Chan Chi-tong v. The Queen
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CACC000936/1974 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO.936 OF 1974 -----------------
----------------- Coram: Trainor, J. Date of Judgment: 20th November, 1974. ----------------- JUDGMENT ----------------- 1. The appellant in this case was charged in the Magistrates Court, Central, with dangerous driving contrary to Section 11(1) Cap.220. He was found guilty and fined $400 and his licence was endorsed. Against his conviction he now appeals. 2. Briefly, and very briefly, the case of the prosecution was that on the 6th of July last a police constable on mobile patrol on a motorcycle saw the appellant's taxi which was stationary at a place where it was not permitted for vehicles to park. The police constable made a U turn, went up to the driver of a taxi, pointed out the offence and gave him a fixed penalty notice. The constable having done so drove off in the inner lane of traffic. He said he was followed by the appellant in his taxi who drove in the third traffic lane, passed him out and out across him causing him to brake and as a result his motorcycle fell to the ground; whether he himself fell to the ground is not indicated in the record but the police officer was not hurt. He said that as a result of this incident the appellant was charged as he was. His evidence was to a fairly substantial extent corroborated by another police officer. 3. The appellant denied that any such thing had taken place. It was his case that on this occasion he had picked up two passengers at No.446 Hennessy Road and moved off with them. He reached No.335 Hennessy Road when a mobile policeman made a U-turn and called upon him to stop. He said that the police constable gave him a fixed penalty notice. He said that when the police officer came up to him he asked for his licence and extracted particulars from that with which to fill in the notice. Apparently this took some time and there was some comment from one or other of the passengers in the appellant's taxi. It would appear that they got impatient and left the taxi, or rather they were told by the police officer that they might in fact leave the taxi. The appellant maintained that when his passengers left he asked the police officer who was going to compensate him for the $2 that he has lost by reason of losing the booking. He maintained that he never drove from that spot but as a result of an altercation between himself and the police constable he received the summons for dangerous driving. 4. An examination of the evidence of the prosecution witnesses as recorded by the learned Magistrate certainly establishes very good grounds for the Magistrate's decision if he accepted it as true; and if the matter rested entirely on the evidence as given perhaps it would be difficult to find fault with his decision. I say this although I think I should add that on my reading of the record I was far from convinced that the evidence was as satisfactory as the Magistrate would appear to say. However, be that as it may, the record would justify the conviction were if not for one observation made by the learned Magistrate in his Statement of Findings. 5. As I said earlier, the dangerous driving in this case consisted of overtaking the police constable on his motorcycle and cutting across him. An item of evidence in support of that was the motorcycle being caused to fall to the ground. In my opinion, that would be a very important item of evidence against the accused, and would go, indeed, a long way to establish dangerous driving. 6. However, the learned Magistrate in his Statement of Findings stated that it was common case that the police officer's motorcycle had fallen to the ground. That is not correct. As I interpret the record, and in many places it is somewhat ambiguous, the appellant maintained that he had never driven off after he was given the fixed penalty notice. 7. As I said the falling of the motorcycle is a very important factor in establishing the dangerous driving. Had the Magistrate not come to the conclusion that it was conceded by the appellant that the motorcycle had fallen to the ground he might very well have come to a different conclusion on this case. 8. In the circumstances, I think the decision is unsatisfactory and that it would be dangerous to uphold this conviction and accordingly the appeal is allowed.
Representation: Appellant in person Haldane, c.c. for Respondent |