Ng Yuk-chow v. The Queen

CACC000372/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 372 OF 1972

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Coram: Huggins J.

Date of Judgment: 18th July, 1972.

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JUDGMENT

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1. This is an appeal against a conviction by a magistrate on a charge of careless driving.

2. There has been an application to call further evidence upon the appeal. I rejected that application because in my view the requisites for the calling of fresh evidence on appeal were not satisfied. The proposed evidence related to a previous summons served upon the Appellant apparently, although not certainly, in respect of the same incident, the first summons having been for exceeding the speed limit whereas the second one clearly is related only to a sudden movement of the vehicle rather than to excessive speed. There may be all sorts of reasons why the first Information was laid and then not proceeded with, and in my view the weight of the proposed evidence is minimal : the original summons is a matter which clearly was relevant for cross-examining as to credit, but it is not admissible at this stage. The second piece of evidence sought to be adduced was a report from the Royal Observatory as to the rainfall on the day in question, the police witness having said that it was fine at the time of the incident and the Appellant in his unsworn statement having said it was raining, and it is sought to produce evidence that on the day in question between the relevant hours there was a rainfall at the two nearest points of record of 0.6 mm. and 0.5 mm. of rain. In my view that evidence also is of such minimal value that it is not admissible on appeal, although again it concerned a matter which could have been used in cross-examination at the trial.

3. The substance of the appeal is that the evidence called by the Prosecution was insufficient to establish carelessness on the part of the Appellant. There was evidence from one police officer, who said that he was standing in the middle of the road at a traffic junction controlled by traffic lights. His evidence does not give a very clear picture as to what happened. He said that there was a traffic light showing red, and I assume that means that it was red against the Appellant, who was driving a public light bus. He says that "all other vehicles" (and, again, it seems clear to me that he was referring to all vehicles other than the Appellant's) stopped at the white stop-line. The Appellant is said to have stopped "at roadside near the pavement on the side of the road near So Uk Estate facing Kowloon". It is not indicated whether he stopped at the side of the road near the white stop-line or some way back from the white stop-line, nor is it indicated for what possible purpose the vehicle stopped, and I confess that when I first read this evidence it appeared to me that he was probably stopping for some purpose other than to await the changing of the lights. It is then said that a number of pedestrians were crossing the road, as they were entitled to do while the traffic was stopped, and that two of those who were walking in front of the public light bus had to jump back because the light bus "suddenly moved forward". Mr. Hampton argues that the cause of these two persons' jumping back is not sufficiently proved. It obviously was the opinion of the police officer that the cause was the sudden movement of the light bus, and, indeed, Mr. Hampton is prepared to accept that that may have been the cause, but he contends that even if it was it has not been sufficiently established that it was a reasonable cause of their jumping back. There is no evidence at all to show either that the public light bus encroached upon the limits of the pedestrian-crossing by crossing the white line or even that there was any reason to fear that it might cross that white line, because, he says, there is no indication of the distance between the place where the vehicle first stopped and the white line, or, indeed, between that place and the place at which it finally stopped after it had allegedly caused these persons to jump backwards.

4. It is, of course, not without significance that the Appellant did not choose to go into the witness-box to give his evidence and simply made an unsworn statement and it is, perhaps, not surprising that the learned magistrate attached no weight to the evidence of the Appellant himself and expressly said that he rejected it. I, therefore, do not propose to consider the evidence of the Appellant. I am concerned only with the question whether the evidence of the prosecution witness established beyond reasonable doubt that there was careless driving on the part of the Appellant, and that question turned upon issues of speed and distances.

5. In my view it is unsafe to allow this conviction to stand. The matter should have been investigated at greater length and in greater detail. It may be that the conclusion of the learned magistrate was right in fact, but in my view the evidence was not sufficient for me to say that the conviction is safe. The appeal must be allowed, the conviction quashed and the sentence and the order of indorsement set aside.

18th July, 1972.

Representation: