The Queen v. Chung Man Lung
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1987, No. 913 _______________ HEADNOTE _______________ Reckless driving – overloading – test in Lawrence. IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) MAGISTRACY CRIMINAL APPEAL NO. 913 OF 1987 ________________ BETWEEN
________________ Coram : Hon. Bewley, J. in Court Date of hearing : 10th December 1987 Date of handing down judgment : 23rd December 1987 ________________ J U D G M E N T ________________ 1. The appellant was convicted of reckless driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374. 2. The appellant was driving a goods vehicle westbound in Queen's Road West, at 10-15 mph, when he was intercepted by a traffic police constable, who noticed the vehicle wobbling and suspected it was overweight. 3. The police constable escorted the appellant while he drove the vehicle slowly back to Central, to a weighbridge situated at the China Ferry Pier. Here the vehicle was weighed - with difficulty, since it took five attempts before the appellant succeeded in mounting the weighbridge - and its gross weight was found to be 12.9 metric tonnes. The permitted gross weight of the vehicle and goods was 5.5 tonnes. 4. The-vehicle was then driven, under escort, by a police driver to a vehicle compound in Java Road, North Point. Here it was subsequently examined by a Motor Vehicle Examiner, whose evidence was as follows :
5. The appellant did not give evidence. 6. The main ground of appeal is that the magistrate was wrong in law in finding that the appellant created an obvious and serious risk of causing physical injury to some other person who might happen to be using the road. A secondary ground was that the appellant did not have the necessary mens rea, that is to say that he drove in that manner without having given any thought to the possibility of there being any such risk or; having recognised that there was such risk involved, had none the less gone on to take it. 7. This is the test in R. v. Lawrence[1], at page 982, per Lord Diplock. 8. Mr. Chung, for the appellant, makes two points. In the first place, he submits, the fact that the vehicle was driven, with its load, from Western to Central and later to North Point, gives rise to the inference that the risk was not obvious, at least to the police officers, who are trained in such matters. 9. The answer to that is that there is a world of difference between driving carefully under police escort and driving under normal circumstances. The risk is thereby greatly reduced, although I agree it is not eliminated entirely. Moreover, even if the police did recognise the risk as obvious, they had no alternative but to take it. It was not practicable to leave the vehicle parked in Queen's Road West or to remove the load. 10. Mr. Chung also submitted that the evidence did not show that the risk was obvious to the appellant. The evidence showed that his vehicle was grossly overweight and was wobbling as it was driven in a busy street near a crowded market. The Motor Vehicle Examiner's evidence provided ample evidence from which the magistrate was entitled to conclude, in the absence of evidence from the appellant himself, not only that there was an obvious and serious risk of causing injury, but that the appellant – being aware of the state of the brakes and the suspension -either was aware of the risk and decided to take it, or gave no thought at all to the possibility of risk. 11. In either event the appellant was guilty of reckless driving. This appeal is dismissed.
Mr. S.R. Bailey, Senior Crown Counsel, for Respondent. Mr. Andrew Chung, instructed by M/s. Poon & Cheung for Appellant. [1] [1981] A.E.R. 915 |