Chiu Pui Kun v. The Queen
|
CACC001110/1983 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1110 OF 1983 _____________ BETWEEN
Coram: Macdougall, J. Date: 5 OCT 1983 ___________ JUDGMENT ___________ 1. The appellant was convicted after a trial of two offences under section 27 of the Road Traffic ordinance. The first charge alleged that the appellant, having been the driver of a goods vehicle and having knowingly been involved in an accident whereby injury was caused to a ten year old girl, had failed to stop. 2. The second charge alleged that not having given to any police officer or any other person the particulars specified in paragraph (a) of the section the appellant had failed to report the accident and give such particulars at a police station or to a police officer as soon as was reasonably practicable written 24 hours after its occurrence. 3. The 10 year old girl had testified that she had left her home in Tai Yee House,Tai Yuen Estate to go downstairs and purchase some food across the road. As she stood between two stationary buses and waited for a break in the traffic, she felt a vehicle brush her. She immediately ran back to the lift lobby in Tai Yee House without looking to see whether the vehicle had stopped. According to her testimony her right forearm had been "hurt". 4. The other prosecution witness was a bus driver who had been setting down passengers at the scene. He had testified that about 5 seconds after he had heard a sound from behind him as if a vehicle had "knocked against something" he saw a woman approaching him carrying the girl. Someone pointed out the defendant's vehicle to him and he observed it being driven along the road towards a roundabout. 5. The defendant had testified that while he was driving his vehicle past the bus stop he saw a child suddenly dash out onto the road from between two buses. Fearing that the child might have struck the side of his vehicle the defendant immediately stopped and alighted to investigage. He then saw the girl run back from where she had come. Satisfied that no accident had occurred he returned to his vehicle and drove on. For the same reason he did not subsequently report the incident to the police. 6. In a brief judgment at the conclusion of the trial the magistrate stated
Plainly this was reversing the burden of proof. It was not for the magistrate to be satisfied that the appellant had stopped. It was for the prosecution to prove that he had not stopped. 7. Apart from making this fundamental error the magistrate failed to consider the consistency of the girl's evidence with that of the appellant. He also failed to deal with the clear conflict between the evidence of the girl and that of the bus driver. 8. The girl's testimony that she had been "brushed by the vehicle" and had immediately run back to the lift lobby was consistent with the appellant's evidence not only that he had merely thought that the child who had dashed out on to the road might have been injured but also that he had seen her run back from where she had come and had thus concluded that she had not been injured and that no accident had occurred. 9. Since the bus driver had not seen the girl until the woman approached him holding her it is clear that he was not in a position to say that the appellant had not stopped immediately after the incident. 10. If the girl's evidence was correct, and there is no reason to suspect that it was not, it seems inescapable to me that the bus driver's evidence as to the time that elapsed between the supposed sound of impact and the moment when he saw a woman carrying the girl is completely unacceptable. Furthermore, the girl did not mention being carried by a woman to the bus driver. Nor did the court have the benefit of hearing any evidence from the woman. 11. The bus driver's evidence as to the sound of "a vehicle knocking against something" seems suspect in the light of the girl's evidence that the vehicle merely brushed her. 12. The record discloses that during his final address the solicitor who had represented the appellant at the trial said "Defendant felt that there was some kind of contact between himself and the child, might have been something held by the child. Might have been no injury". Infect, the appellant gave no such testimony. What he had said was that he had seen a child dash out and that he had thought that he might have hit her. 13. I do not propose to enter into conjecture as to what might have been in the solicitor's mind when he advanced this theory to the magistrate. However, the magistrate observed in his statement of findings that "the defendant's (sic) submission was that his vehicle might have had contact with something the child was holding rather than the child herself, suggests that the defendant was aware that his vehicle was hit by, or had hit, something; and thus had been involved in an accident". In so doing he made a deduction that he was plainly not entitled to make. A court is only entitled to draw inferences from the evidence. 14. Crown Counsel not only recognised that the magistrate had misdirected himself on the burden of proof as to the appellant not having stopped after the incident, but very fairly conceded that in the light of the clear testimony of the girl there was insufficient evidence to justify a finding that the appellant knew or ought to have known that she had been injured. 15. Mr. Yung for the appellant cited Clements v. Gill [1953] S.A.S.R.25, a case in which a pedestrian had been struck at the base of the spine and thrown to the ground by a motor vehicle that had failed to stop in accordance with legislation similar to the relevant provisions in the Road Traffic Ordinance. From the evidence given by the pedestrian of the blow he had sustained and of his subsequent movements, the appellate court found that it might reasonably have been expected that at least some bruising had been caused. 16. In quashing the conviction Reed J. said at page 27 of the report -
17. In view of the matters I have already mentioned Crown Counsel did not address me on the question of law that arose for consideration in Clements v. Gill. Accordingly I do not propose to express any view as to whether that decision accurately reflects the law applicable in Hong Kong. 18. Suffice it to say that for the reasons I have given I have come to the conclusion that the appeals must be allowed. The convictions are quashed and I order that the fines, if paid, be refunded to the appellant.
(1) (1947) 75 C.L.R.242, at pp.252-253 (2) (1951) A.C. 13 Representation: Mr. Y.W. Yung instructed by Laurence pang & Co. for Appellant. Mr. McMahon, Crown Counsel, for Crown/Respondent. |