Lau Wai-hong v. The Queen

CACC000522/1980

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 522 OF 1980.

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

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

Coram: Hon. LIU, J. in Court.

Date of Judgment: 15 July 1980

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

JUDGMENT

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

1. The appellant in this case was charged with careless driving. The allegation against him was that on the 11th January last past he was driving along Connaught Road Central approaching the junction of Gilman Street, at which he allegedly cut in front of a police motor-cycle causing it to brake and halt abruptly, so much so that the engine of the motor-cycle went dead. It was alleged that the police officer was thus prevented from making a smooth left turn.

2. In the course of the proceedings before the learned magistrate, the police officer testified that there was obstruction twenty feet in length, protruding approximately four feet into the roadway. The appellant intimated in the court below that shortly before the junction of Gilman Street, the entire inner left lane of Connaught Road Central was obstructed. The learned magistrate found as a fact that the obstruction on the inner left lane was partial. The police constable further testified that at the time of the near-accident he was some ten feet behind the appellant then driving a taxi.

3. By consent, further evidence was led and admitted before me. First is a photograph submitted to the learned magistrate but apparently not made an exhibit. Next is a letter from the resident engineer in charge of road construction in question together with a photograph said to have been taken on the 3rd January. Therefore before this court, we have a photograph depicting the condition a few weeks after the incident and a photograph for that location some eight days before. In the letter of the engineer, it was stated that the same stretch of the road would have been the same or worse on the 11th January. The photograph taken some eight days before the incident supports the evidence of the police constable that a passage way was spared in the left inner lane whilst the photograph sought to be submitted to the magistrate shows a complete blockade of the inner left lane. The resident engineer claimed that obstruction might be more severe as at the date of the incident, but he was less than specific. The appellant properly drew my attention to the basic concept that the benefit of any doubt should be resolved in favour of an accused. What is clearly known is that the police constable was travelling some ten feet behind the appellant and the obstruction was about twenty feet in length. Thus, the appellant must have been midway within the very lengthy narrow passage. From the photograph of the engineer, we are now given a more accurate dimension of the possible free access.

4. What was left of the passage way in the left inner lane, even as spaceous as that depicted in the newly admitted photograph, may well provide sufficient justification for the appellant's assumption that no cautious driver would risk navigating it. The appellant had also given a light signal before his turn. In addition, I find myself much influenced by the observation of an exceedingly experienced magistrate that the offence was but a trivial breach. It stands to reason that comparatively little evidence might off-set the scale. With a more accurate visual aid, I cannot say that it is entirely without doubt that the appellant was careless as alleged by the police constable.

5. In the circumstances and for all the reasons I have given, I allow the appeal. Conviction quashed, and the fine, if paid, be returned to the appellant.

Representation:

Mr. Tom Gall, Counsel for the Crown/Respondent.

Appellant in person.