Hui So-san (F) v. The Queen

CACC000375/1981

Coram: Liu, J. in Court

Date of Judgment: 26th May, 1981

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JUDGMENT

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1. The appellant appeals against her conviction of careless driving. The charge arose from an incident which occurred on the 18th March 1980 in Stubbs Road somewhere near the AIA Building. Two boys were walking along on the pavement. The one, injured, was called by the prosecution. The police constable who arrived at the scene was also called.

2. The 15 years' old boy testified as to the dry road condition, but there is little doubt that the surface was greasy, as indeed it was confirmed by the constable.

3. The boy further recalled that the vehicle involved was travelling at 20 m.p.h. However, he conceded under cross-examination that he had never driven and was quite uncertain as to what 20 m.p.h. meant. The boys were then some two feet away from the kerb.

4. The appellant came forward with her evidence that somewhere near the AIA Building she was suddenly confronted with a greasy wet road surface. On seeing a boy stepping out from the pavement, she swerved to avoid him and lost control. She maintained she was travelling at 10 m.p.h.

5. The lorry driver behind testified that the appellant's vehicle skidded and went out of control. He was also able to confirm that the vehicle in front was travelling at 10 m.p.h.

6. It is quite unnecessary for me to make specific reference to the various Grounds of Appeal save for Ground 3 which is based on an alleged misdirection on the application of the proper burden of proof. The test is an objective one, but in one sense it is also subjective as explained at pp 227 and 228 Wilkinson on Road Traffic, 10th ed. The learned Magistrate put on record the objective test applied by the Court. She was criticised for having failed to pay any regard to the subjective element.

7. Counsel for the appellant conceded that there was room for improvement in the manner in which Ground 3 was drafted, but in substance that was the totality of the appellant's complaint in law.

8. In my view, the learned Magistrate applied the correct test and properly evaluated the evidence from all sides both objectively and subjectively as required. The Court's approach was set out in her full analysis which can suggest no misdirection.

9. Counsel for the appellant also mounted attacks on more fronts than one at the findings of the learned Magistrate. On the Court's reluctance to accept the 10 m.p.h. speed asserted on account of light traffic, counsel urged that it was mere speculation. The learned Magistrate declined to attach due weight to the lorry driver's estimate by reason that concentration was admittedly reserved for his own manipulation. Counsel asked rhetorically who else could have been a better judge of speed than the driver immediately behind.

10. Much was made of the 24 metres skid mark, but the effect of sudden braking on a greasy incline should not be lightly overlooked. Moreover, the appellant explained that her vehicle "was skidding all the time". There was also no evidence to warrant the observation that the change in the condition of the road surface should have been apparent to the appellant. Both the lorry driver and the appellant were adamant that it was impossible to see the wet greasy road surface before the bend.

11. On such evidence, the learned Magistrate concluded that speed must have been "considerably in excess of 10 m.p.h. such as to be unsafe". The appellant was in the agony of an uncontrollable skid said to have been brought about by circumstances beyond her control. There seemed to be little justification for doubting the version as testified to by the appellant and the driver behind. The learned Magistrate's notion in the alternative would also appear to be unsupported by the evidence; The appellant maintained that she skidded throughout. The lorry driver confirmed that she lost control. There was little left for any inference of "incompetence" or "lack of care" to be properly drawn.

12. I am driven to agree with these criticisms in an otherwise well-presented resume in the Statement of Findings. On more than one aspect of the causes of the accident, unchecked theorization seemed to have ruled the day. In my view, reasonable doubt has not been displaced. I therefore allow the appeal, quash the conviction; the sentence will be set aside, and the fine, if paid, be refunded to the appellant.

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