The Queen v. Wu Sun Keung

HCMA000378/1984

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 378 of 1984

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BETWEEN

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Coram: Hon. Penlington, J. in Court

Date of hearing: 4 July 1984

Date of judgment: 4 July 1984

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JUDGMENT

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1. This is an appeal against conviction on a charge of dangerous driving.  As is usual in such cases there were two main witnesses, the drivers of the two vehicles concerned, one a taxi driver and the other one the appellant.  The Magistrate having heard both witnesses found in his statement of findings that the taxi driver was a reliable witness and he accepted his evidence.  He said in the course of the trial that a plan produced by constable who came on the scene afterwards was such as to draw an "obvious" inference that the  prosecution witness was giving a correct version of the facts.  That finding is attacked here by Mr. Hemmings for the Appellant who said that it was not an obvious inference but could also support the appellant's version. That, I think, is correct. Nevertheless in his formal findings the Magistrate says that the taxi driver's evidence was "borne out" as to the direction and manner of impact by the police constable's plan. I think that is also correct.

2. This is a case where the Magistrate had to consider the evidence of both parties and I see no reason why I should interfere with his findings that he accepted the evidence of the prosecution witness and rejected that of the Appellant. It is said that the Appellant had suffered physical injuries as a result of the accident and was in hospital for some time and this may have caused his evidence to be vague.  That of course is regrettable but I don't think that the Magistrate had any other alternative but to take the evidence as he found it.  If the defendant in the Court below had wished for an adjournment to give him further time to recover then he could have asked for it and that he did not.   It is also apparent that he continued driving.  I think if he felt himself able to continue driving then he should have been able to give evidence.

3. So far as the appeal against sentence is concerned there was a fire of $1,000 imposed plus 18 months disqualification.  I take it that the main thrust of the appeal against sentence, as is usual, is the length of disqualification.  It was a substantial period of disqualification and obviously the Magistrate did have in mind the fact that he found that the way the Appellant gave evidence was such as to cast grave doubts as to his ability to be driving.  Mr. Hemmings says that the Magistrate should not hold himself out as a medical expert. At the same time quite clearly the Magistrate was concerned about this aspect and I think quite rightly. However I will reduce the period of disqualification from 18 months disqualification to one of months disqualification. Under the regulations neither the Magistrate nor myself have any power to direct that the Appellant shall only be given a licence if there is a satisfactory medical report produced to the Commissioner for Transport. I strongly recommend to the Commissioner for Transport that he does not issue a licence until he has such a medical certificate. The sentence is therefore amended to that extent.  The order that he takes a driving test, prior to which he shall hold no licence other than a provisional licence remains.

Representation:

J. Hemings (Clifford Yeung & Co.) for Appellant

M. Hartmann, Crown Counsel, for Respondent