Lau Shu Kei v. The Queen

CACC000741/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 741 OF 1972

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Coram: Huggins, J.

Date of Judgment: 24th November, 1972.

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JUDGMENT

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1. This is an appeal against a conviction for careless driving. The first point argued on the appeal relates to a ruling upon a preliminary objection that due notice of intended prosecution had not been given in accordance with s.22 of the Road Traffic Ordinance. The offence was alleged to have been committed on 22nd November 1970 and there was then a long series of delays. An Information was signed on 12th January 1971 but was not laid until 1st February 1971. A summons was not issued until 26th April 1971. It could not be served. Further attempts at service were made and eventually a summons was served some time in June or July 1972. The case appears to have come before the court for the first time on 27th July 1972, when the preliminary point was tried. It was conceded for the purposes of this appeal that no notice of intended prosecution was ever given and therefore I must assume that the Appellant did not know that a prosecution was contemplated until the summons was served, over eighteen months after the date of the alleged offence. It was, however, contended on behalf of the prosecution, and accepted by the learned magistrate, that the Appellant had not been prejudiced in his defence by the failure to serve the requisite notice. It is this finding which is now challenged.

2. Application was made to the magistrate by the solicitor for the Appellant for leave to call the Appellant as a witness. His evidence was not entirely clear but the effect of it appears to have been that he thought the failure to give him notice was "disadvantageous" to him. A police officer was then called and it would appear from one question in cross-examination, although not otherwise, that he was called by the prosecution. In any event, his evidence is not now material. What counsel submits is that if no evidence had been given on the issue of prejudice the prosecution must have failed, that therefore the burden was on the prosecution and that even though the learned magistrate did not accept the evidence of the Appellant that he was prejudiced that did not prove the contrary, i.e. that he was not prejudiced. However, Mr. Hampton says the burden of proof which lay on the prosecution in this matter was only that of proving an absence of prejudice on a balance of probabilities.

3. It is perhaps strange that there is no reported authority upon the matter. The comparable English cases are of no direct assistance, because there the requirement of a notice is absolute. As in Hong Kong, the burden of proving absence of a notice is expressly placed upon the defendant and the strictness with which the Act is construed appears from Nicholson v. Tapp 1972 1 W.L.R. 1044. In Hong Kong the provision requiring notice to be given is s.22(1) and this is subject to the saving contained in sub-s.(2):

"The provisions of subsection (1) shall not apply if it appears to the court or magistrate that -

It is not suggested that it can "appear to the court or magistrate" that the person prosecuted was not prejudiced unless there was some evidence indicating an absence of prejudice, while sub-s.(3), which is the provision deeming notice to have been given until the contrary is proved, does not relate to the issue of prejudice. It was that subsection which made it necessary for the Appellant to give evidence first upon the preliminary point.

4. Counsel for the Appellant prays in aid an analogous provision in the Workmen's Compensation Act 1906. Section 2 of that Act provided in part:

"Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof..........: provided always that -

In relation to that proviso it was hold that the burden of proving an absence of prejudice was on the employee: Miller v. Richardson 1915 K.B. 76. Hayward v. Westleigh Colliery Co. Ltd. 1915 A.C. 540 was a case where the county court judge, sitting as an arbitrator, found an absence of prejudice and the Court of Appeal held that there was no evidence upon which he could so find. The House of Lords reversed the decision of the Court of Appeal and Lord Loreburn said at p.544:

"My Lords, I think the statute really means that looking at all the matters before him the arbitrator must find that the employer was not prejudiced by want of notice. I do not think it means that there is to be a presumption one way or another, but simply that if upon all the facts before him the arbitrator is not satisfied that there was no prejudice, then the applicant fails".

Counsel for the Crown submits that the subject matter of the statute there under consideration was so disparate from the subject matter of the statute with which we are concerned that no useful analogy exists, for he says, the court always tended to be favourable towards the workman claiming compensation, whereas the court should not be favourable towards the prosecution in a criminal case. I accept that there is a difference and I further accept that the reasons for requiring notice are not identical under the two statutes, but it does not seem to me that the value of the analogy is completely destroyed. The learned judge then went on to consider the facts of the case before him and what he said is not without significance here:

"The arbitrator in this case found that the employer was not prejudiced. What were the facts before him on that point? That the injury was caused on April 1, that it was slight, that it was evident that the wife thought the man Pollitt had been told; but we cannot find and it is not proved at all that Pollitt was told of this accident verbally. On April 8, however, he was told, and on the 9th he made full enquiries. He learned nothing. He does not say that he could have learned more if he had made inquiries earlier, and no one at the hearing suggested that if proper notice had been given any further evidence could have been called or any further information could have been as a fact acquired by the company. At the hearing no one was called to show that more information could have been obtained if notice had been given sooner or to show that in point of fact the employers were prejudiced in any way by the absence of notice. The employers were the people who knew best whether they had been prejudiced and they gave no evidence upon the subject. It comes therefore to this, that there being no inherent probability that I can see from the facts that the company would be prejudiced by the absence of notice for a few days, those who knew best whether they had been prejudiced, namely, the respondents, gave no evidence to say that they had been prejudiced. If they had said that they had been prejudiced they would have had to give reasons and to state how and why the prejudice had arisen to them and give the appellant the opportunity of showing that it could not have arisen. The learned county court judge came to the conclusion that there had been no prejudice. It may be - I think it is - that this is a case somewhat near the line, but I think the learned county court judge when he heard the facts of the case themselves was warranted in coming to the conclusion that no prejudice had occurred at all."

In the present case the Appellant did give evidence that he was prejudiced and it is not clear whether he was believed or not as to the primary facts. The learned magistrate took the view that it was irrelevant that the Appellant said he had the names and addresses of his passengers in a list which he had subsequently lost, because the notice contemplated by s.22 had "a life as limited as fourteen days". I am not sure that I fully appreciate the force of this argument: certainly the Appellant's contention was not as strong as would have been one, for example, that he had deliberately destroyed the list after six months because he then had no reason to believe that proceedings had been instituted within the statutory period, but if he had been given proper notice he might have taken greater care not to lose the list. Even though the magistrate rejected the Appellant's evidence there remained the question whether there was any inherent probability that the Appellant was prejudiced. The learned magistrate must have thought that there was not. Now, although the wording of our Ordinance is different from what appears in the English Act it seems to me that this was not strictly an appropriate matter for decision as a preliminary point. For my part I do not see how the learned magistrate could know whether the Appellant was prejudiced in his defence until he had heard the defence. It is otherwise under the English Road Traffic Act where the only issue is whether notice has been served. Even assuming that it was proper to read the statute as though it read "would not be prejudiced" and that the learned magistrate was justified in rejecting the evidence given by the Appellant himself, could it fairly be said that there was no inherent probability of prejudice? What counsel for the Crown submits is that any prejudice which might have occurred has been swallowed up by the prejudice which has subsequently arisen from the delay in serving the summons. That may be true but I think it would be dangerous to accept such an argument: prejudice is an indigestible morsel and not easily destroyed. Moreover, there might be an encouragement to delay service of a summons in a case where no notice of intended prosecution had been given.

5. Alternatively, counsel for the Crown argues, the existence of prejudice is peculiarly within the knowledge of the person prosecuted and the onus is on him to establish the positive rather than for the prosecution to establish the negative. I cannot accept that. I think the correct approach is that indicated by Lord Loreburn in Hayward v. Westleigh Colliery Co. Ltd. and this means that the burden of proof is upon the prosecution in so far as the burden of proof is material at all. It can be material only in a case where the court is left in doubt whether the scales tip in favour of prejudice or no prejudice. The proper approach is to ask whether or not, on the evidence available, it does appear to the court or magistrate that any prejudice has resulted. True, if the evidence is indecisive, the prosecution will fail. Since the matter has to be decided upon "all the facts" there can never be a case where there is no evidence at all - the nature of the case must of necessity appear at the trial and equally any possible adverse results of the failure to serve notice must be apparent. If the learned magistrate had reached his conclusion after hearing all the evidence in the case I might have found it difficult to say that he was not entitled to decide as he did, but it seems to me that he ought not to have decided the matter as a preliminary point and that by doing so he decided the issue without having "all the facts" before him. He might have come to the same conclusion. However, it is important that justice should be seen to be done and I think the learned magistrate made his finding prematurely. I sympathise with him because he was, in effect, invited to do that, but I have no doubt that the proper course is to allow the appeal on this first point. This is not a case where I think there ought to be a new trial and the conviction is therefore quashed and the fine must be repaid.

6. In these circumstances it is unnecessary for me to make any observations on the merits of the other points raised upon the appeal.

24th November, 1972.

Representation: