Wong Kwong Tin v. The Queen
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CACC000074/1978 IN THE HIGH COURT OF JUSTICE (Appellate Jurisdiction) CRIMINAL APPEAL NO. 74 OF 1978 -----------------
----------------- Coram: Li, J. Date of Judgment: 25th April 1978 Mr. Sanguinetti and Mr. Cheng Huan (D.L.A.) for appellant Mr. Hiken for Crown ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction. The appellant was convicted of two out of three charges. The appellant was originally charged with three offences. 1. Charge A is taking a conveyance without authority contrary to section 14 (1) of the said Ordinance. 2. Charge B - driving a vehicle without a valid licence. 3. Charge C - driving a vehicle without third party risks insurance. He was acquitted of charge B but convicted of charge A and charge C for which he was sentenced to four months' imprisonment in respect of charge A and a fine of $200 or two months' imprisonment concurrent in respect of charge C, the sentences to be concurrent. 2. It is an unfortunate case in that the appellant had to serve his four months' imprisonment before the appeal can be heard. There is a confusion on the record. It appears that the sentence on the charge C is a farce. Since the sentences of imprisonment were concurrent if the appellant had served his four months he need not pay the fine. If he had paid the fine he still had to serve his four months' imprisonment. 3. As to the unfortunate circumstances that the appellant had served his sentence before the appeal can be heard, I observe that because of the conscientious effort on the part of the learned magistrate, the notes of the proceedings are very long. It took some time to prepare. However, it should not have deterred the appellant in applying for bail pending appeal. In all probabilities, the application would have been granted because the sentence was only for four months and the appellant would have served his sentence before the appeal. 4. the facts leading up to the conviction are that sometime on the 7th October last year, a group of police constables in the Tai Kok Tsui area observed a car which had been reported to them as missing. The car was being driven by two persons. They shouted to them to stop without success. At that time a member of the Auxiliary Police Force attached to the Marine Division of the Police Force heard the outcry. He immediately boarded a taxi to give chase. He chased the vehicle from near Allan Street in the Tai Kok Tsui area down to Bedford Street. According to this particular witness the chase took, in his estimate, about one minute of the car journey. He never lost sight of that missing car. He saw two persons inside the car one driver and one passenger sitting by the side of the driver. The missing car reached stopped near the vicinity of 83 to 85 Bedford Street. A Chinese male ran out from the driver's seat. He instructed the taxi driver to go past the missing car and go after the person who came out from the driver's seat. When the taxi caught up with the running person, this Marine police officer alighted from the taxi and arrested him. 4. In the meanwhile, there were two constables in the Tai Kok Tsui area who gave chase. Somehow, they lost sight of the car. By the time they arrived the appellant had already been apprehended. 5. Separately, there was another group of two officers, one of whom was constable IP. They were in the Sui Yung Street area when they saw the missing car being chased, stopped, a person came out from the driver's side of the car and ran away. When Ip reached the spot where the appellant was caught he saw that the appellant had been arrested. That was the sum total of the evidence. 6. The appellant gave evidence. He called witnesses in support of his defence to say that he was playing bowling at a bowling alley at up to about 10.30 or 11 o'clock. He came out in order to take transport to visit his mother in the vicinity of the Crown Cinema near Bedford Street. He saw a friend offered him a lift. After his friend dropped him, he alighted from his friend's car and was waiting for his friend. While he was waiting for his friend to park the car and return to him he was arrested. That car was the missing car. That was the sum total of the defence evidence. 7. The learned magistrate accepted the evidence that the appellant was the driver of that car. It was a stolen vehicle. He therefore convicted him of the first offence. Before the learned magistrate convicted the appellant, he saw fit to amend the particulars of the charge. The charge originally put was that:
Having heard the evidence of both the prosecution and the defence he saw fit to order that the charge A be amended by adding the word "knowingly" after the word "Colony" and also by substituting the word "drive" for the word "take" in the original charge. Accordingly the charge was amended to read as:
However, on page 3 of the transcript, the Particulars of Offence are recorded to read as follows:
This is yet another confusion on record. 8. The grounds of appeal are that "the Appellant was convicted on a defective amended charge" and" alternatively that assuming the aforesaid charge was good in law, there was no evidence or sufficient evidence in law to sustain and maintain the conviction." 9. I will take the first ground first. It is alleged by learned counsel for the appellant that the charge as amended is defective. Alternatively, that the charge was not amended in accordance with the order of the learned magistrate. I have already referred to the confusion. It is true that the charge as amended was not in accordance, strictly speaking, with the order of the learned magistrate. That is not fatal. Section 14(1) of the Ordinance reads:
Thus, the offence as known and created by this section is one of taking a conveyance without the owner's consent or other lawful authority. The second offence is knowing that the conveyance had been taken without such consent or authority, drives it. The third offence is that knowing that such vehicle had been taken without the aforesaid authority allowed himself to be carried on or in it. First of all the Statement of Offence is at variance with the Particulars of Offence. The Statement of Offence is the taking of a conveyance without authority. The Particulars of Offence have been amended to driving of a conveyance knowing that it had been taken without authority. In any event, after the amendment, even if it had been amended in accordance with the learned magistrate's order, the charge would have disclosed no offence in law. It charges that the appellant did knowingly drive a conveyance without the consent of the owner or other lawful authority. It did not say that he knew that the conveyance had been taken without lawful authority or taken without the consent of the owner. The word "knowingly" could only be construed as qualifying the word "drives" meaning that the appellant knew what he was doing and that he drove the car willingly away. 10. Learned counsel for the Crown concedes that the charge was defective. He contends that there has been no prejudice to the appellant. As such, no injustice has been done. He invites me to apply the proviso and to uphold the verdict. I cannot see how I can apply the proviso when the charge is defective. The appellant is quite entitled to rely on something which goes not only to the technicality of the charge. Admittedly it is a technical error. But the technical error has rendered the charge substantially defective by disclosing no offence. For this reason, without having to consider whether there is evidence in support of the A charge, the appeal regarding the A charge must be allowed and the conviction quashed. I will be shirking my duty if I do not, however, make some comment on the learned magistrate's finding. It is obvious that he was satisfied with the identity of the appellant. He did consiider the evidence in detail. Unfortunately, he did not say so in so many words in his Statement of Findings. 11. At page 57 of the transcript he said that:
12. In this respect I observe that it was on IP's evidence that the appellant was identified. Ip had the opportunity to observe his face at the fleeting moment when the appellant turned his head. In two seconds Ip had to register in his mind the number of the stolen vehicle and the colour of the vehicle as well as the colour of the appellant's shirt. 13. The learned magistrate went on:
14. It is true that he found as a fact that the appellant knew it was a stolen car. But the charge in the Particulars of Offence did not so allege. As to his assessment of the evidence, it is true that he has not reiterated in so many words the defence case. But the record shows that he had evaluated the evidence and particularly, having regard to the fact that at least three witnesses said that the appellant came out from the driver's side of the car and one witness said he came out from the driver's seat, I am of the opinion that the learned magistrate could have formed the conclusion that the identification was not only by direct evidence of one witness but also by circumstantial evidence. 15. It is common sense that the person in the driver's seat of a moving vehicle must have been the driver unless one can drive by remote control. For this reason I will not query the learned magistrate's finding that the appellant was the driver. Perhaps, as a matter of passing remark, the appellant was, to a certain measure, slightly compensated in the fact that despite his serving the sentence on the defective charge or invalid charge he was acquitted of a valid charge because on page 47 of the transcript the learned magistrate acquitted him of the B charge. The magistrate is recorded on that page to have said:
16. First of all, I do not understand the full meaning of these two lines even reading it in context with other parts of the transcript. One thing is quite plain to me. The appellant was acquitted of charge B simply because there was no evidence that he did not hold a driving licence. In a matter of this nature I should like to correct an error. When a person is charged for doing something without a licence, it is up to the accused to show that he has licence or lawful authority because such matter is peculiarly within the knowledge of the accused. It is not for the prosecution to prove that the accused had no licence. 17. As to the third charge, the ground of appeal is that there was no evidence or sufficient evidence in law to sustain and maintain the conviction, particularly having regard to the fact that the learned magistrate acquitted the appellant of charge B. The magistrate's finding is that the appellant was the driver of the vehicle that was missing. There is evidence by the owner of the missing vehicle that he had not authorised any person to drive the vehicle and that the insurance policy he took out would not cover any person he saw in court on that particular day to drive that vehicle. It is a logical conclusion that the appellant was caught driving the vehicle while he had not third party risks insurance covered. What appear to me is that the learned magistrate had first found that the appellant was the driver of the missing or stolen vehicle. For this reason he convicted the appellant of charge A. But the magistrate came to the wrong conclusion that the prosecution had to prove that the appellant did not hold a driving licence. Therefore he acquitted the appellant of charge B. He is logical in his finding as far as driving part was concerned. He found the appellant the driver of that missing or stolen vehicle when that vehicle had not an insurance policy covering third party risks when driven by the appellant. Thus he convicted the appellant of charge C. 18. For the reasons I have given that I cannot revive a defective charge which discloses no offence. The appeal against conviction in respect of charge A must be allowed and the sentence is set aside. 19. As to the third charge, I find that the learned magistrate had evidence and had reason to find that the appellant was the driver of the stolen vehicle and that the appellant was not covered by third party risk insurance. I will not interfere with the verdict vis-a-vis charge C. The appeal against conviction in respect of charge C is dismissed. The net result is that the appellant need not be penalised for charge C because he had already served his sentence. Representation: Mr. Sanguinetti and Mr. Cheng Huan (D.L.A.) for appellant Mr. Hiken for Crown |