HKSAR v. Fok, James Alistair

HCMA 82/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 82 OF 2015

(On appeal from KCS No 27530 of 2014)

_______________________

_______________________

_______________________

J U D G M E N T

_______________________

Introduction

1.The appellant appeals his conviction after trial before Special Magistrate Andrew Mok, in Tsuen Wan Magistracy, on 14 January 2015, for careless driving for which he was fined $1,200. 

Background facts

2.On 19 April 2014, at about 11:55am, a police officer was on traffic duties at Prince Edward Road West near Tai Nam Street, Mongkok.  At that time the appellant was driving his motor-vehicle along the southbound carriageway of Lai Chi Kok Road when he turned left into the left first lane of the eastbound carriageway of Prince Edward Road West contrary to traffic signs that the carriageways were “Ahead Only” which meant that no left turn was permitted. 

3.Upon entering Prince Edward Road West the appellant drove through a pedestrian crossing which was regulated by traffic lights.  It was the police officer’s evidence that the pedestrian traffic lights were green when the defendant drove through the pedestrian crossing and that as a consequence a female pedestrian had to quicken her pace to avoid being hit by his vehicle. 

The “plainly wrong” test

4.The principles relating to a magistracy appeal are well settled.  As noted by McWalters J (as he then was) in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, a magistracy appeal is a rehearing on the papers.  He explained at paras 59 and 60 that the duty of the appellate court was not to determine whether error had been made, and if so what the consequence of such an error would be as if conducting an appeal in the strict sense, but rather whether any error that had been identified prevented the appellate court from performing its statutory duty of conducting a rehearing. He noted that if the appellate court could conduct the rehearing that it should do so and if it could not then it should allow the appeal, making such order or orders as seen to it, in the circumstances, to be just.  He further noted that even if no error had been identified and no ground of appeal made out then that was not the end of the matter as the duty on the appellate court was to conduct a rehearing and that it should do for its ultimate duty is to determine whether it is satisfied beyond reasonable doubt of the guilt of the appellant. 

5.McWalters J summarised the relevant legal principles at para 66 by providing eight statements of principle of which the last four are of particular relevance to the conduct of a magistracy appeal and to the discussion in this judgment.  They state that:

“(5) The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong.

(6) Error by the magistrate, especially one constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(7) The test in determining whether an error by a magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(8)  Absent the appellate court identifying any error by the magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing.  This requires the appellate court to be satisfied that on the evidence adduced by the prosecution.  The guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.”

6.The particular difficulty for an appellate court in the conduct of a magistracy appeal is when it is invited to interfere with the magistrate’s assessment of the credibility of a witness.  The magistrate has had the advantage of seeing and hearing the witness and is in a better position to assess his credibility.  It is for that reason that an appellate court will only depart from a magistrate’s determination of a witness’s credibility if it is plainly wrong.  McWalters J at paras 32 and 33 provides a useful discussion on the limitation on an appellate court of not having seen and heard the witnesses.  This issue leads to the next question as to how an appellate court determines whether a magistrate was “plainly wrong” in his assessment of the credibility of witness. 

7.The “plainly wrong” test was discussed and explained by the Supreme Court of England and Wales in McGraddie v McGraddie [2013] UKSC 58 and Henderson v Foxworth Investments Ltd and Anor [2014] SCLR 692.  In both cases, Lord Reed gave the judgment of the court in which he addressed the test of “plainly wrong” in the context of an appeal stricto sensu.  Lord Reed in Henderson considered the meaning of the test of “plainly wrong” and said:

“62. … There is a risk that it may be misunderstood. The adverb ‘plainly’ does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

63. In Thomas itself, Lord Thankerton, with whose reasoning Lord Macmillan, Lord Simonds and Lord du Parcq agreed, said that in the absence of a misdirection of himself by the trial judge, an appellate court which was disposed to come to a different conclusion on the evidence should not do so ‘unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusion’: p.54; pp.487-488.

64. Lord du Parcq’s speech is to similar effect. Distinguishing the instant case from “those very rare occasions” on which an appellate court would be justified in finding that the trial judge had formed a wrong opinion, he said:

‘There are, no doubt, cases in which it is proper to say, after reading the printed record, that, after making allowance for possible exaggeration and giving full weight to the judge’s estimate of the witnesses, no conclusion is possible except that his decision was wrong’ (p.63; p.493).

65. Viscount Simon, while disagreeing as to the result of the appeal, also emphasised the need for the appellate court to consider whether the trial judge’s decision could reasonably be regarded as justified:

‘If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight’ (p.47; p.486).

66. These dicta are couched in different language, but they are to the same general effect, and assist in understanding what Lord Macmillan is likely to have intended when he said that the trial judge might be shown ‘otherwise to have gone plainly wrong’. Consistently with the approach adopted by Lord Thankerton in particular, the phrase can be understood as signifying that the decision of the trial judge cannot reasonably be explained or justified.

67.  It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the marking of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

8.Lord Reed’s comments were in relation to an appeal in the strict sense where the question is whether there is an error on the record as compared to an appeal by way of rehearing.  This distinction was explained by McWalters J in Ip Chin Kei at para 24 where he said:

“The duties that are performed on an appeal by way of a hearing de novo and an appeal by way of rehearing are very much trial duties and are quite different from the duties performed by an appellate court hearing an appeal in the strict sense. An appeal in the strict sense requires that an error be demonstrated before the appellate court can act. The appeal court, acting as a court of error, is not concerned with whether it agrees with the trial judge’s findings, even less with whether it would have made those same findings. It cannot substitute what it would have found for what the trial judge found unless and only unless it has been demonstrated to it that the trial judge erred.”

9.With these comments in mind, the “plainly wrong” test, as stated by Lord Reed has, where appropriate, application when assessing a magistrate’s finding as to a witness’s credibility.  Nevertheless, as observed by McWalters J in Ip Chin Kei at paras 50 to 56, on a rehearing, an appellate court is operating under limitations which may, depending on the circumstances of the case, make it impermissible for the appellate court to form a view on credibility of a witness in substitution for the view of the magistrate.  He suggested that were the appellate court to find that the magistrate’s reasoning in his assessment of a witness was defective in some way rendering his assessment unreliable, then it would be inappropriate for the appellate court to make its own assessment of such a witness just on the transcript and the appeal would then have to be allowed with or without an order for retrial.  I agree.

10.In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified.  In other words, whether the finding was one that no reasonable magistrate could have reached. 

The case at trial

11.It was not in dispute at trial that the appellant made the left turn into the eastbound carriageway of Prince Edward Road West, contrary to the traffic signs but he took issue with the police officer’s evidence that he drove through a pedestrian crossing when a female pedestrian was crossing it.  The appellant did not take issue that he drove through the pedestrian crossing when the pedestrian traffic lights were green.  His case was that the pedestrian traffic lights could only be seen by the pedestrians using the crossing and he did not see that they were green at the time, and that in any event, there were no pedestrians using the crossing when he drove through it.

12.The only evidence at trial came from the police officer.  The appellant elected not to give evidence.  The magistrate had to be first satisfied of the evidence and upon being so satisfied make appropriate findings in order to determine whether the offence of careless driving had been proved beyond reasonable doubt.  That was the way the magistrate approached the case.

13.The defence case was directed at challenging the evidence of the police officer on whether in fact there was a female pedestrian on the pedestrian crossing at the time.  The critical issue, therefore, for the magistrate was whether or not he should accept the evidence of the police officer on this matter.  That is how the magistrate approached the case in his analysis of the evidence as contained in his statement of findings.

The police officer’s evidence

14.The evidence of the police officer was that upon seeing the appellant’s vehicle making an illegal left turn into Prince Edward Road West, he observed that it maintained its speed and crossed the pedestrian crossing at a time when the pedestrian traffic signals were green and there were four pedestrians crossing the road.  He estimated the vehicle’s speed was 20 to 30 km/h.  The four pedestrians were in a line one after the other and the last was a female pedestrian who had to quicken her pace in order to avoid the vehicle.  She was the closest to the vehicle at a distance of around a metre.  He then instructed the appellant to turn left into Tai Nam Street and pointed out to him that he had committed a traffic violation. 

15.The police officer told the appellant that vehicles could not turn left into Prince Edward Road West from Lai Chi Kok Road.  The appellant told him that he did not see any signs prohibiting vehicles from turning left into the road.  He said he kept on repeating this and he therefore told him that he and another police officer could bring him back to Lai Chi Kok Road to check on the road signs.  They went back to the location and the police officer pointed out to the appellant the road markings and the “Ahead Only” sign and the green light of the traffic signals which also showed “Ahead Only”.  He said that he pointed out to him that when the green light on Lai Chi Kok Road was on the pedestrian traffic signal on Prince Edward Road West would be green and there would be pedestrians crossing the road.  He confirmed that he told this to the appellant and what he meant was that if he turned left into Prince Edward Road West when the traffic light was green, there would be a chance that he would hit someone.  He said he told him this on the basis that he claimed that he could not see any road signs prohibiting vehicles from turning left into Prince Edward Road West. 

16.The police officer confirmed that he knew that when the traffic lights on Lai Chi Kok Road were green, the pedestrian crossing lights on Prince Edward Road West would also be green because he observed the traffic lights beforehand. 

17.The police officer then took the appellant back to his vehicle and told him he violated the offence of careless driving.

Defence challenge to the police officer’s evidence

18.The police officer was questioned as to why he did not mention to the appellant that a female pedestrian had been affected by the manner of his driving immediately upon intercepting him.  He explained that the root cause of the female pedestrian having to quicken her pace was as a result of the appellant making an illegal left hand turn into Prince Edward Road West and so it was therefore natural that that would be the first thing he would tell the appellant when he intercepted him. 

19.By this point the defence were seeking to show that the police officer was fabricating the existence of the female pedestrian and that was why he made no mention of her when he intercepted the appellant. The magistrate accepted the police officer’s explanation and he found that it was entirely reasonable for the police officer to emphasise with the appellant that he had disobeyed the traffic signs without mentioning the female pedestrian.  The magistrate also accepted that it was reasonable for the police officer, having been told by the appellant that he could not see the traffic signs, to check to see if they were clearly visible and free from any obstruction. 

20.The police officer was also questioned about when he first saw the female pedestrian step onto the pedestrian crossing and where was the appellant’s vehicle located at that time.  The police officer was not able to recall precisely and the defence argued that this evidenced that he was not telling the truth about the female pedestrian.  The magistrate found that this was understandable given that the police officer was focused on the appellant’s vehicle.  The point was also made by the defence that there was no evidence as to why the female pedestrian quickened her pace but the magistrate found on the evidence that the only reasonable inference was that the appellant’s vehicle went through the pedestrian crossing without slowing down or stopping.  The magistrate particularly noted that at the time the appellant’s vehicle went through the pedestrian crossing the traffic lights regulating the pedestrian crossing were green and that the appellant’s vehicle was about 1 metre away from the female pedestrian when he drove through the pedestrian crossing.

The appellant’s appeal

21.The issues now raised on appeal are the same issues that were raised before the magistrate which he carefully examined and rejected, and upon accepting the evidence of the police officer convicted the appellant for careless driving.

22.Mr Leung Chun Keung, counsel for the appellant, argued three grounds of appeal. 

Ground 1

23.The first ground was that the magistrate was wrong in accepting the evidence of the police officer. 

24.Mr Leung submitted that no reasonable magistrate would have accepted the explanation put forward by the police officer as to why he did not mention to the appellant at the scene that a woman pedestrian had to quicken her pace to avoid his vehicle.  He argued that it was unimaginable that the police officer would forget to tell the appellant this accusation and the explanation he put forward as to why he did not mention it lacked credibility.

25.The police officer explained that when he intercepted the appellant and informed him that he had made an illegal turn, the appellant said he could not see any sign prohibiting a left turn, so the police officer together with another police officer, took the appellant to check the signs.  The police officer explained that he forgot to mention the matter about the woman pedestrian at a later stage.  That was a perfectly plausible explanation which the magistrate accepted.  There is absolutely no substance to this ground and amounts to no more than just a bare disagreement with the magistrate’s finding.

26.Mr Leung went to a passage of the transcript of the police officer’s evidence where he testified about what he said to the appellant when checking the traffic signals.  He said that the traffic signal would be green and there would be pedestrians crossing the road and there would be a chance that he would hit someone.  It will be recalled that the police officer gave this testimony when recounting the discussion with the appellant when he went to the location to check the traffic signs and explained why a left turn was not permitted.  He was pointing out to the appellant the consequences of making an illegal left turn.  There is no substance to this point.

27.Mr Leung also complained about the police officer’s evidence that he did not stop the woman pedestrian in question.  The police officer testified that his attention was drawn to the appellant’s vehicle and that he immediately directed him to turn into Tai Nam Street because the stretch of road was rather busy.  The magistrate rightly dismissed this matter in his statement of findings and said:

“13. I also find it entirely reasonable and logical that by the time PC 8039 has intercepted the Defendant’s vehicle, the female pedestrian is long gone. It is simply not realistic to expect the police officer to focus on the pedestrian affected instead of the offending vehicle under those circumstances. I therefore find PC 8039’s explanation for failing to intercept the female pedestrian concerned reasonable.”

28.By this ground Mr Leung argued that the magistrate was plainly wrong to accept the evidence of the police officer.  There is nothing of substance in the points advanced by the appellant to remotely suggest that the magistrate was plainly wrong in accepting the evidence of the police officer.  It was open to the magistrate to regard the police officer’s explanations as reasonable and accept his evidence.  It cannot be said that his finding was one that no reasonable magistrate could have reached.  The magistrate found the police officer to be an honest and reliable witness and he accepted his evidence as the truth.  It should be noted that the only evidence before the magistrate was the evidence of the police officer and as a consequence there was no evidence to contradict his evidence once it was accepted.

Ground 2

29.The second ground was that the magistrate erred in drawing the inference that the reason why the woman pedestrian quickened her pace was because she wanted to avoid being hit by the appellant’s vehicle. 

30.Mr Leung put the proposition that a driver approaching a pedestrian crossing could not be guilty of careless driving simply because someone using the crossing had to quicken his pace upon seeing the driver’s vehicle approaching.  He explained that this was because the vehicle may be quite far away and the driver in fact may have easily stopped his vehicle before the pedestrian crossing if the pedestrian had not quickened his pace.  He then noted that the police officer’s evidence that the closest distance between the offside part of the appellant’s vehicle and the female pedestrian was around 1 metre and he submitted that to drive past a pedestrian walking away from a vehicle which was travelling 20 km/h and at a distance 1 metre away could not be said to be unsafe. 

31.The magistrate rightly rejected the submission as I do.  It is not based on a complete and faithful account of all the evidence that was before the magistrate which included that the appellant made an illegal turn into Prince Edward Road West, that he was travelling at a speed of 20 to 30 km/h, that he drove through a pedestrian crossing when the traffic lights were green, that he maintained his speed and did not slow down or stop his vehicle, that there were four pedestrians on the crossing, that a woman pedestrian quickened her pace when his vehicle was approaching the crossing, and that when his vehicle was around 1 metre away from the woman pedestrian when driving through the crossing. 

32.The error of the appellant’s submissions is they focus on questioning and expressing an opinion of the evidence and not concentrate on the actual evidence itself.  The issue as to why the woman pedestrian quickened her pace ignores the fact that she did quicken her pace when the appellant’s vehicle was approaching the pedestrian crossing.  The significant evidence was that there were pedestrians on the crossing and that the appellant drove through the crossing at the time. 

33.A person drives carelessly if on a road he drives his vehicle without due care and attention all without reasonable consideration for other persons using the road.  See s 38(2) of the Road Traffic Ordinance, Cap 374.  On the facts of this case the elements of careless driving are in my view clearly satisfied. 

Ground 3

34.The third ground was that the magistrate wrongly rejected that the appellant’s case that he could have stopped before the pedestrian crossing if there were pedestrians using the crossing at the time and that his method of assessment in determining whether the appellant could stop his vehicle in time given the speed that he was travelling was flawed. The appellant’s case was based on conjecture and ignored the uncontradicted evidence of the police officer. 

35.The point that was being made by Mr Leung before me and at trial was that the appellant could have stopped his vehicle and would have done so, if there were pedestrians on the crossing, but he didn’t do so because there were no pedestrians on the crossing.  It was a circular argument without evidence to support it.  There is no substance to this ground of appeal. 

Conclusion

36.I am satisfied that the magistrate fairly and properly considered the issues raised by the appellant and was not plainly wrong in his finding as to the credibility of the police officer.  The submissions of the appellant were no more than an attempt to second-guess the findings made by the magistrate and to re‑argue the same points made to him which he fully considered and properly rejected.

37.I find no basis to interfere with the magistrate’s findings of fact and his assessment of the credibility of the police officer.  The evidence proved to the requisite standard the guilt of the appellant of the offence of careless driving.

38.For the foregoing reasons, the appellant’s appeal is accordingly dismissed.

Mr Prakash L Daryanani, SPP of the Department of Justice, for HKSAR

Mr Leung Chun Keung, instructed by Cheung, Chan & Chung, for the appellant