Tse So-ha v. The Queen

CACC000380/1978

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Coram: Leonard, J.

Date of Judgment: 16th June, 1978.

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JUDGMENT

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1. The appellant was convicted in the court below of driving public light bus AV 6223 carelessly at Queen's Road Central near Bank Street on the evening of the 15th October 1977 shortly after 8.00 p.m. The public light bus had knocked down a man who subsequently died from his injuries. The passengers in the public light bus apparently dispersed after the accident for when the police arrived on the scene there was no independent eye-witness there. So that when the case came for trial the only evidence offered by the Crown was that of two police constables. The first of these saw the public light bus stationary in the road, and the defendant who claimed to have been its driver admitted having knocked down the man. This witness described the traffic conditions as very good, road as dry and the light as good. In cross-examination (a cross-examination which was perhaps superfluous - this witness had suggested nothing culpable on the part of the appellant) this witness stated what had been said to him by the appellant. Namely that the appellant had seen the injured person on the "right hand side front of his vehicle and that he was holding a bottle of wine in his hand running across the road from Bank Strect towards Beaconsfield House and that the front of his vehicle had hit the man". The remaining witness was attached to Accident Inquiry Section of the Traffic Branch. His evidence was that when he arrived on the scene he spoke to the appellant and asked him how the accident had happened. The appellant told him that he had seen a person walking across the road that in walking the person in order to avoid a bus stepped back and that was why he was knocked down. The witness produced a sketch of the scene. He also produced a statement made by the defendant. The less said about the cross-examination of this witness the better.

2. The case for the Crown on liability depended on the sketch of the scene and the statement made by the appellant. The sketch plan shows the position of the public light bus when it had come to a halt. From it it is clear that the public light bus swerved to its right before coming to a halt leaving a curved brake mark of 9.1 metres in length from its front wheels. It came to a halt just past the mouth of Bank Street. Queen's Road Central is at this point a wide straight road with one way traffic running west. To the east of Bank Street, there is and was then a pedestrian crossing (not shown on the sketch) controlled by traffic lights. In the appellant's statement he said that at the time he was travelling towards Western Market with approximately ten passengers on board and that on reaching the Hilton Carpark exit (a spot close to the pedestrian crossing) his vehicle was moving on the second lane and the traffic there was fluent. He was travelling at a speed of approximately 22 m.p.h. when he saw a male on his right hand side pavement about to cross the road towards Beaconsfield House then about eleven to twelve vehicle lengths from him. He had his headlights on and he saw him moving or walking slowly on his offside first lane. He said that he sounded the horn and he "ran quickly past". His statement continues:

"However, a big bus went past me on my nearside at that time. The said male was about 2-3 vehicle lengths from me. He had already passed my vehicle front at that time, but he suddenly retreated. I immediately braked and pulled to the right to avoid him. Then, the rear part of my vehicle swayed. The nearside front headlight of my vehicle hit him and then came to a halt."

A subsequent statement made by the appellant was put in evidence after a submission of no case to answer had proved unsuccessful. It appeared from it that by "a vehicle length" the appellant meant about ten feet. In answer to the submission of no case the learned magistrate quotes himself as having said:

"It is all very well, to say that the defendant does not have a case to answer but the fact of the matter is that a person was knocked down by the defendant on his own admission in what were, for Hong Kong, good traffic and road conditions. In my view the police were justified in bringing a careless driving charge to court and there is, I find, a case for the defendant to answer."

In the course of his statement of findings the learned magistrate amplifies this by saying:

"I consider that I am fortified in that ruling by reference to Wilkinson's Road Traffic Offences, 8th Edition, at page 271/272 viz.:

Before quoting Rabjohns v. Burgar the learned author observes:

"Frequently the facts at the scene of an accident are such that, in the absence of any explanation by the defendant, a court can have no alternative but to convict. In Rabjohns v. Burgar the defendant's car on a dry road collided with the concrete wall of a bridge on a fine clear day with no other vehicle apparently involved. Here the defendant gave no explanation as to how the accident occurred."

In the instant case the learned magistrate did have an explanation as to how the accident occurred in the form of the appellant's statement and the explanation was not inherently improbable. He had been travelling at a perfectly normal speed of 22 m.p.h. according to his statement. He saw the pedestrian on the pavement to his right walking to cross the road when he was between 110 and 120 ft. from him. His headlights were on and he sounded his horn. When he sounded his hern the pedestrian had run quickly past him and then because of a bus which passed him on his nearside had doubled back. For my part I should in the circumstances have allowed the submission. Be that as it may the appellant did not stand on his submission but elected to give evidence. The evidence given was an amplification of the statement from which I have quoted and of a further more lengthy statement admitted by the appellant and put in by consent in which the appellant had said that

"the pedestrian had run past the nearside body of my vehicle at a distance of about 2-3 vehicle lengths (i.e. 20 to 30 ft.) from my vehicle frent. At this juncture, a bus (double decker) number unknown was travelling about one vehicle length to the nearside rear of my vehicle at more or less the same speed as mine. The said pedestrian on seeing this, he suddenly turned round and ran backwards (i.e. towards north) my vehicle, however, was only about one vehicle length from the said pedestrian. I immediately applied the footbrake and swerved to right to avoid the said pedestrian, but the attempt was failed, the nearside front corner struck the pedestrian who fell to the ground."

3. In his evidence the appellant had this to say:

"I was travelling in the second lane and when I first saw the pedestrian there was no traffic on the left and right of me. Next thing that happened I carried on my journey and when I was 7 to 8 car spaces away from that pedestrian, I saw that he still carried on running across; so I slightly slowed down my speed. From what I could see the pedestrian could have cleared safely in front of my vehicle and I should not have touched him at all. At that time when I was three to four car lengths away from the pedestrian, he had completely cleared the front of my vehicle. At that time, I did not notice if there was traffic on my left but I noticed that somewhere behind me (a car space behind) there was a bus going at the same approximate speed as me."

At this stage he was shown a photograph and he stated that there was a bus in the lane where the bus in the photograph was depicted.

"This pedestrian suddenly turned back into my path possibly he was scared when seeing this bus. When I saw the situation is so dangerous I braked immediately and swerved to the right but unfortunately I could not avoid the pedestrian."

The learned magistrate found himself:

"In no doubt whatsoever that the prosecution witnesses were witnesses of the truth."

The prosecution witnesses had, of course, given no evidence of careless driving and no one at any stage suggests that they were not witnesses of truth. The learned magistrate states that he came to the conclusion that the appellant "had been less than frank with the court". He suggested that

"He seemed to vacillate on two important points (a) the manner in which the pedestrian behaved, after he had stepped from the pavement on the Bank Street side of Queen's Road Central and (b) the appellant's attitude and actions in driving his vehicle, after he had first seen the pedestrian leave the kerb."

With respect to the learned magistrate's findings I cannot see any signs of this vacillation in the learned magistrate's record of what the appellant had to say. It was essentially what was said in the two statements. Certainly nothing that he said either in the examination-in-chief or in cross-examination would possibly be said to amount to proof that the two statements were untrue. So that the sole question for consideration was whether those statements showed beyond reasonable doubt that the appellant was guilty of driving without "exercising that degree of care and intention that a reasonable and prudent driver would exercise in the circumstances". Simpson v. Peat⁽¹⁾. As was said by Lord Goddard in that case:

"Equally because an accident does occur it does not follow that a particular person has driven either dangerously or without due care and attention: but if he has, it matters not why he did so. Suppose a driver is confronted with a sudden emergency through no fault of his own; in an endeavour to avert a collision he swerves to his right - it is shown that had he swerved to the left the accident would not have happened: that is being wise after the event and, if the driver was in fact exercising the degree of care and attention which a reasonably prudent driver would exercise, he ought not to be convicted, even though another and perhaps more highly skilled driver would have acted differently."

For my part I find grave difficulty in seeing how it is alleged that the driver lacked the care and attention which the prudent driver would have shown in the circumstances. It is to be noted the learned magistrate does not indicate how he considered the appellant was so lacking. Admittedly, the appellant was as the learned magistrate says "on notice" to be vigilant and cautious in his approach towards the pedestrian. Crown counsel has suggested that the appellant was not only on notice of the existence of the pedestrian and the need to take care in approaching him but also must have been on notice that the pedestrian was behaving erratically in that he was running, holding a bottle of wine. The appellant ought, Mr. Gall argued, to have been aware that he was not a normal pedestrian and because of the presence of the double decker bus the appellant should have been aware of a factor which might affect the pedestrian who had acted erratically in the immediate past. I consider that firstly this is putting far too great an onus on a driver who does not have time in normal traffic conditions in Hong Kong for such ratiocination; secondly that it was for the Crown to prove the behaviour of the pedestrian was such that any normal reasonable driver must have been aware that there was danger of his behaving erratically again. I consider that one must assume far too much to find the appellant guilty of careless driving that the conviction is unsafe and unsatisfactory. If it were to stand drivers would be in peril every time a pedestrian was knocked down no matter what explanation was given. I allow the appeal.

4. Counsel for the appellant sought to introduce evidence of errors in the record and produced two affidavits to support his claim that the record was not accurate. I do not propose to enter into the small discrepancies between the magistrate's note and a note taken by a solicitor's clerk on which counsel relied on to show the alleged inadequacy of the record. I am not satisfied that it was inaccurate in any material particular, and I base my decision on the record as it stands alone. I mention this to put on record my views. Objectivity is required of counsel in such matters and he should be slow to attack the magistrate's record. That is not to say that if the occasion really warrants it he should not do so and be fearless and independent in doing so. Secondly on appeal a judge is unlikely to be satisfied of the inadequacy of an experienced magistrate's record merely by the note of a clerk which is not taken in shorthand.

Representation:

Mr. Allan Hoo (J.S. & M.) for appellant.

Mr. Gall, S.C.C. for Crown/respondent.

(1) (1952) 2 Q.B. 24.