Shum Shu Pui v. The Queen

CACC000815/1978

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Coram: Li, J. in Court

Date of Judgment: 27th October, 1978

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JUDGMENT

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1. The Appellant was convicted of two offences, one of failing to conform with a 'No Stopping' sign and the other of neglecting the direction of a police officer in uniform. He appealed against conviction on the grounds, in addition to the general grounds, that the learned trial Magistrate wrongly permitted questions to be asked of the Appellant as to his previous convictions, such evidence being inadmissible in that it was both prejudicial and irrelevant to any issue then before the court and that the learned trial Magistrate wrongly took the said inadmissible evidence into account and expressly relied in part on the same as proof of the Appellant's guilt on the offences charged.

2. The facts are comparatively simple. On the material date the Appellant who was the driver of a public light bus was seen by a police officer to have stopped near a traffic light where he should not have stopped to allow boarding or disembarking or passengers. He was told to stop by the police officer. He ignored that signal and drove on. That is the sum total of the prosecution evidence.

3. The Appellant in the lower court elected to give evidence in the course of his evidence he said:-

"I would not deliberately pick up passengers in a restricted area if there was police officer standing in front of my vehicle. If he was in front of me he could merely stop my vehicle. The road only wide enough for one vehicle in each direction. The time was shortly after 6 p.m. There would be lots of traffic on the road. I have not committed any offence. I would not try to drive away if I had been guilty of an offence."

That apparently was taken by the prosecution as well as the trial Magistrate as an allegation that he had not committed any previous offence. The prosecution then embarked on a series of questions which tended to show his previous offences and previous convictions. Such evidence is clearly inadmissible and such questions should never have been put.

4. In his finding the learned Magistrate said:-

"The Appellant was then questioned about certain traffic offences of picking up and setting down in restricted areas and about the fact that he had 7 convictions of which 3 were committed prior to these offences and 4 subsequently and the Appellant agreed that he signed P5 ..."

That is the response to the notice sent to him by the police.

"... but said he made no attempt to check if he was actually driving that vehicle at that time."

Later in the 9th paragraph of the statement of findings, the Magistrate said:-

"Furthermore the Appellant did say that he had committed no offence which was later shown to be inaccurate but of course he could have been saying that he had committed no criminal offences but he did not qualify his statement."

If the Magistrate was in doubt as to what meaning the Appellant had when he said he had committed no offence, it was for him to find out. If he was in doubt and had not found out, it is for him to give the Appellant the benefit of the doubt. As it stands, the Magistrate, in my view, has wrongly taken the evidence of statements as referring to his previous goods character, a view to which I cannot subscribe.

5. It is abundantly clear from the Appellant's evidence that when he was giving evidence as to the event on the material date, he said that he had not committed any offence and if he had, he would not have tried to drive away had he been guilty of any offence. To my mind, there is no doubt that the Appellant, when he gave evidence, only referred to that particular occasion when he said he committed no offence.

6. It is also obvious from the statement of findings that the learned Magistrate took such previous conviction into consideration as part of his reasons for finding the Appellant guilty. In other words, inadmissible evidence had been used as the basis of the Appellant's conviction. In the circumstances, the conviction is obviously unjustifiable, the conviction cannot be supported and the conviction must be quashed. For these reasons, the appeal is allowed, the conviction is quashed and the sentence is set aside.

Representation:

Mr. W. Yeung (D.L.A.) for Appellant

Mr. J.M. Duffy, c.c. for Crown