James Peter Chandler v. The Queen
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CACC000789/1980
----------------- Coram: Liu, J. Date of Judgment: 14th October, 1980 ----------------- JUDGMENT ----------------- 1. At about 10 p.m. on the 4th January, this year, Mr. Kauffmann was travelling down Garden Road on his motor-cycle, at approximately 30 m.p.h. He was coming out from Kennedy Road when the traffic lights outside Helena May were just turning to green. According to Mr. Kauffmann, he did not have to wait at Helena May, and as he had six years' driving experience down Garden Road, he expected, with the lights at Helena May just switching to green, that on his approach at a constant speed the traffic lights at the Peak Tram would remain green. When Mr. Kauffmann was passing the traffic signals at the Peak Tram, for the first time he saw the bonnet of the appellant's car coming out from behind a tree in Lower Albert Road. 2. It would perhaps be more illustrative to quote the relevant parts of his evidence as regards the traffic signals at the Peak Tram: First of all, he said, "I was joining Garden Road from Kennedy Road, and I know when one arrives at the level of the signal of Helena May, the lights at the Peak Tram changed to green.". From there, I would go to his cross-examination in which he said, "There is a slight bend from Kennedy Road into Garden Road.". A little further down he said, "I expected lights outside the Peak Tram to be green - based on experience.". I come back to his evidence in chief: He said, "I am very positive that lights were in my favour at Peak Tram.". Returning to his cross-examination, he said, "I did not see your vehicle before passing Peak Tram lights.". In re-examination, he said, "I first saw the other car as I was passing the green light. I saw its bonnet.". 3. The evidence of Mr. Kauffmann could certainly have been tidier, but on his evidence, the learned magistrate found that Mr. Kauffmann had both sets of traffic lights at Helena May and the Peak Tram in his favour. It was, however, contended by the appellant that there was no direct evidence to establish the traffic lights at the junction of Lower Albert Road and Garden Road as being red immediately before the collision. 4. Constable Chau also gave evidence that on his examination, the traffic lights were found to be in order. It was argued that as the time of the checking of the traffic signals by the Constable did not appear on the record, such inspection had not been established as being made immediately or soon after the collision. But the recorded evidence on that aspect must, in my view, be read in its proper context. I do not accept such criticism and find no substance in it. 5. From the evidence of Mr. Kauffmann who recollected that at the point of impact, the private car was approximately half-way through the intersection, and from the position of the private car after collision on Exh. P1, it would be open to the learned magistrate to draw an irresistible inference, with the speed of the motor-cycle at 30 m.p.h., that the traffic signals guarding the entrance into Garden Road from Lower Albert Road must have been red. But the learned magistrate did not so find. 6. In the course of his evidence, Mr. Kauffmann also testified in the following terms, "I spoke with the driver of the car, who suggested that I did not call the police. He said he would pay for my damage if I didn't call them. I want at least an identity card, address or telephone number, but he refused to give anything, so I called the police.". In cross-examination, Mr. Kauffmann had this to say, "I agree that you suggested that we exchanged names and addressess. I refused because of lack of driving licence on your part and you refused to sign a statement agreeing to repair my motor-cycle.". 7. It was submitted by the appellant that there was some inconsistency in these two passages. Whilst it must be conceded that each of these versions could have been put in better sequence, I do not share the critical view to which I am invited to come. 8. It is evident that the learned magistrate would have been justified in returning a guilty verdict of careless driving on the irresistible inference as to the state of traffic signals governing the entry into Garden Road or the implied admission made by the appellant immediately after the accident. But the learned magistrate did not seek to resolve the issue along that approach. 9. Before I turn to the final analysis of the learned magistrate, I should examine some more evidence. As I said before, Mr. Kauffmann maintained that when his motor-cycle was passing the traffic lights at the Peak Tram, for the first time he saw the bonnet of the appellant's car coming out from behind a tree. The lights of the motor-cycle were on. Mr. Kauffmann slammed on the back brake and took evasive action but in vain. His motor-cycle hit the off-side driver's door of the private car, then on the left side of Garden Road. Mr. Kauffmann also told the learned magistrate that there were other vehicles using that part of Garden Road at the time and that there was much traffic following thereafter. 10. Turning to the Statement of Findings of the learned magistrate, he found that the appellant did not emerge slowly from Lower Albert Road in his attempt to cross Garden Road. The attention of this court was drawn to the total lack of direct evidence on the appellant's speed. The appellant himself elected to remain silent. It was argued that this finding was unsupportable. Mr. Wong on behalf of the respondent, referred the court to the evidence of Mr. Kauffmann: First of all, "Coming from the left from behind the tree in Lower Albert Road came the red car.". This is, of course, insignificant standing on its own. Then, Mr. Wong took me to: "I cannot estimate the speed of the red car. It came at about 20 m.p.h.". These two answers are contradictory as recorded. Mr. Wong contended that at least it was evidence that the private car was travelling fairly fast in the circumstances. The respondent relied largely on the position of the car as shown on the plan and the evidence of Mr. Kauffmann both in cross-examination and re-examination to the effect that he first saw the bonnet of the appellant's car on passing through the green traffic signals at the Peak Tram. In the light of the speed of the motor-cycle at 30 m.p.h., passing straight through both sets of traffic lights, the combined effect of the first sighting of the private car and its position after impact is sufficient to justify the conclusion of the learned magistrate that the appellant did not emerge slowly from Lower Albert Road. Having found the appellant driving at an excessive speed in the prevailing circumstances, at page 9 of the Record of Appeal the learned magistrate concluded that the appellant should have exercised caution in emerging from behind a tree in Lower Albert Road into a major thoroughfare whatever his own signals might have been. It is also implicit in that finding of the learned magistrate that the appellant failed to keep any or any proper lookout. A traffic signal in favour of a driver would not, ipso facto, wholly relieve him from keeping any proper lookout, or from emerging from a blind spot cautiously particularly in the prevailing circumstances. It cannot be said that there was no or no sufficient evidence to enable the learned magistrate to arrive at that conclusion as he did. 11. As an alternative proposition, the learned magistrate proceeded to say, "If he did look to his right, the appellant should have waited for P.W.I's motor-cycle to pass.". This sentence is not easy to follow. There is no evidence whether or not the appellant looked to his right. If there had been evidence to justify a finding that the appellant did not look to his right, the learned magistrate might have been entitled to return a finding of lack of care. What seems to have been found by the learned magistrate was that the appellant further failed to keep any proper lookout and that even if the appellant had kept a proper lookout and emerged slowly, he should have given precedence to vehicular traffic using the major road in the circumstances he found himself. In that light, the alternative finding of the learned magistrate might well be supported by the evidence in the somewhat unique geographical location. 12. There is, in my view, sufficient evidence to justify the primary conclusion reached by the learned magistrate. In any event, the general evidence in this case clearly points to a fair degree of lack of care on the part of the appellant. For all these reasons, I dismiss the appeal and I order:
Representation: Appellant in person. Mr. Westley Wong on fiat for Crown/Respondent. |