THE QUEEN v. MA WAI HUNG

HCMA000810/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 810 OF 1990

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BETWEEN

	THE QUEEN
	AND
	MA WAI HUNG

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 1 August 1990

Date of Judgment: 1 August 1990

Date of Reasons for Judgment Handing Down: 13 August 1990

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JUDGMENT

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1. The Appellant pleaded not guilty to a charge of Careless Driving. The undisputed evidence at his trial was that he was the driver of a light goods vehicle which collided with the "dividing kerb" of Tuen Mei Road near Tuen Run Road at about 8 pm on 16th November, 1989 and then rolled over to come to rest upside down. He was taken to hospital where he was interviewed that same night by a police officer attached to the Traffic Accident Investigation Unit. When that officer asked him how the accident occurred he said that when he reached "the accident spot a blackness emerged in front of his eyes, that his vehicle crashed on to the centre dividing kerb and that he didn't know why he experienced blackness". In cross-examination the officer was asked whether the Appellant said anything further about the emergence of the blackness and his reply was: "At that time he told me he had sustained injury, that he felt uncomfortable and couldn't recall anything". The only other witness called by the Prosecution was another officer from the Traffic Accident Investigation Unit who drew a sketch of the scene and described the damage he found on the vehicle, the dividing kerb and a lamp post nearby. He also took a statement from the Appellant when he reported to a police station on 19th November, 1989. He gave no evidence about the taking of that statement in evidence in chief but his evidence in cross-examination is recorded as follows:-

"	Q.	On 19th November did you take a statement from defendant?
	A.	Yes.
		It is self-serving."

2. Following that there is a line drawn horizontally, across the page followed by a note reading "No further question", which is followed by a further note reading "No re-examination". That note is followed by a note of a defence submission of No Case to Answer.

3. The learned magistrate ruled that there was a case to answer but the Appellant neither gave nor called any evidence. He was convicted, fined $1,000 and disqualified from driving all classes of vehicle for 12 months. He now appeals against the conviction and the disqualification order.

4. In his Statement of Findings the learned magistrate said:-

"When reaching my judgment I carefully considered the facts of the case, namely the clear marking of the area, the warnings, the damage done to the vehicle and the distance involved (which gave rise to a finding of some speed). I also took note that the Appellant was conscious when interviewed shortly after the accident by PW1: Further that at no stage did the defendant give an explanation as to what happened.

I found that, per Wilkinson 1/318, in the absence of any explanation from the defendant (either at the scene or in court), the only conclusion that it was possible to draw was that the Defendant was negligent or had departed from what a reasonably prudent and competent driver would have done in the circumstances'. Accordingly I convicted him of careless driving."

5. One of the main grounds of appeal against conviction relates to the magistrate's refusal to admit in evidence the statement made on 19th November, 1989 solely on the basis that it was a self-serving statement. In support of this ground Mr. McCoy,  who appeared for the Appellant on, the hearing of this appeal, referred me to R.v. LIU Yu-ngor [1990] 1 HKLR 20 where de Basto, J., quashed a conviction because a magistrate had similarly refused to admit an exculpatory statement made to a police officer. That decision is an illustration of the application of principle 2(a) in PEARCE (1979) 69 Cr. App. R. 365 which reads as follows:-

"A statement that was not an admission was admissible to show the attitude of the accused at the time when he made it. That, however, was not to be limited to a statement made on the first encounter with the police. The longer the time that had elapsed after the first encounter the less the weight which would be attached to the denial. The judge was able to direct the jury about the value of such statements."

6. Here, the learned magistrate regarded it as important to know whether, immediately after the accident, the Appellant had an explanation other than lack of care for a manoeuvre which, without such an explanation, must have been due to careless driving. What the police officer related was, on one possible view of the statement of 19th November, 1989, only part of that explanation. The statement could not be admitted as evidence capable of affording proof of how the accident did occur but it was relevant as part of the proof that the Appellant did react with an explanation.

7. I think that the learned magistrate did err in refusing to admit the statement solely because it was a self-serving statement. If he had ruled that it was a self-serving statement which had no bearing on the Appellant's reaction when questioned about the incident then his ruling would have been unassailable. But to rule, as the record suggests that he did, that the statement was inadmissible solely because it was self-serving was an error of law.

8. The Appellant relied on another around of appeal based on the learned magistrate's disclosure that he looked for an explanation from the Appellant but I do not need to consider that matter. I find that there is substance in the first ground and accordingly allow the appeal and quash the conviction.

	(E.C. Barnes)
	Judge of the High Court

Representation:

Mr. A.E. Schapel, S.C.C. for Crown.

Mr. M. McCoy (Cheung, Yeung & Co.) for Appellant.