Tsang Hung v. The Queen
Read the full judgment text of CACC 407/1975 on BabelCite. This Court of Appeal judgment.
1. This is an appeal against a conviction on a charge of careless driving.
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CACC000407/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 407 OF 1975 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 13th June 1975. ----------------- JUDGMENT ----------------- 1. This is an appeal against a conviction on a charge of careless driving. 2. The only point which has been argued on the appeal relates to a sketch plan, which was admitted in evidence at the end of the examination-in-chief of the only witness for the prosecution - a police constable. The note of the evidence is:
If this case does nothing else, it draws attention to the necessity for greater care in the admission of documents of this kind, but Mr. Winter has argued on behalf of the Appellant that the sketch plan was not admissible at all. He bases his argument primarily upon a passage in Wilkinson's "Road Traffic Offences" (7th Edition) at p.99, where the learned author says:
It is submitted that this is a sketch plan which shows a situation not existing at the moment when the plan was prepared - and I think it is clear that that is so, because it was the evidence of the Defendant that the constable told him to move on immediately after he had taken particulars of his driving licence and this was not challenged. What happened, probably, was that the constable then remained at the spot and prepared a sketch of what happened. That, of course, is surmise, but the plan is dated the same day as the incident. In any event, Mr. Winter says that the date of that document has not been proved, and this, I think, is where there is some merit in his contention. The witness never said that the plan was accurate; he never said when he made it or under what circumstances he made it. It is clear that the Defendant was never asked to agree the plan, but in my view that is not necessary. It would become an admission if signed by the Defendant and admissible as such, but a sketch plan is also admissible in other circumstances, nor do I think it is always necessary for the document to be shown to the defendant before it is produced. Reg. v. Mitchell (supra) indicates that the sketch ought to be produced to the defendant where matters are included in the sketch of which the person preparing the sketch has no personal knowledge. In that particular case there had been an accident and the sketch was marked with the words "place where the can of milk was spilt". At the time the plan was made the milk had been spilt some time previously - probably the can was not still there and almost certainly the milk was not there: therefore this was merely hearsay evidence and it should not have been put before the court without the consent of the other side. It must be apparent that to some extent a document of that kind was self-serving evidence. 3. Mr. Dick himself drew the analogy of the police officer's notebook but he appreciated, of course, that this was a somewhat dangerous analogy because a police officer's notebook is never admissible in evidence per se. It can be used to refresh memory. Clearly a sketch plan made at the time can be used to refresh memory but sketches of this kind are of great assistance to a court and it is probably for that reason that they have been regarded somewhat differently. In my view this sketch plan was admissible as a sketch plan. The learned magistrate was not bound to ask whether it was objected to nor whether the Defendant had seen it - nor yet whether he agreed it was accurate: that is a matter which should, if possible, be proved by the prosecution. 4. It is, however, the second part of Mr. Winter's argument that the learned magistrate ought not to have attached any weight to the document in the absence of evidence as to its accuracy. Mr. Dick, for the Crown, submits that the magistrate took account of the document only in respect of one matter. In the Reasons and Findings the magistrate has stated:
That is the only reference made to the sketch by the magistrate. In the previous sentence he had said:
It was tentatively suggested that that sentence might, to some extent, be governed by the opening words of the following sentence as shown in the sketch, but I do not think that that is a fair reading of the magistrate's Reasons. When one looks at the sketch one finds that there are no measurements whatsoever on it. It was in effect a demonstration of what the witness had seen: it was really nothing more than a depiction on paper of a demonstration which the witness could readily have given in open court with models. 5. Mr. Dick then emphasises that in cross-examination the Defendant himself said
Mr. Winter fairly draws attention to the fact that there is nothing to indicate that at that time the Defendant was shown the sketch plan. However, I think that on a fair reading of this note it must have been that he was shown the plan. There is no note of any demonstration by either the policeman or by the Defendant and the words shown must, I think, direct the mind to the sketch plan. Therefore, there was an admission by the Defendant that in so far as the sketch plan showed the angle at which the vehicle came to a stop it was accurate. Again I think it is important, where somebody is being shown a document, that the note of evidence should indicate that clearly - and by that I mean expressly and not by implication. 6. The conclusion which I have reached, therefore, is that the document was admissible and that in view of the admission of the Defendant the learned magistrate was entitled to attach weight to the document to the extent that he did, and, in the absence of any indication that he relied upon the document for any other purpose, I think this appeal must be dismissed. 13th June 1975. Representation: |