Chan Ping Seung v. The Queen

CACC000375/1978

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 375 OF 1978

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Coram: Baber, J.

Date of Judgment: 22 May 1978

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JUDGMENT

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1. Just before half past seven on the morning of the 27th of September of last year there was a collision at about Mile 14 on the Castle Peak Road near the Villa Alfavista, a notoriously dangerous road. A bus of the Kowloon Motor Bus Company registered number AR7575 was going westwards towards Castle Peak and the appellant was riding a motor-cycle BG3297 of 350 c.cs. with a pillion passenger in a easterly direction, that is to say towards Kowloon. The appellant was negotiating a very sharp right-angle bend and it is quite clear that in the course of this he went over double white lines and was in collision with the bus. It would seem that the impact was between one side of the rear of the motor-cycle and the front offside mudguard of the bus. There was also a long scratch along the front right side of the bus. The front of the motor-cycle was unharmed so it seems clear that that the motor-cycle skidded in the course of taking the bend. That is what this case is largely about.

2. The appellant was charged sometime later with careless driving and after a trial in which he was represented by a solicitor he was convicted and fined $350. He had received certain injuries in this collision necessitating 12 days in hospital and his unfortunate pillion passenger was killed in this encounter. The appellant now appeals against the conviction only.

3. I have before me of course the magistrate's record of the case and I also allowed the appellant to produce affidavits from his solicitor and from his solicitor's secretary both of whom had been present at the trial and had made notes of the proceedings which were annexed to their affidavits. The solicitors' note was naturally somewhat limited because he could not make a note when he was on his feet; his secretary's note was a rather more full note. Neither of these notes is entirely easy to follow; they were written in haste and with some abbreviation as is often the case. The note taken by the secretary in particular is rather more extensive than that taken by the magistrate. There is nothing necessarily sinister about that. An enormous lot of nonsense emerges from the mouths of interpreters and thus presumably from the mouths of witnesses in these courts, and nowhere more than in the magistracy. The magistrate is not obliged to take down verbatim every bit of ungrammatical, unconnected nonsense that comes out of a witness's mouth. Some magistrates, no doubt from an excess of zeal, take down far too much in my opinion. Some of them even take down examination-in-chief in the form of question and answer which to my mind is a mistake and a great waste of time, effort and paper. Their duty is to take down, principally in narrative form the substance of the evidence on either side. The magistrates ordinance speaks of "a minute of the evidence". There may be occasions when it is desirable to record for example a particular piece of cross-examination in the form of question and answer so as to get the sting of the answer in relation to the question and the same may be ture of a particular piece of examination-in-chief, but that is a rather rare occurrence.

4. The explanation given by the appellant, (and of course some explanation was called for as he had clearly gone over the double white lines at a sharp right-angle bend), was that he, having successfully negotiated certain patches of oil on the Castle Peak side of the bend (and that is the important area in this case) had encountered some water on the road which he had not been able to avoid and this caused him to skid. This question of water or no water was the substantial if not the main issue in the appeal and in the hearing of the original case itself.

5. One substantial matter raised by the appellant in the appeal was that the magistrate had ended up by accepting the fact that there had been some water on the Castle Peak side of the site of the accident and that having done so any burden that there might be upon the appellant to explain what had happened had been satisfactorily discharged and the magistrate was incorrect as to the burden of proof remaining.

6. Another matter that arose was an objection by the appellant to the effect that the magistrate had descended unfairly into the arena. A good deal of nonsense is talked about the iniquity of descending into the arena. I am not saying that it was in this case, far from it. In the magistracies where there is usually either an unrepresented defendant or a non-professional prosecutor or both, there are often little empty spaces left in the evidence given by persons on either side, and in my view the magistrates are quite right to descend into the arena when obscurities arise in order to resolve them and in my view the magistrates should descend a little more into the arena on some occasions than they normally do when the interests of justice require it. They are quite entitled to attempt to clear up obscurities so that the record which eventually reaches the appellate court, if things go that far, reads sensibly. Of course they must do so by totally unleading and open-ended questions and they must endeavour not give the appearance that they are acting as unpaid supernumerary prosecutors. They must enter the arena if at all as referees and not as combatant. I take comfort from remarks on this subject in paragraph 572 of the 39th Edition of Archbold (though this deals with judges descending in the view of juries).

7. The exact extent of the magistrate's intervention (clearly there was quite a lot) is not entirely clear. In the solicitor's note of the proceedings and his secretary's note of the proceedings (both of which notes were manuscript notes of course and not shorthand notes transcribed) certain questions are marked "CT" indicating that they were asked by the magistrate, and then in between these questions there are the questions which are not marked "CT" and it is not always easy to tell who is batting at the time, the magistrate or the prosecutor or the defence solicitor. Allowing for this I would accept that the magistrate intervened in the proceedings rather more than was necessary, partioularly in questioning the defendant and perhaps even more so in questioning his defence witness who had been on a motor-cycle ahead of him. This was a cavalcade of three motor-cycles. The appellant had a pillion passenger, one of those ahead of him had a pillion passenger and a third motor-cyclist was on his own. The first two succeeded in negotiating whatever there was in the way of oil and water without disaster.

8. I don't, however, think looking at the matter carefully that any unfairness arose from the course of conduct which the magistrate took in this case though as I say I think he asked more questions than were really necessary. I am rather struck by how little result he got from all these questions. It doesn't seem to me that any answers that he got out of the appellant or his witness did any great harm to the appellant who was quite firm as to what his story was and stuck to it. So it seems to me that when the magistrate started partitioning this mountain a very small mouse indeed emerged from it. He certainly made one remark in his findings which doesn't seem to me supported by the evidence and that was to the effect that the bus driver denied that there was any moisture on the road, because in the course of cross-examination of the bus driver he admitted that that was only an assumption on his part, and I should think it very doubtful whether he paid any attention to the really important part of the road which was the part of the road on the Castle Peak side of the bend.

9. A constable 12131 said that the road surface was dry, but it is not very clear whether he was referring to all of it or to which part he was referring. The accused of course said that on the Castle Peak Road side of the site of the accident the road was flooded and his defence witness said that there was a water stain in that area before you came to the bend coming from the Castle Peak direction. The photographs and plans are very helpful in this connection as showing the general shape of the area.

10. In the note taken by the solicitor's secretary the magistrate appears to have said something about giving the appellant the benefit of the doubt about the water on the road. This section of the note is obviously an attempt to keep up in manuscript with the words emerging from the mouth of the magistrate, a task which is more easy in some cases than others. The magistrate appeared to be giving an explanation for his decision in the case. Even according to this note he goes on to say that the earlier two motor-cycles had passed round the bend without any trouble and that he comes to the conclusion that the substantial cause of the collision was that the appellant was taking the bend too fast and then had to brake and skidded. He went on to say that it was a border line case by which he no doubt meant that the degree of culpability was not very great, though it did exist. He was dealing then with the matter of sentence as far as I can understand it. It seems to me that what was in his mind was this, that even if there had been water on the road on the Castle Peak side of the site of the collision the evidence about it was not of such weight as to explain satisfactorily how the skidding and collision had taken place and that other factors must have been of greater significance largely the speed at which the appellant was taking the bend, and that conclusion I think is one that he was entitled to come to on the evidence. This was a motor-cycle of considerable power; such vehicles by comparison with other motor-vehicles have a remarkable power-to-weight ratio and considerable acceleration and they do require very skilled handling, careful handling, the care being a part of the skill, a major part of the skill. So that despite the slightly erratic course that the case took in some respects I am not prepared to say that the conclusion the magistrate ultimately reached was an unsatisfactory conclusion or one that he was not entitled to reach on the evidence, and accordingly the appeal is dismissed.

11. As I have discussed the proper contents of the record of a magisterial hearing I would like to add that it is quite unnecessary for the "statement of ..... findings and other grounds of ..... decision" to contain a detailed precis in turn of the evidence of each prosecution witness in chief, under cross-examination and re-examination and of the evidence of the accused and his witnesses in the same way. This is already to be found in the minute of the evidence which the appellate court will read and to repeat it is a waste of effort. What is required is a succinct analysis of those parts of the facts which are in dispute, explaining the conclusion reached by the magistrate about them.

Representation:

E.C. Mumford (instructed by Peter Mark & Co.) for the Appellant

R. Maxwell, C.C., for the Crown/Respondent