Ngai Fuk Chi v. The Queen
Read the full judgment text of CACC 539/1980 on BabelCite. This Court of Appeal judgment.
1. The appellant was charged with driving a motor vehicle dangerously on 18th October,1979 at Lung Cheung Road near Wong Tai Sin Upper Estate Block 1. He was convicted of that offence and disqualified from driving private cars for six months and fined $500. He now appeals against both conviction and sentence.
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CACC000539/1980
----------------- Coram: Power, J. in Court Date of Judgment: 1st August, 1980 ----------------- JUDGMENT ----------------- 1. The appellant was charged with driving a motor vehicle dangerously on 18th October,1979 at Lung Cheung Road near Wong Tai Sin Upper Estate Block 1. He was convicted of that offence and disqualified from driving private cars for six months and fined $500. He now appeals against both conviction and sentence. 2. The prosecution evidence came from P.C. 5024 who said that he was walking in Lung Cheung Road from east to west at 1.35 p.m. outside Block 1, Wong Tai Sin Upper Estate when he saw a green car, BP8183, which was about 50 yards from him suddenly drive onto the pavement just after passing a bus stop. He said that he saw no indication and heard no horn. He said that immediately before driving onto the pavement the car stopped on the roadway and then it drove onto the pavement and travelled about 20 yards at 20 m.p.h. to an M.T.R. entrance. He said that there were 10 odd people waiting at the bus stop and other pedestrians in the vicinity. He said that pedestrians had to run out of the way of the car and that a Chinese female, who scolded the driver, had to pick up a child as the car passed. He said that he then went up to the driver, who he identified as the defendant, who told him that he usually drove in that manner. 3. The appellant gave evidence saying that before he drove onto the footpath he stopped, switched on his indicator and tooted his horn and that he then drove on very slowly in first gear for about 100 feet to a spot between the entrance to the Mass Transit and Block 1. 4. He said that the police constable came up and told him that he was arresting him as it was an offence to drive on the pavement. He said that he did not pay particular attention to whether people were wating at the bus stop. He said that he saw no woman carrying a child and that no people at the bus stop had to run away. 5. The appellant called a witness who said that he saw the defendant drive slowly on the pavement. 6. The learned magistrate in his Statement of Findings sets out the evidence and goes on to say:
7. He expressly finds, as he was quite entitled to, that he disbelieves the evidence of P.W.1 "so far as it relates to the episode of the woman and child". He did so because he formed the view that P.W. 1 would not have been in a position to see the woman leaving the station entrance. The learned magistrate, however, makes no other findings of fact as regards the evidence of P.W.1. His only other specific findings of fact, apart from the uncontested fact that the appellant drove on the pavement, are in the following terms:
He goes on to say "Discounting completely the testimony of P.W. 1 about the woman and her child nevertheless the fact remains that a large number of people must have been in the area at the time." What exactly does he mean by these findings. Is he finding that the evidence of P.W. 1 establishes that "a large number of people would be about" the locality? If so he was in error as P.W. 1 did not, at any time, say that there were a large number of people about the locality. When dealing with the number of people in the locality P.W. 1 said "There were about 10 odd people waiting at the stop for a bus. There were other pedestrians in the vicinity." He went on to say that "there were pedestrians on the pavement who had to run out of the way of the car." If the learned magistrate had accepted this evidence he surely would have made a finding in terms of that evidence. He made no such finding. In point of fact he found not that the appellant had actually endangered anyone, as the evidence of P.W. 1 suggested, but that his driving was "inherently and potentially dangerous." Further there is some force in the submission that given his use of the words "must have been" the possibility is left open that he was relying not upon the evidence to establish the state of the locality at the time but upon what he believed must have been the case. 8. It is true that the learned magistrate did finally indicate that he had "no hesitation in saying that I was satisfied that the evidence had established his guilt beyond any reasonable doubt." 9. Just what evidence he relied upon to establish that a large number of people would be about the locality is, however, for the reasons set out above, unclear. 10. Indeed, even if this fact was established by the evidence it would not, of itself, be sufficient to found a conviction of dangerous driving against the appellant. Even with a large number of people about a driver could mount the pavement with safety as long as he kept a proper lookout and did so at a low speed, after giving adequate warning. 11. For the above reasons the appeal must be upheld and conviction quashed. 12. What occurred in the present appeal once again underlines the necessity, when drawing up a Statement of Findings, to make specific findings of fact and to indicate the evidence upon which they are based.
Representation: Mr.C.H. Koh (Deacons) for Appellant Mr. Dick, S.C.C. for Respondent/Crown |