A
HCMA 590/2019 A
[2020] HKCFI 1805
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
D MAGISTRACY APPEAL NO 590 OF 2019 D
(ON APPEAL FROM ESCC NO 2138 OF 2018)
E ________________ E
BETWEEN
F F
HKSAR Respondent
G and G
H BROOK Edward Joshua Appellant H
________________
I I
Before: Hon Campbell-Moffat J in Court
J J
Date of Hearing: 18 June 2020
K Date of Judgment: 31 July 2020 K
L L
JUDGMENT
M M
N Introduction N
O 1. The appellant was convicted after trial before O
Ms Veronica Heung, Magistrate, on 30 September 2019, of a single
P P
charge of Criminal Damage contrary to section 60(1) of the Crimes
Q Ordinance, Cap 200. He was fined $3,000 and ordered to pay Q
compensation in the sum of $4,500. By his notice of appeal, dated
R R
30 September 2019, the appellant appealed his conviction on the grounds
S that it was against the weight of the evidence. S
T T
U U
V V
- 2 -
A A
The Prosecution Case
B B
2. On 16 March 2018, the appellant and one other person, were
C C
attempting to hail a taxi outside of No 55 Wyndham Street at
D approximately 11.00 p.m. PW2, a taxi driver, had just dropped off a D
passenger in Wellington Street and intended to go for a meal. As a
E E
result, he covered his ‘For Hire’ sign. When travelling along Wyndham
F Street, he noticed the appellant and a lady who were standing on the left F
hand side of the road in between a line of stationary vehicles. He could
G G
see that the appellant was trying to hail a taxi. As the taxi approached
H the appellant, PW2 made a gesture to indicate he was not for hire. As H
the traffic was congested, at the point the taxi was adjacent to the
I I
appellant, he wound down his window and told the appellant he was not
J J
in service. As PW2 moved off, he heard a loud bang and looked to his
rear to see the appellant stepping away from the vehicle. There was no
K K
one else in the vicinity save for the appellant and his companion. The
L L
taxi driver got out of his vehicle and noticed a dent to the left of the filler
M
cap on the near side. The taxi driver accused the appellant of kicking M
his taxi to which the appellant replied “It’s me who kicked your taxi.
N N
You didn’t drive me home.”
O O
The Defence Case
P P
3. The appellant, as is his right, did not give or call any
Q evidence in trial. Mr Reading SC, who represented him at trial as he Q
does today, put his case in this way. He denied he had ever kicked the
R R
taxi in the manner suggested and he denied he had told the taxi driver he
S had done so. The evidence of the physical state of the taxi prior to the S
event in question was equivocal. PW1, the taxi owner, was of no
T T
assistance to the court in this respect and the evidence of PW2 was
U U
V V
- 3 -
A A
B
undermined. He was not a man of good character and two of his B
previous offences related to his job as a taxi driver and were suggestive of
C C
a degree of dishonesty. His oral evidence was inconsistent with his four
D
witness statements and with the evidence of PW3 and PW4. The D
evidence alleged a dent of some 8 inches in length and one inch wide 1.
E E
Its position was inconsistent with a kick by the appellant 2. As to the
F
event itself, it was suggested that the appellant was seeking to hail a taxi. F
The ‘Not for Hire’ sign was not displayed (or not displayed properly) and
G G
the light from the ‘For Hire’ sign was illuminated. The taxi drove so
H
close to the appellant that he had to jump out of the way and when he H
realised the taxi driver was not going to pick him up he was angry.
I I
Because the taxi had driven so close, he had lashed out with his foot and
J made contact with the bottom of the nearside rear passenger door. He J
accepted that he had abuse at the driver in Cantonese.
K K
The Grounds of Appeal
L L
4. In his perfected grounds of appeal, the appellant relies upon
M M
the single ground that there was a lurking doubt in this matter, the benefit
N of which should have been given to the appellant. In summary he N
submits that doubt arose because:
O O
(i) The only evidence that the appellant kicked the taxi came
P P
from a voluntary witness statement [P7], which the appellant
Q provided to the police. Q
(ii) That voluntary statement was a mixed statement made in the
R R
course of a complaint being made against the taxi driver
S [PW2] for, inter alia, his manner of driving, and whilst the S
appellant admitted kicking the taxi, he did not admit kicking
T T
1
AB 89U-90B; AB 102O-R
2
U AB 111U-112H; AB 117J; AB 118E-H U
V V
- 4 -
A A
B it in the place where the taxi was damaged, namely adjacent B
to the gas cap, but instead “near the bottom of the rear side
C
door”, where there was no damage. C
D (iii) In considering the contents of the mixed statement made by D
the appellant, the learned magistrate did not properly
E E
evaluate the statement in that, she did not give sufficient
weight to the explanation given by the appellant in the
F F
course of his admitting that he kicked the taxi.
G G
(iv) The appellant is a person of previous good character.
H (v) The taxi driver, PW2, was not a person of good character, H
having previously been convicted on two separate occasions
I I
of offences concerning the hiring of his taxi when he
attempted to cheat would-be tourists, and part of the
J J
appellant’s allegation against PW2 was that he refused to
K accept the appellant and his distraught companion as K
passengers.
L L
(vi) PW2 alleged he had checked the taxi before he commenced
M driving it that day, and had not seen any damage. M
(vii) PW2 initially claimed $25,000 compensation for the damage
N N
to the taxi, when the cost of repairs to the taxi was $4,500.
O He had previously told a police officer that part of the claim O
was for pain and suffering because the appellant had hurt his
P P
feelings, but gave a completely different reason for the
Q
exorbitant claim when giving evidence. Q
(viii) The taxis managed by PW1 were parked in the street in the
R R
one area – the first shift driver would park the taxi and the
S
second shift driver would drive it away. PW1 claimed that S
he usually inspected the taxi after it was parked and before
T the second driver drove it, for damage. He said in T
cross-examination, conceding that the damage to the taxi
U U
V V
- 5 -
A A
B was slight, that he did not check all of the 50 taxis he B
managed – although he said in evidence in chief that he
C C
checked the taxi for damage before PW2 took over driving,
he conceded in cross-examination that he was not sure that
D D
he had checked it on that day. He said he relied on drivers
E to inform him if a taxi was damaged. E
(ix) The appellant is 60 years of age and well over 6 feet in
F F
height [but not 7 feet as PW2 had suggested]. The
G evidence of PW2 was that he drove within 2 to 3 feet of the G
appellant and his companion – in this location because cars
H H
park on the nearside of the carriageway, there is only one
I
lane available for traffic. The damage to the taxi was about I
2½ feet above the road surface, adjacent to the gas cap. In
J these circumstances, it would be physically impossible for J
the appellant in a confined space, to raise his leg to kick the
K K
taxi with sufficient force to damage it as alleged.
L L
Lurking Doubt
M M
5. It was perhaps unfortunate that the appellant relied upon the
N phrase ‘lurking doubt’ as opposed to simply stating that the prosecution N
had not proved its case ‘beyond reasonable doubt’, as it led Dr Mohamed
O O
on behalf of the respondent, down a path which, in the circumstances of a
P magistracy appeal, she need not have followed. In deference to her P
considerable efforts in that respect, I will deal with whether the test for
Q Q
‘lurking doubt’ on a magistracy appeal is entirely appropriate.
R R
6. The lurking doubt principle, as it has been called, arose as a
S S
result of the passing of the Criminal Appeal Act 1966, which empowered
T the Court of Appeal of England and Wales, to allow an appeal against T
conviction if it was of the view the verdict should be set aside on the
U U
V V
- 6 -
A A
B
ground that under all the circumstances of the case it is ‘unsafe or B
unsatisfactory’. In R v Cooper (1969) 53 Cr App R 82, Widgery LJ, in
C C
1968, suggested, in respect of the type of case before it:
D “…the Court must in the end ask itself a subjective question, D
whether we are content to let the matter stand as it is, or
E whether there is not some lurking doubt in our minds which E
makes us wonder whether an injustice has been done. This is
a reaction which may not be based strictly on the evidence as
F such; it is a reaction which can be produced by the general feel F
of the case as the Court experiences it”.
G G
7. In Tang Wai-tong & Anor v The Queen CACC 144/1979,
H H
Roberts CJ, on an application that the verdict of the jury was unsafe and
I unsatisfactory (following the amendment of section 83 of the Criminal I
Procedure Ordinance, Cap 221 in 1972) referred to R v Cooper supra and
J J
to the lurking doubt principle arising from the combination of a number
K of unsatisfactory features in the evidence. In response to that principle, K
he said:
L L
“70. We think that the lurking doubt formula must be
M applied with great caution. An appellate court, reading M
papers and not seeing witnesses in the way that a jury does,
must be cautious in imposing its subjective feelings for the
N conclusions reached by men and women who have had the N
advantage of seeing the witnesses and assessing their
credibility.
O O
71. In our view, ‘lurking doubt’ means not an insubstantial
P doubt but a substantial remaining doubt.” P
Q 8. The hurdle for an appellant in raising ‘lurking doubt’ was Q
raised further in The Queen v Diu Lap-nin CACC 1439/1983 when
R R
Roberts CJ stated in respect of this same principle:
S S
“48. Without wishing to lay down any rule that the lurking
doubt principle should not be applied where a defendant gives
T T
no evidence, we do state our view that such a failure makes it
much less likely that a court will feel that doubt, which is a
U matter of instinct and experience as well as of evidence”. U
V V
- 7 -
A A
B
9. In HKSAR v Chang Che Wei [2012] 2 HKLRD 1151, B
McWalters J (as he then was), in his inimitable style, simply succinctly
C C
reformulated the above into four guiding principles:
D (i) an appellate court should apply the principle with great D
caution as it does not enjoy the benefit which the jury had of
E E
seeing the witnesses and assessing their credibility;
F (ii) a ‘lurking doubt’ does not mean an insubstantial doubt but a F
substantial remaining doubt;
G G
(iii) determining whether it ‘feels’ there is a lurking doubt the
H appellate court has regard not just to the evidence but also its H
instincts and experience; and
I I
(iv) where a defendant fails to give evidence it is much less
J likely that a court will feel there is a lurking doubt. J
K K
10. Of particular note though is paragraph 46 of that judgment,
L which is apposite here, where the learned judge stated: L
M M
“46. In respect of the fourth principle care must be exercised
in how it is applied. The absence of any evidence from a
N defendant has two consequences. First it leaves the N
prosecution case uncontradicted by evidence from the
defendant and secondly it may, by virtue of that reason,
O O
persuade a jury more readily to draw an adverse inference.
But this does not mean that the jury is entitled to draw an
P inference that is not otherwise available to them to draw.” P
Q 11. In all cases, the lurking doubt principle clearly applies to Q
hearings upon appeal from the District Court and High Court where the
R R
Court of Appeal is dealing with appeals against conviction and/or
S sentence. But does the lurking doubt principle apply to magistracy S
appeals? In HKSAR v Ip Chin Kei [2012] 4 HKC 135 McWalters J also
T T
U U
V V
- 8 -
A A
B
dealt with the test for quashing a conviction on appeal from a decision of B
a magistrate. By way of summary the court found:
C C
(i) An appeal under section 113 of the Magistrates Ordinance,
D Cap 227 is by way of rehearing3 on the evidence before the D
trial court (as supplemented) as opposed to an appeal to the
E E
Court of Appeal which is an appeal in the strict sense
F i.e. whether there is found to be an error on the record. F
(ii) In a magistrate’s appeal, the burden upon the prosecution is
G G
to uphold the conviction by showing the matter is proved
H beyond reasonable doubt and that of the appellant is to H
uphold the appeal by showing how the prosecution has failed
I to satisfy the burden placed upon them. It is for the parties I
to determine the content of the appeal bundle with those
J J
burdens in mind, subject to the supervision of the Registrar
K and the discretion of the appellate judge. K
(iii) The grounds of appeal should seek to persuade the appellate
L L
court on rehearing to depart from the findings of fact and law
M made by the magistrate. M
(iv) The appellate court would only go behind the magistrate’s
N N
finding on credibility where it was plainly wrong.
O (v) A finding that a magistrate has made an error of fact or law, O
which amounts to a material irregularity, does not
P P
automatically estop the court, on appeal, from exercising its
Q statutory duty and rehearing the matter if it can properly do Q
so, otherwise the appeal should be allowed.
R R
(vi) The test for whether an error by a magistrate amounting to a
S material irregularity should lead to an appeal being allowed S
is whether it is just for such an order to be made.
T T
3
U Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70, [2005] HKCU 320 U
V V
- 9 -
A A
B (vii) Even where the appellate court found no such error on the B
part of the magistrate and even if no ground of appeal was
C C
made out, the court still has to carry out its statutory duty
and conduct a re-hearing on the papers. As a consequence,
D D
the grounds of appeal should not focus on errors that the
E magistrate has made, it should focus upon the argument as to E
why, on either the facts or the law or both, the prosecution
F F
has failed to establish guilt beyond reasonable doubt.
G G
12. That being the case, the court on a magistracy appeal has to
H be satisfied beyond reasonable doubt of the guilt of the appellant. If his H
case is or may be true, he must be acquitted. The fact that the appellant
I I
does not give or call evidence is only one matter which falls to be
J considered, albeit it may be of some significance given that the court is J
not able to assess the witnesses for itself. As a consequence of the
K K
above, I doubt very much whether the ‘lurking doubt’ principle is
L applicable to a magistrate’s appeal at all. L
M M
Rehearing on the Papers
N N
13. I am assisted in having a transcript of the evidence of PW1
O and PW2 as well as the closing submissions of counsel and the O
magistrate’s Statement of Findings and I am cognisant of the fact that the
P P
appellant seeks to undermine the finding as to credibility of PW1 and
Q PW2, which I must approach with considerable caution given this court Q
has not had the opportunity to assess the witnesses for itself.
R R
S 14. This is an offence under section 60(1) of the Crimes S
Ordinance, Cap 200. The relevant elements of the offence are:
T T
(i) damage to property belonging to another;
U U
V V
- 10 -
A A
B (ii) intending to damage such property; or being reckless as to B
whether such property would be damaged; and
C C
(iii) without lawful excuse.
D D
15. The prosecution case turned upon the issue of whether
E E
(i) there was damage to the taxi; and
F F
(ii) that damage was caused by the defendant.
G G
16. The damage is alleged to have occurred on 16 March 2018.
H H
The photographs of the damage were taken on 28 March 2018 by the
I
investigating officer PW3, and not the officer who attended at the scene. I
The officer who attended the scene PW4, was not asked to confirm the
J J
damage, if any, he witnessed on 16 March. He had attended at the scene
K
on a complaint of assault and not of criminal damage. K
L 17. Given the appalling state of the photographs Exhs P2 and P4 L
and the description given and accepted in trial by PW2 under cross-
M M
examination of the nature of the damage being an 8-inch longitudinal
N dent an inch wide, and not a circular dent, the learned magistrate would N
have had some difficulty actually identifying the actual damage upon
O O
which this prosecution was premised. Indeed, I note that the magistrate
P only went so far as to say that “it was not in dispute that a dent mark on P
Q
the fender (back nearside panel) near the gas cap was seen on the taxi as Q
shown in the photos... ”. 4
The lack of specificity of finding may have
R R
had a significant effect upon the inference the magistrate sought to draw
S
in order to find that the appellant caused the damage in question. In any S
event, on the basis that PW2 agreed the description put to him by the
T T
appellant, which was not undermined by any other evidence, this court
4
U Statement of Findings §18, AB 30 U
V V
- 11 -
A A
B
and the magistrate should have accepted that the damage was B
characterised as suggested by PW2 in his witness statement and not
C C
resiled from under cross-examination.
D D
18. How then does the prosecution say that this damage was
E caused? The prosecution submit that it was caused by a kick. How E
does someone leave a mark of this nature by kicking the relevant panel?
F F
It was, as Mr Reading SC suggested, some 2½ feet off the ground and
G adjacent to the filler cap. It appears to run at its highest point closer to G
the passenger door and at its lowest point nearest to the filler cap but
H H
below it by some 7 or 8 inches. If, as PW2 stated in his witness
I statement, this was a one inch wide longitudinal dent, it could not be I
caused by a flat foot or the toe of a shoe.
J J
K 19. There was no direct percipient evidence of the cause of K
damage. There was however evidence, if proved, from which an
L L
inference could be drawn. These appear to be:
M M
(i) The taxi was intact at the start of the shift.
N N
(ii) PW2 was driving away from the position of the appellant
when he heard a loud bang (alternatively a ‘pop’) sound
O O
coming from the left hand side of his taxi.
P P
(iii) PW2 turned around and saw the appellant in the vicinity of
the rear nearside of his car.
Q Q
(iv) He stopped, got out, saw the dent, remonstrated with the
R R
appellant, to which the appellant replied “It’s me who kicked
your taxi. You didn’t drive me home.”
S S
T 20. In conflict with those facts was the following evidence: T
U (i) PW2 was not a man of good character. U
V V
- 12 -
A A
B (ii) PW2 had made four witness statements which conflicted B
with each other and with his oral testimony.
C C
(iii) PW2’s oral testimony also conflicted with that of PW3 and
D PW4. D
(iv) PW2 had reported a case of assault not criminal damage.
E E
(v) PW2 had claimed in excess of $25,000 at the scene and later
F when dealing with the police and gave inconsistent evidence F
as to how he had reached such a figure.
G G
(vi) PW2 was therefore unworthy of belief.
H H
(vii) In support of that contention, he had not provided the car
I cam and the receipt for repairs had been produced several I
months later, which purported to show a repair to the vehicle
J in question, which took place some three months after the J
event and which did not reflect the damage alleged e.g. there
K K
would have been no need to replace the nearside rear panel
L and there was no evidence of damage to the paintwork. L
(viii) The appellant was a man of good character.
M M
(ix) The appellant had voluntarily made a statement in which he
N had admitted kicking the taxi but not in the damaged area N
[P7].
O O
P 21. The question therefore is whether the facts as found to be P
proved by the learned magistrate were sufficient to draw an irresistible
Q Q
inference that the appellant had kicked the taxi and caused the damage
R concerned and if so was that the only reasonable inference to be drawn R
from the facts given:
S S
(i) The nature and position of the alleged damage.
T T
(ii) The position of the appellant vis-a-vis the vehicle.
U U
V V
- 13 -
A A
B (iii) The fact the appellant had volunteered he had kicked the B
bottom of the car door and therefore would have caused the
C
loud bang (alternatively ‘pop’) sound. C
D (iv) The implausibility of how the damage could have been D
caused.
E E
Analysis of the Prosecution Case upon Rehearing
F F
22. The evidence of PW2 is that he spoke with the appellant
G G
when he rolled down his window to tell him that he was not for hire.
H I infer from that that the appellant was adjacent to the front passenger H
window at that time. Thereafter, PW2 says he heard a loud bang as he
I I
was driving away, looked around and saw the appellant take one step
J away which would have been after the bang and not before it. He was J
then standing by the rear passenger door trying to get into the taxi and
K K
presumably was close enough to be handling the door lever in order for
L the taxi driver to have that view. The appellant therefore appears to L
have been standing very close to the taxi at all material times. There
M M
appears to be some merit in Mr Reading’s suggestion that it would have
N been physically impossible for the appellant, regardless of his height, to N
have kicked the vehicle at the height of and in the position of the alleged
O O
damage. It also begs the question whether a kick by the appellant from
P that or any other position could have produced an 8-inch longitudinal P
dent adjacent to the filler cap unless the appellant was kicking a sideways
Q Q
blow with his foot which would in turn require a wholly different position
R vis-a-vis the vehicle. The damage in the photographs is very difficult to R
see. This was not a large dent. In the words of PW2, “It’s just a slight
S S
5
dent mark” . There was also evidence from PW4, the police officer who
T attended the scene, that the taxi driver had alleged he had been assaulted T
5
U AB 89U U
V V
- 14 -
A A
B
by the appellant, which PW2 accepted under cross-examination was not B
the case. There was evidence from the same officer that PW2 had
C C
suggested that the repair costs would be $25,000. However the
D
investigating officer PW3 said on 19 March, when he called PW2, PW2 D
had said that he wanted $25,000 as compensation for mental distress at
E E
having been scolded. The officer asked for the receipt for repairs at that
F
time and for a copy of the recording on the car camera. Neither of F
which were produced then and there and no mention was made at the
G G
time of the request to the fact the car cam was not working. The receipt
H
[P5] dated 3 June 2018, for the repairs was not produced until November H
although the work was allegedly carried out a month after the event. It
I I
did not reflect the nature of the alleged damage. The camera recording
J was never produced. J
K K
23. This court is not satisfied that the prosecution can maintain
L
this conviction. Quite apart from the manner in which PW2 gave L
evidence, which would have been important to an assessment of his
M M
veracity. There are far too many inconsistencies and too much
N
implausibility for the magistrate to have been satisfied beyond reasonable N
doubt that his version of events as to the admission of the appellant at the
O O
time of the event was to be relied upon. The inference which the
P
learned magistrate drew was not the only inference which could be drawn P
and it was plainly wrong in the circumstances of this case to ignore
Q Q
entirely the exculpatory parts of the witness statement made voluntarily
R
by the appellant [P7] when dealing with the issue of the drawing of R
inferences.
S S
T T
U U
V V
- 15 -
A A
The Mixed Statement
B B
24. At paragraph 39 of the Statement of Findings, the learned
C C
magistrate refers to the mixed statement of the appellant dated 24 July
D 2018 [P7], which was not made under caution but was signed by the D
appellant and included the usual Pol 154 declaration. It was intended to
E E
be used by the appellant as a complaint against PW2 for dangerous or
F careless driving. The prosecution produced this document as part of its F
case against the appellant through the investigating officer PW3. The
G G
only way they could do so was by showing that the statement contained
H admissions against interest for, if it was wholly exculpatory, it would be a H
previous consistent statement and inadmissible. The prosecution are
I I
thereby reminded of the well-established and age-old principle that where
J J
a prosecutor uses the declaration of a prisoner, he must take the whole of
it together, and cannot select one part and leave another. When the
K K
prosecution adduce a statement relied upon as an admission it is for the
L L
jury to consider the whole statement including any passages that contain
M
qualifications or explanations favourable to the defendant, that bear upon M
the passages relied upon by the prosecution as an admission, and it is for
N N
the jury to decide whether the statement viewed as a whole constitutes an
O
admission. If the defendant elects not to give evidence then in so far as O
the statement contains explanations or qualifications favourable to the
P P
defendant the jury, in deciding what, if any, weight to give to that part of
Q
the statement, should take into account that it was not made on oath and Q
has not been tested by cross-examination.6
R R
S
25. In her Statement of Findings, the learned magistrate attached S
no weight at all to the exculpatory parts of the statement. The reason
T T
she gave for so doing was “that it had not been made on oath, had not
6
U R v Jones (1827) 2 C & P 629; R v Donaldson (1977) 64 Cr App R 59 U
V V
- 16 -
A A
B
been repeated on oath and had not been tested by cross-examination”. B
However, she did give full weight to the incriminating parts of the
C C
statement. The learned magistrate did not give her reasons for so doing.
D
Unfortunately, the learned magistrate fell into error in her reasoning for D
rejecting the explanation or qualification of the appellant. It would
E E
appear that, because the statement had not been made on oath, repeated
F
on oath and tested under cross-examination, it was not worthy of F
consideration at all. The authorities, of which there are many, do not
G G
suggest such a draconian approach. They, rightly, suggest that the
H
weight attributed to a self-serving statement may be given less, and H
indeed considerably less, weight than the weight attributed to an
I I
admission against interest, but they do not suggest that because they are
J not made on oath, repeated on oath and tested under cross-examination, J
that they should not be considered at all. Indeed, they go out of their
K K
way to suggest the opposite7.
L L
26. A mixed statement is an out of court statement made by a
M M
defendant which contains both inculpatory and exculpatory parts. It
N
might be of assistance to first identify which parts of P7 could be N
considered to be inculpatory or admissions against interest and which
O O
exculpatory. In so doing, I have in mind HKSAR v Poon Hoi Wing &
P
Anor CACC 313/2000, per Stock JA (as he then was), in which the court P
stated that where admissions are such as the defendant is bound to make
Q Q
and which do not go to the central issue, may lead the court to the
R
conclusion that the statement is wholly exculpatory. The Court of R
Appeal considered R v Garrod [1997] Crim LR 445 in which the Court of
S S
Appeal of England and Wales stated that where the statement contained
T an admission of fact which was significant to any issue in the case T
7
R v Higgins (1829) 3 C & P 603; R v Duncan (1981) 73 Cr App R 359; R v Sharp [1988] 1 WLR 7;
U HKSAR v Poon Hoi Wing & Anor supra U
V V
- 17 -
A A
B
i.e. capable of adding some degree of weight to the prosecution case B
material to an issue which was relevant to guilt, the statement must be
C C
regarded as mixed. The first question one must therefore ask is: what is
D
the nature of the statement relied upon? D
E 27. The inculpatory parts of the statement as relied upon by E
Dr Mohamed on behalf of the prosecution were:
F F
(i) the appellant’s presence at the side of the road;
G G
(ii) that he sought to hail a taxi and did hail PW2’s taxi;
H H
(iii) that the taxi stopped; the taxi driver got out and there was a
I conversation. That conversation included the taxi driver I
asking why the appellant had kicked his taxi;
J J
(iv) that the appellant responded by saying he had refused to pick
K him up and asking why the driver had not stopped; K
(v) that he had been shown the alleged damage by the police
L L
officer.
M M
28. The exculpatory (self-serving) parts of the statement which
N N
the appellant sought to rely upon through counsel, and which he says
O
should have been taken into consideration, were: O
(i) that the flag of the taxi was up and illuminated;
P P
(ii) that the taxi drove close to the appellant;
Q Q
(iii) therefore the appellant jumped out of the way;
R (iv) that because the taxi veered very close to the appellant, the R
appellant lashed out with his foot and kicked the taxi;
S S
(v) that the impact was with the bottom of the rear passenger
T door and not to the left of the filler cap some 2½ feet above T
the ground;
U U
V V
- 18 -
A A
B (vi) that he had been shown the alleged damage and had said that B
was not the part he had connected with as he had kicked the
C C
bottom of the rear nearside passenger door and his foot
“never reached that high”;
D D
(vii) that he had reported the taxi driver for dangerous and
E E
careless driving.
F F
29. The appellant was charged with criminal damage which was
G effected by kicking the taxi. In his statement he admitted being present, G
kicking the taxi and having words with the taxi driver over the allegation
H H
that he had in fact kicked his taxi. Those were all matters which went to
I the prosecution case even though, at the end of the day, the issue to be I
determined was limited to whether the appellant kicked the taxi in the
J J
place alleged and whether that kick resulted in the alleged damage. As
K such, it was clearly a mixed statement. K
L L
30. What use should then be made of it? There is no doubt that
M both the inculpatory and exculpatory parts of a mixed statement may be M
admitted as an exception to the rule against hearsay as evidence of the
N N
truth of its contents. Although the two parts may not carry the same
O weight. It is trite law that an admission against interest is more likely to O
be true than a statement which is self-serving. But this is not an
P P
inviolable rule, it is rather, a rule of thumb and the court must look at the
Q statement in context to fairly evaluate the relevant parts and decide what Q
weight to apportion to which parts8. If that exercise had been carried out
R R
here, it would have raised a doubt as to how and when the damage in
S question was caused and the appellant was entitled thereby to be S
acquitted.
T T
8
U HKSAR v Poon Hoi Wing & Anor supra U
V V
- 19 -
A A
Conclusion
B B
31. Accordingly the appeal will be allowed. The conviction is
C C
quashed and the sentence set aside. There will be no order as to costs.
D D
E E
F F
G (A P Campbell-Moffat) G
Judge of the Court of First Instance
H
High Court H
I Dr Nisha Mohamed, counsel on fiat, for the respondent I
Mr John Reading SC, instructed by LCP, for the appellant
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A
HCMA 590/2019 A
[2020] HKCFI 1805
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
D MAGISTRACY APPEAL NO 590 OF 2019 D
(ON APPEAL FROM ESCC NO 2138 OF 2018)
E ________________ E
BETWEEN
F F
HKSAR Respondent
G and G
H BROOK Edward Joshua Appellant H
________________
I I
Before: Hon Campbell-Moffat J in Court
J J
Date of Hearing: 18 June 2020
K Date of Judgment: 31 July 2020 K
L L
JUDGMENT
M M
N Introduction N
O 1. The appellant was convicted after trial before O
Ms Veronica Heung, Magistrate, on 30 September 2019, of a single
P P
charge of Criminal Damage contrary to section 60(1) of the Crimes
Q Ordinance, Cap 200. He was fined $3,000 and ordered to pay Q
compensation in the sum of $4,500. By his notice of appeal, dated
R R
30 September 2019, the appellant appealed his conviction on the grounds
S that it was against the weight of the evidence. S
T T
U U
V V
- 2 -
A A
The Prosecution Case
B B
2. On 16 March 2018, the appellant and one other person, were
C C
attempting to hail a taxi outside of No 55 Wyndham Street at
D approximately 11.00 p.m. PW2, a taxi driver, had just dropped off a D
passenger in Wellington Street and intended to go for a meal. As a
E E
result, he covered his ‘For Hire’ sign. When travelling along Wyndham
F Street, he noticed the appellant and a lady who were standing on the left F
hand side of the road in between a line of stationary vehicles. He could
G G
see that the appellant was trying to hail a taxi. As the taxi approached
H the appellant, PW2 made a gesture to indicate he was not for hire. As H
the traffic was congested, at the point the taxi was adjacent to the
I I
appellant, he wound down his window and told the appellant he was not
J J
in service. As PW2 moved off, he heard a loud bang and looked to his
rear to see the appellant stepping away from the vehicle. There was no
K K
one else in the vicinity save for the appellant and his companion. The
L L
taxi driver got out of his vehicle and noticed a dent to the left of the filler
M
cap on the near side. The taxi driver accused the appellant of kicking M
his taxi to which the appellant replied “It’s me who kicked your taxi.
N N
You didn’t drive me home.”
O O
The Defence Case
P P
3. The appellant, as is his right, did not give or call any
Q evidence in trial. Mr Reading SC, who represented him at trial as he Q
does today, put his case in this way. He denied he had ever kicked the
R R
taxi in the manner suggested and he denied he had told the taxi driver he
S had done so. The evidence of the physical state of the taxi prior to the S
event in question was equivocal. PW1, the taxi owner, was of no
T T
assistance to the court in this respect and the evidence of PW2 was
U U
V V
- 3 -
A A
B
undermined. He was not a man of good character and two of his B
previous offences related to his job as a taxi driver and were suggestive of
C C
a degree of dishonesty. His oral evidence was inconsistent with his four
D
witness statements and with the evidence of PW3 and PW4. The D
evidence alleged a dent of some 8 inches in length and one inch wide 1.
E E
Its position was inconsistent with a kick by the appellant 2. As to the
F
event itself, it was suggested that the appellant was seeking to hail a taxi. F
The ‘Not for Hire’ sign was not displayed (or not displayed properly) and
G G
the light from the ‘For Hire’ sign was illuminated. The taxi drove so
H
close to the appellant that he had to jump out of the way and when he H
realised the taxi driver was not going to pick him up he was angry.
I I
Because the taxi had driven so close, he had lashed out with his foot and
J made contact with the bottom of the nearside rear passenger door. He J
accepted that he had abuse at the driver in Cantonese.
K K
The Grounds of Appeal
L L
4. In his perfected grounds of appeal, the appellant relies upon
M M
the single ground that there was a lurking doubt in this matter, the benefit
N of which should have been given to the appellant. In summary he N
submits that doubt arose because:
O O
(i) The only evidence that the appellant kicked the taxi came
P P
from a voluntary witness statement [P7], which the appellant
Q provided to the police. Q
(ii) That voluntary statement was a mixed statement made in the
R R
course of a complaint being made against the taxi driver
S [PW2] for, inter alia, his manner of driving, and whilst the S
appellant admitted kicking the taxi, he did not admit kicking
T T
1
AB 89U-90B; AB 102O-R
2
U AB 111U-112H; AB 117J; AB 118E-H U
V V
- 4 -
A A
B it in the place where the taxi was damaged, namely adjacent B
to the gas cap, but instead “near the bottom of the rear side
C
door”, where there was no damage. C
D (iii) In considering the contents of the mixed statement made by D
the appellant, the learned magistrate did not properly
E E
evaluate the statement in that, she did not give sufficient
weight to the explanation given by the appellant in the
F F
course of his admitting that he kicked the taxi.
G G
(iv) The appellant is a person of previous good character.
H (v) The taxi driver, PW2, was not a person of good character, H
having previously been convicted on two separate occasions
I I
of offences concerning the hiring of his taxi when he
attempted to cheat would-be tourists, and part of the
J J
appellant’s allegation against PW2 was that he refused to
K accept the appellant and his distraught companion as K
passengers.
L L
(vi) PW2 alleged he had checked the taxi before he commenced
M driving it that day, and had not seen any damage. M
(vii) PW2 initially claimed $25,000 compensation for the damage
N N
to the taxi, when the cost of repairs to the taxi was $4,500.
O He had previously told a police officer that part of the claim O
was for pain and suffering because the appellant had hurt his
P P
feelings, but gave a completely different reason for the
Q
exorbitant claim when giving evidence. Q
(viii) The taxis managed by PW1 were parked in the street in the
R R
one area – the first shift driver would park the taxi and the
S
second shift driver would drive it away. PW1 claimed that S
he usually inspected the taxi after it was parked and before
T the second driver drove it, for damage. He said in T
cross-examination, conceding that the damage to the taxi
U U
V V
- 5 -
A A
B was slight, that he did not check all of the 50 taxis he B
managed – although he said in evidence in chief that he
C C
checked the taxi for damage before PW2 took over driving,
he conceded in cross-examination that he was not sure that
D D
he had checked it on that day. He said he relied on drivers
E to inform him if a taxi was damaged. E
(ix) The appellant is 60 years of age and well over 6 feet in
F F
height [but not 7 feet as PW2 had suggested]. The
G evidence of PW2 was that he drove within 2 to 3 feet of the G
appellant and his companion – in this location because cars
H H
park on the nearside of the carriageway, there is only one
I
lane available for traffic. The damage to the taxi was about I
2½ feet above the road surface, adjacent to the gas cap. In
J these circumstances, it would be physically impossible for J
the appellant in a confined space, to raise his leg to kick the
K K
taxi with sufficient force to damage it as alleged.
L L
Lurking Doubt
M M
5. It was perhaps unfortunate that the appellant relied upon the
N phrase ‘lurking doubt’ as opposed to simply stating that the prosecution N
had not proved its case ‘beyond reasonable doubt’, as it led Dr Mohamed
O O
on behalf of the respondent, down a path which, in the circumstances of a
P magistracy appeal, she need not have followed. In deference to her P
considerable efforts in that respect, I will deal with whether the test for
Q Q
‘lurking doubt’ on a magistracy appeal is entirely appropriate.
R R
6. The lurking doubt principle, as it has been called, arose as a
S S
result of the passing of the Criminal Appeal Act 1966, which empowered
T the Court of Appeal of England and Wales, to allow an appeal against T
conviction if it was of the view the verdict should be set aside on the
U U
V V
- 6 -
A A
B
ground that under all the circumstances of the case it is ‘unsafe or B
unsatisfactory’. In R v Cooper (1969) 53 Cr App R 82, Widgery LJ, in
C C
1968, suggested, in respect of the type of case before it:
D “…the Court must in the end ask itself a subjective question, D
whether we are content to let the matter stand as it is, or
E whether there is not some lurking doubt in our minds which E
makes us wonder whether an injustice has been done. This is
a reaction which may not be based strictly on the evidence as
F such; it is a reaction which can be produced by the general feel F
of the case as the Court experiences it”.
G G
7. In Tang Wai-tong & Anor v The Queen CACC 144/1979,
H H
Roberts CJ, on an application that the verdict of the jury was unsafe and
I unsatisfactory (following the amendment of section 83 of the Criminal I
Procedure Ordinance, Cap 221 in 1972) referred to R v Cooper supra and
J J
to the lurking doubt principle arising from the combination of a number
K of unsatisfactory features in the evidence. In response to that principle, K
he said:
L L
“70. We think that the lurking doubt formula must be
M applied with great caution. An appellate court, reading M
papers and not seeing witnesses in the way that a jury does,
must be cautious in imposing its subjective feelings for the
N conclusions reached by men and women who have had the N
advantage of seeing the witnesses and assessing their
credibility.
O O
71. In our view, ‘lurking doubt’ means not an insubstantial
P doubt but a substantial remaining doubt.” P
Q 8. The hurdle for an appellant in raising ‘lurking doubt’ was Q
raised further in The Queen v Diu Lap-nin CACC 1439/1983 when
R R
Roberts CJ stated in respect of this same principle:
S S
“48. Without wishing to lay down any rule that the lurking
doubt principle should not be applied where a defendant gives
T T
no evidence, we do state our view that such a failure makes it
much less likely that a court will feel that doubt, which is a
U matter of instinct and experience as well as of evidence”. U
V V
- 7 -
A A
B
9. In HKSAR v Chang Che Wei [2012] 2 HKLRD 1151, B
McWalters J (as he then was), in his inimitable style, simply succinctly
C C
reformulated the above into four guiding principles:
D (i) an appellate court should apply the principle with great D
caution as it does not enjoy the benefit which the jury had of
E E
seeing the witnesses and assessing their credibility;
F (ii) a ‘lurking doubt’ does not mean an insubstantial doubt but a F
substantial remaining doubt;
G G
(iii) determining whether it ‘feels’ there is a lurking doubt the
H appellate court has regard not just to the evidence but also its H
instincts and experience; and
I I
(iv) where a defendant fails to give evidence it is much less
J likely that a court will feel there is a lurking doubt. J
K K
10. Of particular note though is paragraph 46 of that judgment,
L which is apposite here, where the learned judge stated: L
M M
“46. In respect of the fourth principle care must be exercised
in how it is applied. The absence of any evidence from a
N defendant has two consequences. First it leaves the N
prosecution case uncontradicted by evidence from the
defendant and secondly it may, by virtue of that reason,
O O
persuade a jury more readily to draw an adverse inference.
But this does not mean that the jury is entitled to draw an
P inference that is not otherwise available to them to draw.” P
Q 11. In all cases, the lurking doubt principle clearly applies to Q
hearings upon appeal from the District Court and High Court where the
R R
Court of Appeal is dealing with appeals against conviction and/or
S sentence. But does the lurking doubt principle apply to magistracy S
appeals? In HKSAR v Ip Chin Kei [2012] 4 HKC 135 McWalters J also
T T
U U
V V
- 8 -
A A
B
dealt with the test for quashing a conviction on appeal from a decision of B
a magistrate. By way of summary the court found:
C C
(i) An appeal under section 113 of the Magistrates Ordinance,
D Cap 227 is by way of rehearing3 on the evidence before the D
trial court (as supplemented) as opposed to an appeal to the
E E
Court of Appeal which is an appeal in the strict sense
F i.e. whether there is found to be an error on the record. F
(ii) In a magistrate’s appeal, the burden upon the prosecution is
G G
to uphold the conviction by showing the matter is proved
H beyond reasonable doubt and that of the appellant is to H
uphold the appeal by showing how the prosecution has failed
I to satisfy the burden placed upon them. It is for the parties I
to determine the content of the appeal bundle with those
J J
burdens in mind, subject to the supervision of the Registrar
K and the discretion of the appellate judge. K
(iii) The grounds of appeal should seek to persuade the appellate
L L
court on rehearing to depart from the findings of fact and law
M made by the magistrate. M
(iv) The appellate court would only go behind the magistrate’s
N N
finding on credibility where it was plainly wrong.
O (v) A finding that a magistrate has made an error of fact or law, O
which amounts to a material irregularity, does not
P P
automatically estop the court, on appeal, from exercising its
Q statutory duty and rehearing the matter if it can properly do Q
so, otherwise the appeal should be allowed.
R R
(vi) The test for whether an error by a magistrate amounting to a
S material irregularity should lead to an appeal being allowed S
is whether it is just for such an order to be made.
T T
3
U Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70, [2005] HKCU 320 U
V V
- 9 -
A A
B (vii) Even where the appellate court found no such error on the B
part of the magistrate and even if no ground of appeal was
C C
made out, the court still has to carry out its statutory duty
and conduct a re-hearing on the papers. As a consequence,
D D
the grounds of appeal should not focus on errors that the
E magistrate has made, it should focus upon the argument as to E
why, on either the facts or the law or both, the prosecution
F F
has failed to establish guilt beyond reasonable doubt.
G G
12. That being the case, the court on a magistracy appeal has to
H be satisfied beyond reasonable doubt of the guilt of the appellant. If his H
case is or may be true, he must be acquitted. The fact that the appellant
I I
does not give or call evidence is only one matter which falls to be
J considered, albeit it may be of some significance given that the court is J
not able to assess the witnesses for itself. As a consequence of the
K K
above, I doubt very much whether the ‘lurking doubt’ principle is
L applicable to a magistrate’s appeal at all. L
M M
Rehearing on the Papers
N N
13. I am assisted in having a transcript of the evidence of PW1
O and PW2 as well as the closing submissions of counsel and the O
magistrate’s Statement of Findings and I am cognisant of the fact that the
P P
appellant seeks to undermine the finding as to credibility of PW1 and
Q PW2, which I must approach with considerable caution given this court Q
has not had the opportunity to assess the witnesses for itself.
R R
S 14. This is an offence under section 60(1) of the Crimes S
Ordinance, Cap 200. The relevant elements of the offence are:
T T
(i) damage to property belonging to another;
U U
V V
- 10 -
A A
B (ii) intending to damage such property; or being reckless as to B
whether such property would be damaged; and
C C
(iii) without lawful excuse.
D D
15. The prosecution case turned upon the issue of whether
E E
(i) there was damage to the taxi; and
F F
(ii) that damage was caused by the defendant.
G G
16. The damage is alleged to have occurred on 16 March 2018.
H H
The photographs of the damage were taken on 28 March 2018 by the
I
investigating officer PW3, and not the officer who attended at the scene. I
The officer who attended the scene PW4, was not asked to confirm the
J J
damage, if any, he witnessed on 16 March. He had attended at the scene
K
on a complaint of assault and not of criminal damage. K
L 17. Given the appalling state of the photographs Exhs P2 and P4 L
and the description given and accepted in trial by PW2 under cross-
M M
examination of the nature of the damage being an 8-inch longitudinal
N dent an inch wide, and not a circular dent, the learned magistrate would N
have had some difficulty actually identifying the actual damage upon
O O
which this prosecution was premised. Indeed, I note that the magistrate
P only went so far as to say that “it was not in dispute that a dent mark on P
Q
the fender (back nearside panel) near the gas cap was seen on the taxi as Q
shown in the photos... ”. 4
The lack of specificity of finding may have
R R
had a significant effect upon the inference the magistrate sought to draw
S
in order to find that the appellant caused the damage in question. In any S
event, on the basis that PW2 agreed the description put to him by the
T T
appellant, which was not undermined by any other evidence, this court
4
U Statement of Findings §18, AB 30 U
V V
- 11 -
A A
B
and the magistrate should have accepted that the damage was B
characterised as suggested by PW2 in his witness statement and not
C C
resiled from under cross-examination.
D D
18. How then does the prosecution say that this damage was
E caused? The prosecution submit that it was caused by a kick. How E
does someone leave a mark of this nature by kicking the relevant panel?
F F
It was, as Mr Reading SC suggested, some 2½ feet off the ground and
G adjacent to the filler cap. It appears to run at its highest point closer to G
the passenger door and at its lowest point nearest to the filler cap but
H H
below it by some 7 or 8 inches. If, as PW2 stated in his witness
I statement, this was a one inch wide longitudinal dent, it could not be I
caused by a flat foot or the toe of a shoe.
J J
K 19. There was no direct percipient evidence of the cause of K
damage. There was however evidence, if proved, from which an
L L
inference could be drawn. These appear to be:
M M
(i) The taxi was intact at the start of the shift.
N N
(ii) PW2 was driving away from the position of the appellant
when he heard a loud bang (alternatively a ‘pop’) sound
O O
coming from the left hand side of his taxi.
P P
(iii) PW2 turned around and saw the appellant in the vicinity of
the rear nearside of his car.
Q Q
(iv) He stopped, got out, saw the dent, remonstrated with the
R R
appellant, to which the appellant replied “It’s me who kicked
your taxi. You didn’t drive me home.”
S S
T 20. In conflict with those facts was the following evidence: T
U (i) PW2 was not a man of good character. U
V V
- 12 -
A A
B (ii) PW2 had made four witness statements which conflicted B
with each other and with his oral testimony.
C C
(iii) PW2’s oral testimony also conflicted with that of PW3 and
D PW4. D
(iv) PW2 had reported a case of assault not criminal damage.
E E
(v) PW2 had claimed in excess of $25,000 at the scene and later
F when dealing with the police and gave inconsistent evidence F
as to how he had reached such a figure.
G G
(vi) PW2 was therefore unworthy of belief.
H H
(vii) In support of that contention, he had not provided the car
I cam and the receipt for repairs had been produced several I
months later, which purported to show a repair to the vehicle
J in question, which took place some three months after the J
event and which did not reflect the damage alleged e.g. there
K K
would have been no need to replace the nearside rear panel
L and there was no evidence of damage to the paintwork. L
(viii) The appellant was a man of good character.
M M
(ix) The appellant had voluntarily made a statement in which he
N had admitted kicking the taxi but not in the damaged area N
[P7].
O O
P 21. The question therefore is whether the facts as found to be P
proved by the learned magistrate were sufficient to draw an irresistible
Q Q
inference that the appellant had kicked the taxi and caused the damage
R concerned and if so was that the only reasonable inference to be drawn R
from the facts given:
S S
(i) The nature and position of the alleged damage.
T T
(ii) The position of the appellant vis-a-vis the vehicle.
U U
V V
- 13 -
A A
B (iii) The fact the appellant had volunteered he had kicked the B
bottom of the car door and therefore would have caused the
C
loud bang (alternatively ‘pop’) sound. C
D (iv) The implausibility of how the damage could have been D
caused.
E E
Analysis of the Prosecution Case upon Rehearing
F F
22. The evidence of PW2 is that he spoke with the appellant
G G
when he rolled down his window to tell him that he was not for hire.
H I infer from that that the appellant was adjacent to the front passenger H
window at that time. Thereafter, PW2 says he heard a loud bang as he
I I
was driving away, looked around and saw the appellant take one step
J away which would have been after the bang and not before it. He was J
then standing by the rear passenger door trying to get into the taxi and
K K
presumably was close enough to be handling the door lever in order for
L the taxi driver to have that view. The appellant therefore appears to L
have been standing very close to the taxi at all material times. There
M M
appears to be some merit in Mr Reading’s suggestion that it would have
N been physically impossible for the appellant, regardless of his height, to N
have kicked the vehicle at the height of and in the position of the alleged
O O
damage. It also begs the question whether a kick by the appellant from
P that or any other position could have produced an 8-inch longitudinal P
dent adjacent to the filler cap unless the appellant was kicking a sideways
Q Q
blow with his foot which would in turn require a wholly different position
R vis-a-vis the vehicle. The damage in the photographs is very difficult to R
see. This was not a large dent. In the words of PW2, “It’s just a slight
S S
5
dent mark” . There was also evidence from PW4, the police officer who
T attended the scene, that the taxi driver had alleged he had been assaulted T
5
U AB 89U U
V V
- 14 -
A A
B
by the appellant, which PW2 accepted under cross-examination was not B
the case. There was evidence from the same officer that PW2 had
C C
suggested that the repair costs would be $25,000. However the
D
investigating officer PW3 said on 19 March, when he called PW2, PW2 D
had said that he wanted $25,000 as compensation for mental distress at
E E
having been scolded. The officer asked for the receipt for repairs at that
F
time and for a copy of the recording on the car camera. Neither of F
which were produced then and there and no mention was made at the
G G
time of the request to the fact the car cam was not working. The receipt
H
[P5] dated 3 June 2018, for the repairs was not produced until November H
although the work was allegedly carried out a month after the event. It
I I
did not reflect the nature of the alleged damage. The camera recording
J was never produced. J
K K
23. This court is not satisfied that the prosecution can maintain
L
this conviction. Quite apart from the manner in which PW2 gave L
evidence, which would have been important to an assessment of his
M M
veracity. There are far too many inconsistencies and too much
N
implausibility for the magistrate to have been satisfied beyond reasonable N
doubt that his version of events as to the admission of the appellant at the
O O
time of the event was to be relied upon. The inference which the
P
learned magistrate drew was not the only inference which could be drawn P
and it was plainly wrong in the circumstances of this case to ignore
Q Q
entirely the exculpatory parts of the witness statement made voluntarily
R
by the appellant [P7] when dealing with the issue of the drawing of R
inferences.
S S
T T
U U
V V
- 15 -
A A
The Mixed Statement
B B
24. At paragraph 39 of the Statement of Findings, the learned
C C
magistrate refers to the mixed statement of the appellant dated 24 July
D 2018 [P7], which was not made under caution but was signed by the D
appellant and included the usual Pol 154 declaration. It was intended to
E E
be used by the appellant as a complaint against PW2 for dangerous or
F careless driving. The prosecution produced this document as part of its F
case against the appellant through the investigating officer PW3. The
G G
only way they could do so was by showing that the statement contained
H admissions against interest for, if it was wholly exculpatory, it would be a H
previous consistent statement and inadmissible. The prosecution are
I I
thereby reminded of the well-established and age-old principle that where
J J
a prosecutor uses the declaration of a prisoner, he must take the whole of
it together, and cannot select one part and leave another. When the
K K
prosecution adduce a statement relied upon as an admission it is for the
L L
jury to consider the whole statement including any passages that contain
M
qualifications or explanations favourable to the defendant, that bear upon M
the passages relied upon by the prosecution as an admission, and it is for
N N
the jury to decide whether the statement viewed as a whole constitutes an
O
admission. If the defendant elects not to give evidence then in so far as O
the statement contains explanations or qualifications favourable to the
P P
defendant the jury, in deciding what, if any, weight to give to that part of
Q
the statement, should take into account that it was not made on oath and Q
has not been tested by cross-examination.6
R R
S
25. In her Statement of Findings, the learned magistrate attached S
no weight at all to the exculpatory parts of the statement. The reason
T T
she gave for so doing was “that it had not been made on oath, had not
6
U R v Jones (1827) 2 C & P 629; R v Donaldson (1977) 64 Cr App R 59 U
V V
- 16 -
A A
B
been repeated on oath and had not been tested by cross-examination”. B
However, she did give full weight to the incriminating parts of the
C C
statement. The learned magistrate did not give her reasons for so doing.
D
Unfortunately, the learned magistrate fell into error in her reasoning for D
rejecting the explanation or qualification of the appellant. It would
E E
appear that, because the statement had not been made on oath, repeated
F
on oath and tested under cross-examination, it was not worthy of F
consideration at all. The authorities, of which there are many, do not
G G
suggest such a draconian approach. They, rightly, suggest that the
H
weight attributed to a self-serving statement may be given less, and H
indeed considerably less, weight than the weight attributed to an
I I
admission against interest, but they do not suggest that because they are
J not made on oath, repeated on oath and tested under cross-examination, J
that they should not be considered at all. Indeed, they go out of their
K K
way to suggest the opposite7.
L L
26. A mixed statement is an out of court statement made by a
M M
defendant which contains both inculpatory and exculpatory parts. It
N
might be of assistance to first identify which parts of P7 could be N
considered to be inculpatory or admissions against interest and which
O O
exculpatory. In so doing, I have in mind HKSAR v Poon Hoi Wing &
P
Anor CACC 313/2000, per Stock JA (as he then was), in which the court P
stated that where admissions are such as the defendant is bound to make
Q Q
and which do not go to the central issue, may lead the court to the
R
conclusion that the statement is wholly exculpatory. The Court of R
Appeal considered R v Garrod [1997] Crim LR 445 in which the Court of
S S
Appeal of England and Wales stated that where the statement contained
T an admission of fact which was significant to any issue in the case T
7
R v Higgins (1829) 3 C & P 603; R v Duncan (1981) 73 Cr App R 359; R v Sharp [1988] 1 WLR 7;
U HKSAR v Poon Hoi Wing & Anor supra U
V V
- 17 -
A A
B
i.e. capable of adding some degree of weight to the prosecution case B
material to an issue which was relevant to guilt, the statement must be
C C
regarded as mixed. The first question one must therefore ask is: what is
D
the nature of the statement relied upon? D
E 27. The inculpatory parts of the statement as relied upon by E
Dr Mohamed on behalf of the prosecution were:
F F
(i) the appellant’s presence at the side of the road;
G G
(ii) that he sought to hail a taxi and did hail PW2’s taxi;
H H
(iii) that the taxi stopped; the taxi driver got out and there was a
I conversation. That conversation included the taxi driver I
asking why the appellant had kicked his taxi;
J J
(iv) that the appellant responded by saying he had refused to pick
K him up and asking why the driver had not stopped; K
(v) that he had been shown the alleged damage by the police
L L
officer.
M M
28. The exculpatory (self-serving) parts of the statement which
N N
the appellant sought to rely upon through counsel, and which he says
O
should have been taken into consideration, were: O
(i) that the flag of the taxi was up and illuminated;
P P
(ii) that the taxi drove close to the appellant;
Q Q
(iii) therefore the appellant jumped out of the way;
R (iv) that because the taxi veered very close to the appellant, the R
appellant lashed out with his foot and kicked the taxi;
S S
(v) that the impact was with the bottom of the rear passenger
T door and not to the left of the filler cap some 2½ feet above T
the ground;
U U
V V
- 18 -
A A
B (vi) that he had been shown the alleged damage and had said that B
was not the part he had connected with as he had kicked the
C C
bottom of the rear nearside passenger door and his foot
“never reached that high”;
D D
(vii) that he had reported the taxi driver for dangerous and
E E
careless driving.
F F
29. The appellant was charged with criminal damage which was
G effected by kicking the taxi. In his statement he admitted being present, G
kicking the taxi and having words with the taxi driver over the allegation
H H
that he had in fact kicked his taxi. Those were all matters which went to
I the prosecution case even though, at the end of the day, the issue to be I
determined was limited to whether the appellant kicked the taxi in the
J J
place alleged and whether that kick resulted in the alleged damage. As
K such, it was clearly a mixed statement. K
L L
30. What use should then be made of it? There is no doubt that
M both the inculpatory and exculpatory parts of a mixed statement may be M
admitted as an exception to the rule against hearsay as evidence of the
N N
truth of its contents. Although the two parts may not carry the same
O weight. It is trite law that an admission against interest is more likely to O
be true than a statement which is self-serving. But this is not an
P P
inviolable rule, it is rather, a rule of thumb and the court must look at the
Q statement in context to fairly evaluate the relevant parts and decide what Q
weight to apportion to which parts8. If that exercise had been carried out
R R
here, it would have raised a doubt as to how and when the damage in
S question was caused and the appellant was entitled thereby to be S
acquitted.
T T
8
U HKSAR v Poon Hoi Wing & Anor supra U
V V
- 19 -
A A
Conclusion
B B
31. Accordingly the appeal will be allowed. The conviction is
C C
quashed and the sentence set aside. There will be no order as to costs.
D D
E E
F F
G (A P Campbell-Moffat) G
Judge of the Court of First Instance
H
High Court H
I Dr Nisha Mohamed, counsel on fiat, for the respondent I
Mr John Reading SC, instructed by LCP, for the appellant
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V