Chan Yiu Chong v. The Queen
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CACC000876/1977
----------------- Coram: Morley-John, J. Date of Judgment: 16th September, 1977. ----------------- JUDGMENT ----------------- 1. The appellant was found guilty of failing to conform with the indication given by a prescribed traffic sign to wit a "No Stopping" sign situated in Shaukiwan Road on the 20th July 1975; I could obtain no satisfactory explanation as to why the case was not heard until the 20th July 1977 two years to the day after the alleged offence had been committed. 2. The appellant has appealed against his said conviction. His main grounds of appeal are that there was a reasonable doubt as to whether the place where the driver was alleged to have stopped was a restricted area and also that there was a reasonable doubt as to whether the driver in question had acted in such a way so as to contravene the alleged or any traffic sign. 3. The Crown called two witnesses both police officers from the Traffic Department. First witness P.C. 7438 gave evidence to the effect that on the day in question he was on mobile patrol duty with Sgt. 8329. According to the sergeant's evidence the P.C. was driving the car. The P.C. said the sergeant told him to stop the car and summons the car ahead of theirs for setting down a passenger. The P.C. had not seen this happen, however the P.C. got out of the police car and told the appellant that he would be summonsed for stopping and setting down a passenger. The P.C. stated that the place where the appellant had stopped was a restricted area and that the relevant traffic sign was nearby and he had drawn a plan which he produced which showed a "No Stopping" sign on the north side of the road just behind the place where the police car and the appellant's car had stopped. It was a fairly detailed plan which the prosecution produced as Exhibit P1. This was not an agreed plan nor had it been signed as being correct by the appellant. The plan on which the prosecution relied clearly showed that the police car was behind the appellant's car and that both cars were on the north side of the road that is travelling east towards Chai Wan. The P.C. was specifically asked in cross-examination if his car was travelling east at the time and he replied in the affirmative. 4. The second Crown witness was the sergeant who was in charge of the patrol. He confirmed that he told P.C. 7438 the driver of the police car to approach the appellant's car as he had seen it stop and set down a passenger. In cross-examination the sergeant was asked if the cars were going east towards Chai Wan and he replied that they were going from east to west towards Central, in other words on the opposite side of the road from the sign depicted in the P.C.'s plan the sign with which the appellant was accused of failing to conform. The plan Ex. P.1 was never shown to this second witness. 5. The appellant did not give evidence. 6. The learned magistrate in his Statement of Findings stated that it was of no material importance whether the police car (which was following the appellant's car) was travelling East or West. With respect to the learned magistrate I cannot agree. The learned magistrate concluded his said statement with the following paragraph:
Again with respect to the learned magistrate in my opinion the question that remains unanswered beyond reasonable doubt is where was the place that the appellant was alleged to have stopped his car. The P.C. said it was on the north side of the road near the sign as depicted in his plan and the sergeant who was a senior officer and in charge of the patrol said it was on the south side of the road. Shaukiwan Road is a very wide road and not surprisingly I can find no provision in the traffic legislation which provides that a "No Waiting" sign placed on one side of the road applies to traffic travelling in the opposite direction on the other side of the road. 7. In the event I consider this conviction to be unsafe and unsatisfactory. The appeal is allowed the conviction quashed and the fine of $100 together with the sum of $50 costs if already paid are to be refunded to the appellant.
Representation: Edward K.S. Chan, instructed by (Philip K.H. Wong & Co.) for the appellant. B.S. Dawson for Crown/respondent. |