The Queen v. Tam Yuen-chung

CACC000681/1983

BETWEEN

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Coram: Hon. McMullin, V.-P. in court

Date: 1st July, 1983.

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JUDGMENT

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McMullin, V.-P. :

1. The appellant was convicted on the 26th April 1983 of an offence under Regulation 109 of the Road Traffic(Construction and Use) Regulations, the particulars being that he had unnecessarily sounded the horn of his motor car. The evidence for the prosecution ryas given by P.C. 3480. He said that on the 25th October, at 11:00 a.m., he saw motor car CA8745 standing outside 84, Shantung Street. There was only one person in the car, the driver. He said that he heard the horn of that car sounded five to six times. He approached and asked the driver why he was doing so, and the driver said that he was endeavouring to attract the attention of somebody. He remonstrated with the driver about this and asked for his driving licence. In court he gave the name and address which had then been given to him by the driver as Tam Yuen-chung, 1102 Chung King Building, Bedford Road. He could not identify the driver in court. He was cross-examined as to the circumstances described by him, the thrust of that cross-examination being that no such offence had been committed.

2. The appellant did not give evidence and there was a submission of no case on the basis that the evidence was insufficient to show which car horn was sounded. That presumably was based upon the police officer's evidence - to which Mr. Nguyen upon the appeal takes exception for its contradictory character - that there was another car in the vicinity. That is what he said in examination-in-chief. In cross-examination he said: "No other vehicle in nearby vicinity".

3. Mr. Nguyen takes a legal point upon the authority of certain English decisions. He says that the evidence was insufficient to call upon the defendant to make his defence by reason of the fact that when the summons was issued to the defendant, although the name Tam Yuen-chung appeared upon the summons, the address to which that summons was directed was quite a different address, viz., 8/F., 15, Ventris Road, Hong Kong.

4. I have considered the three English cases to which I was referred. They were Marshall v. Ford [1908] 72 Justice of the Peace, at p.480; Cooke v. McCann [1971] RTR 131; and Creed v. Scott [1976] RTR 485. In each of those cases a similar situation had arisen, the defendant in each case being approached in respect of a traffic violation and having given a name and address and subsequently having been summoned in that name and address. In each case it was argued that since the investigating constable was unable to identify the defendant, there was insufficient evidence before the court to identify the person who had appeared and answered to the summons as the person to whom the evidence of the prosecution witness was directed.

5. It may be thought strange, since in each of these cases the Court of Appeal overruled that objection and found that the evidence was sufficient, that they are held in favour of the appellant. But Mr Nguyen points out that there is a distinction between those cases and the present case. In our case two different addresses figured in the proceedings and no explanation has been given to the court for that fact.

6. I do not think that that is a sufficient objection. Where a person has been approached and either warned or issued with a summons, and his driving licence inspected and his particulars taken, including name and address, and the summons is subsequently directed to a person of that name, I take the view that that evidence being produced in court whether or not the address itself has been correctly given is sufficient prima facie evidence to call for an explanation.

7. It seems to me to fly in the face of common sense to suggest that a person who has been served with such a summons and now is not the person who is intended simply should be allowed to sit back and say: "Well, it hasn't been proved because the address is wrong."

8. I note that in Marshall v. Ford, the Lord Chief Justice Alverstone gave his view of the matter in the following words: "When in the course of his duty a constable acting under the Act gets the name of a person who afterwards appears in court, that is evidence on which the magistrates may act." I agree that, as Mr. Nguyen says, in each of the three cases names and addresses had been given and evidence about them was given in court and there was no question of a discrepancy between two addresses.

9. Nevertheless, where the name Tam Yuen-chung - not "Tam", not "Yuen", not "chung" but that combination of names - produces a person of that name in court as a result of the summons, then irrespective of any doubt that may hang over the question of the address, such evidence is in my view equally sufficient to call upon the defendant to give an explanation as was the evidence before the courts in the three cases which I have mentioned.

10. Then it is said that, in any event, the evidence was confused and contradictory and should not have been relied upon by the convicting magistrate. I agree that the evidence given by the constable was not very satisfactory. It was within a small compass and the difficulties which appeared upon it could and should have been pursued and cleared up. When he refers; in his examination-in-chief, to another car, and later says that there was no vehicle in the nearby vicinity, there is an apparent contradiction which may however be more apparent than real. It is quite possible that what he meant was that there was a car somewhere about, but not in the immediate vicinity of the car in which he was interested. The effect of his evidence is that there was a car there from which the sound was emanating and unless he is simply telling lies to the court, it seems to me very unlikely that he could have been mistaken as the car from which the noise was coming. He does say other rather foolish sounding things, as, for instance, in cross-examination, that he doesn't know whether he was in uniform although he had said originally that he was in uniform.

11. This constable did not display any great efficiency, not only in the manner of giving evidence, but also because the question of the addresses had not been cleared up by him before coming to court. The notice demanding payment shows an address different from the one noted by the constable upon approaching the driver. That was not cleared up either by the constable in giving evidence or by any other person. It may not have been his personal fault, he was, presumably, not the person who issued the notice. But it was the fault of the prosecution authorities in general who should have been sufficiently in touch with each other on such a matter as to obviate any possible doubt arising from this divergence.

12. However, I cannot say that, upon the grounds put before me, sufficient doubt has been raised to suggest that the magistrate was wrong in relying upon the evidence of the constable. The appeal against conviction is dismissed.

13. There was no appeal against sentence. But on the invitation of the court, Mr. Nguyen has asked for leave to appeal against sentence out of time and I have given him leave to do so. To my mind this was an entirely trivial event, it could well have been dealt with by this constable by issuing a warning. He was not obliged by the legislation to issue a fixed penalty notice at once upon an infraction of this kind. He has a discretion whether, to do so or not. I do not think his discretion was rightly exercised in this instance Furthermore, the prosecution authorities in the present case are at fault in having given sufficient ground to the appellant to pursue an appeal Against conviction on the basis which has been indicated earlier in his judgment For these reasons I am satisfied that the penalties imposed were wholly excessive, while I am satisfied that the defendant did sound his horn then he should not have done so. I allow the appeal against sentence and impose instead of the fine of $100 a fine of $50 only, and I set aside the order for costs.

Representation:

Peter Nguyen (Sousae & Hoosen) for Appellant.

David Fitzpatrick for Respondent/Grown.