Yip Yu Loi v. The Queen

CACC000208/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 208 OF 1969

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Coram: Huggins, J.

Date of Judgment: 30 May 1969

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JUDGMENT

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Huggins, J:

1. The appellant was convicted by the magistrate of careless driving and he appeals against that conviction.

2. The evidence was that a police officer was driving a motor-cycle along Lai Chi Kok Road in a southerly direction. He was travelling at 20 to 22 miles an hour in the first of the three south-bound lanes. According to this officer the appellant, who was driving a dual purpose van, cut in from the centre lane about 10 feet in front of his motor-cycle. The officer braked to avoid a collision and the two vehicles came to a standstill with the front of the motor-cycle about 1 foot from the middle of the near-side of the van, which by then was across the first lane with its near-side front some 7 or 8 feet from the kerb. The van then moved on and pulled up again at the side of the road. The officer approached the appellant and complained of his cutting in and the appellant is alleged to have replied: "Elder brother I did so because 2 passengers were alighting from my vehicle".

3. The defence called no evidence but the defence case as it appeared from the cross-examination was that the van performed a perfectly proper manoeuvre, that the basis of the allegation of carelessness was the risk of collision which arose and that that risk of collision was due solely to the carelessness of the police officer himself. Indeed, before me the solicitor for the appellant has stated his case as being that the prosecution did not negative the possibility that the motor-cyclist created the risk by not maintaining his course and speed.

4. Upon a submission of no case to answer the learned magistrate held that there was "a strong prima facie case". Then after hearing a final submission on behalf of the appellant he concluded:

"I took the view that whilst the Defendant was perfectly entitled to remain silent if he wished to do so, his failure to go into the witness box and either deny the evidence of P.C.3087 or alternatively explain his conduct, particularly bearing in mind what was tantamount to in admission on his part to P.C.3087, which was not challenged in cross-examination, rendered the strong prima facie evidence against him conclusive".

This must, I think, be taken as a finding that the facts were as stated by the police officer and, probably, as a finding that those facts constituted careless driving on the part of the appellant. As I understand it, what the appellant is saying in this court is that the facts found were equally consistent with innocence as with guilt because the evidence of the police officer did not go as far as the learned magistrate assumed it had. It could not be contested that if a proper manoeuvre by the appellant was frustrated by the bad driving of the police officer and was not continued after the appellant ought to have been aware that it was dangerous to continue it there would be no case against him. The whole argument advanced on his behalf does indeed rest on the possibility that the police officer did not maintain his course and speed.

5. There is no evidence to suggest that the police officer accelerated after the overtaking manoeuvre began. On the contrary there is evidence that he was travelling at 20 to 22 miles an hour and in the absence of any suggestion to the contrary it was open to the learned magistrate to presume that he continued at that speed until the moment when he admittedly braked to avoid colliding with the van. It is true that there was evidence by the officer that he did not see the van until it was already passed him and had encroached upon the first lane to the extent of half its length and half its width (which did not mean, as the witness was induced to say it did mean, that the change of lanes was "half-completed"), but it would be no defence to the appellant to establish that the officer was careless in not keeping a proper lookout unless the existence of such carelessness necessarily negatived his own prima facie carelessness. The officer admitted that he came to a stop 6 or 7 feet from the kerb whereas he had been driving 4 or 5 feet from the kerb and it is then said that this shows he created the risk of collision by turning towards the van. His explanation appears to have been that he was frightened by the unexpected manoeuvre of the van and may have swerved to the right but that the danger had already arisen. The learned magistrate has not said precisely whether he accepted that explanation but it is of no consequence because there is nothing at all to suggest that the officer did not maintain a straight course up to the moment when the van turned into the first lane. It was the turning in which constituted the alleged careless driving and what happened thereafter would not be material, although it might have been material in an action for damages for negligence.

6. There was much discussion both at the trial and before me of the question whether the appellant gave a signal of his intention to move into the first lane and it was suggested that, if a signal was made, that in some way exonerated the appellant. The police officer did not see a signal and the learned magistrate not unnaturally made no finding on the matter. If the appellant, in the overtaking vehicle, had indeed given such a signal it would to my mind have been strong evidence against him. It is the duty of an overtaking driver to ensure that it is safe to overtake and then, save in exceptional circumstances, to return to his near-side on completing the manoeuvre. If he gives a signal of his intention to do what the law requires him to do he should not be surprised if a court interprets his signal as meaning "I intend to move to my left although I know it may not be safe to do so, and the vehicle I am overtaking must keep out of my way or take the consequences". It is no defence to a criminal charge that one has announced one's intention of committing the offence to which the charge relates. In the present case I assume that no signal was given.

7. Although, as I have said on a previous occasion, it is desirable that a Statement of Findings should state the findings rather than say, in terms which may be more or less clear, that the magistrate believes a particular witness, and although this is especially true where (as here) the witness's evidence is not as clear cut as it might have been, I think I may fairly take it that the magistrate found that the appellant cut in 10 feet ahead of a motor-cyclist who was driving at 20 to 22 miles an hour. I must also take it that the magistrate found that the appellant was going "a little faster than (the police officer's) motor-cycle". Had he been going very much faster it might conceivably be open to argument whether the manoeuvre could fairly be described as "cutting in" at all, but there was sufficient evidence, even ignoring any inference which may properly be drawn from the statement found to have been by the appellant, to justify the conclusion that the appellant did not show due care and attention when he positioned himself 10 feet ahead of the motor-cycle, the two vehicles then travelling at speeds which left so little margin of safety between them. For myself I would be unwilling to infer from the statement made by the appellant that he not only cut in but also slowed down at the same time, because the evidence of the police officer suggests that the van did not slow down until the appellant braked upon becoming aware of the approach of the motor-cycle on a near-collision course. If it had been proved that the appellant cut in and at the same time slowed down with a view to permitting passengers to alight there could not have been a clearer case.

8. For the reasons given I think there was evidence to support the conviction and the appeal is dismissed.

30th May, 1969.

Representation:

Hampton (Hastings & Co.) for the Appellant

M. Wong for the Respondent

Judgment pronounced by Huggins J. in court.