Case Detail

HCMA001120A/2001

HCMA 1120/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1120 OF 2001

(ON APPEAL FROM KCS 900001/2001)

_______________

BETWEEN
	HKSAR	Respondent

	AND

	LI SEE MING ALVIN	Appellant

________________

Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 27 September 2002

Date of Judgment: 27 September 2002

_______________

J U D G M E N T

_______________

1. This application this morning by the Appellant in person is for a certificate to appeal to the Court of Final Appeal on the ground that there is a question of great and general public importance.

2. The facts are the Appellant was convicted in the Magistrate's Court of the charge of knowingly making a false statement when he supplied particulars required from him pursuant to s.63(1) of the Road Traffic Ordinance, Cap. 374. He had stated in that statement that his vehicle, bearing registration number HF 1865, was parked at the public carpark at Yuen Wo Road near the fire station at 3:22 p.m. on 2 October 2000.

3. The Appellant's appeal from the Magistrate's conviction was dismissed by me and the Appellant now raises basically three points in support of his application for leave today. First is that the learned Magistrate in convicting the Appellant did not properly take into account the requirement under the case of R v. Browning [1992] Vol. 94 Criminal Appeal Report at page 109. The case of Browning referred to the identification of a motor vehicle and the Court of Appeal in England stated that the Turnbull direction was not required and that it was sufficient for the judge to direct the jury:-

(i) as to each witness's opportunity to identify the car;
(ii) as to each witness's knowledge of different types of cars; and
(iii) as to each witness' recollection of what he had seen rather than what information he might have absorbed from elsewhere.

4. This matter was not particularly canvassed on his appeal before me by Counsel representing the Appellant, the appeal before me focused on the fact that the Magistrate should have warned himself of the dangers of identification evidence as set down in Turnbull. When I dismissed the appeal, I have pointed out that the Turnbull direction was not required under this case of Browning.

5. The Appellant himself raised today before me that these requirements in Browning were not sufficiently considered by the learned Magistrate. It is clear from the Statement of Findings of the learned Magistrate that he was aware of the circumstances of the identification of the registration number of the car and he was well aware PW1's difficulties, in particular the speed of the car and PW1's visual deficiency. After considering all those matters, he decided that the PW1 and PW2 had sufficient opportunity to identify the car particularly the number.

6. As to each witness's knowledge of different types of cars, it is true that this was not brought up in PW1's evidence but PW1 was asked in chief if he knew the make of the car and his evidence was that it was an old Mercedes Benz. It is submitted by Counsel for the Respondent that the learned Magistrate dealt with this at paragraph 5 of his Statement of Findings where he mentioned that both witnesses were consistent as to "型號" of the car. Counsel for the Respondent also suggested that as far as her instructions are concerned, PW2 also gave evidence that the car was a Mercedes Benz. That part of the transcript of the evidence of PW2 is not available to this Court as it was not asked for, but Counsel relies on the fact that the learned Magistrate said that both witnesses were consistent on the "型號", thus that meant that PW2 must have given evidence similar to PW1. This is not disputed by the Appellant but the Appellant says that his understanding is that neither witness was actually asked about "型號" as meaning the model of the car. I disagree with the Appellant on that and I agree with Respondent's Counsel that "型號" can include the make of the car.

7. It is true that the witnesses' ability to differentiate between different types of cars was not brought up either in examination-in-chief or in cross-examination. The learned Magistrate, although he did not particularly refer to the case of Browning and it seems that he was not in fact even alerted to the requirements in Browning, nevertheless had in mind that both witnesses knew that the car in question was an old Mercedes Benz and they were consistent on that.

8. Thirdly, as far as Browning's third requirement is concerned about a witness's recollection of what he had seen rather than what information he might have absorbed from elsewhere, from the learned Magistrate's Statement of Findings, he went through each witness's evidence very carefully and he had brought up the fact that PW2 in her evidence had noted that she in fact was not entirely sure of the number herself but she needed that confirmation from PW1, so the Magistrate was well aware of all the circumstances leading up to both witnesses' identification of the number.

9. The Appellant also brought up the ground that the witnesses were inconsistent about the colour, one witness said it was blue green and other witness said it was blue grey. The fact is that the colour of the Appellant's car as disclosed in Exhibit P1 is blue. I do not find that when the witnesses said the shade is blue grey or blue green detracts from the fact that it is the basic colour blue. The Magistrate himself had noted this difference and decided at the end of the day that it was not important. So I do not consider therefore that the grounds as put forward by the Appellant is a question of great and general public importance.

10. As to the Appellant's other complaint under this application for leave, although it is not strictly a ground that he had forwarded, I will deal with here is that, the Appellant complained that the Magistrate was wrong to say that he knowingly made a false statement because he, in the information he supplied to the police, he had said that his car was parked in the carpark at the relevant time. The Appellant mentioned the fact that somebody else could have driven the car from the carpark etc., but the fact of the matter is that, the learned Magistrate found that the car was not in the carpark at the material time but was at the scene where PW1 said it was. There was no other evidence before the Magistrate except the evidence from the prosecution witnesses.

11. The Appellant also complained that the Magistrate did not accept the veracity of his record of interview which was produced as Exhibit P11, in that it was an exculpatory statement. The learned Magistrate had properly considered the statement and did not place any weight on it because he properly said that it had not been tested in cross-examination so he placed no weight on that. The Appellant said that that is not fair to him. But this, as I have explained to the Appellant, is the law and the Magistrate is perfectly entitled to reject relying on that document when it is an exculpatory statement and it had not been tested in cross-examination.

12. At the end of the day, the Magistrate concluded at paragraphs 11 and 12 of the Statement of Findings that the only irresistible inference he could draw from all the evidence before him was that the Appellant had made a false statement. He was entitled to do so from all the circumstances of the case and I therefore do not feel that there is a ground of great and general public importance for leave to appeal to the Court of Final Appeal and so the application is rejected.

	(E Toh)
	Deputy High Court Judge

Representation:

Ms Irene Poon Oi Lin, GC for DPP

Applicant: LI SEE MING ALVIN, in person

HCMA001120/2001

HCMA 1120/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1120 OF 2001

(ON APPEAL FROM KCS 900001/2001)

_______________

BETWEEN
	HKSAR	Respondent

	AND

	LI SEE MING ALVIN	Appellant

________________

Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 14 June 2002

Date of Judgment: 14 June 2002

_______________

J U D G M E N T

_______________

1. Information was laid in the court below that the Appellant in this case on the 19 October 2000 knowingly made a false statement in supplying particulars required from him pursuant to s.63(1) of the Road Trafffic Ordinance, Cap. 374. in that he stated that the vehicle bearing registration no. HF 1865 was parked at the public carpark at Yuen Wo Road near the fire station at 3:22 p.m. on 2 October 2000. The Appellant pleaded not guilty and after trial was convicted of the offence. The Appellant now appeals against that conviction.

1. The evidence before the Learned Magistrate was that on the 2nd day of October 2000 at about 3:22 p.m., the first two Prosecution Witnesses who were husband and wife, were in their car at the material time. They noticed a car, which was subsequently identified as HF 1865, came and parked near them. The weather was good and there was no question that the lighting was sufficient. Apparently at the time the driver of HF 1865 had alighted and after taking a look, he went back into his car and tried to reverse his car in order to leave the area. But, unfortunately, as he was reversing his car, his car came into contact with the car of the two Prosecution Witnesses and the evidence revealed that the front of the Prosecution Witnesses' car suffered a slight scratch.

3. Now what is important is that, after the accident, HF 1865 sped away from the scene. According to PW1, he had about two to three seconds to notice or read the registration number of that car and that car was about 10 feet away when he noted the registration number. PW1 also gave evidence that he had suffered a stroke in 1993 which affected his speech but it did not affect his eyesight nor his mental ability although he needed to wear glasses he could see, clearly, objects within 23 feet distance. away from him.

2. In relation to the 2nd Prosecution Witness, she, stated that she was able to see the registration number of the car, but it was obviously a fleeting glance and she was the one who noted the registration number after speaking to her husband in a notebook which was produced in Court as Exhibit "P5".

3. I wish to note here that as pointed out by Counsel for the Appellant, she had written in P5 the letters "HF" followed by a comma and then a dot and then followed by the numbers. This accords with her evidence at the trial where she agreed that she had written down the letters "HF" and then after speaking to her husband then wrote down the numbers. It would appear that she was not very sure of the numbers and needed confirmation from her husband before she wrote those numbers down.

4. The rest of the evidence is in relation to the fact that the police subsequently sent a Notice to the owner of the car HF 1865 to furnish information about who was driving the car at the relevant time and they managed to find out that the owner of this vehicle was the Appellant in this case. It would appear that the Notice was sent on 2 October 2000, the Appellant was visited by a police officer on the 17 October 2000, the reply was sent to the police in answer to the Notice on the 19 October 2000.

5. Evidence was also given by PW1 and PW2 that the driver of the vehicle had worn glasses whereas it was admitted that at the trial that the Appellant did not wear glasses. So all these were before the Learned Magistrate when he subsequently came to analyse the evidence and convicted the Appellant.

6. Complaint is made this morning by Counsel for the Appellant that the Learned Magistrate had failed to warn himself of the danger of identification evidence particularly along the lines of the Turnbull directions. In Archbold at paragraph 14 - 27, it is said referring to the case of R v. Browning Vol. 94 Criminal Appeal Report 109, that a direction which is analogous to a Turnbull direction is not required in relation to the identification of motor cars. However, a trial judge should draw the jury's attention to:

a) the opportunity that each witness had to identify the car;
b) each witness's apparent ability to distinguish between the make of the car; and
c) how far each witness can be relied on as to what he still remembered.

As Mr Lok pointed out, this is not much different from the Turnbull direction. In any event, the Magistrate should look at these three areas when he is assessing the evidence.

7. Having read the Statement of Findings of the Magistrate, it is obvious that the Magistrate did consider whether each witness had the opportunity to identify the car because in his Statement of Findings, he had set out the circumstances surrounding the observation of the two witnesses, the relevant time, that it was in the afternoon at about 3:20 p.m., and the weather. He also set out in his Statement of Findings the colour of the car as observed by the Prosecution Witnesses and he also noted that PW1 also said it was a Mercedes Benz and HF 1865 was a Mercedes Benz. A Witness from Wallace Harper was called and he gave evidence that the car of the Appellant was given to him on 3 October 2000 and it was a Mercedes Benz and that as the car had been sold to his company and he had arranged for the car to be scrapped the following day. He did not see any scrabbles on the car.

8. It is also clear from the Magistrate's Statement of Findings that he carefully dealt with the evidence of each Prosecution Witness and was alive to the fact that the Prosecution Witnesses had said the driver had glasses and the Admitted Fact under S65C was that the Appellant did not wear glasses. He was also alive to the fact that PW8 from Wallace Harper, had not seen any scratch mark on HF 1865.

9. In any event the real issue in this case, as the Magistrate had correctly pointed out, was whether PW1 and PW2 had correctly identified the number of the car. With that in mind, looking at the evidence before the Learned Magistrate, it is clear that the two witnesses' evidence were not shaken as to their identification of the number of the vehicle that had come into contact with theirs as it was in broad daylight. PW2 had a fleeting glance, and she apparently needed to confirm the number with her husband, PW1. PW1 was sure of the number and in fact, he also correctly noted the make of the car. There was, therefore, sufficient evidence in front of the Magistrate for him to find that the witnesses had correctly identified the registration number of the car.

10. In relation to the matter that has been raised on this appeal as to the adverse influence drawn by the Magistrate against the Appellant's delay in replying to the Notice, it was, indeed, wrong for the Learned Magistrate to draw such an adverse influence because the law gives the Appellant 21 days and at the time of his reply, he was well within the 21 days provided for by law, so he should not have founded adversely against the Appellant on that point. But nevertheless, though he was wrong in that, I do not see that as affecting his conclusion as to the opportunity and reliability of the Prosecution Witnesses identification of the registration number of the vehicle.

11. The Court of Appeal had said that in the cases of judges sitting alone like in the case of Magistrates if they had failed to give themselves a Turnbull direction in their Statement of Findings, the Court of Appeal pointed out that the Appellate Tribunal must look at the facts again and see if there was sufficient evidence in that case as far as the identification is concerned. In this case, there is not only sufficient evidence but be good evidence as to the identification of the vehicle and whether the Appellant was the driver of the vehicle at the material time is not a relevant factor in this charge. The prosecution only needed to prove that, on the day when the Reply to the Notice was written by the Appellant, he had given false information that his car was at the material time parked in the carpark. The Magistrate could properly rely on the evidence of the 1st and 2nd Prosecution Witnesses to convict the Appellant. But the Magistrate, unfortunately went further which he did not have to do, to find that the Appellant was in control of the car and was the person who had use of the car at the material time. In any event, whether the Learned Magistrate believed the explanation in P11, is a matter for the Learned Magistrate, he was correct in the Statement of Findings in saying that the exculpatory part of the P11 had not been tested in cross-examination and therefore, he did not place much weight on it. The complaint is that he not only said that but that he also didn't believe the Appellant because the reason for his delay in replying to the Notice was not entirely credible ("牽強") but at the end of the day it is a matter for the Magistrate whether he placed any weight on the exculpatory part of P11.

12. As far as this case is concerned, having read the Statement of Findings, it would appear that the Magistrate was aware of the relevant matters he had to pay attention to which is set out in the case of Browning as referred to in paragraph 14 - 27 of Archbold. In the circumstances, despite the mistakes made by the Learned Magistrate I am persuaded that the conviction was not unsafe and unsatisfactory, so the appeal is dismissed.

	(E Toh)
	Deputy High Court Judge

Representation:

Ms Sally Yam, GC for DPP

Mr Lawrence Lok, SC and Mr Luiz A A da Silva Pedruco, instructed by Messrs Richard Tai & Co., for the Appellant

HKSAR v. LI SEE MING ALVIN

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