Chiu Ho Chor v. The Queen
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CACC000747/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 747 OF 1973 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 26th October 1973. ----------------- JUDGMENT ----------------- 1. The Appellant appeals against his conviction for careless driving. There was evidence from a young girl that she was involved in an accident. According to the certified copy of the record the accident, according to her, took place on 18th October 1973, some months after the date of the trial. I mention this because it is typical of the unsatisfactory nature of the record of the proceedings in the court below. I have said before that one does not expect a verbatim record of the evidence before a magistrate's court but the note must make sense: it is, after all, not intended merely as an aide-memoire to the magistrate but as the formal record of the proceedings. The learned magistrate in his Findings refers to matters which do not appear at all in the notes of evidence and which, if they were given in evidence, were most material. As Sir Michael Hogan, C.J. said, in NG Man-chiu v. Reg. 1959 H.K. L.R. 335, 337:
2. The evidence of this girl was that she, at 11:30 p.m., was crossing the Lok Sin Road. She was carrying her sister's baby. She looked to her right and saw a car "quite a distance away". It was stopped and she estimated the distance between herself and it as approximately thirty yards. The vehicle appears to have been a public light bus and a passenger was alighting. She crossed to the white line on the crown of the road, her sister being two yards behind her. She stood to wait for traffic coming from her left and was then struck by a vehicle coming from her right. She could not identify that vehicle except to say that it was a public light bus. If the note before this Court is to be believed, in an answer to the court she flatly contradicted that answer, but the answer to the court as recorded made nonsense and counsel for the Crown suggests that there has been an incorrect copying of the record. I suspect that is probably true but, once again, I point out that the record was certified as correct by the magistrate himself. The girl became unconscious and can say nothing more. According to her she was standing in the middle of the road for one minute, but estimates of time are, of course, very questionable. 3. The sister was not called as a witness and her absence was not explained. The only other evidence was that of a police constable who came to the scene some time after the accident and who spoke to the Appellant. He testified to what the Appellant had said to him some eleven months earlier but exactly how much of what then follows in the notes of proceedings is a quotation is not clear. The statement gave the Appellant's explanation of what had happened and it agrees to some extent with the evidence of the girl. He says he was following a public light bus, which stopped. According to him he stopped behind the public light bus but he went on to say:
If he "swerved", that implies that he had not stopped but he was not cross-examined about that. He admits having crossed the crown of the road and says that as he was returning to his correct side he saw two girls coming out from between two private cars. I should have said that it is common ground that there was a line of parked cars on the left-hand side of the road as the vehicles were approaching. He says that he braked but that he hit the girl. The constable drew a sketch but it is of no great assistance to us. 4. Objection has been taken in this Court that the girl was sworn as a witness. The magistrate in his Findings says that she was 13 years of age, but there is no evidence as to that on the record. It is a matter of comment that no objection was taken to her having been sworn and it is clear that the learned magistrate was satisfied that she was not "a child of tender years" within the meaning of s.4 of the Evidence Ordinance. That was a matter for him and on the authority of CHAN Chi v. Reg. 1968 H.K.L.R. 61 he was entitled to form his own view of the capacity of this child and it was necessary for him to make enquiries only if he was in any doubt. The fact that the solicitor appearing on behalf of the Appellant appears to have had no doubt in the matter was some support for the opinion obviously formed by the magistrate. Accordingly, I think there is no substance in the objection to her having been sworn as a witness. 5. But it is contended that there really was no evidence upon which the Appellant could properly be convicted. The substance of the case was that the girl was crossing the road at a time when it was reasonably safe to do so, there being a stopped public light bus thirty yards to the right, and that she was struck by the Appellant's car when she was standing on the crown of the road and had been standing there for an appreciable length of time. It is unfortunate that the learned magistrate in his Statement of Findings has proceeded to draw some inferences which, in my view, were not justified. He records the fact that in the course of the girl's evidence, the girl's mother "lifted the girl's clothes to reveal a deeply marked patch on the side of her right buttock" and he records that the girl "walked with a limp". So be it, but there was no evidence whatsoever to connect either of these injuries or incapacities with this accident. He proceeded to infer from this so-called evidence that the story told by the Appellant could not be true and concluded that the girl had been struck by a considerable degree of force by the Appellant's on-coming vehicle. He further inferred that the Appellant's story that the girls had come between the stationary vehicles could not be true because she would then have sustained frontal injuries and not injuries such as those which he saw. On the evidence I am of the opinion that that was not justified though it does not, of course, directly affect the substance of the prosecution case as I have described it. The magistrate goes on to say that the girl's story would seem to be borne out by the fact that "it was the near side front mudguard alone of the [Appellant's] vehicle that had come into contact with the girl". There was no evidence whatever as to what part of the vehicle had come into contact with the girl and such evidence as there is would appear to suggest that there were no marks on the mudguard. 6. It has been objected that no opportunity was given to the Appellant's solicitor to address the court at the close of the evidence. It was said in WONG Sung v. Reg. 1959 H.K.L.R. 417, 421 that an opportunity ought to be given for such an address and magistrates were advised to give express opportunity. What happened in this case was that immediately after the Appellant had indicated that he elected to remain silent the learned magistrate began to sum up the evidence and to give his verdict. (I assume that the notes made by the magistrate, "I find case to answer. Rights explained to Defendant who elects to remain silent", were not, as appears from the record which is before me, part of the evidence of the police constable and that the learned magistrate did enquire of the Appellant whether he wished to give evidence.) In the course of his oral judgment the magistrate referred to the Appellant's statement to the police officer and then the defending solicitor rose and objected to the translation of that statement. The magistrate dealt with that objection (and, in my view, correctly dealt with it) but it is to be observed that the only objection made up to that point had been one as to translation and nothing had been said about the lack of opportunity to address the court. It was only after the objection for the translation had been rejected that that objection was taken. It is perhaps unfortunate that the magistrate did not ask the solicitor whether he wished to address the court, but I think that, easy as it is to criticise at this stage, the solicitor was in some measure to blame for not having made his objection as soon as it became apparent that the learned magistrate was proceeding to sum up the evidence with a view to giving his verdict. In the event I do not think that the failure to give an opportunity expressly was fatal to the conviction. 7. The question which I ask myself is whether looking at the case as a whole I can say that this verdict of Guilty was safe. It is, perhaps, not relevant that careless driving is a serious offence but I must confess that I think this case received less careful treatment than it should have done and I do have some doubts whether the verdict is safe. That being so, the conviction must be quashed, the appeal allowed and the sentence set aside. 26th October 1973. Representation: |