Chu Ping-sun v. The Queen

Case No.CACC 663/1978

Court

Court of Appeal

Date11 Sep 1978

Judge—

Case Document

100%

CACC000663/1978

IN THE SUPREME COURT

	Criminal Appeal
	1978 No. 663

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BETWEEN
	CHU Ping-sun	Appellant
	and
	The Queen	Respondent

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Coram: Li, J. in Court

Date of Judgment: 11th September 1978

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JUDGMENT

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1. The Appellant is convicted of the offence of careless driving for that he has been fined $80 and ordered to pay $50 costs. He appeals against conviction on the ground that this conviction is unsafe and unsatisfactory because

	(i)	the learned magistrate was in doubt about the evidence of the only prosecution witness P.C. 12859 but felt "bound to accept it" because the Appellant in his evidence estimated that the second bus was some 10 to 20 feet behind the first bus;
	(ii)	the learned magistrate appears from the statement of findings to have impliedly accepted the Appellant's evidence that the first bus was turning left at the junction, whereas the evidence for the Prosecution suggests that the Appellant drove across the path of the first bus causing it to stop to avoid a collision;
	(iii)	the learned magistrate appears to have assumed that the Appellant drove across the path of the second bus, although there was no evidence to support such assumption, and indeed the evidence of the Appellant was that the second bus was also turning to the left at the junction;

2. The facts of the case are simple. At the material time the Appellant was driving a lorry along Sheung Fung St., toward the junction with Fung Tak Rd. in Kowloon. At that junction he turned right into Fung Tak Rd. P.C. 12859 of the Traffic Branch in Kowloon was standing some 150 ft. away from the junction on the pavement of the opposite side of the road. There was a "Give Way" sign at the junction. The prosecution case was that the Appellant did not stop at the junction. At that moment a Kowloon Motor Bus was travelling along Fung Tak Road on the right side of the Appellant's lorry. The Appellant continued to turn right. As a result the said bus had to stop to give way to the Appellant's lorry and there was a near collision. The bus driver was called but he had no recollection of the incidence whatever. Thus the prosecution case was founded entirely on the police constable's evidence.

3. The Appellant's evidence in the Court below was that he did stop at the junction and saw two Kowloon Motor buses coming from his right. However, he proceeded to turn right into Fung Tak Rd., because he observed both buses indicated that they were turning left into Sheung Fung St. There was no risk of collision as he turned in front of the first bus. The distance between the first and second bus was about 10 to 20 ft.

4. Having heard the evidence the learned magistrate found the Appellant guilty. In his statement of findings he said

"Upon reviewing the evidence, one fact stood out clearly, in my opinion, and that was the Defendant in his own evidence appeared to think that 10 to 20 feet was a long distance. I accepted the evidence of P.W. 1, and at the end of the prosecution case there was clearly a case to answer. However had the Defendant not given evidence it would have been fair, if nothing else, to have dismissed the case; as there might well have been a 'lurking' doubt. As it was the Defendant gave evidence and in my view strengthened the prosecution's case by doing so. The Defendant, I found, did not allow sufficient room for his turn, especially as at the very most the bus was only 10 to 20 feet away. I was bound to draw the inference that P.W. 1 was correct, and that his evidence was supported by what the Defendant had said."

5. It appears that despite the police constable's evidence that there was a near collision the learned magistrate still had a lurking doubt. He would have acquitted the Appellant. This shows that he could not have accepted the police constable's evidence in toto at the close of the prosecution case. However, he resolved against that doubt apparently for one reason viz: that the Appellant said 10 to 20 feet was a long distance and that the first bus was 10 to 20 feet away from his lorry. In fact there was no evidence that the first bus was within that distance from the lorry. The only evidence was from the Appellant who said that the distance between the first and the second bus was 10 to 20 feet. Thus the reason for saying that the Appellant's evidence strengthened the prosecution case was misconceived. The conclusion was founded on wrong premises.

6. Upon reviewed of the evidence as a whole I find the evidence for the prosecution was so slim that I have the same doubt as the trial magistrate had at the close of the prosecution case. The only difference is that my doubt had not been removed even after having considered the Appellant's evidence.

7. There was no evidence to contradict the Appellant's allegation that the buses were turning left into Sheung Fung St. If they were, there would have been no danger of a collision. No evidence was adduced by the prosecution as to the route of the bus. In view of that it is difficult to understand why P.C. 12859 said that there was a near collision and, even if there was a risk of collision why the blame must fall on the Appellant's failure to stop at the junction.

8. In view of the aforesaid, I am of the opinion that the conviction is unsafe and unsatisfactory. The appeal is allowed, the conviction quashed and the sentence is set aside.

	Simon F.S. Li
	Judge, High Court

Representation:

A. Huggins (D.L.A.) for appellant

Stanburry C.C. for respondent