The Queen v. Lam Man Hung

HCMA000243/1986

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 243 OF 1986

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BETWEEN

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Coram: Hon. Hooper, J. in Court

Date of hearing: 25th March 1986

Date of delivery of judgment: 25th March 1986

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REASONS FOR JUDGMENT

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1. On the 20th January 1986 the appellant was convicted of careless driving, contrary to S.38(1) of the Road Traffic Ordinance Cap. 374.

2. In the statement of findings the magistrate set out facts as found as follows : -

"Approximately 2.30 a. m. on the 2nd of June 1985, the defendant (appellant), having attended a barbecue with friends was returning towards Yuen Long and driving along Kam Tin Road being one of 3 vehicles in that return journey. The defendant (appellant) was driving the vehicle, second in line of the 3 vehicles in question.

At a point near the vegetable collecting centre on Kam Tin Road involving a sharp right hand turn or bend, the defendant's vehicle failed to negotiate the turn, was involved in a skid, collided with a tree on the left hand side of the road in the bend and crashed into a filed below the road."

3. The magistrate then set out his ruling as follows : -

"         It is not disputed that the Defendant was the driver of vehicle BZ 3183 on 2nd June 1985, that three cars from the same outing were travelling along Kam Tin Road Yuen Long bound at about 2.30 a. m., that the Defendant's vehicle was second in line of the three vehicles and that all the vehicles were doing 30-40 miles per hour, nor that the second vehicle driven by the Defendant hit a tree on a right hand bend and wound up in a field below the road. It was also conceded that both the leading and third cars in the party negotiated the corner without mishap or difficulty.

I have been referred to the Judgment of Penlington, J. in Kit Wing-wo v. Queen which is authority for stating that the fact that there is an accident does not mean that the driver must have been negligent when there is no other evidence in the matter at all. With respect I entirely agree with that proposition and that the maxim Res Ipsa Loquitar has no place in traffic law. Indeed comment has long been made that if the maxim had not been in Latin it may well have had no place in the Law at all.

However in the present case there is other evidence both positive and negative.

1.	Two other vehicles negotiated the bend without any difficulty whatsoever. Same conditions, same speed, same time of night.
2.	The Defendant's vehicle was in good mechanical condition. See Exhibit P3 and evidence of vehicle examiner.
3.	There is no evidence of any outside interferences with the Defendant as driver of the vehicle in question. No black dog, no child rushing out, no on coming car to cause any problem at all. Likewise no problem with the road or street lights. Nothing at all.
4.	The Defendant himself stated that he braked and the vehicle went out of control and when he corrected the vehicle's movement it moved further out of control and went off the road. At no time did anything happen to the Defendant which, through no fault of his own, caused him to lose control of the car on a road which the Defendant said was not well known to him.
5.	The Defendant had held a licence a little over a year. He was not a car owner. He did not drive all that often and was not at all that familiar with the car in question.

Taking all the foregoing into account I consider that the accident must have been caused either;

a.	by the Defendant not keening a proper look out on the road with which he was not familiar,
or b.	that the Defendant was driving at a speed at which he, the driver, was not capable of controlling the car in all the circumstances when reaching a bend on the road in question or; Possibly a combination of both factors. I find the charge proved and accordingly convict the Defendant.

On the evidence before the Court there was no conflict as such and I was driven to the inevitable conclusion on the evidence before the Court that the Defendant had caused the accident in question through his own negligence with the result that the Defendant was duly convicted as charged."

4. The grounds of appeal were that:

5. With respect to the magistrate, I do not consider the 2 alternative ways in which he found that the appellant was guilty of careless driving necessarily follow.

6. It would have been quite possible for the accident to have occurred, even though the appellant had been keeping a proper look out on the road with which he was not very familiar and even though he was driving at a speed of 30-40 m.p.h. and was perfectly capable of controlling the car at that speed.

7. In no way could it be held that the speed was excessive and indeed it would appear that other drivers had negotiated the bend at that speed successfully in the conditions prevailing at that time.

8. It would appear to be highly probable that the accident was caused by the skidding of the vehicle upon the wet road surface after the brakes were applied.

9. That is something which could happen even though the defendant was keeping a proper look out and was driving at a speed at which he was capable of controlling the vehicle.

10. The appellant had testified in his defence -

"         I was driver BZ 3183. 2/6/85 after barbeque we drove off. It was drizzling. Drove towards Yuen Long. Rain stopped. Road surface slightly wet. Saw a right hand bend. I decelerated to go around the bend. The rear of vehicle skidded. Front pointed to other side of the road. I was in the fourth gear. Doing 30-40 m.p.h. On entering the bend I applied foot-brake and tried a lower gear. The car had skidded. No time to engage a different gear. I tried to stear back to correct course. Vehicle got out of control, went across road towards a tree. I knew that the road surface was wet. First time I had been on the road. The off side hit the tree at the rear door. The vehicle fell down into the field. It was below the road surface.

Cross-examination Prosecution

I got my licence in July 1984. Used to drive occasionally. I did not own the vehicle. First time I ever used Kam Tin Road. I had driven BZ 3183 before. Do not know how many times. More than 5 times not very familiar with the vehicle on the road. Yet I did drive at 30-40 m.p.h.

Cannot recall if I saw the damage done to the vehicle. There was excessive damage to the off side. Considerable force must have been employed.

Q.  : You were driving carelessly.

A.  : I disagree.

Defendant Re-examinatio

It was the tree that caused the damage."

12. The magistrate was not able to make a positive finding as to the way in which the appellant had been guilty of careless driving. He speculated that he could have been either of the alternative ways he had set out in his ruling or in both those ways.

13. Those alternative conclusions were reached on the basis that the vehicle which the appellant was driving was in good mechanical condition. With respect to the magistrate, Exhibit P3, the vehicle examiner's report was not admissible in evidence, because it was a self-serving document the contents of which had not been admitted under S.65(C) of the Criminal Procedure Ordinance. This has been conceded by Crown Counsel.

14. The mere fact that the prosecution and the defendant agree to the production of the vehicle examiner's report in evidence did not make it admissible. Even if it had been possible for the report to have been put in evidence by consent of the defence, the contents of it were not confirmed by the maker of the report when he was giving evidence.

15. There was thus no admissible evidence before the court upon which the magistrate could hold that there was evidence that the defendant's vehicle was in good mechanical condition. And in particular there was no evidence before the court as to the state of the tyres of that particular vehicle.

16. It appears that the magistrate based his conclusions partly on inadmissible evidence.

17. In Butty v. Davey (1972) C.L.R. 49, the Report sets out the facts and findings of the court as follows : -

"         On an information charging the defendant with driving a lorry without due care and attention contrary to section 3 of the Road Traffic Act 1960, the justices found that he was driving on a road which was wet at the time, and that having safely negotiated a sharp bend, he failed to negotiate a slight left-hand bend about 130 yards further on, and as a result his vehicle slid to the off-side of the road and collided with another lorry coming in the opposite direction. They further found that the defendant's speed at the time was not excessive. It was contended for the prosecution that since the defendant had caused or allowed his lorry to go to the offside of the road, in the absence of any reasonable explanation which might negative a lack of due care and attention on his part, the case was proved. The defendant contended that he was driving with due care and attention and that the cause of his lorry going on to the offside of the road could only be some unexpected slipperiness of the road due to the rain. The justices, being of opinion that at the speed at which the defendant was driving, he had no reason to suspect that the front wheels of his lorry would fail to grip the road and that the accident must therefore have been caused by some unexpected slippery state of the road, dismissed the information. The prosecutor appealed.

Held, dismissing the appeal, that in a criminal case, unlike a civil case, it was not incumbent upon the defendant to show that he had skidded without fault on his part. In the instant case, as the justices had found that the vehicle was driven at a speed not excessive for the condition then prevailing, the suggestion that the unexpected slipperiness of the road due to rain caused the vehicle to slide across the road was not a fanciful explanation and accordingly there was no reason to interfere with the decision of the justices."

18. Quite apart from the fact that the magistrate appeared to base his decision partly upon inadmissible evidence, the defendant clearly denied that he was in any way careless. It can be seen that there may be circumstances in which an accident such as this may happen without there being carelessness.

19. In all the circumstances in the case, I was of the opinion the conviction was not safe and accordingly I set it aside.

Representation:

Mr. Louis K.Y. Chan (Yung, Yu, Yuen & Co.) for Appellant

Mr. M.J. Hartmann (S.C.C.) for Crown