Yau Chung Kee v. The Queen
Read the full judgment text of CACC 103/1973 on BabelCite. This Court of Appeal judgment.
1. The appellant was convicted in the District Court on the 17th of January on four counts of causing death by dangerous driving. Fines of $250 were imposed on each count. The appellant was an employee of the Urban Services Department and on the 24th of March 1972 he was in charge of an articulated rubbish removal vehicle owned by that Department. On the 24th of March at about 2.00 p.m. he was driving this vehicle down On Shin Road, a road in the Ngau Tau Kok area which slops downwards towards i
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 103 OF 1973 ________________________
________________________ Coram : Full Court (Huggins, McMullin & Pickering JJ.) ________________________ JUDGMENT ________________________ McMullin J. : 1. The appellant was convicted in the District Court on the 17th of January on four counts of causing death by dangerous driving. Fines of $250 were imposed on each count. The appellant was an employee of the Urban Services Department and on the 24th of March 1972 he was in charge of an articulated rubbish removal vehicle owned by that Department. On the 24th of March at about 2.00 p.m. he was driving this vehicle down On Shin Road, a road in the Ngau Tau Kok area which slops downwards towards its junction with Ngau Tau Kok Road when the vehicle evidently went out of control and plunged across the junction crossing both the west to east and east to west carriageways, breaking through the iron railing which guards the pavement running along the southern border of the carriageway, mounting the pavement beyond the railing and coming to rest against the cliff-face 42 feet to the south of that pavement. In the course of this wild career, it almost totally demolished a make-shift temporary structure which was then in use as an eating-house and which was one of a row of such structures occupying the land between the cliff-face and the southerly border of the pavement. The proprietor of this establishment and three of his clients who were eating therein at the time were killed in the accident. Only two eye-witnesses of the accident were called by the prosecution and the trial judge did not attach very great importance to that evidence. The case, as he correctly put it, rested largely on the fact that the vehicle was apparently in a perfectly road-worthy condition before this accident and that it followed a course straight down On Shin Road from the point where it had been parked at the top of that road (which is apparently a cul-de-sac), passed a T-junction half way down On Shin Road and went straight across the main junction at Ngau Tau Kok Road in the manner described. It would appear that the prosecution presented the case on the basis that these facts as they stood were sufficient to constitute a prima facie case of dangerous driving but two statements made by the appellant to the police were also tendered in evidence. No objection was taken as to their admissibility. The first of these was made by the appellant while he was still detained in Queen Elizabeth Hospital on the 24th of March 1972 at about 9.15 p.m. In this statement he admitted having been driver of the articulated vehicle at the relevant time and said that some time after twelve noon on that day he had parked the vehicle at the top of On Shin Road and that he had then gone to take his lunch. He returned at about 1.35 or 1.40, started the vehicle, drove down On Shin Road and found that the brakes were functioning, but that a short distance above the junction with Ngau Tau Kok Road when he applied them to reduce his speed he discovered that they had totally failed and the vehicle shot forward at increasing speed. He applied the hand brake which had no effect. By this time he had ploughed his way across the carriageway and had broken through the railing on the southern side thereof. He said that he got out and found himself on the roof of one of the wooden huts that he called to somebody to dial 999 and then fainted and did not recover consciousness until after he arrived in the hospital. 2. On the 25th of April at about 12.15 a.m. he made a further statement to Inspector LEUNG Cheuk-wah. Prior to doing this, at about 10.30 that morning, he went with the Inspector to the scene of the accident and covered the distance between the place where he had been parked and the junction in the company of the Inspector describing to the Inspector as they did so the various actions he had taken in the course of that journey on the day of the accident. They then returned to the police station where he made a full statement concerning the affair and where the Inspector also drew a sketch map in accordance with what had been described to him by the appellant earlier noting thereon comments in accordance with what he had then been told. The only significant difference between the earlier statement and the matter recorded by the Inspector on the sketch map and in the subsequent statement is that in the latter two documents the appellant does not mention having tested the brakes in the earlier part of the run down from the parking place. In the second statement what he said was that as he was coming down the hill at a speed of about 10 to 12 miles an hour he applied the foot brake to slow the vehicle but found that it was not functioning and that the vehicle then “dashed forward”. He then applied the hand brake and another brake which was referred to as an emergency brake and which appears to be connected in some way with the trailer but neither of these was effective to any material degree. In this statement he accounted for the fact that he made no endeavour to swerve by reason (a) of the fact that he was in a state of panic and (b) that he was endeavouring to apply the several braking systems to which reference has been made. 3. No witness was called by the prosecution to identify the accused as the person who was driving the lorry on the occasion in question. The only other significant evidence was that of Inspector Tully, an Inspector of vehicles with the Transport Department, who examined the articulated vehicle on the 27th of March in the police compound. He found no mechanical defects in the braking system and described the braking efficiency as “good”. The brakes were operated by a dual air-hydraulic servo mechanism and he could find no sign of leakage of hydraulic fluid or loss of air when the mechanism was operated. He was evidently asked what his opinion was as to the possible cause of any brake failure on this particular occasion and the note of the evidence embodying his reply is as follows:
It is important to note that, in this recital, a remarkable feature of this braking system would appear to be that merely to leave the vehicle parked for some time would in itself be sufficient to exhaust the air pressure so that the brakes would be wholly inoperable until the engine had been run for about one minute after re-starting. It needs scarcely be emphasised that, in view of this arrangement, it would be vital for the safe operation of such a vehicle that any person put in charge as its driver must be fully apprised of the nature of the braking system and of its special needs. 4. At the conclusion of the case for the Crown the Solicitor for the appellant submitted that there was no case to answer. He maintained that the prosecution had not proved that the accused drove dangerously. He pointed out that the appellant in his statements had alleged a total failure of the brakes and that the prosecution had failed to show that this was untrue. He further pointed out that the accused’s account of the matter in those statements coincided remarkably well with the nature of evidence given by Mr. Tully as to how such failure might have occurred. The District Judge ruled that there was a case to answer and put the appellant on his defence on all charges. The appellant did not give evidence and no other evidence was called on behalf of the defence. 5. In his written reasons for judgment, the learned District Judge reviewed the evidence and went on to say:
He cited a number of decisions in support of this view from recent authority. It will be unnecessary to refer to these cases other than to say that they do afford abundant cover for the proposition so enunciated. He went on, however, to apply that principle to the case before him. With respect, it appears to this court that it is at this point that he went wrong. The cases cited deal exclusively with rulings on submissions of no case. Everything that he had said thus far was unimpeachable viewed from the standpoint of the submission of no case. As Mr. Downey points out, however, once the appellant had been put upon his defence a duty was imposed upon the judge to review the evidence as a whole in the light of the higher and quite different standard of proof beyond reasonable doubt. It is counsel’s contention, and we see no reason to disagree with him, that the whole manner of dealing with the evidence when he came to give his reasons for convicting implies that the appellant’s failure to give any account upon oath or affirmation, and subject to the test of cross-examination of how the accident had occurred, precluded any further consideration of the explanatory matter contained in the two statements recorded by the police which were put before the court. Thus in the concluding part of this recorded reasons for conviction the learned District Judge said as follows:
There is no doubt that the general rule persist in our law that an accused person’s extra-judicial statements are not evidence of the truth of their contents except in so far as the same may amount to an admission of guilt. That rule is not without its difficulties as Mr. Donaldson for the Crown frankly admits in the present case. This sentiment is echoed by the commentator on Neal v. Reynolds([1]) where he says as follows :
The equivocal character of such statements and the difficulty to which they give rise is given eloquent expression in the case of R. v. Sparrow reported in The Times of the 19th of January this year where Lawton L.J. striking a note at once plaintive and resigned says, in relation to statements of an accused person charged with murder who had not gone into the witness-box to confirm or deny their contents,
Mr. Downey has wisely not sought to persuade us that we are entitled to overturn this principle but rather he has sought to seize upon a different principle which might indeed be said not to assort very comfortably with it. He referred us to the decision in R. v. POON Chi-kwong ([2]) where at page 362 Scholes J. adopted, for the purposes of the argument he was then considering, a passage from the judgment of Parke J. in the old case of R. v. Huggins ([3]) at page 604 which was in the following terms :
Referring to this decision Cross in the third edition of his work on Evidence says in a footnote at page 471 :
The same principle appears to have been accepted, at least implicitly by the Court of Appeal in R. v. McGregor([4]). In that case the prisoner and his wife were charged with receiving stolen property. She was acquitted and the jury disagreed in respect of the prisoner. He was re-tried alone and in the subsequent trial the prosecution were permitted to introduce evidence from a police officer who had been present at the prior trial of statements made by the accused at the prior trial in giving evidence on his own behalf. In that evidence he had admitted being in possession of the goods and putting them in at his wife’s shopping bag but he went on to explain that he did not know at the time that they were stolen. He was convicted at the subsequent trial and on appeal it was complained that the trial judge had addressed the jury on this point in such a manner that the jury might have inferred that it was proper for them to have regard to what the prisoner was said to have told the court at the former trial only in so far as the same amounted to admissions against his own interest. Lord Parker C.J., delivering the judgment of the court on the appeal, considered this complaint and discounted it but in terms which made it clear that the Court of Appeal was taking the view that it would have been quite improper of the trial judge to have directed the jury in that manner. It would, in other words, have been wrong to leave the jury only with the admissions and withdraw from them the explanations made by the prisoner. 6. The strength of Mr. Downey’s contention, and the value to him of these authorities, rests in the fact that had the learned District Judge not been able to rely upon portions of the statements made to the police by the appellant the prosecution could not have succeeded because there was no evidence outside those statements as to the identity of the driver of the lorry and, as Mr. Downey put it, the submission of no case must inevitably have succeeded in the absence of those statements. Moreover, the trial judge undoubtedly appears to have relied upon these statements to the extent that they admitted that the accused had been driving the vehicle since early morning. It would therefore he says be unfair to take portions of the statements and, in performance of his function as jury, to rely upon those portions only which told against the prisoner and have no regard to anything said by him by way of explanation therein. The situation was, in counsel’s contention, that the prosecution had been compelled, in bringing home their case, to rely upon the statements. That being so, the principle enunciated in R. v. Higgins (3) should apply. If the learned judge had taken this view he must then necessarily have addressed his mind to the task of considering what was said by the accused in those statements by way of explanation in deciding whether on the evidence as a whole, including those explanations, a reasonable doubt had been raised and the “presumption” rebutted. The judge had simply not entered into these considerations at all because of the view that he had formed, that, in the circumstances of the case the statements could not be regarded as evidence of the truth of what they contained. Clearly, if they were capable of being relied on as telling the truth where they implicated the accused as the driver of the vehicle at the time of the event it would seem very unfair that they should not be regarded as available for scrutiny in relation to the question whether any reasonable explanation was available to explain what otherwise appeared to be an inexplicable accident. 7. Finally in this regard Mr. Downey urged upon us the view that the principle of R. v. Higgins (3) must be especially apt and applicable in a case such as the present where the explanatory matter contained in the statements receives some degree of confirmatory approval from the Crown’s own case. This arose from the hypothetical explanation put forward by Mr. Tully and from the fact that there was no evidence of excessive speed or erratic driving prior to the vehicle’s intrusion upon the junction but that, on the contrary, it appears to have maintained an unwaveringly straight course from the moment control was lost until it came to rest at the far side of the road. We are satisfied that the learned trial judge did not have regard to these explanations because of the view he had taken of their status and that he ought to have done so when he came to review the evidence generally at the conclusion of the hearing. Perhaps the appearance of collision between these two principles is best explained along the lines indicated by the Supreme Court of Alberta in the Canadian case of Rex v. Girvin ([5]) where Beck J. (at page 350) said as follows :
It should be noted that the judge in that case was giving qualified approval to the notion that such exculpatory matter may have evidentiary force. It is true that he stops short of suggesting that it can have such force standing by itself. Weight must however be given to it in relation to the light it throws upon the part of the statement which unquestionably is evidence i.e. the part which amounts to an admission or confession. If it be argued that the only value which such explanatory matter can have resides in its tendency to destroy or to explain away the matter which stands against the accused in the statement then it must be remarked that the courts do not always seem to have dealt with such explanatory matter in this way. It is interesting to note that two outstanding academic authorities upon the law of evidence writing from opposite sides of the Atlantic have shed light on this curious and disputed territory from two sharply contrasted angles arriving nevertheless at concordant opinions as to what the practice of the courts in England and in America actually is in this regard, the one with positive approval and the other without any stated dissent. Thus Professor Wigmore at page 527 of Volume VII of the Third Edition of his monumental work, addressing himself to the proposition that the remainder of a statement which has been introduced for the admission it contains is received solely to aid in the construction of the utterance as a whole, and that it is not in itself testimony has the following to say :
8. If this comment can be regarded as, at best, a grudging admission of frailty on the part of courts confronted with the task of preserving logic from the encroachments of expediency it will be useful to contrast the much more positive statement made in favour of this practice by Phipson. He describes this area of the law of evidence as one which “has until recently remained largely unexplored” and strikes off boldly towards a resolution of doubts. The passage set out below is of especial interest in the present connection in as much as it deals with this problem in the light of the decision of R. v. Storey ([6]) one of the recent decisions relied upon by the District Judge in the present case. In that case the accused, a young woman, was charged with possession of dangerous drugs and she made a statement to the police in which she gave an explanation of the presence of cannabis in her room. That statement if true would have represented a complete answer to the charge. A submission of no case to answer was overruled, the defendant did not give evidence and she was convicted. It was argued on the appeal that the judge in view of this explanation in her statement should have ruled that there was no case to answer. The court rejected that suggestion and the present editors of Phipson are in full agreement with that view. The text goes on then to quote a passage from the judgment of Widgery L.J. which is in the following terms :
The learned commentators then go on to discuss this passage in the following terms :
9. In the present case it may be that the prosecution introduced the appellant’s statement primarily to have the advantage of the admission it contained of his having been the driver at the time of the accident. It seems highly artificial nevertheless to suggest that that vital admission should be disentangled from its immediate context and the explanatory matter be wholly disregarded solely on the ground that it did nothing to negative or qualify the admission of the fact of being driver but only to explain the manner of the driving. If it was right for the court in Storey to leave the defendant’s unsworn explanation to the jury it is not easy in principle to see any good reason for refusing to consider the appellant’s explanation in the present case. In circumstances such as these it seems unsatisfactory to insist that the admission to having driven is not modified or qualified by a denial of having driven dangerously when the substance of the charge is not driving simpliciter but dangerous driving. 10. We take the view that it was incumbent upon the trial judge in accepting the admissions made by the appellant in his statements to consider the explanation offered therein in order to determine whether that explanation modified the admissions to the point of raising a reasonable doubt as to his guilt. 11. The only question remaining therefore is whether, had he done so, he must inevitably have come to the same conclusion. The trial judge had very properly directed his attention to the decision in R. v. Gosney ([7]). The appellant in that case had been convicted of dangerous driving, and at the trial she had sought to introduce evidence which would explain why she had been travelling in the wrong direction along a dual carriageway. The Deputy Chairman refused permission to introduce this evidence and relied for that purpose upon the decision in R. v. Ball & Loughlin ([8]) in which the court had expressed the view that the offence was one of absolute liability and that it could be committed by a person who had been completely blameless provided it were shown that what she had done had produced a dangerous situation. In disapproving this view Megaw L.J. delivering the judgment of the court in R. v. Gosney(7) says (page 680) :
Now if regard be had to the appellant’s unsworn explanations and if they are believed it is abundantly plain that the cause of the accident was a failure of the braking system. Equally it is plain that there was no sudden mechanical failure attributable to a defect in the machinery itself. It is difficult, indeed, to see how this failure could have occurred other than in the manner described by Mr. Tully as a combination of rare circumstances. Those “rare circumstances” involved that the vehicle should be left stationary for some time so that the air reservoir would become exhausted and, secondly, that when the vehicle was driven again it should be driven off at once without any time being taken to re-charge the reservoir by running the engine for at least a minute before the vehicle was set in motion. As was pointed out in the court below these circumstances appeared closely to resemble what was alleged by the appellant in his statements to the police to have actually happened in the case. If the trial judge had not found that the objective showing, on the evidence, of dangerous driving was confirmed to the point of obliging him to convict once the appellant failed to give any explanation to the court, and had he attended to the explanatory contents of the appellant’s statements and found himself left at least with a reasonable doubt that the accident must have come about in some such way as described, he would have been left with no sign of negligence or fault on the accused’s part save such as might be attributable to his failure to check upon the braking system before starting to drive the lorry from its position of rest. There is no doubt that such a failure could amount to that degree of fault which the court in R. v. Gosney (7) accepts as essential to the proof of such a charge for although it would not be a fault in the course of driving it would be such a fault as would pre-dispose the whole course of driving towards disaster. The difficulty here, however, is that there was no evidence placed before the court to show that the driver ought to have known that the reservoir was empty (assuming that that was indeed the case.) It is true that Mr. Donaldson, who appeared also in the court below for the Crown, is recorded as having said, upon the submission of no case, that the accused should have known the needs of his brakes. Indeed one would imagine that ought to be the case where a Government department entrusts a large and potentially dangerous vehicle to the care of any driver employed by it. But supposition and inference, however reasonable, have no place in a criminal prosecution other than by way of a necessary implication from proven facts. Such facts as are on the record concerning the accused’s state of knowledge and his experience tend rather to leave the question of his experience in doubt. Mr. Hampton in his closing address in the lower court submitted that the appellant had driven that vehicle for the first time on that day and although no evidence was called on the matter this does not appear to have been dissented from by counsel for the Crown. There was evidence that the vehicle was equipped with gauges to indicate the pressure in the air tanks. In addition there was an automatic buzzer which would sound an alarm on the switching on of the engine if the pressure was insufficient for braking purposes. When the vehicle was examined by Mr. Tully it was found that this device was not in working order. There is nothing in the evidence to show whether or not it worked at the moment when the appellant started the engine at the top of On Shin Road but it seems more likely that it did not, from what is said below. In relation to these factors the accused’s state of knowledge is of considerable importance. If he had been instructed in the special peculiarities of this vehicle and its braking equipment he ought to have known that after an hour and a half at rest the reservoir would be depleted and if the buzzer failed to sound he ought to have been aware that something was wrong and to have inspected the gauges. If he had not been so instructed, and if the buzzer had not sounded, then there would have been nothing to apprise him of any danger. It seems very obvious that the appellant would not willingly have put himself or others to risk by deliberately driving into a major road junction without any effective braking power whatsoever. If the buzzer had sounded then, assuming he had been instructed as to its meaning, he would clearly not have started off without waiting until the reservoir had been replenished. If he had not been so instructed he must have at least investigated the cause of this peculiar auditory signal. The fact that the accident occurred in the way that it did seem to indicate that he received no such warning. That in behalf would not absolve him from blame if he had been instructed, but in order to attach blame to him in this matter it must be assumed against him that he had been so instructed. That was a matter which could, and should, have been covered by evidence led on behalf of the Crown. We do not find it possible to say that, had he attended to the explanation given by the accused in his statements to the police, and assuming that he was thus persuaded that the cause of the accident was the failure of the brakes as seems most likely, that the learned judge must inevitably have found it proved beyond reasonable doubt that the fault giving rise to that failure was attributable to the negligence of the appellant. 12. Mr. Downey did not seek argue the other two grounds put forward in the notice of appeal. The ground which has been discussed above, was the single ground covered by the third of the original grounds of appeal. For the reasons given we do not think that the conviction was satisfactory. Treating this application as the appeal we allow the appeal and set aside the convictions on all counts. The fines if already paid must be refunded to the appellant. Disqualification to be set aside. B. Downey instructed by Gordon Hampton & Winter for appellant. I.S.W. Donaldson, C.C., for respondent. ([1]) (1966) CR. L.R. 394. ([2]) (1968) H.K.L.R. 345. ([3]) 3 C. & B. 603. ([4]) 1 Q.B.D. 371. ([5]) 34 Dominion Law Reports 344. ([6]) (1968) 52 Cr. App. R. 334. ([7]) (1971) 2 Q.B.D. 674. ([8]) 50 C.A.R. 266. |