Chan Chung-han v. The Queen

CACC000281/1981

-----------------

Coram: LIU, J. in Court

Date of Judgment: 23rd April 1981

-----------------

JUDGMENT

-----------------

1. The Appellant had at all material times been the registered owner of a private motor car, Registration No. BE3240. She was convicted of causing the same to be used with a defective steering gear.

2. The charge arose as a result of a collision on the 6th April 1980 at about 9.30 p.m. Travelling along Victoria Park Road in the direction of North Point at the time of the accident, the said private motor car rammed into the rear of a taxi in front. The impact must have been immense for as a result of the collision the taxi lost control, crashed against the railing in the centre of the road and ended up on the opposite carriageway.

3. From the sketch of the traffic policeman, the said private motor car left considerable brake marks, one of which measured some 30.2 m. On the sketch, it can be seen that after the accident the said private motor car was facing the North Point direction in perfect parallel with the Victoria Park Road. The brake marks were straight and also in perfect parallel with the same road. It was more probable than not from this sketch that the said private motor car was not suffering from any steering defect at the time of or immediately prior to the accident.

4. From this position of the said private motor car after the accident, it also seems clear that it was brought to a complete halt by the impact with the rear of the taxi in front. The considerable force of the impact was borne out by the instant admission of the driver of the said private motor car into the Tang Shiu Kin Hospital.

5. The charge was sought to be supported by principally the evidence of the Government Motor Vehicle Examiner, who inspected the said private motor car two days after the accident.

6. Mr. Oakley, the Motor Vehicle Examiner, found extensive damage to the said private motor car. The immense force of impact was corroborated by the extensive damage specified in his report, Exhibit P1 : "Headlights units destroyed, headlights surrounds, radiator grill, front bumper bar and front body apron extensively buckled, engine bonnet and O/S front wheel arch extensively buckled."

7. Mr. Oakley found the near side steering arm retaining bolts insecure, and he maintained that the loosened bolts could not have been the result of the accident. Mr. Oakley also stated the obvious that he was not able to road test the vehicle due to the extensive damage.

8. With reference to either to the degree of insecurity or margin of error of his opinion, Mr. Oakley commented that it was "difficult to be hard and fast". He testified that there was no impact damage to the side of the loosened bolts, but that it was quite possible for severe damage to the other side to pass the shock onto the near side. He pointed out that the degree of loosening was greater than could be accounted for by the accident, but he agreed that the damage in the accident could possibly cause some loosening of the retaining bolts.

9. Mr. Oakley did not, however, describe for the Court's independent consideration the maximum degree of insecurity that could have been caused by the damage in the accident; nor did he particularize the precise degree of insecurity in the instant case.

10. No direct answer was given by the Motor Vehicle Examiner to the question put : "Is there a realistic possibility that loosening was caused by impact and subsequent towing?", though he seemed to have agreed earlier that both these matters could have caused these retaining bolts to become insecure. The totality of his evidence as recorded leaves one in a state of uneasiness.

11. Without evidence on the precise alleged insecurity of these retaining bolts and in the absence of any evidence as to the maximum degree of loosening that could have possibly been caused by the damage in the accident and the subsequent towing, it would be difficult to visualize what must have happened and thus eliminate innocent connotations. It would seem that the learned Magistrate was left with only a bare assertion of Mr. Oakley's, which was considerably undermined by his cross-examination and failure to give a direct reply to the crucial question asked.

12. It must however be appreciated that the learned Magistrate had the advantage of a seeing judge, who was further assisted by every syllable uttered in his Court. I, for one, would not be prepared to accept that a court with the known experience of that of the learned Magistrate's could have allowed itself to fall into as fundamental an error as plain evaluation of oral evidence. However, we are all bound by his records, from which there does seem to be a doubt in the accuracy of the bare assertion of the Motor Vehicle Examiner and consequently in the alleged guilt of the Appellant.

13. The Crown did not seek to support the conviction. For the above reasons, I allowed the appeal, quashed the conviction and ordered the fine, if paid, to be returned to the Appellant.

Representation:

Mr. Helley of Legal Department for Respondent.

Mr. Hampton of Hampton, Winter & Glynn for Appellant.

-----------------

Coram: LIU, J. in Court

Date of Judgment: 23rd April 1981

-----------------

JUDGMENT

-----------------

14. I have been informed by Mr. Hampton, solicitor for the Appellant that the Crown does not seek to support the conviction.

15. The Appellant stands convicted of the offence of causing to be used a vehicle with defective steering gear, being its registered owner on the 6th April 1980. I have perused the records very carefully. I indorse attitude of the Crown in not supporting the conviction. I hope in due course to reduce my reasons into writing. It is sufficient for me to say that the appeal of the Appellant must in the circumstances be granted, the conviction be quashed and the fine, if paid, be returned to the Appellant.

Representation:

Mr. Helley of Legal Department for Respondent.

Mr. Hampton of Hampton, Winter & Glynn for Appellant.