Tse Wai Lung v. The Queen
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CACC000741/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 741 OF 1979 -----------------
----------------- Coram: Silke, J. in Court Date of Judgment: 11 September 1979 ----------------- JUDGMENT ----------------- 1. The appellant was convicted on the 29th June 1979 in North Kowloon Magistracy of the offence of careless driving, it having been reduced from the original offence of dangerous driving, and of the offences of "having been knowingly involved in an accident which occurred owing to the presence of the said vehicle on the said road whereby injury was caused to a person Li Wah did fail to stop"; and "being the driver of a vehicle, namely a private car exhibiting the registration mark BW 522 on a road and having been knowingly involved in an accident which occurred owing to the presence of the said vehicle on the said road whereby injury was caused to a person Li Wah and not having given to any police officer or any other person the particulars specified in paragraph (2)(a) of Sub-section (1) of Section 27 of the Road Traffic Ordinance, did fail to report the said accident and give the said particulars at a police station or to a police officer as soon as reasonably practicable within twenty-four hours after the occurrence thereof." 2. Both of these latter offences contrary to subsections (1) and (2) of section 27 of the Road Traffic Ordinance. 3. He appeals against both conviction and sentence. 4. The facts are relatively simple. 5. A motorcyclist, Mr Lee Wah (2PW), was riding his machine along Clear Water Bay Road in the direction of Sai Kung at about midnight on the 25th January 1979. 6. He was being followed by a car driven by Mr Chiu King Wah (1PW). Mr Chiu in turn was being followed by another vehicle which overtook him in a perfectly reasonable manner. Mr Chiu had then been travelling at about 30 m.p.h. 7. After it overtook him on this two lane highway upon which there was a solid, and on the side of the road upon which the vehicles were travelling a broken, white line the vehicle went on and overtook Mr Lee Wah's motorcycle. In doing so the near side front between the near side door and front struck Mr Lee's motorcycle which fell, with its rider, to the ground. Mr Lee Wah was injured, though not seriously. The overtaking vehicle continued on its way without stopping. 8. Mr Chiu, who stopped his car and rendered assistance to Mr Lee, says he noted the number of the overtaking vehicle. He had his headlights on and could see the other vehicle from some distance after the accident. He says he wrote it down after he "picked up" the motorcycle. He gave a Statement to the police - and immediately prior to giving evidence he read this. In evidence he said the vehicle number was BW 522. Mr Lee did not get the number. 9. Mr Bunting, for the appellant, criticised the evidence of Mr Chiu but with respect to him the Learned Trial Magistrate was entitled to and did rely on his evidence. I am not prepared to say he was wrong so to do. 10. There is one point however, and this is the reason why I have referred to the overtaking vehicle as "a vehicle" - Mr Chiu described it as a "White - dual purpose vehicle - like a van". The informations all describe it as a "private car". No point was taken on this in the course of the hearing of the appeal but it has some relevance in relation to the evidence of the prosecution witness as to identity. 11. On the 13th February - over two weeks later - a constable from the Accident Enquiry Section Kowloon, at that section, saw the appellant. Why the appellant was there we do not know. 12. The constable's evidence continued "Defendant gave me a statement that he drove BW 522 at that time". 13. He went on to say that he inspected BW 522 outside the section - but without describing its nature - and said the "nearside front corner was dented" and he found a brush mark about 3 inches long. The defendant informed him he did not know about the damage. 14. And this was the whole of the evidence produced by the prosecution to tie appellant up with BW 522. 15. It was not made the subject of any cross-examination by the person representing the appellant in the court below. 16. There was a submission of no case made but not on the question of identity. The submission was refused the appellant gave evidence, basically first a denial of any knowledge of the accident, then that he drove BW 522 past there every day and on 25th January at the time. He said in relation to the dent "I cannot explain every dent - I have to park and may be other vehicles dent it". 17. The sole ground of appeal is that "The Trial Magistrate in ruling that the defendant had a case to answer in respect of the three charges was wrong" - and this is based on the rather extraordinary manner by which the Prosecution sought to prove identity. 18. It is Mr Bunting's submission that (a) the constable's evidence as to "Defendant gave me a statement ....." is secondary evidence of a document and thus, without something further, inadmissible;
alternatively: (c) that it was evidence of an admission against interest and that there should have been affirmative evidence of its voluntary nature. 19. As to the taking of a point not raised - indeed I might go so far as to say conceded - in the court below it is Mr Bunting's submission that the constable's evidence was wrongly admitted - that without it the Crown had no case and therefore even if not taken below it is open to him on appeal to advance the arguments he has. 20. The other side of that coin is the possibility that the court can look at the whole of the evidence and from it fill the gap - if there be one - in the case for the prosecution. 21. As both Mr Bunting and Mr Iu for the Crown were under the impression that the apparent dichotomy as between R. v. Power [1919] 1 K.B. 5721 and R. v. Abbott [1955] 2Q.B. 4972 had been resolved in this jurisdiction by a decision of one of my brothers but, as neither had been able in the time available to trace this, I adjourned the hearing of the appeal for five days - to the 25th August for further argument. 22. It then transpired that, while the point was raised but not decided in Chu Ping Sun v. The Queen C.A. 663/781 (unreported), it is clear that Li, J. considered himself to be entitled to look at all the evidence when he said:
23. I was then taken through the line of English Authorities - and referred to an article in 1961 Law Quarterly Review at p.491 entitled "The Submission of No Case to Answer in Criminal Trials": The Quantum of Proof". The point in issue being that where a submission of no case has been rejected is the appellate court restricted to considering the evidence before the trial court at the time the submission was made or can the whole of the proceedings, including the defendant's evidence, after the rejection be considered. 24. The line of cases stretch from R. v. Leach [1909] 2 Cr.App.R. 722, R. v. Joiner [1910] 4 Cr.App.R. 643 - both decisions of Darling J. - and Joiner was not followed in R. v. Fraser [1911] 7 Cr.App.R. 1014 where Alverstone C.J. said the whole of the evidence was to be considered. 25. Then came R. v. Power5 Darling J. - where again Joiner was not followed but the same judge appeared to reaffirm Joiner in R. v. Hogan [1922] 22 Cr.App.R. 1826 where he is reported as saying:
26. The final case - other than the civil case of Payne v. Harrison [1961] 3 W.L.R. 3097 which did consider the criminal aspect - is R. v. Abbott [1955] 2 Q.B. 4978 where it was held:
27. This was a trial on an indictment for forgery, obtaining money by false pretences and conspiracy to defraud. 28. Lord Goddard C.J., in delivering the judgment of the Court of Criminal Appeal stated that the court was of the opinion that, at the close of the case for the Prosecution, there was no evidence against the appellant. The Trial Judge had apparently been of the same opinion but, for reasons which he gave in his summing up, left the case to the jury. 29. The appellant who gave evidence did not supply any direct evidence against himself but his co-defendant in her evidence did. 30. The position here is different in that there was evidence that a vehicle BW 522 had been involved in the accident, there was the evidence of the constable - and I accept that this is ambiguous in certain respects. Mr Bunting has suggested that the word "statement" must mean a written statement - this his secondary evidence point - but this is not necessarily so. It could mean an "utterance". Even if it were Mr Bunting contended that as it is a statement against interest the prosecution must prove affirmatively its voluntary nature. 31. But the evidence of the constable was never challenged in the court below - the matter of identity was not part of the no case submission. It seems to have been accepted that the appellant was the driver of BW 522 - the real issue before the Learned Magistrate being his knowledge or lack of it of the accident and there was the evidence of the appellant himself. 32. Under the provisions of paragraph (a) of subsection (1) of section 118 of the Magistrates Ordinance CAP 227 the depositions taken before the Magistrate "shall, without prejudice to any other method of proof, be admissible as evidence of the evidence which was given and the statements which were made before the Magistrate" - and all are before the appeal court. 33. I am aware that in Lau Chi Kwan v. The Queen [1975] H.K.L.R. 4451 Huggins J. (as he then was) stated - obiter - "The point (duplicating) is a technical one - and one which is perfectly properly taken though it was not taken in the court below". 34. And that in Eugene Mak Yau Chun v. C. King Lee and Another [1969] H.K.L.R. 4111, where it was argued that the point having been mentioned and abandoned in the court below it could not be raised on appeal, the Full Court held:
35. And that, while Mr Bunting was entitled to take the point he did, it is clear from the record of proceedings in the court below that identity was never contested, I take the view that I am entitled to look, in the circumstances here, at the entire of the evidence before the Learned Magistrate, and however odd the method used by the prosecution to prove identity, it was open to him to find that the defendant was the driver and, on the evidence, to convict. 36. The appeal against conviction is dismissed. 37. There is also an appeal against sentence - the mandatory disqualifications of twelve months concurrent in respect of the two section 27 offences. Mr Bunting has urged me in all the circumstances here I should avail myself of the provisions of section 23 Road Traffic Ordinance and restrict the disqualification to private cars. While this is not the worst case of its kind it is a serious offence to fail to stop, or to make a report after an accident of this kind. 38. I am not disposed to restrict the qualification to a class of vehicle. The appeal against sentence is accordingly dismissed.
Representation: Michael Bunting Esq. (Arthur Au & Co.) for Appellant Thomas Iu Esq., Crown Counsel, for Respondent 1 R. v. Power [1919] 1 K.B. 572 2 R. v. Abbott [1955] 2 Q.B. 497 1 Chu Ping Sun v. The Queen C.A. 663/78 2 R. v. Leach [1909] 2 Cr.App.R. 72 3 R. v. Joiner [1910] 4 Cr.App.R. 64 4 R. v. Fraser [1911] 7 Cr.App.R. 101 5 R. v. Power [1919] 1 K.B. 572 6 R. v. Hogan [1922] 22 Cr.App.R. 182 7 Payne v. Harrison [1961] 3 W.L.R. 309 8 R. v. Abbott [1955] 2 Q.B. 497 1 Lau Chi Kwan v. The Queen [1975] H.K.L.R. 445 1 Eugene Mak Yau Chun v. C. King Lee and Another [1969] H.K.L.R. 411 |