Lau Hung Kwong v. The Queen
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CACC000848/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 848 OF 1973 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 14th December 1973. ----------------- JUDGMENT ----------------- 1. This is an appeal against a conviction on a charge of careless driving. The Appellant originally appealed on the ground that "there was no evidence, or no sufficient evidence, upon which to found a conviction" and has subsequently filed four additional grounds. These are:
2. The prosecution arose out of an accident which occurred in a side-lane off How Ming Street in the vicinity of its junction with Hung To Road in Kwun Tong. The learned magistrate in his Findings has described the side-lane as Hung To Road, but that was obviously a misunderstanding, which may well, as Mr. Millest has pointed out to me, have resulted from a perusal of the plan which is in evidence. There is between the side-lane and Hung To Road a building which has the address of 28A Hung To Road and that building has been so described on the plan - but in such a way that possibly a not too careful perusal could lead to the understanding that the side-lane itself was known as Hung To Road. However, no point has been made on this in the appeal, and I am perfectly satisfied that the learned magistrate fully understood the topography of this particular place. The side-lane is 20 feet wide and the accident occurred when, it is alleged by the prosecution, the Appellant was reversing his lorry in the side-lane and struck a pedestrian. 3. The evidence for the Crown was that of the victim himself, who said that he was struck by the tail of the goods vehicle as it was reversing. He was walking in the lane itself. He was cross-examined at some length, as was the police witness who followed, as to the measurements of the side-lane and of the space in that lane which was available for the passage of the lorry. There were several vehicles parked on the southern side of the lane and these occupied about eight feet of the twenty feet, leaving twelve feet beyond. There was some question about the existence on the other side of the lane of some cooked food stalls. The victim agreed that there was one cooked food stall. He said it was not on the road but was on "the foot-path". This foot-path appears to be merely the part of the road itself which was beyond a gutter, there being such a gutter on both sides of the lane. He was questioned about the space this food stall took up, but he does not appear to have given any definite answer. It was suggested to him that it was "about three feet wide: two, three or four feet wide", but he never gave an answer to that question. The police officer who subsequently gave evidence on the same subject said that when he came on the scene there was no cooked food stall there at all. However, we must accept the evidence of the victim since there is a definite finding by the magistrate that there was a cooked food stall, but he does not say that it was of any particular size and he finds "that it was not in such a position as would obstruct to any appreciable extent or at all the flow of vehicular traffic in Hung To Road". There was evidence that a second man was in the lorry as it was backing, but the victim was not able to say whether he was in any way assisting the driver. 4. The police officer drew the plan to which I have already referred. He also gave evidence of an admission by the driver, the Defendant, that he was reversing into this side-lane against a "No Entry" sign. That, in my view, would have been an important element in careless driving but the learned magistrate did not refer to this aspect of the matter and, therefore, it is not necessary for me to make any decision on that point. All he said is that he found that the driver was reversing "in" the lane. Mr. Lawrence Leong argues that the evidence was such that the learned magistrate could not reasonably have believed this evidence that he was reversing because, he says, the space was so small that it did not leave sufficient on either side of the vehicle for it to be possible. The answer to that seems to me to be that on his own figures there was a very small space on either side so that it was not a physical impossibility, and it makes the case worse because the smaller the space on either side the greater the care necessary to ensure that nobody was going to be hit as the vehicle reversed. The cross-examination appeared to be directed to suggestion that the victim had walked into a stationary vehicle. That was a suggestion which was never supported by any evidence. 5. In my view, on the face of it there was ample evidence to support a conviction and therefore I turn to the four additional grounds. 6. At the close of the prosecution case the learned magistrate made the following record:
This somewhat short note needs to be expanded for it to be understood in detail and, first, it is necessary to refer to a previous note which was made at the end of the evidence given by the first witness:
It appears that in fact no adjournment took place, but there was some discussion whether or not the charge should have been one of careless driving rather than of dangerous driving because the evidence given by the victim hardly seemed to suggest any great degree of danger. That, no doubt, accounts for the note which followed that the prosecution indicated that it was for the court to decide whether the evidence disclosed careless driving or dangerous driving, and it is suggested now that there ought to have been some kind of application to the court before the prosecutor was allowed to say what she did. It may well be that there was a highly technical departure from the customary procedure. At the close of the case for the prosecution it was open either to the court itself or for the defence to suggest that there was no case to answer on the charge as it was laid, but, of course, it must be borne in mind that on a charge of dangerous driving the defendant can always be convicted of careless driving and it was not necessary for there to be any amendment of this charge at all. Whatever one may say about the technicality it is quite clear that no possible damage or prejudice can have resulted. It is then, as I have said, indicated that no other submission was made by Mr. Leong. That is not recorded in direct speech but the note appears to indicate that Mr. Leong was asked whether he wished to make any other submission. Mr. Leong has told me that he understood the question directed to him to be Did he have any submission to make as to what the prosecution had just said and that he was indicating that he did not wish to talk about the matter. Quite clearly it was understood by the learned magistrate to mean that he did not wish to make "any other submission" - which is precisely what he has recorded - and "any other submission" would have included a submission of no case to answer. No doubt the magistrate appreciated that Mr. Leong would be well aware of the fact that a conviction of careless driving could ensue upon a charge of dangerous driving and that no purpose would be served by any amendment of the charge. It was at that stage that Mr. Leong apparently indicated that he would not be calling evidence and the magistrate advised the Appellant of his rights. It is complained that there by the learned magistrate indicated that in his view there was a case to answer. I am prepared to assume that that is so but there is no harm in his having made up his mind when he had been told, as I am satisfied that he understood he had been told, that there was to be no submission of no case to answer, and he was entitled to say that in his view there was a case to answer. If it was thought that there was justification for making a submission, as Mr. Leong appears subsequently to have thought, it was open to him at any time after the close of the case for the prosecution and while these various matters were being ventilated to indicate to the learned magistrate that he had a submission. In any event, even if there had been some departure from the normal practice, and I am satisfied that there was not, no possible prejudice could, in my view, have resulted in this case. The case involves nothing, to my way of thinking, approaching the point which was discussed in Reg. v. Birkenhead Justices ex parte Fisher 1962 3 All E.R. 837 and in NG Pang v. Reg. 1967 H.K.L.R. 159, namely that the justices had not given a sufficient opportunity to the defence to call evidence. 7. The only thing which does look a little surprising on the face of it is that after Mr. Leong had made his submission of no case to answer the learned magistrate indicated that he was satisfied that there was a case to answer on careless driving but was in doubt about there being sufficient evidence to constitute dangerous driving and yet he ruled, apparently, that there was a case to answer on dangerous driving. It may be that that was a slip in his record but whether it was or not, and I must assume that it was not, in my view it can, again, have no possible bearing on the result of the case. There was a case to answer on the charge as it stood - whether of dangerous driving or careless driving - and the conviction was one of careless driving. Had the conviction been one of dangerous driving then I think it would have been strongly arguable, and perhaps unanswerable, that the learned magistrate had already indicated his doubt and that, therefore, there could not reasonably be a conviction of dangerous driving. But, as it is, I am satisfied that no prejudice can possibly have resulted. It is suggested that he was wrong to say that he was satisfied "on the evidence" that there was a case to answer. What he had to consider was whether, as a matter of law, there was evidence sufficient to justify his calling upon the defence. I do not believe he intended to decide anything more. 8. The only other matter is the fourth ground of appeal and that relates to an alleged conflict between the first and second prosecution witnesses. In my view there is no real conflict at all. The conflict suggested is that relating to the space available for the lorry. I have already dealt with that and, in my view, there is no substance in any part of this appeal, which is dismissed. 14th December 1973. Representation: L. Leong (Sousae & Co.) for appellant Millest for respondent |