Lee Yuen Yau v. The Queen
Read the full judgment text of CACC 440/1974 on BabelCite. This Court of Appeal judgment.
1. I have come to the conclusion that this conviction cannot stand and that there must be a new trial. It is unnecessary to say more than that the learned magistrate regarded the evidence of Mr. Robert Poon, one of the defence witnesses, as "of little value because he did not follow the cars along Yuen Long Main Road after passing the roundabout". The Appellant asserts that that was a misunderstanding of the evidence of Mr. Poon. Unfortunately Mr. Poon's evidence on this point was ambiguous. No
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CACC000440/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 440 OF 1974 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 26th July 1974. ----------------- JUDGMENT ----------------- 1. I have come to the conclusion that this conviction cannot stand and that there must be a new trial. It is unnecessary to say more than that the learned magistrate regarded the evidence of Mr. Robert Poon, one of the defence witnesses, as "of little value because he did not follow the cars along Yuen Long Main Road after passing the roundabout". The Appellant asserts that that was a misunderstanding of the evidence of Mr. Poon. Unfortunately Mr. Poon's evidence on this point was ambiguous. No doubt the learned magistrate relied upon the statements (one of which was incorrectly transcribed in the typed record)
Even that, however, was ambiguous. It appears to be agreed that Ma Mui Road is comparatively narrow and does not allow two lanes of traffic in each direction: Yuen Long Main Road does. The witness also said:
The witness was not asked what he meant by "they" and "them". It is common ground that the Honda was in Yuen Long Main Road. It may have been "in front of" the witness only as it negotiated the roundabout, but I think it at least possible that the witness meant he was "following" the Honda, in the outer lane of Yuen Long Main Road, whilst the Appellant was in the inner lane. It is true that he went on to say:
but that is not conclusive because the whole basis of the complaint against the Appellant is that he pulled out into the outer lane in front of the Honda. 2. The evidence of Mr. Poon supported the Appellant's defence and it is impossible to say what verdict the learned magistrate would have reached had he found that the witness was travelling along Yuen Long Main Road in a position where he would have been able to see what happened. I am not, of course, saying that that was the position but merely showing that the point which has been left in a state of uncertainty was material. 3. The case should now be heard by another magistrate. It is to be hoped that on the retrial it will be ascertained how close the Appellant's car was to the Honda at the time of the alleged offence: it is not entirely satisfactory that the evidence should indicate only that the Appellant pulled out "causing [the driver of the Honda] to brake hard", because it is not impossible for a driver to see an emergency when none exists. While it would not excuse the Appellant altogether if he did pull out suddenly, if there is a conviction the magistrate should before passing sentence consider how much blame for the incident rests upon the Appellant and how much upon the driver of the Honda, who, although he apparently saw the stationary goods vehicle which blocked the inner lane (and certainly ought to have seen it), continue in an "overtaking" position when he ought to have appreciated that the "overtaken" car would have to pull out. 26th July 1974. Representation: |