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Li Chun Wah v. The Queen

Read the full judgment text of CACC 369/1971 on BabelCite. This Court of Appeal judgment.

1. The appellant was charged with (a) causing unnecessary obstruction of a road, (b) failing on demand of a police officer to give his correct name and address, (c) failing to produce his driving licence for examination, and (d) driving dangerously. He was convicted on charge (a) above and on charge (d) was convicted of the lesser offence of careless driving. He was acquitted on charges (b) and (c). He now appeals against the two convictions having abandoned his appeal against sentence.

Case No.CACC 369/1971
Court
Court of Appeal
Date—
Judge—
Case Document
100%Judiciary

CACC000369/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 369 OF 1971

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BETWEEN
LI CHUN WAH Appellant
and
THE QUEEN Respondent

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Coram: Pickering, J.

Date of Judgment: 13th August, 1971.

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JUDGMENT

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1. The appellant was charged with (a) causing unnecessary obstruction of a road, (b) failing on demand of a police officer to give his correct name and address, (c) failing to produce his driving licence for examination, and (d) driving dangerously. He was convicted on charge (a) above and on charge (d) was convicted of the lesser offence of careless driving. He was acquitted on charges (b) and (c). He now appeals against the two convictions having abandoned his appeal against sentence.

2. Of the six additional grounds of appeal two were abandoned at the hearing, and of the remaining four only two call for comment.

3. The first of these is that the learned magistrate failed in his duty to issue his summons to, or in any other way secure the presence of, Police Constable 10212 for the purposes of testifying, although it had been made to appear to the learned magistrate that the said police constable was likely to give material evidence.

4. I do not find any substance in this ground of appeal. The learned magistrate before announcing his verdicts commented that it was most unfortunate that only one police witness had given evidence despite the fact that P.C. 10212 could probably have given very relevant evidence in relation to two of the charges. In the context of the evidence I take that remark to have been a reference to charges (b) and (c) and on those two charges the appellant was acquitted. If that view be wrong, however, I am not persuaded that the learned magistrate was under any obligation himself to ensure the attendance of this police constable. For the contrary proposition Mr. K.H. Woo for the appellant referred to section 21(1) of the Magistrates Ordinance which reads

"If it is made to appear to a magistrate, by any credible person, that any person within the Colony is likely to give material evidence on behalf of the complainant or informant or defendant, the magistrate shall issue his summons to such person, under his hand and seal, requiring him to be and appear at a time and place mentioned in the summons before a magistrate to testify what he knows concerning the matter of the complaint or information."

5. It is to be observed that the pre-requisite to the issue of a summons is in the passive, that is "if it is made to appear to a magistrate". As I read this requirement the magistrate is to issue his summons upon application either by the prosecution of the defence and is not himself required to act as prosecutor or defender. In the present instance no application was made by the defence for this police constable to be called, and in my view it was not incumbent upon the magistrate to issue a summons to ensure his attendance. This ground of appeal must fail.

6. The remaining ground with which I intend to deal is that the learned magistrate failed to take into consideration the defence put forward by the defendant when arriving at his verdicts. It is the case that throughout the learned magistrate's statement of findings no single detail of the defence case is discussed. Having set out the charges, verdicts and grounds of appeal, the statement of findings goes on

"           Evidence was given for the prosecution by one police officer, P.C. 3086, and the defendant was the only witness for the defence.
          On this evidence I make the following findings.
1. At about 2.10 a.m. on the 31st day of January 1970 P.C. 3086 was on duty in uniform in the vicinity of the Star Ferry Concourse, Tsim Sha Tsui.
2. At the aforesaid concourse provision was made for five lanes of traffic between the entrance to the Star Ferry and a fountain situated in the centre of the concourse.
3. Commencing from the lane nearest to the entrance to the Star Ferry, a traffic island separate the second lane from the third, and a second traffic island separates the third, and a second traffic island separates the third lane from the fourth at the place in question. The fourth and fifth lane are divided by a broken white lane.
4. At the aforesaid time the appellant, driving a taxi registered number AR4705 stopped his vehicle astride the fourth and fifth traffic lanes aforesaid i.e. the two traffic lanes nearest to the fountain.
5. After the taxi driven by the appellant stopped in this position a number of passengers boarded the appellant's vehicle in the course of which his vehicle was stationary for approximately one minute.
6. The position of the appellant's vehicle during this period was such that it obstructed vehicles in both the fourth and fifth traffic lanes which were at the time obliged to stop behind the appellant's vehicle.
7. It was unnecessary for one appellant to stop his vehicle in this position as provision is made elsewhere in the vicinity of the Star Ferry Concourse for the picking up and the setting down of passengers.
8. While the appellant's vehicle was stationary in this position horns were being sounded by the drivers of vehicles stopped behind the appellant's vehicle.
9. While stationary in this position the appellant's vehicle was approached by P.C. 3086 from the front holding a lighted torch in his hand which he shone towards the front number plate of the vehicle.
10. When the said P.C. was about 20 feet from the front of the appellant's vehicle he gave a hand signal to the appellant indicating to him to stop his vehicle. At the time of giving this hand signal the appellant's vehicle had just commenced to move forward, the aforesaid passengers having boarded the vehicle.
11. The side lights or parking lights of the appellant's vehicle were on at this time.
12. The appellant was in a position to see and did in fact see the signal given by the police officer to him.
13. Immediately after P.C. 3086 gave this hand signal the appellant accelerated his vehicle and drove towards where the police officer was standing causing him to jump out of the path of the appellant's approaching vehicle.
14. The appellant leaned his head out and shouted to P.C. 3086 "Walk to the side" as he drove forward.
15. Such conduct by the appellant constituted driving without due care and attention and without reasonable consideration for other persons using the road."

7. The statement of findings goes on to deal with the sentences imposed and nothing more is said about the convictions.

8. In support of this ground of appeal Mr. Woo referred to dicta in the cases of Reg. v. Sher Bahadur Khan(1), Reg. v. LO Kee(2) and Reg. v. TONG Sang(3). I did not find these cases directly in point since in the first two the dicta upon which Mr. Woo sought to rely dealt with the fact that in those cases the magistrate had not brought his mind to bear on the elements or ingredients of the respective offences which it was the duty of the prosecution to establish before it could be said that the appellants in those cases were guilty of the charges laid against them. It does not seem to me that the same can be said in the present case for the ingredients of obstruction and of careless driving are simple ingredients and a perusal of the learned magistrate's findings of fact establishes that his mind must have been directed to those ingredients in respect of both the charges. The dictum of Hogan, C.J. in the case last mentioned arose largely from the fact that the magistrate in that case had failed to set out any findings of fact. In the present case chere are abundant findings of fact but no comment as such by the learned magistrate upon the evidence, nor indeed any reference to the evidence except a statement that there was one witness for the prosecution and one for the defence.

9. I am bound to say that I find the formula "On this evidence I make the following findiags" far from satisfactory lacking as it does even my assurance to this Court that the learned magistrate believed the evidence for the prosecution and disbelieved that of the appellant. A full perusal of the record, however, coupled with a study of the numerous and very specific findings of fact persuades me that this must have been the case. While it would have been far more satisfactory had the learned magistrate related and commented upon the relevant parts of the evidence in his statement of findings, I am unable to say that he was not justified in coming to the findings of fact at which he arrived and in consequence convicting the appellant upon these two charges. The appeal is dismissed.

Representation:

K.Y.Woo & Co. for Appellant.

Mr. Duckett for Crown.

(1) 1961 H.K.L.R. 357, at 369

(2) 1966 H.K.L.R. 601, at 614

(3) 1962 H.K.L.R. 399, at 404