The Queen v. To Chi Hoi

HCMA000922/1985

BETWEEN:

Coram: Roberts, C.J.

Date of Judgment: 12th November, 1985

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JUDGMENT

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1. This is an appeal against conviction for careless driving. On 20th January, this year, the appellant was driving a motor-car along the westbound carriageway of Gascoigne Road. As he did so, the car ran out of control and swerved to its right across the westbound carriageway and the eastbound carriageway, where it collided with the wall of a multi-storey car park.

2. It is clear from the Motor Vehicle Examiner's report that very substantial' damage was caused to the car, including damage to the off-side fornt tyre which, when examined by the expert, was found to have been deflated.

3. The Crown's case was that the driving of a motor vehicle in this fashion must be careless, in the absence of some explanation by the defendant.

4. The defence put forward at the trial was that the car was being driven about 24 m.p.h. in third gear and that it suddenly went out of control. When asked what was wrong with the car, the driver said there was nothing. When asked why it got out of control, he replied "I didn't know but it suddenly steered to the right. " He added that the car had no defects, and that the tyres "should be working properly" because he bought the car two years' ago and had changed them several times.

5. It was suggested to the magistrate that the fact that the off-side front tyre was deflated should arouse in his mind some doubt as to whether the car had been driven carelessly. By this I assume Mr. Ho, who appeared for the appellant at the trial, was submitting that the off-side tyre must have deflated before the accident and had been the reason why the vehicle had gone out of control.

6. Unfortunately, if this was the defence, it was not put to the Motor Vehicle Examiner. When he was called by the prosecution to produce his report and to give evidence, he was asked by the magistrate whether the steering had been damaged as a result of the accident and said that it was. He was not asked any questions about the tyre. He could, and if this was the defence, should have been asked whether he could say that the tyre had been deflated before the accident and, if that could have caused the vehicle to swerve out of control.

7. It is not for me, at this stage, to attempt to re-try the matter or to guess at what answers the Motor Vehicle Examiner might have given to questions that were not put to him. He might have said that he was perfectly satisfied that the deflation of the tyre had taken place as a result of the collision and not before the accident. This is a matter of speculation.

8. The magistrate, however, the matter having been put to him by Mr.Ho, did consider it in his statement of findings as follows -

"There was no evidence before me of any mechanical defect. There was evidence that one of the front tyres was found to be deflated after the accident. The Appellant's case appeared to be that through no fault of his own the car suddenly swerved across the opposite carriageway and into the wall.

There was no explanation from the defence as to why the Appellant's car behaved in this way. I carefully considered the evidence and I myself could find no such explanation. I considered the possibility of the tyre having deflated prior to the accident. There was no evidence that the weather or road surface condition caused or contributed to the accident.

The only conclusion that I was able to draw was that the Appellant was responsible for the car's loss of control. I noted the extensive damage to the car and .inferred that the speed of the car was more than the 24 mph or 27 mph. alleged by the Appellant. "

9. It would, perhaps, have been better if the magistrate had specifically rejected the possibility of the tyre being deflated before the accident. However, it must be apparent from the next paragraph of his statement of findings that he in fact did discount that possibility. This is hardly surprising in view of the fact that there was no evidence before him to suggest that it had caused the accident.

10. In my view, the circumstances were such that, in the absence of any evidence that the deflation of the tyre might have taken place before the accident or, indeed, of any other explanation for it, the magistrate was entitled to come to the conclusion which he did, namely, that the appellant had driven carelessly, on the evidence which was put before him.

11. For these reasons the appeal must be dismissed.

Representation:

Mr. P. Ho of Messrs. Gallant Y.T. Ho & Co. for Appellant

Mr. M. Bulleid, Crown Counsel., for Respondent.