The Queen v. Cheung Shing Wai

MA No. 1181/92

HEADNOTE

Evidence - of speed of vehicle - whether expert evidence required.

IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
MAGISTRACY CRIMINAL APPEAL NO. 1181 OF 1992

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BETWEEN

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Coram : The Hon Sir T L Yang, CJ in Court

Date of hearing : 25 March 1993

Date of Judgment: 25 March 1993

Date of Handing Down of Reasons: 13 April 1993

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J U D G M E N T

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Hon Yang, CJ:

1. The Appellant was convicted after trial of careless driving and fined $1,000. He was also ordered to pay $500 costs. He appealed against his conviction.

2.For the purpose of this judgment I shall confine myself to only one of the three grounds of appeal, viz., Ground 1. Ground 1 reads: -

“The learned Magistrate erred in refusing to hear the evidence of LAM Kam Biu, DW2 about the weight of the appellant’s vehicle and its likely speed, she insisting that “expert” evidence was required on this point. Further or alternatively the learned Magistrate erred in saying that no weight could be attached to DW2’s evidence.”

3. Having heard counsel I allowed the appeal, set aside the conviction and quashed the sentence of fine and costs. I now give my reasons in writing for so doing.

4. The evidence of the first prosecution witness PW1 was that he was driving his private car and negotiating the left bend to turn from Cheung Yip Street into Sheung Yee Road, when he noticed an articulated vehicle, driven by the Appellant, on his right slightly behind and almost abreast with him. PW1 continued to turn left at about 20 mph. After turning into Sheung Yee Road, he noticed a large vehicle stationary in front of him and he slowed down to stop one or two feet behind that vehicle. As he stopped, the articulated vehicle driven by the Appellant came up from the rear on his right. Since the articulated vehicle was negotiating the bend, PW1 waited for it to pass before he cut out into the offside lane. As he was waiting, the front of the articulated vehicle moved towards the front of PW1’s car. There was a bumping sound: PW1’s car was hit and pushed to the rear bottom of the stationary vehicle. The articulated vehicle went forward a little and stopped not far from PW1’s car.

5. The Appellant called a witness Lam Kam Biu (DW2). He was the operation supervisor of the Kowloon Bay Transfer Station of Swire BFI Waste Service. He had six years of driving articulated vehicles similar to that driven by the Appellant. There was a weighbridge at the Station to weigh the vehicle when it was loaded. The defence attempted to adduce through DW2 evidence of the weight of the articulated vehicle in question at the material time in order to show that it could not travel so fast if PW1 was travelling at 20 mph. The learned trial Magistrate queried the relevance of the weight of the articulated vehicle, and the reply was that the vehicle could not travel so fast if PW1 was travelling at 20 mph. The Magistrate then asked whether DW2 possessed any expertise technical knowledge regarding the mechanics of the vehicle, “otherwise his evidence on this is of no weight”. The defence however indicated that they did not wish to call an expert witness on the capability of the speed of the vehicle at the material time. In her Statement of Findings, the Magistrate rejected the Appellant’s evidence that he was driving at 20 mph when negotiating the bend. She also observed that there was no evidence before her to show that the articulated vehicle in question was not capable of travelling at a speed higher than 20 mph.

6. In my judgment a driver with the experience of driving an articulated vehicle similar to that driven by the Appellant could clearly give evidence as to the speed which the vehicle was capable of doing. DW2’s evidence should have been admitted. No expert evidence was needed on this simple fact.

7. In The Queen v. CHOI Lee-hing and another (1989) Criminal Appeal No 517, the question arose as to whether a police officer was permitted to give evidence of the meaning of some terminology used by drug traffickers. Hunter, JA, said (at P.5): -

“As far as the evidence of terminology goes, this seems to be based upon his experience in the Narcotics Bureau over a four year period. Indeed it is a sort of experience which could well have been acquired by many officers on the beat. It is not based upon opinion at all; it is simply based upon experience in fact, of the use on the ground of various expressions by drug traffickers. With respect to the argument which presupposes that this is expert evidence, we have considerable doubts whether it qualifies as expert evidence at all. It seems to us that in the light of the evidence given as a whole this police officer made it quite clear that he had had substantial experience in the Narcotics Bureau which was quite sufficient to enable him to explain to the court the language or the argot of the trafficker in the street.”

8. On the issue of speed, DW2 was possessed of sufficient experience, gained over a period of six years in driving vehicles similar to the one driven by the Appellant.

Mr Griffiths of M/s Chow, Griffiths & Chan for the Appellant

Ms Betts for the Respondent