Leung Siu Keung v. The Queen

Case No.CACC 427/1974

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000427/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 427 OF 1974

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BETWEEN
	LEUNG SIU KEUNG	Appellant
	and
	THE QUEEN	Respondent

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Coram: Li, J.

Date of Judgment: 18th September, 1974

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JUDGMENT

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1. The appellant is convicted of careless driving. The charge is that on the 5th of September at about 5.25 p.m. in Hennessy Road junction with Heard Street, he drove a public omnibus on the road carelessly.

2. The evidence presented by the prosecution is brief, as are the findings by the learned magistrate. The reason given for the conviction is equally brief. There is no need to repeat the evidence before the learned magistrate, it is all contained in his statement of findings, at page 11 of the reocrd which can be read in full. In this he said:

"The defendant was driving a double decker omnibus in a westerly direction on Hennessy Road near Heard Street as shown on the defence sketch of the area. It was agreed that the prosecution's sketch was incorrect as it shows the tram-tracks are incorrectly drawn when approaching the narrow space between the tram-tracks and the traffic island. The defendant was driving slowly to allow a tram to proceed further in a westerly direction which would enable him to drive in between the tram-tracks and the traffic island."

Pausing at this stage I observe that it is agreed that this finding of fact is wrong because there is no evidence that the tram was preceding the bus in question. He continued in the statement by saying that:

"	He was continuing at a speed of some 15 miles an hour when an old lady appeared crossing the road, the bus struck her and she died as a result of injuries received.
	A witness for the prosecution, Miss KONG Wai-tong, was seated upstairs in the front seat. She saw the old lady crossing the street slowly and she said she feel the bus stopped naturally and there was no sudden stop. Nevertheless it was proved that the bus' left brake marks of 17 ½ feet and 18 feet. Mr. David Read, the motor vehicle inspector stated that these brake marks would indicate a speed of just less than 15 miles per hour by a double decker bus.
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3. The defendant elected not to give evidence.

I found no evidence of any fault attached to the old lady who was killed and consequently found the defendant guilty."

Again, pausing at this stage, the learned magistrate appeared to have founded the conviction for this reason and this reason alone.

4. Learned counsel for the appellant quite rightly contends that it is a wrong in principle to convict any person of a criminal charge which must be proved beyond reasonable doubt. In addition I must observe that this appears to apply the principal of res ipsa loquitur to a criminal case to which such principle has no application.

5. Counsel for the appellant also attacks the conviction on the grounds that such statements seem to indicate that there was a lack of appreciation of the basic principles of criminal law as there was no mention of what constituted careless driving. It is proved that, or agreed that, in the circumstances of the case, the old lady who was killed was in fact jaywalking. The evidence of the girl in saying that the bus came naturally to a stop was contradicted by expert evidence that the bus driver, the appellant, must have been applying the brakes very suddenly in order to leave the skid marks of 17 ½ feet to 18 feet.

6. It is also contended that there is no evidence of any act of carelessness on the part of the appellant in driving a bus at a reasonable speed of 15 miles per hour. The girl sitting in front of the upper deck of the double deck bus could have a clearer view than the appellant could ever have at the driver's seat. Further, it was indioated that a motor vehicle travelling at 20 miles per hour would require an overall stopping distance of 40 feet; In Bingham's Motor Claims Cases at page 106, it is observed that a bus or van might take double that distance. On the other hand, learned counsel for the Crown submits that the magistrates observation is a mere statement of fact that there is no evidence that the old lady was at fault. That need not necessarily be the only reason for which the learned magistrate found the appellant guilty of careless driving. He contends that no specific reason or any particular reason was given to the conviction. This court, as a Court of Appeal, and reviewing all the evidence, is entitled to consider the evidence in total to find whether in fact the appellant was guilty of careless driving. He invits me to look at the geography of the scene of the accident, the evidence of the girl, Miss Kwong, and to examine the evidence and find whether there was in fact careless driving on the part of the appellant.

7. While I observe that the statement made by the learned magistrate is very unfortunate in that it did give the impression of applying the principle of res ipsa loguitur to a criminal charge, yet he has made no specific finding as to what constituted careless driving on the part of the appellant. I am entitled to look at the facts of the case as found by him and to examine whether the appellant could be found guilty of careless driving.

8. It is observed that the junction between Heard Street, Hennessy Road, Johnston Road and Stewart Road was indeed an extremely busy junction at a time where a crowd should be expected in the street, namely, at about 5.25 p.m. The evidence that the old woman was sighted 40 feet from the bus was not challenged and therefore I have to accept the girl's evidence that she was probably first seen at about 40 feet away from the bus.

9. As far as the breake marks are concerned, it appears that the jamming of the brake caused the bus to leave a skid mark of 17 ½ to 18 feet. That indicates the distance of the bus from the old woman when the bus driver first applied the brakes. In the course of the hearing, learned counsel for the appellant agreed with me that usually, what is commonly known as the thinking distance - that is the distance that a vehicle would travel between the times when the driver first realised an emergency and the time when he applied the brake - would be roughly about two-thirds of the travelling distance of the vehicle. As the skid mark is only 17 ½ to 18 feet, an overall distance of 40 feet should be sufficient for the appellant to stop the bus. The fact that the woman was hit by the appellant's vehicle even though she was first seen at 40 feet away indicates that either the appellant was inattentive momentarily or committed an error of judgment which was negligent. There is no doubt in a charge of this nature, an error of judgment may well be careless. If his error of judgment was such that he thought that his vehicle was suff iciently far away to enable this woman to walk completely clear of the bus path, he was negligent in that sense and in that sense he was careless. This is pointed out in the case of Simpson and Peat⁽¹⁾ in which the learned Lord Chief Justice said this:

"When one is considering section 12, the marginal note of which is 'careless driving', it is in our opinion clear that a driver may not be using due care and attention although his lack of care may be due to something which could be described as an error of judgment. If he is driving without due care and attention it is immaterial what caused him to do so. The question for the justices is: was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances? If he was not they should convict; if, on the other hand, the circumstances show that his conduct was not inconsistent with that of a reasonably prudent driver, the case has not been proved."

Later he said again that:

"On the facts stated the court is of opinion that the justices' first decision was clearly right. The defendant was turning to his off side in a main road cutting across the line of traffic coming from the opposite direction. It was not. found that the motor-cyclist was driving too fast or that the respondent was confronted with a sudden emergency. It is not even found that he gave a signal, but in any case it was for him to take care that he could execute the manoeuvre in safety. To use the words of the justices in their finding, he thought he had left room for traffic coming in the opposite direction to get through, when in fact he had not done so. In these circumstances there was no reason in law why he should not have been convicted, and the case must go back to the justices with a direction to convict."

10. Applying the principle to the present case I find that an error of judgment may well be negligent. In the absence of any evidence by the defendant there is a prima facie case to say that either the appellant had failed to see her at the distance of 40 feet or that the appellant having seen her at that distance committed a negligent error of judgment in thinking that she should get clear of the path of the appellant's bus. Having reviewed the evidence of the case as a whole and having regard to the fact that the appellant in the court below elected not to give any evidence as an explanation, the magistrate was justified in coming to this conclusion that there was careless driving. For these reasons the appeal must be dismissed.

11. I come now to the question of sentence. Mr Mills-Owens?

MR. MHLLS-OWENS:	There is nothing I can say on the question of sentence.
COURT:	In the circumstances the appeal against sentence is also dismissed.

Representation:

(1) (1952) 2 Queen's Bench Division at page 27.