Wong Shing v. The Queen
|
CACC000737/1979
IN THE SUPREME COURT OF HONG KONG (CRIMINAL JURISDICTION) CRIMINAL APPEAL NO. 737 OF 1979 -----------------
----------------- Coram: Silke, J. in Court Date of Judgment: 31 August 1979 ----------------- JUDGMENT ----------------- 1. The appellant was convicted on the 22nd May 1979 at Kwun Tong Magistracy of the offence of careless driving and was fined the sum of $200. He appeals against conviction. I allowed the appeal and gave oral reasons which I intimated I would reduce to writing. I now do so. 2. On the 28th December 1978 Madam Yeung Hang, aged 68, and with a glass right eye was crossing Berwick Street towards its junction with Pei Ho Street. It was her evidence that the time was 7.30 a.m. at which hour traffic is usually light. She is accustomed to crossing the road at this spot. 3. She was somewhat confused at the trial as to whether she walked into the road before she looked around to see if it was clear or if she looked before she walked out. The Learned Magistrate found that she looked to her right and then to her left before she started to cross the road and I would not quarrel with that finding. A short way out onto the road she was struck by a lorry driven by the appellant. 4. It is significant, in view of the glass eye, that she did not look right again but, be that as it may, she was adamant she saw no traffic at all saying in cross-examination "If I had seen the vehicle coming I would not have crossed". 5. In re-examination she said that the volume of traffic was not heavy - which suggests there was at least some traffic in Berwick Street. 6. At the conclusion of the prosecution evidence there was a submission of no case - based on the "unreliable" nature of Madam Yeung's evidence. This was rejected, rightly so in my view. For although res ipsa loquitur does not strictly, apply in a criminal case, if the evidence is strong enough to show negligence then unless there is an explanation the Court would be entitled to convict. 7. There was no "explanation" given here as the appellant neither gave nor called evidence. 8. The Learned Magistrate proceeded to convict. 9. In accordance with section 114 of the Magistrates Ordinance a Statement of Findings was prepared and dated 16th June 1979. And here we come to the thrust of the submissions of Mr Mullick who appeared for the appellant in this Court. 10. In the course of her evidence Madam Yeung had apparently referred to the stepping off a "pavement" - this caused some confusion because she later said there was no pavement. The confusion however appeared to have been cleared up when the court interpreter informed the Learned Magistrate that the expression "Hang Yan Lo" could mean either "pavement" or "pedestrian crossing". Though there was no recognised pedestrian crossing at this point there was a gap in the railings at the side from which Madam Yeung started to cross. 11. But the Learned Magistrate, with no doubt the best of intentions, saw fit to visit the scene alone and between the conviction and the preparation of the Statement of Findings. 12. I think, with respect to the Learned Magistrate, that there should be no visits to a scene without the parties being present and never, ever after conviction. 13. The visit resulted in a description of the guttering at the side of the road being incorporated in the Statement of Findings of which there was no evidence before the Court at the time of conviction. 14. That of itself would not have caused any great harm but a further result of the visit was the Learned Magistrate's finding that Berwick Street was a dual carriageway and that the appellant's lorry was on the wrong side of the road. 15. At the trial the constable who gave evidence produced a sketch map with directional arrows clearly showing Berwick Street to be one way. This was made from his rough sketch some seven days after the accident. 16. In the Statement of Findings the Learned Magistrate had this to say - and I must take it the comments were made after the visit to the scene some six months after the accident - "The lorry is in fact on the wrong side of the road ..... For that matter the arrow which I have circled in red on Exhibit 1 (the sketch) is misleading because that section of Berwick Street from north to south up to its junction with Pei Ho Street is a dual carriageway". 17. There was no evidence of this before the Court of trial - quite the contrary though the nature of the cross-examination could well have given an incorrect impression. 18. As part of the reasons for conviction the Learned Magistrate again referred to the appellant's lorry being on the wrong side of the road and that this was a position "in which it should not have been". 19. The only way an appeal court can be aware of a Magistrate's findings in fact "and other grounds for his decision" is from the Statement of Findings. 20. It is clear that no busy Magistrate, and I doubt if there is one who is not, is going to prepare such Statement until he has to - that is until Notice of Appeal has been given. 21. It is not for me to say whether or not the provisions of section 114(b) of the Magistrates Ordinance are good provisions. I note some interesting and informative observations on the provisions of section 114(b) in "Obiter Dicta" Vol. 6 No. 7 of 31st August 1979. But in circumstances such as here one is forced to the conclusion that a conviction, the grounds for which were, in part, never before the Trial Magistrate in evidence is unsafe and unsatisfactory. 22. For these reasons the appeal is allowed. And the conviction quashed. The fine, if paid, should be returned to the appellant.
Representation: John Mullick Esq. instructed by Hastings & Co. for Appellant I. G. Cross Esq., Crown Counsel, for Respondent |