Liu Ting Kee v. The Queen

CACC000412/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 412 OF 1971

-----------------

-----------------

Coram: Pickering, J.

Date of Judgment: 12th August, 1971.

-----------------

JUDGMENT

-----------------

1. The appellant was charged with the offence of careless driving contrary to s.14(1) of the Road Traffic Ordinance, Cap.220 and was fined $100 and disqualified for a period of one month from holding or obtaining a driving licence for Class A Vehicles. He now appeals against conviction and sentence.

2. The only witness for the prosecution was a member of the Traffic Branch who was driving a motor-cycle at the time of the alleged careless driving, whereas the one witness for the defence was the defendant himself. Reading the record of the file, it is very difficult to say, without the advantage of seeing and hearing the witnesses, whether or not one would oneself have found the charge proved beyond reasonable doubt. The magistrate, however, convicted.

3. Unfortunately, in his Statement of Findings, the learned magistrate uses an expression which cannot but fail to leave an Appellate Court in some degree of uncertainty as to whether he demanded from the prosecution the full degree of proof incumbent upon it. After briefly stating the facts, the learned magistrate said:

"On hearing the witnesses I had no hesitation in preferring that of the prosecution to that of the defence."

4. The reference to "preferring" the evidence of one side to that of the other is apposite in a civil case but in its present context must inevitably carry with it a suggestion that proof on the balance of probabilities was, or could have been, the standard employed. It is true that the Crown evidence was "preferred" with "no hesitation" but a doubt must linger as to whether the rigorous standard of proof demanded in a criminal trial was the standard in fact employed.

5. The facts as they emerged in evidence are not so one-sided as to cause me to say "well, of course. On that evidence, the learned magistrate must have been convinced beyond reasonable doubt".

6. Mr. Winter, for the Crown, concedes that the expression used is equivocal and adds that no assistance is to be obtained as to the standard of proof adopted from the learned magistrate's remarks made at the time he reached his verdict.

7. In the circumstances it is unsafe to allow the conviction to stand. The appeal is allowed and the fine of $100 and order for disqualification for one month set aside.

Representation:

H. Wong for appellant

Winter, C.C. for Crown.