IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 334 OF 2007
(ON APPEAL FROM KCCC 6490/2006)
||LEE TAI LUNG
Before : Hon Fung J in Court
Date of Hearing : 5 September 2007
Date of Judgment : 12 September 2007
J U D G M E N T
1. The appellant Lee Tai-lung (D2) was convicted after trial before a magistrate of careless driving (charge 2), and attempting to pervert the course of justice by falsely representing to the police that he was the passenger of the car involved in an accident (charge 3).
2. The appellant Tsang Kar-shing Douglas (D1) was convicted of attempting to pervert the course of justice by falsely representing to the police that he was the driver of the car (charge 1). D1 is now deceased and no step has been taken after the filing of the Notice of Appeal. The appeal by D1 is therefore dismissed.
3. On 26 May 2006 at 2:50 a.m., Mr. Yuen Wai Hung (PW1) was driving his taxi along Mody Road. Weather was fine, visibility and lighting condition were good. Suddenly, the taxi was hit from behind. PW1 alighted and saw the private car which hit his taxi had crashed into a flowerbed. He saw 2 males alighting from the private car and there was nobody else on board the car.
4. PW1 said the one alighting from the driver’s seat was bespectacled, thin build and slightly taller, roughly speaking 5 ft. 6 in.; the other alighting from the front passenger seat was fat and slighter shorter, in the region of 5 ft. 5 in. He never lost sight of the 2 males until the police arrived. He told the police who the driver was and who the passenger was. PW1 said he did not see anyone trying to escape from the private car, and denied that he had ever told the police that a third person had escaped.
5. PC48655 (PW2) arrived and spoke to D1 and D2 first. There was nobody else in the vicinity. PW2 checked their identity cards. D1 was fatter and D2 was thinner and wearing glasses. D1 said he was the driver, and D2 said he was the passenger. D2’s lips was bleeding, and D1 had no injury. D2 smelt strongly of alcohol.
6. PW2 then walked over to PW1. PW2 said PW1 pointed D2 out as the driver, describing him as the thin one with glasses, and the fat one as the one getting out of the passenger’s seat.
7. PW2 said 2 other private cars arrived and 6 males alighted. Someone asked for the taxi driver and they approached PW1. PW2 called for reinforcement and stopped the males from approaching PW1. PW2 then noticed D2 was missing.
8. PW2 arrested D1 for perverting the course of justice. Under caution, D1 alleged that there were 2 persons on board the taxi and they swapped their position, and the taxi driver had left the scene.
9. PC 51657 (PW3) was tendered for cross-examination. He said PW1 told him that a male person alighted from the private car and actually escaped from the scene and that was why PW1 called the police. That was just before PW1 was taken to hospital.
10. PC 23275 (PW4) took some photographs. They showed some stains on the offside front and rear seats of the private car. PW4 said he was not sure if they were blood stains but could be so.
11. The private car belonged to a friend of D2.
12. D1 gave evidence. He said he left a night club together with D2 and a friend Ma Li at about 3 am. He was the driver, Ma Li was in the front passenger seat, and D2 was in the rear. He was driving because D2 was drunk.
13. On the accident, D1 said the taxi was driving slowly. Then he said:
||I was driving the car. Abruptly, the taxi made a turn to arrive out there and I failed to brake in time. Then I rammed against the rear of the taxi.”
14. He was asked what the taxi did and said:
||At that stage, it was moving very slowly on that spot. Well, it was in front of me. I did not see it clearly.”
15. D1 said the car got out of hand and he rammed against the flowerbed. D1 said he rammed into the rear of the taxi because it was small hours and he used to wake up very early. He could not determine how slow the taxi was. He made a mistake of judgment and thought he would not rammed into the taxi.
16. D1 said D2 and Ma Li alighted, then Ma Li left the scene in less than 3 minutes to get assistance. But he did not see Ma Li returning with the other 2 cars.
17. D1 said the stains on the driver seat and the rear offside (i.e. right) passenger seat were blood stains.
18. D2 elected not to give evidence. He called Mr. Raymond Wong (DW1), manager of the night club. DW1 said he helped D2 to the car as D2 was looking very unsteady. There were 3 persons on board, and D2 sat in the rear. Later, Ma Li returned to the club and said Ah Kar rammed against something, and about 6 customers went outside with Ma Li.
19. The magistrate noted discrepancies between the evidence of PW1 and of PW2 and PW3:
||PW1 said D2 was wearing a jacket when he indicated him to PW2, but PW2 said D2 was wearing a light shirt at the time;
||PW1 said D2 was slightly taller than D1 but they were of similar heights;
||PW1 said both wore light shirts, yet D1 wore a blue shirt;
||PW1 denied telling PW3 he saw someone escaping from the scene.
20. The magistrate considered the evidence of PW3 carefully in view of the defence case that a third man, Ma Li was sitting in the front passenger’s seat. The magistrate said PW3 made no contemporaneous record of his conversation with PW1 and made his witness statement about 6 months later. PW3 made the mistake that he was the only photographer at scene, but agreed that some photographs were not taken by him. PW3 did not follow up with PW1 as to where the alleged escaping person was in the car, or where he had escaped to. There was no suggestion that PW1 had told PW2 of any escaping person when PW2 was making the initial detailed enquiries. It was clear that by the time PW3 spoke to PW1, D2 had left the scene. The magistrate accepted PW1’s evidence on the matter, and found that PW3 had either wrongly recalled or confused on what PW1 had told him.
21. The magistrate said he did not consider the bloodstains advance either the prosecution or the defence case. He noted the position of the stains, and D1 said D2 and him were standing at the offside of the car and he was trying to clean D2 up.
22. The magistrate found PW1 to be a reliable and credible witness and he gave accurate evidence as to what he saw after the accident. The magistrate was sure that D2 was the driver and D1 was in the front passenger seat. He was sure that if there had been a third man on board the private car, he did not sit in the front passenger’s seat and did not remain at scene for 3 minutes after the accident.
23. The magistrate found that D1’s account of the evidence was extremely vague. The sketch plan showed the scene was a piece of straight wide road. D1 initially said the taxi made an abrupt turn, then he said the taxi was in front and he did not see it clearly and he had just misjudged the speed of the taxi and rammed into it. D1 had told the police that PW1 was not the taxi driver but a passenger. This was neither put to PW1 in cross-examination, nor mentioned by himself in-chief.
24. The magistrate considered the vague account of the accident by D1 and there was no apparent reason why the private car was driven at speed straight into the back of the taxi which was driving slowly along a wide road. He did not believe the evidence of D1.
25. The magistrate also found DW1 to be lying or mistaken. He never made any record of the incident and never spoken to anyone about the incident, and was only asked to give evidence.
26. The magistrate also took into account the circumstances that D2 left the scene while his identity card was held by PW2, and he was the one who borrowed the car and the owner did not know D1.
27. The magistrate was sure of the guilt of D1 and D2 on the evidence of PW1 and PW2 and the circumstantial evidence.
Grounds of appeal
28. Mr. McGowen, for the appellant, filed 10 substantive grounds in the perfected grounds of appeal, and one supplementary ground. They may be summarized as follows:
||The magistrate erred in failing to appreciate the discrepancy of PW1’s evidence that the driver was slightly taller than the passenger;
||The magistrate erred in preventing defence counsel from asking PW1 which of the defendants he considered shorter;
||The magistrate failed to consider the actual geographical positions of the 2 vehicles and what had transpired when assessing the identification of D2 as the driver;
||The appellant did not receive a fair trial as his trial counsel did not lead the evidence that PW1 failed to identity D2 at an identification parade held on 23 June 2006;
||PW2’s evidence that PW1 identified D2 as the driver should not have been admitted;
||The magistrate erred in his determination that the circumstances of the collision were such that a driver of D1’s experience, with some drink taken, could not have been the driver.
||The magistrate’s disbelief of D1, particular that he was the driver, did not necessarily mean that D2 was the driver;
||The magistrate erred in finding D2 as the driver given his acceptance that there might well have been a third man on board;
||The magistrate erred in finding DW1 was either lying or mistaken;
||The magistrate erred in rejecting the bloodstains as supporting the defence case;
||The magistrate failed to direct himself that he should consider the cases of D1 and D2 separately, and all the indications were to the contrary.