Ng Wai Kwong v. The Queen
Read the full judgment text of CACC 350/1970 on BabelCite. This Court of Appeal judgment was delivered on 11 August 1970.
1. The appellant was charged with careless driving on the 16th day of September, 1969.
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CACC000350/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 350 OF 1970 -----------------
----------------- Coram: Rigby, C.J. Date of Judgment: 11 August 1970 ----------------- JUDGMENT ----------------- 1. The appellant was charged with careless driving on the 16th day of September, 1969. 2. The facts of the case were that on the morning of that day a driver was driving his lorry up the Princess Margaret Road fly-over, having come from Kowloon Tong. It was raining hard at the time. The driver was driving on the outer lane, there being two lanes on his side of the road and one on the other side of the road for the purposes of oncoming traffic. As he was driving on the outer lane he saw a private car coming towards him which appeared to him to be over on his side of the road having crossed the white line down the centre of the road. He swerved to his inner side and braked, but the vehicle came on and struck him on his off side. The driver of the lorry at the time was going up a slight ascent. 3. The defence put forward by the appellant was that he was driving his private car down this slight descent in the road, there being a slight left hand bend. It was raining hard at the time. He was driving at about 22 m.p.h. and in third gear, there being four gears to his car. He said that he suddenly felt the vehicle go into a skid. He tried to correct it but failed to do so and as a result the off side of his vehicle struck the lorry on its off side and thereafter his whole car did a turn of 360o ending up on the other side of the road, that is to say, his proper side and facing the direction from which he had come. A police constable called to the scene examined the road. His evidence carried the matter no further. It is true that there does not appear to have been any mark on the road indicative of a skid, but that may well be explained by the fact that it was raining hard at the time. There is no suggestion whatsoever that there were any other vehicles on the road at the time. There is no suggestion that the appellant pulled over to his off side, or wrong side, of the road, thereby crossing the centre line in order to overtake traffic on his side of the road. I repeat, nothing of the kind is suggested here, and there is nothing to show that there were any other vehicles on the road in that particular area other than the two vehicles involved. There is no evidence to suggest that a speed of 20 - 22 m.p.h. was in any way an excessive speed in the circumstances of the case. 4. The learned magistrate, in convicting the appellant, virtually accepted the testimony that he had given. He accepted that there was a wet surface on the road - which must, of course, necessarily have been the case having regard to the fact that it was raining at the time. Furthermore, he accepted that the accident was as a result of a skid. He went on to say -
He then went on to say -
With respect to the learned magistrate, in my view, that is virtually a direct contradiction of what he had previously stated. Having accepted that the doctrine of "res ipsa loquitur" did not apply in criminal cases he then, in effect, went on to say that because there was a skid the appellant must in fact have been driving carelessly and without proper control of the vehicle. Crown Counsel, Mr. Li, who seeks to support the conviction, says that assuming that there was a skid, nevertheless, in all the circumstances of the case having regard to the fact that it was raining hard and there was a probability, or possibility, that by reason of that fact the road was slippery, on the facts it must be assumed that the appellant was not driving in a manner which one would expect of a reasonably prudent driver. Again, with respect, it seems to me that that again is merely saying that because there was a skid which caused this collision it must be assumed that the appellant was not driving in those circumstances as a reasonably prudent driver should have been driving. 5. Mr. Li referred me to two cases. The first is Griffin v. Williams(1). In that case it would appear that the defendant was driving his car on a main road. He started to overtake a lorry. There was plenty of room for him to do so, but for some unexplained reason he swerved over to the far side of the road and collided with an oncoming traffic. He was charged with driving without due care and attention. An expert witness gave evidence that he had found no defect in the car which might have caused it to go out of control. The justices dismissed the information. The prosecutor appealed and the Divisional Court held that the justices were clearly wrong in their decision. The footnote, or rather the note appearing in the Criminal Law Review as to what was there held in the case, goes on to say -
It seems to me that that case is clearly distinguishable from the present case. First, there is no evidence as to the state of the road, as to whether or not it had been raining or whether the road was slippery, and, secondly, no explanation whatsoever was put forward by the defendant as to why the car had suddenly got out of control. In the present case, of course, an explanation was put forward. 6. Mr. Li then referred me to the case of Oakes v. Foster(2). In that case it would appear that a motor-cyclist, driving at a fairly fast speed, had to negotiate a sharp left hand bend. At the beginning of the bend the motor cycle mounted its nearside kerb, travelled for a considerable distance in a curve along the footpath, and then travelled straight for a further distance in a diagonal direction across the road colliding with a car coming in the opposite direction. The justices of the peace, on a charge against the defendant for driving without due care and attention, dismissed the summons, expressing the view that there was a reasonable doubt as to whether or not something had perhaps happened before the collision which had caused the defendant to lose control, and, in particular, whether or not he had suffered a dizzy spell. It is quite clear that that decision was, of course based on pure speculation and conjecture, and it is hardly surprising in the circumstances that when there was an appeal by the prosecutor that appeal was allowed and the case remitted to the justices with a direction to convict. 7. The position in law where an accident is caused as a result of a skid is perhaps set out as clearly in the case of Laurie v. Raglan Building Company, Limited(3) as in any other case. That was a civil case where negligence was alleged, as distinct from the present case which is, of course, a criminal case. Referring to the judgment of Lord Greene, M.R. in that case; he said -
He then went on to say that although it was true in that case that the defendant had given evidence, the evidence that had been called in the case showed that the surface of the road at that particular time when the accident occurred was in an extremely dangerous condition. It had snowed earlier in the day; then it had frozen, and the surface of the road was like glass. Nevertheless, the defendant in that case was driving a very heavy lorry at a speed of 10 - 12 miles an hour without having any chains on its wheels. The learned judge giving his judgment in the Court of Appeal held that that was prima facie evidence of negligence. Here, in the present case an explanation was given by the appellant as to the cause of the accident, namely, that it was directly due to a skid, and that he took all steps in his power to correct that skid before the collision occurred. There was, I repeat, no evidence to show that the condition of the road was such that a speed of 20 - 22 m.p.h. was dangerous or even imprudent. 8. I am quite satisfied that on the evidence in this case there was insufficient evidence to establish criminal negligence sufficient to support a conviction for careless driving. In those circumstances this appeal must be allowed, the conviction quashed and the sentence thereon set aside. (1) 1964 C.L.R. p.60. (2) 1961 C.L.R. p.628. (3) 1942 K.B.D. p.152. |