Chan Wai Man v. The Queen

CACC000373/1979

Coram: Trainor, J.

Date of Judgment: 15 May 1979

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JUDGMENT

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1. The appellant in this case was convicted on a charge of not stopping for pedestrians on a zebra crossing and was fined and $50 costs. Against his conviction he now appeals.

2. There are certain matters in the case which I have found worrying, and by reason of them I am of the opinion that this conviction is unsafe and unsatisfactory. The learned magistrate in her reasons for judgment made reference to the conditions at the zebra crossing in question. The first is one with which I cannot cavil and that is when she expressed the knowledge that this pedestrian crossing, which is at the back of the San Po Kong Magistracy and the San Po Kong Government Offices, is always full of people and cars on week days and is particularly busy around noon and after 5 p.m In my opinion that is a matter of which the learned magistrate might well take judicial notice. However, she went on to say, and this was one of the reasons why she appeared to disbelieve the evidence of the appellant,

"This explains why a traffic policeman is usually seen standing beside his motor-cycle at the vicinity of the crossing looking out for offender drivers at the zebra crossing."

I do not think the usual presence of a traffic policeman in the vicinity of the crossing is a matter of judicial notice on which a judge might rely. It might be different if one was always there. In the instant case it was a matter in issue, as the appellant strongly contested the presence of the police officer there, and the magistrate should have satisfied herself but on the conflicting evidence whether or not the police officer was there.

3. Another matter that I find worrying is that when the appellant was giving evidence he gave his explanation as to what had transpired and said that he was stopped by a police officer who had been following him on a motor-cycle. He said that he, the appellant, had a few moments previously picked up a passenger on the pedestrian crossing. He said that the policeman stopped him and said to him that it was wrong for him to pick up a passenger within the zig-zag area. The appellant continued according to the note of his evidence "I asked the passenger on board my vehicle to explain to the policeman. The passenger told the police (not admissible)." The only interpretation I can put on that extract is that the learned magistrate decided and ruled that it was not permissible for the appellant to tell the court what his passenger had said to the police officer. This ruling was of course incorrect. What the passenger said to the police officer and what the police officer said in reply was perfectly admissible, to establish that it was said; not to prove the truth or otherwise of what was said but to ascertain how the police officer reacted. Had the appellant been allowed to say what was said to the police officer and what the police officer said in return it might well have affected the magistrate's view of the case by influencing her assessment of the evidence of the police officer. As I said earlier these matters I find worrying and in the circumstances I hold that the conviction was unsafe and unsatisfactory and I allow the appeal. It follows of course that any money that has been paid by the appellant in respect of this fine and costs must be refunded.

Representation:

Appellant in person

Mr. Ryan, c.c. for Crown.