Fung Kiu Oi v. Lui Pun Kwan and Another

CACV000034/1980

Traffic accident - trial judge disallowed cross-examination of defendant on his statement to police relating to accident. Held Li, J.A., Power, J. (Barker, J. dissenting): Case depended solely on credibility of witnesses - Disallowance deprived plaintiff to present fully her case. Appeal allowed. New trial ordered. Barker, J. dismissing appeal held: Plaintiff's evidence showed no negligence - full cross-examination would not affect result of the trial.

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Coram: Li, J.A., Power and Barker, JJ.

Date of Judgment: 7 July 1980

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JUDGMENT

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Li, J.A.:

1. This is an appeal against the judgment dismissing the appellant (plaintiff)'s claim in an action arising out of a traffic accident. On the 20th June 1978 the plaintiff and her husband were travelling on a cross harbour tunnel bus owned by the 2nd defendant from Kowloon to Hong Kong. Having crossed the harbour the bus stopped at the first bus stop outside the tunnel. The driver of the bus, the 1st defendant, opened the exit door. Passengers began to disembark. He also opened the entry door for incoming passengers. After a number of passengers had disembarked the plaintiff and her busband, both of them elderly, started to move to the exit door which was located in the middle of the bus.

2. The Statement of Claim alleged that as the plaintiff was disembarking the bus suddenly moved forward while the door was still open. The plaintiff was thrown off balance, landed on the pavement or the road, and as a result she sustained injuries to her leg. The defence was that at the material time the bus stopped properly at a proper bus stop. After the bus stopped the exit door in the middle of the bus was opened. Passengers started to disembark. Then the entry door in front of the bus which was to the left of the driver's seat was opened. Embarking passengers then went in through the entry door. By the time when all the embarking passengers were on the bus the driver who had control of both entry and exit doors looked at the left or nearside mirror outside the bus and observed that there were no more disembarking passengers. He closed the entry door and then the exit door while the bus was still stationary. After he closed the door he observed that there was a trousered leg and a stick protruding outside the bus. He immediately reopened the exit door. The old woman, the plaintiff, fell on the ground and sustained injury.

3. In the course of the trial there was evidence that immediately after the accident the bus driver, the 1st defendant, made a statement to the police and subsequently another report to a police sergeant who was the traffic accident investigating officer. These were included in the police traffic accident file. In the course of the hearing the sergeant who conducted the investigation was called to give evidence. He was asked to produce the traffic accident file which he did. Learned counsel for the defence objected to a statement made by the 1st defendant to the sergeant after the accident and that objection was upheld by the learned trial judge. However, without knowledge of any one concerned and two statements included in a file had been produced before the court albeit without any translation.

4. Regarding the issues whether the doors were opened, the number of passengers who had left the bus and how many passengers got on to the bus there appeared to be some very very minor discrepancies between the 1st defendant's evidence and the 1st defendant's statements made to the sergeant. In view of the first objection by the defence and the refusal of the learned trial judge to admit those statements, however, cross-examination on the statements was not pursued and in fact, we are given to understand, disallowed. That is an irregularity. By virtue of the provisions in section 14 of the Evidence Ordinance such statements would at all times be admissible and counsel for the plaintiff should be allowed to cross-examine the 1st defendant on the statements.

5. The grounds of appeal are that the learned trial judge erred in not admitting the statements and secondly that the trial judge erred in not allowing cross-examination to be conducted on the statements.

6. A further ground of appeal is that the learned trial judge failed to consider as relevant that the bus driver, the 1st defendant, was charged and convicted before a magistrate's court of the very negligence namely: failing to take all reasonable precautions to ensure the safety of passengers alighting from the vehicle. The 1st defendant pleaded guilty to this charge. As far as this ground is concerned, I am of the opinion that the learned trial judge, having heard the evidence and explanation by the 1st defendant accepted his explanation as to why he pleaded guilty and ruled that the conviction should not affect the issue of negligence. I do not see that we can interfere with the learned judge's discretion. This ground of appeal in my opinion must fail.

7. Learned counsel for the appellant contends that as the action in this case based entirely on the credibility of witnesses, the credibility of the 1st defendant, the sole witness for the defence is an important issue. Since he was deprived of a chance to cross-examine the 1st defendant on the statements, he did not have the chance to test the 1st defendant's credibility fully and thus did not have a chance to present the full merit of his case to the learned trial judge. There is something in this contention. Basically the plaintiff's claim was that her fall was caused by the movement of the bus while she was disembarking. The plaintiff said the bus moved forward when the exit door was ajar. The 1st defendant said that the bus had not moved at all before the plaintiff fell. To this extent a full test of the credibility of witnesses is essential. There is the irregularity staring to our face. I cannot help feeling that had the appellant's counsel been allowed to fully cross-examine the 1st defendant in the court below, the result would be the same. That is a matter of speculation. This court should not speculate and should adjudicate on full evidence. That is not available because of the irregularity. In my opinion the fairest way is that the appeal should be allowed and a new trial ordered. I so order.

Power, J.:

8. The plaintiff was deprived of the opportunity to fully cross-examine the 1st defendant. In the situation where the defendant's whole case rests upon the evidence of that second defendant I consider there must be a new trial.

Barker, J.:

9. I have the misfortune to disagree with my brethren. I agree with them that the statement made by the 1st defendant to the sergeant should have been admitted in evidence and I further agree that the counsel for the plaintiff should have been allowed to cross-examine the 1st defendant upon the contents of that statement. But in my judgment were the statement to have been admitted in evidence at the trial two things would have happened. In the first place the trial judge who quite obviously by that stage had formed a favourable view of the evidence of the 1st defendant would then be presented with a statement which was made a matter of three hours or so after the accident occurred made on the same day and was entirely consistent with the evidence which the 1st defendant gave in the witness box. And in my judgment the inevitable result of admitting that statement would be materially to reinforce the good opinion which the trial judge had already formed of the worth and credibility of the 1st defendant's evidence. Secondly, I am of the view that the omissions are so minor and unimportant and so easily explicable that any cross-examination on the statement would have been wholly ineffective. The result in my judgment would have been therefore that the trial judge would have come to the same conclusion which he did in the event.

Representation:

Mr. D. Yam (D.L.A.) for appellant.

Mr. F. Eddis (Ngan and Wong) for respondent.