Leung Pak Tak v. The Queen
|
CACC000011/1981
----------------- Coram: Liu, J. in Court. Date of Judgment: 29th January, 1981. ----------------- JUDGMENT ----------------- 1. This is an appeal against a conviction of dangerous driving. The prosecution's evidence before the learned magistrate was that on the 4th April, 1980, at about 12.15 p.m., along Fan Kam Road near the Police Cadet School, without any warning a car driven by the appellant ploughed into groups of pedestrians returning from ancestral worship. 2. Evidence was led that the pedestrians were walking on the pavement in single file and an orderly manner, but in three groups. The car driven by the appellant allegedly mounted the pavement, rammed into the second group killing the deceased and injuring others and almost caused harm to members of the third group before it finally came to a halt. 3. Three pedestrians out of these groups were called by the prosecution. P.C. Liu, an investigating officer after the incident, also gave evidence. 4. The appellant told the learned magistrate that he had five passengers in his small Toyota at 12.15 p.m. when all his friends had fallen asleep. Upon approaching the scene of the accident, he noticed the pedestrians about 10 odd feet away. They were, according to the appellant, walking off the kerb. When he was close to the pedestrians, so claimed the appellant, a bottle went through his wind-screen and in the course of which shattered it and landed on the passenger's seat. The bottle was retrieved after the accident from the passenger's seat, half full with the cork still intact. None of the slumbering friends of the appellant's was called, nor in particular the passenger or passengers, if any, next to the driver's seat. 5. It was fairly conceded by counsel for the appellant that if indeed, there was sufficient evidence to justify a finding of the appellant's car mounting the pavement injuring the pedestrians, killing one, in the prevailing circumstances, the conviction of the appellant could not be said to be ill-founded. However, counsel urged upon as that the prosecution witnesses were in no position to make any allegation of excessive speed. I share counsel's criticism. There was no evidence that they were drivers themselves. P.W.1 told the court that she saw the vehicle driven by the appellant, travel at a fast speed, but she did concede in cross-examination that she did not see the collision nor did she see where the deceased was at the material time. P.W.1 was in the first group comprising her father and three. The deceased was leading the second group. Therefore, the first prosecution witnes was not so positioned as to be able to see the deceased unless she had turned at the time of or immediately before the collision. 6. Prosecution witness No. 2 also made the same allegation, but in cross-examination she said that by comparison the car driven by the appellant was faster than the many vehicles on the road. There was no evidence as to the speed of those other vehicles, and the comparison allegedly made could offer little guidance. 7. Counsel also attacked the allegation that the appellant's car mounted the earth path. As for the evidence of P.W.1, counsel submitted that as she did not see the vehicle hit the deceased or circumstances immediately before the collision, she could not have known whether or not the appellant's vehicle mounted the pavement at the material time. However, the learned magistrate had the evidence of the second prosecution witness. She was third in group 2 and she was separated from the deceased by only one. She told the court that the deceased and the rest of the group were walking single file on the earth path next to the road. She said that she saw the deceased knocked down by a yellow private car on the pavement. She did say subsequently in cross-examination that she did not see the impact, but with her vision partially obstructed, the answer in her cross-examination was not, in my view, inconsistent with her very clear description of the situation. 8. Prosecution witness No. 3 gave corroborative evidence as to the appellant's car mounting the pavement. Counsel drew my attention to various aspects of the evidence of P.W.3. It would appear that there was some justification for criticising portions of his evidence. To put it shortly, in the end the evidence of P.W.3 as regards the maneuvre of the appellant's car did not seem to be entirely without ambiguity. 9. In the end, the learned magistrate was nevertheless left with a vivid description given by prosecution witness No. 2, who also informed the court that at no time did she notice the deceased throwing any bottle of wine onto the road. 10. The appellant told the magistrate of the alleged incident involving the bottle, and Constable Liu also testified that the appellant made reference to the incident of the bottle. 11. As a seeing judge, the learned magistrate weighed and rejected the evidence of the bottle given by the appellant. He accepted the evidence of the Prosecution witnesses and came to the conclusion that the vehicle driven by the appellant did mount the earth path on a fine day, in broad daylight, with dry road surface, along a stretch of straight road and in circumstances otherwise uneventful. He came to the conclusion that the appellant was guilty of dangerous driving, in the circumstances, causing the death of the deceased. 12. It was submitted for the appellant that the allegation of mounting onto the earth path should have been received with some scepticism by reason of the various matters canvassed in this appeal. It was pressed upon me that because of the unsatisfactory state of such evidence which should have some bearing upon the overall credibility, the evidence of the second prosecution witness to the effect that she had at no time seen any bottle thrown into the road by the deceased should not have been so readily accepted and given credence to. However, it was a finding of fact in circumstances which, in my view, overwhelmingly justified the conclusion reached by the learned magistrate. I have given these matters the consideration they deserve and perused all the papers with care. Needless to say that I have also listened to the very full submissions made on behalf of the appellant. In the end, I cannot find fault with any factual decisions of the learned magistrate. Hence, as I have indicated, I need not call upon counsel for the prosecution. The appeal against conviction must, in these circumstances, be dismissed and the sentence, therefore, be affirmed.
Representation: Appeallnt represented by Mr R. Mayne (instructed by J.S.M.) Mr. Mason-Parker, counsel for the Crown. |