HKSAR v. Khan, Rafique

HCMA614/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 614 OF 2008

(ON APPEAL FROM KCS2138/2008, KCS2139/2008, KCS2140/2008)

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BETWEEN

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Before: Hon Line J in Court

Date of Hearing:  12 January 2010

Date of Judgment:  12 January 2010

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J U D G M E N T

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1.This is an appeal against convictions for careless driving, failing to stop after an accident and failing to report an accident.

2.PW1, at the material time, was driving his taxi, with a passenger in it, on Austin Road. He told the magistrate that a vehicle cut into his lane, it was a van, and there was a slow speed impact between the two vehicles. It left damage. The other vehicle, the van, did not stop and drove away. He followed it for a while and saw it turn into Temple Street. Because he had a passenger he gave up the chase.

3.However, he said some two minutes passed - he was back in Austin Road at this stage - when he saw the same vehicle again, and that he then followed it and made a report to the police, but by the time the police got there it had gone. He told the magistrate that after the initial impact the chase lasted three to four seconds, during which he was able to see and write down the number of the van. He also said that the van was driven by a male who appeared to be of Pakistani or Indian origin.

4.Because he had given a registration number to the police they sent out the usual document requesting identification of the driver at the relevant time and place, making clear in that document that the allegation was that there had been careless driving there and then. The appellant acknowledged, in returning that form, that he was the driver at the material time and place.

5.Two points are taken in this appeal, although the grounds that had been put in originally covered more: firstly, that there must be doubt about the identification of the vehicle in question; and secondly, that there was a failure properly to evaluate the defence evidence, for it was the case that both the appellant and his cousin gave evidence. The appellant denied that he was driving at the time and place in question. He conceded that he had been aware that the allegation of careless driving at the relevant time and place was made in the document sent to him and that he signed it nonetheless. He told the magistrate that he was with his cousin at the time of the accident and the cousin was also called to give evidence to say that that was the case.

6.Let me take the point about identity first. The argument is that it would be too difficult to make a proper record in the time available. All I need say is I disagree. In circumstances such as this where there has been a road traffic accidents at slow speed, the wronged driver has plenty of capacity and stimulus to note for recall the number of the vehicle that has offended.

7.The second point is that there could have been a mistake in his recording the number. I reject that argument. One only has to look at the facts that it turns out that the owner of the van does happen to be someone who is either of Indian or Pakistani origin, and that the van has upon it at the relevant point of impact and at the same height, damage which would be expected from the collision described by PW1.

8.Putting those facts together, it would be inherently unlikely that a mistake had been made. Add to that the admission by the appellant that he was the driver at the time, and the case becomes overwhelming. The explanation that the appellant gave for signing the document saying that he was the driver at the relevant time and place was that it was a government document, and therefore he thought he ought to take that course. His cousin was with him when that course was taken, explaining to him - because he was the one who spoke English and read it - explaining the nature of the notice that had been sent. When cross-examined, he was asked, “Well, didn’t you try and persuade your cousin not to fill it in because you knew” - as this was the alibi witness as well - “he wasn’t driving at that time and place.” The witness said that he had tried to persuade him, but the appellant had said he would acknowledge being the driver because it was a government letter he had received and he feared being summonsed if he did not say he was the driver. One only has to repeat those reasons to see how weak they are.

9.The magistrate saw and heard the appellant and his witness, and he rejected their evidence. He was not impressed at all by their demeanour. That was something he was entitled to rely upon. He did not base his judgment just on demeanour. At paragraph 22 of the Statement of Findings he sets out a number of matters which made him doubt their evidence. He would have been quite entitled to say their evidence simply could not live with the strength of the prosecution’s case. That was a view - if he had taken it - I would have shared.

10.However, I see no reason not to rely on those points made at paragraph 22 of the Statement of Findings. There was a significant difference between the two witnesses called for the defence about what happened when it was realised that, at the material time and place alleged in the notice, that the appellant could not have been there, who told whom. It was also the case that the alibi proceeded on the basis of what had happened on the evening of the day in question. The prosecutor then pointed out that this was not about the evening of 18 August. It was about 12.30 am on that day. In other words, the events in question had occurred the previous night and not the one initially spoken to.

11.On the material before me, I have absolutely no doubt that this van was properly identified, and once that was the case it followed that the appellant was truly identified as the driver, he having conceded at the trial that he was the only one with the key to the vehicle at the material time.

(Discussion re costs)

12.One final point I ought to mention is that the police officer who was called to give evidence was asked how long it would have taken for a vehicle to go into Temple Street, come back to Austin Road and go to Nathan Road. He said 10 to 15 minutes. That was obviously something different from the 2 minutes which had been referred to by the appellant as being the time lag between the two sightings of the van in question. It was argued this affected the credibility of PW1 and made the identification of the van uncertain.

13.I disagree. The point was based on estimates. It depended on the traffic conditions, as was conceded at the trial and noted by the magistrate. But even if PW1 had made a mistake about the identification of the van on the second occasion, what really mattered was the scope for identification of the van the first time the two vehicles met. The matter raised no doubt in my mind, given the strength of the prosecution’s evidence as to the correct identification of the van.

14.Accordingly, I have no doubt these convictions were good ones, and that the appeals against them are dismissed.

Mr Martin Hui, Senior Public Prosecutor of the Department of Justice, for the Respondent

Ms Mahinder Panesar, instructed by Jal N. Karbhari & Co., for the Appellant