Lee Chung Hou v. The Queen
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CACC000927/1980
----------------- Coram : Bewley, J. Date of Judgment : 28th November, 1980. ----------------- JUDGMENT ----------------- 1. The appellant was convicted of careless driving on the evidence of an off - duty police sergeant named Lo Kin-ying, who was the only prosecution witness. 2. Each was driving from west to east in Ching Cheung Road in fairly heavy traffic. There are 3 lanes in each direction and Sergeant Lo was in the middle lane. According to him, the appellant's Mercedes overtook him on the right and abruptly cut in front of him at a speed of about 40 m.p.h., missing him by one foot and forcing him to brake to a halt. 3. He saw the appellant cross again into the inner lane, causing a lorry in that lane to brake. Sergeant Lo said he restarted his engine - presumably it had stalled - and gave chase. 4. He eventually caught up with the appellant and, after persuading him to stop, he told him that he had been driving dangerously. The appellant denied it and said the sergeant must be mistaken. Sergeant Lo then drove to Kowloon Traffic Headquarters and made a complaint. 5. After an unsuccessful submission of no case, the appellant gave evidence. He said he was driving at less than 40 m.p.h. in the middle lane behind a lorry. He wanted to switch to the outside lane and checked his rear view mirror. There was a private car behind him in the middle lane, but the outside lane was clear. After changing lanes, he realized that the same private car was still behind him and was flashing its headlights. 6. Later on, when they were entering the tunnel that leads to Cornwall Road, this private car cut in front of the appellant's Mercedes and blocked his way. The driver said he was a policeman and intended to report him for dangerous driving. 7. The learned magistrate in his statement of findings says he accepted Sergeant Lo's evidence concerning the appellant's speed, the lane in which the appellant was driving and the manner in which he cut in front of both Sergeant Lo and the lorry. On all these points he found that Sergeant Lo's evidence was honest and reliable, whereas the appellant's evidence was unbelievable. 8. On one point, however, the magistrate found that Sergeant Lo's evidence was unacceptable and unreliable. He found as a fact, contrary to Sergeant Lo's evidence, that the latter did not brake to a halt after the appellant cut in front of him. This was because the appellant was travelling the faster of the two and it would not, therefore, have been necessary to stop. 9. No other reasons for believing the sergeant on the main issue of cutting in are given. Although the magistrate may have been impressed by Sergeant Lo's demeanour in the witness box, causing him to conclude that, on most of the matters in issue, his evidence was honest and reliable, it seems to me that, having been shown to be unreliable on one point, there must be some doubt, in the absence of other evidence, as to the other matters. After all, why should the sergeant say he braked to a halt and had to restart his engine, if it did not happen? It is certainly unlikely that a driver in his situation would be compelled to come to a halt - a sharp touch on the brakes, accompanied by an expletive, is the usual consequence of such a manoeuvre - nevertheless that was Sergeant Lo's evidence. He has, at the very least, grossly exaggerated the matter. 10. Clearly he was upset at the manner in which the appellant was driving. Otherwise he would not have gone to so much trouble to bring him to Court. But in view of the fact that the learned magistrate has found some parts of his evidence to be reliable and others not, and there being no other evidence, except that of the appellant, which is all the other way, I cannot help thinking that there must be doubt as to what exactly the appellant did to upset Sergeant Lo. 11. In fact, when rejecting the defence submission of no case, the magistrate went so far as to observe, according to the record, that 'doubts arose from the evidence'. If he had doubts at that stage, there is nothing in the appellant's evidence that could have resolved them to the extent that he was satisfied that the prosecution had proved its case beyond reasonable doubt. 12. In these circumstances the conviction must be considered unsafe. The appeal is allowed and the conviction quashed. The fine, if paid, must be refunded to the appellant.
Representation: Paul Fok (George Liang & Co.) for appellant. John Cagney for Crown/respondent. |