The Queen v. Fong Kwok Cheung

CACC001060/1983

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1060 OF 1983

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BETWEEN

Coram: Garcia J. in Court

Date: 5th September, 1983

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JUDGMENT

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1. The Appellant was convicted on the 1st January 1983 by the Magistrate for careless driving, failing to stop after an accident and failing to report the said accident contrary to Sections 14(1), 27(1) and 27(2) on the Road Traffic Ordinance Cap. 220.

2. I dismissed the Appellant's appeal against conviction for careless driving but allowed his appeal against the two further convictions for failing to stop after an accident and failing to report the said accident, and these are my reasons in writing for doing so.

3. The facts which the Magistrate relied upon in support of the conviction of careless driving are that at about 11 a.m. on the 8th January 1983, a Mr. Anthony Devereux was driving his car No. BK6906 along Wong Nai Chung Gap Road in the direction of Repulse Bay, when a truck which was travelling in the same direction on the outer lane suddenly turned into his lane and hit his car on the left passenger door causing the car to be pushed half way across to the opposite carriageway.Mr. Devereux was fortunate enough to avoid being hit by a bus doming from the opposite direction, but as soon as the truck was able to do so, it continued on its way and did not stop. Mr. Devereux got out of his car after stopping and noted the number of the truck as No. CD349, following which he drove to the Shell Petrol Station near Wong Nai Chung Gap Road which was nearby and made a report to the police by telephone:

4. This incident was seen by a 12-year old boy who gave his evidence on oath and it is in corroboration of the evidence given by Mr. Devereux. However, this witness, who was pushing his bicycle uphill at that time, did not see the number of the vehicle as it had accelerated away after the collision. In his defence, the Appellant stated in evidence at first that he was not clear what happened, then denied that the accident had happened but the Magistrate accepted the evidence of the witnesses for the Respondent and convicted the Appellant of the offences of careless driving and of failing to report after an accident and fined the Appellant $200 on each summons.

5. At the beginning of the trial it appears from the record kept by the Magistrate that the summons, i.e. No.22872 dealing with the offence of failing to stop after an accident was not readout to the Appellant because the Prosecutor at that time had not told the Interpreter about that summons. After the Appellant had been convicted of the offences stated earlier, the third summons was read out and explained to the Appellant, to which summons he pleaded not guilty. Instead of hearing evidence on that particular summons afresh, the Magistrate stated that he already had the evidence of the 2 previous summonses and from that evidence ruled that the Appellant had a case to answer on the latter summons. After his rights were explained to him, the Appellant in giving evidence anew, stated that no accident had happened and he was driving downhill between 11.30 to 11.45 a.m. and drove along Wong Nai Chung Gap Road at 11.40 a.m. He also denied that he had hit Mr. Devereux's car. so far as this latter summons is concerned, since the Magistrate had already ruled in respect of the two previous summonses he was functus officio in respect of the evidence that had already been adduced. He should therefore have re-heard the evidence again from the witnesses for the Respondent unless the Appellant himself had signified to the Magistrate that he had no objection to the adoption of that evidence in the trial of the latter summons. In my view, there was an irregularity in respect of the trial of the last summons and on this ground alone I would have allowed the appeal. However, on the question of failing to stop and failing to report after the accident, the word "knowingly" appears in the particulars of the offences in both summonses. There was no finding by the Magistrate that the Appellant, who was the driver of the truck, had knowledge of the occurrence of the collision and in my view it was incumbent upon him to make such a finding before he could have convicted the Appellant of the offences in the said two summonses, that is failing to stop after an accident and failing to report the accident. (Harding v. Price).⁽¹⁾  It is quite a different matter for him to have said that there was sufficient evidence to indicate that a collision had occurred and that such driving was careless driving on the part of the Appellant, but another for the Magistrate to make no finding whatsoever on the evidence with regard to the latter two summonses even though it could have been inferred that in view of the circumstances attendant upon the occurrence of the collision the Appellant should have known of it. However, this is not the finding made by the Magistrate and accordingly I allowed the Appellant's appeals in respect of these two convictions.

(1)    (1948) 1 All E.R. 283.

Representation:

Mr. Freeman for Crown.

Mr. Brian Van Buuren (Michael Cheuk & Co.) for Appellant.