the coin being a matter of the clearest inference supported by the finding of two such coins in the appellant's left trouser pocket when he was asked to turn out his pockets at the police station. 16. We can see little merit in this appeal, which is dismissed. The appeal against sentence, having been abandoned upon the hearing, is also dismissed. Representation: Jackson-Lipkin (Tso & Co.) for appellant. Duckett, S.C.C., for Crown. |