Chan Siu-keung v. The Queen
Read the full judgment text of CACC 304/1970 on BabelCite. This Court of Appeal judgment was delivered on 14 July 1970.
1. The appellant was the driver of a public light bus. He was charged with five offences arising out of a train of events which commenced in Hennessy Road and ended in Gloucester Road. The charges were (A) Assaulting a police officer in the execution of his duty, on which he was convicted and sentenced to 3 months imprisonment; (B) Dangerous driving, on which he was convicted and sentenced to a fine of $300 (or 6 weeks imprisonment in default) and disqualified from driving all types of vehicles
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CACC000304/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO.304 OF 1970 -----------------
----------------- Coram: Mills-Owens J. in Court. Date of Judgment: 14 July 1970 ----------------- JUDGMENT ----------------- 1. The appellant was the driver of a public light bus. He was charged with five offences arising out of a train of events which commenced in Hennessy Road and ended in Gloucester Road. The charges were (A) Assaulting a police officer in the execution of his duty, on which he was convicted and sentenced to 3 months imprisonment; (B) Dangerous driving, on which he was convicted and sentenced to a fine of $300 (or 6 weeks imprisonment in default) and disqualified from driving all types of vehicles for 15 months; (C) Causing the vehicle to wait within 50 feet of a bus stop, on which he was convicted and sentenced to a fine of $100 (or 2 weeks imprisonment in default), and the vehicle to be impounded for 7 days; (D) Driving with a defective brake, on which he was acquitted; and (E) Failing to produce his driving licence on demand, on which also he was acquitted. He appeals against the three convictions and against the sentences in respect of charges A and B. 2. The case for the Crown, in outline, was that the police constable in question, P.C. 2813 Wong Tim, was on duty in uniform at Hennessy Road at about 9 a.m. on a weekday, traffic being as usual heavy in the area, when he saw the appellant, who was driving a public light bus in an easterly direction, stop his vehicle within 50 feet of a bus stop to take on board two passengers; he stepped into the road to halt the vehicle and the appellant complied, stopping his vehicle; the police constable then informed the appellant that he would take action against him for the offence of causing his vehicle to wait within 50 feet of the bus stop and called upon the appellant to produce his driving licence; in cross-examination it became apparent that the police constable intended to summons him for the waiting offence; after some argument or discussion about the constable's demand for the production of his driving licence the appellant set his vehicle in motion; the constable asked him why he was driving away and the appellant replied that he wanted to pull to the side of the road so as not to obstruct traffic; then as the appellant drove on the constable walked alongside the vehicle with his hand on the side of the vehicle next to the driving seat; but instead of pulling to the side and stopping the appellant got up speed and drove off, dragging the constable along; the constable, in order as he said to avoid injury to his feet, clung on to the vehicle; the appellant turned left into Tonnochy Road - in disobedience of a one-way sign prohibiting traffic from entering Tonnochy Road from Hennessy Road; then he drove left again into Lockhart Road, with the constable still clinging on to the vehicle; thus the appellant was now driving in a westerly direction, i.e. in the opposite direction to that in which initially he had been driving; then, just as he was approaching the junction of Lockhart Road with Stewart Road, the appellant hammered the constable's hands with his hands or fists, causing the constable to lose his grip and thus to fall to the ground, as a result of which he suffered minor injuries and some damage to his uniform; the appellant's speed at this time was estimated as 25 m.p.h.; an officer of the Rating & Valuation Department who was in his own car when the appellant turned the corner from Tonnochy Road into Lockhart Road had observed the appellant's vehicle being so driven, had observed also the constable clinging on to the vehicle, and saw the constable later fall to the ground; he (the officer of the Rating & Valuation Department) immediately stopped his car, picked up the constable, and together, in the car, they pursued the appellant; the appellant continued to drive on, turning right from Lockhart Road into Stewart Road, and then turning left into Cloucester Road where he stopped near the Wanchai Police Station where his ten or so passengers alighted from his vehicle; P.C. Wong Tim seeing that the appellant had stopped got off the car in which he was pursuing the appellant and approached the appellant's vehicle, at the same time blowing his police whistle; before he could reach the appellant's vehicle the appellant moved off, at a normal speed; the officer of the Rating & Valuation Department again picked up the constable in his car and again they pursued the appellant; after a short distance both the appellant's vehicle and the pursuing car were stopped by traffic lights; at this point certain officers who had come out of the Wanchai Police Station on hearing the police whistle used by P.C. Wong Tim, approached the appellant in his now stationary vehicle; P.C. Wong Tim again descended from the car, and one of the police officers, seeing his condition and learning that had happened, asked the appellant if he had knocked down P.C. Wong Tim; the appellant replied "I hurt him because he wanted to report me for stopping within 50 feet from a bus stop"; the appellant was then taken into the Police Station. 3. The appellant's defence consists of his unsworn statement (which I give as nearly as possible in his own words) that he had not picked up passengers at the bus stop in Hennessy Road, as P.C. Wong Tim had said, but had stopped only for the purpose of allowing one of his passengers to alight, and at some distance away from where the constable had said he had stopped; he then drove on but, as the constable also had testified, stopped immediately on seeing the constable signalling him to do so (i.e. in Hennessy Road); he agreed that the constable had then told him he would take action against him for stopping within 50 feet of the bus stop and that the constable demanded production of his driving licence; he suggested he should pull to the side of the road as traffic was congested and other drivers were showing signs of impatience at his obstruction; the constable did not object and he (the appellant) then set his vehicle in motion intending to draw up at the side of the road; at this, the constable ran to the side of his vehicle and grabbed the latch of the window at the side of him; on seeing this, and for safety's sake the appellant, as he said, applied his brake and found it to be out of order; he repeated the application of his brake but it remained ineffective; thus he was unable to stop the vehicle; the passengers began to shout out; he did not accelerate but the vehicle went faster and faster; he was unable to stop it; concequently he drove on and swerved to the left, slowly, into Tonnochy Road where there was little traffic, but against the no-entry sign; he went on driving and turned into Lockhart Road with the intention of finding a slope to stop his vehicle; he was not going very fast but was afraid the constable would be injured in the event of the vehicle hitting the railings fixed along the centre of Lockhart Road; so he lifted the constable's hands in order that he should leave the vehicle, with the result that the constable fell to the ground; this was beyond his expectation; by then his vehicle had reached Stewart Road and was slowing down; he decided to go to Wanchai Police Station to make a report; when he arrived at Gloucester Road, a few feet from the Police Station he allowed his passengers to alight; then he commenced to drive the remaining few feet to the police station; on the way he heard police whistles being blown and saw policemen running out of the station armed with guns; he was afraid and did not know what was the matter; he stopped his vehicle opposite the police station; later his vehicle came to a standstill; then he alighted taking his licence with him but as soon as he got off his vehicle he was arrested. The appellant added that he then gave the policemen the ignition key; this was contrary to the evidence for the prosecution. The learned magistrate observed, and quite properly recorded, that this unsworn statement was read by the appellant from prepared notes. 4. An expert witness, an officer of the Transport Department who examined the appellant's vehicle some two hours later, gave evidence that the footbrake was in fact defective; on first application it had no effect; when 'pumped' it was of 60% efficiency at 30 m.p.h.; its efficiency would be less when the vehicle was loaded with passengers. This evidence had, of course, been given before the appellant made his unsworn statement. 5. The learned magistrate acquitted the appellant on the charge relating to the defective brake (Charge D) notwithstanding the expert evidence for the prosecution and notwithstanding the appellant's unsworn statement on this point. He did so because, as he found, the appellant had been able to stop his vehicle on three occasions, namely once at Hennessy Road and twice at Gloucester Road. Clearly, this should have been four times as the appellant stopped twice in Hennessy Road, once near the bus stop and again when signalled by the police constable, as the appellant himself said, as well as twice in Gloucester Road. The magistrate considered that the expert evidence was not to be relied upon because of the time interval of two hours. This decision may be doubted, but the important matter is the bearing of the expert evidence on the charges of assault and dangerous driving. Obviously the brake was not so defective as to render it impossible for the appellant to control or stop his vehicle - as clearly appears from his unsworn statement. 6. There was an acquittal also on the charge of failure to produce the driving licence, the magistrate finding as a fact that the appellant "originally intended to produce it" to P.C. Wong Tim; but (the magistrate said) "such intention was rendered impossible by subsequent events which formed the subject of other counts in this case. At a later stage defendant willingly produced his driving licence to P.W. 4" (the constable from the police station who approached him in Gloucester Road and took his ignition key when he finally stopped). The magistrate added that he felt some doubt about this charge and gave the appellant the benefit of the doubt. This decision, expressed as it is in the ambiguous terms that the appellant's original intention to produce his licence was frustrated by subsequent events, must, in itself, give rise to a question whether the magistrate was accepting that when the appellant drove off in Hennessy Road he was unable to control his vehicle, in particular that he was unable by reason of the braking defect to pull to the side of the road. The magistrate dealt with this in the course of dealing with the dangerous driving charge (Charge B), saying that no brake failure occurred when the appellant drove off with the constable clinging to it, in the middle of Hennessy Road, then against the one-way traffic of Tonnochy Road and eventually into and along Lockhart Road, at a constant speed of 20/25 m.p.h. when traffic was congested and thus his driving constituted a danger to the public in general and the constable in particular. He referred to the possibility of the constable falling off the vehicle and thus causing a traffic accident, and said that the appellant must have gone a distance of more than 700 feet on a flat road. He found that there was no mechanical defect and that the appellant's explanation was utterly unreliable and incredible. On the assault charge (Charge A) the learned magistrate found P.C. Wong Tim to have been acting in the execution of his duty when attempting to arrest the appellant on his driving off without producing his licence. He found that the appellant used force in releasing the constable's hold on his vehicle and did so in order to get rid of him. 7. On the appeal the magistrate was criticised for finding that the distance traversed by the appellant during the incidents in question must have been 700 feet of flat surface as there was no evidence of distance or surface. This raises the question of how much a court is allowed to know; and how easy it is to be ridiculed for affecting not to know! I agree that the finding of a specific distance could not properly be made in the absence of evidence but see nothing wrong in a court exercising its own knowledge that the distance in question must at least have been substantial, and of flat surface as the appellant did not suggest that the surface contributed to his alleged inability to stop. There is a dearth of authority on the point. Cross on Evidence (3rd Edn. p.136) notes that Wilde J. (Arg. in Kirby v. Hickson (1850) 14 Jur. 625) even said that the courts cannot take judicial notice of the relevant distance of places, but there the whole case depended on whether one place was within the specific distance of 20 miles from another place so that the exact distance was strictly in issue. Here the court had some guide to the distance traversed by the appellant in that the constable gave one estimate of distance (the distance from where he was standing to the bus stop) by reference to the plan exhibited in the proceedings, from which therefore some estimate of the distance traversed by the appellant might be obtained. In the Divisional Court case of Clift v. Long (noted in (1961) C.L.R. 121,) justices were held entitled to make use of their own knowledge of their area in deciding that a car park was a public place; the commentary thereto indicates that it is accepted that justices may take judicial notice of the topography of their locality. I would accept that. 8. On the main facts of the case I have no doubt that the magistrate came to the only possible conclusion. I agree with him that the appellant's explanation was utterly incredible. Moreover, he did not deny the statement attributed to him: "I hurt him etc.". However, the fact that the appellant was acquitted of the charge of failing to produce his driving licence in Hennessy Road raises a point which his counsel has not been slow to take, that is to say the question arises whether, the appellant having been so acquitted, the police constable may nevertheless be said to have been acting in the execution of his duty when he attempted to prevent the appellant driving his vehicle away. On consideration I have no doubt that Crown counsel's argument on the point is correct; it is apparent that the appellant had the licence in his possession and was therefore under a duty to produce it and on his failure to do so (no matter what his intention, known only to himself, was at the time) the constable was justified in attempting to arrest him. Clearly, in my view, the constable was under the impression that the appellant was attempting to escape, and had good grounds for such suspicion. Thus he was acting in the execution of his duty. 9. As to the charge of dangerous driving I entirely agree with the views expressed by the learned magistrate, particularly his comments regarding danger not only to the constable but also potential danger to other traffic in the not unlikely event of the constable being thrown to the ground in the way of other traffic. 10. On the charge of waiting within 50 feet of a bus stop the evidence of the constable was that the appellant stopped so near to the bus stop that the rear of his vehicle was next to the bus stop and that the appellant stopped for the purpose of taking on passengers. The appellant in his unsworn statement said that he stopped outside No.263 Hennessy Road but there was no evidence where that was in relation to the bus stop. He also said he stopped in order to allow a passenger to alight. The magistrate expressed himself, on this charge, as follows:-
He found the charge proved. It was suggested by counsel for the appellant that the magistrate approached his decision on a wrong basis; vide Mohamed Katin Bin Abu Baker v. P.P. (1950) 16 M.L.J. 57 where Spenser-Wilkinson J. said that the correct approach is to consider whether the story of the accused has thrown a reasonable doubt on the truth of the prosecution case. But this was said in relation to a case where the terms of the decision of the court below tended to indicate that the accused had been put to proof of his story. In the present case the magistrate had clearly in mind the need to afford the benefit of any doubt to the appellant; thus he expressly did so in acquitting the appellant on charge E. I would therefore sustain the conviction on Charge C. 11. The foregoing is sufficient to dispose of the appeal against conviction on the charges A, B and C but in deference to the full and able argument of counsel for the appellant, who has urged everything that would possibly have been urged on his behalf, I must deal with certain points raised in support thereof. It is argued that it is not dangerous driving merely to drive in disobedience of a road traffic sign, as in this case against the no-entry sign in Tonnochy Road. Wilkinson (5th Edn.) p.145 was cited. I am not concerned to decide this as obviously this formed only part of the events giving rise to the charge. It is argued that the appellant did not drive at or against the appellant, or at an excessive speed, or so as to cause any accident. But the elimination of some possibilities does not dispose of the proved facts. The case of R. v. Spurge (1961) 2 All E.R. 688 was relied upon for the proposition that driving with a mechanical defect is not careless driving where the driver is not aware of the defect and is not negligent in failing to be aware of it. But that is not this case. Counsel relied heavily on the case of Troughton v. Manning (1905) 20 Cox C.C. 861 where the head note reads:-
Lord Alverstone, C.J., at p.863 said:-
Later he said:-
Kennedy J. considered the case to be not within the section because it was limited to conduct "towards the public who were outside (the vehicle) on the highway." As counsel in the present appeal quite properly brought to my attention the views of Kennedy J. have been disapproved in Pawley v. Wharldell (1965) 2 All E.R. 757. In delivering the judgment of the Divisional Court in the latter case, Lord Parker, C.J. referred to Troughton v. Manning as 'a curious case' and said, at p.759:-
The case of Troughton v. Manning occurred in 1905 when, I expect I am allowed to know, traffic must have been very different from what it is in Hong Kong today. Here the police constable was exercising a right of arrest and was dragged along a road, Hennessy Road, in which there was at the time heavy traffic according to the evidence. Troughton v. Manning was a case of private grievance, and in all probability the toll keeper was a trespasser on the vehicle; Lord Alverstone expressly stated that there was no danger to anyone except the toll keeper. It is an entirely different case from that before me. 12. It was further argued on the charge of assault that the appellant was not given the benefit of the 'defence' of self-defence in the sense of a plea of justification. This argument has only to be stated to exhibit its complete lack of any substance. It was also argued that assault involves a hostile intention; the same remark applies. Counsel relied on the case of Kenlin v. Gardiner & anor. (1966) 3 All E.R. 931 where the headnote reads, in part:-
It is argued that similarly in the present case the constable was not arresting the appellant but seeking to detain him in order to inspect his driving licence. The argument is ingenious but that is all that can be said for it. The constable had demanded production of the appellant's licence a number of times and when the appellant commenced to drive away he had sound reason to conclude that the appellant was endeavouring to escape. As he said in evidence he then decided to arrest the appellant and there can be no doubt that he made his intention clear to the appellant. In the case cited there were no grounds for arrest, as is made clear in the judgment of Winn L.J. Here the position is different as I have endeavoured to show. 13. Counsel for the appellant also relied on the case of R. v. Waterfield & anor. (1963) 3 W.L.R. 946 where the headnote reads:-
Section 223 is the section which provides that:-
Counsel relied particularly on the observation at p.951 of the judgment that 'it is to be observed that the section is merely giving a power as opposed to laying down a duty' but that was followed by words showing the sense in which that was to be understood, according to the context, namely -
The case can hardly be authority for saying that a constable exercising a lawful power of arrest is not acting in the execution of his duty. 14. Accordingly I dismiss the appeal against convictions. As to the sentences imposed I see no reason to differ from the learned magistrate and accordingly dismiss the appeal against sentences also, except that for reasons I need not enter into the order impounding the vehicle is set aside.
14th July, 1970. Representation: A.J. Sanguinetti for Appellant. Corcoran (Crown counsel) for Respondent. |