Chan Kwong v. The Queen
Read the full judgment text of CACC 372/1971 on BabelCite. This Court of Appeal judgment.
1. The Appellant was charged before the Magistrate with careless driving and he now appeals against conviction and against sentence.
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CACC000372/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 372 OF 1971 -----------------
----------------- Coram: Huggins J. Date of Judgment: 30th June, 1971. ----------------- JUDGMENT ----------------- 1. The Appellant was charged before the Magistrate with careless driving and he now appeals against conviction and against sentence. 2. There was an accident in which the Appellant, who was driving a public light bus, was in collision with a private car. The accident took place at 8:30 p.m. early in November. The road was a dual carriage-way and each carriage-way consisted of two lanes 12 feet wide. The case for the prosecution was that the Appellant cut across the private car and pulled up suddenly - apparently in order to pick up passengers - as a result of which the private car hit the off-side rear corner of the public light bus. 3. As so often in these cases there were unsatisfactory portions in the evidence. Obviously the principal witness for the prosecution was the driver of the private car, Mr. HUI Chun-shing. His evidence was unsatisfactory in this respect, that he said there were three lanes of traffic in the carriage-way in which he was travelling, that the public light bus was in the centre lane and that "I was on the roadside". There is a sketch which was made by a police officer shortly afterwards, and which was agreed by all parties at the time. This shows beyond any doubt that the private car was travelling in the inner lane but only just in the inner lane - by a matter of about 4 inches. But the crux of the matter was whether the learned Magistrate believed the evidence that the public light bus pulled across and stopped suddenly. The witnesses for the prosecution were not agreed as to the position of the alleged would-be passengers. This portion of road is apparently divided down the centre and there appears to be no pedestrian crossing at this point. Whether there is a railing is not indicated. One of the passengers in the car says that the would-be passengers were on the right hand side, which would place them on the centre island or near it. The others say that they were on the pavement on the near side. The learned Magistrate records that Mr. Hui said he saw them on the left hand pavement, although I do not think that appears clearly from the notes of evidence. 4. The learned Magistrate in his Statement of Findings mentioned a number of points of which he took particular account in assessing the evidence. One was that the Appellant in his evidence originally said that he was "stationary in the inner lane", and counsel for the Crown asks me in this Court to say that that was a proper matter to which to attach weight. I confess that, for my part, I find a little anxiety about attaching too much weight to this because I do not think it is clearly apparent of what point of time the witness was speaking. His evidence reads:
It is suggested that this evidence indicates that he pulled in, stopped in the middle of the inner lane and then, apparently, started again in order to reach the position which is marked on the plan. I confess I find some difficulty in thinking that that is what happened and I would not attach much weight to the statement of the Appellant that he was stationary in the inner lane. Then the learned Magistrate says:
I am doubtful as to the true significance of the point that is being made. The evidence of the prosecution witnesses was that this public light bus was not travelling "very slowly" but pulled in quite fast from the off-side. Nevertheless it does appear that the bus pulled up in a short distance, and that is consistent with the prosecution story. The exact spot where the collision occurred was not really discussed in the evidence and I think it can only be a matter of conjecture where the point of impact was. 5. Then the learned Magistrate says that the final position of the bus was more consistent with the prosecution case than with the Appellant's story of travelling in a straight line and being struck in the rear. Again, it is not very clear where the bus was, even on the Appellant's own story. He says that he was in the inner lane and yet his bus was at an angle at the time it stopped, with its off-side rear not in the inner lane at all but just in the outer lane. This, at least, indicates that at some point of time the bus was not completely in the inner lane. 6. It is argued on behalf of the Appellant that it was wrong to say that the evidence of the sketch was more consistent with the prosecution case. I think that one can attach too much weight to the sketch but at the same time I think it was justified to say that the sketch was more consistent with the prosecution case. As counsel for the Crown has said, this is not a case where there could have been any real mistake: one side was not telling the truth: either the van was on the off-side of the car, as the prosecution witnesses said, or it was in front and in the inner lane, as the Appellant said. There was, in my view, some evidence in the sketch to support the prosecution witnesses. It was for the learned Magistrate to assess the evidence of the witnesses and although undoubtedly there were unsatisfactory parts in that evidence I see no reason to think that the learned Magistrate was unjustified in coming to the conclusion which he did. 7. As to the matter of sentence, the learned Magistrate imposed a fine of $75 and ordered endorsement of the licence. In my view that cannot possibly be regarded as an excessive sentence for this particular offence. It was suggested that there was an error in that after the fine had been imposed and an order for endorsement of the Appellant's driving licence had been made there was an application for detention of the public light bus, which was adjourned, and it is suggested that any order for detention would be part of the sentence. If, indeed, it would be part of the sentence, it was clearly wrong to divide up the matter of sentence and to deal with it on two different days. In my view the detention order was a separate and distinct proceeding, affecting the registered owner of the vehicle rather than the driver, although they may have been the same person. I think a detention order would form no part of the sentence and could not be a subject of this appeal. For these reasons the appeals are dismissed. 30th June, 1971. Representation: |