Ng Chit Hay v. The Queen
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CACC001310/1976
Coram: Morley-John, J. Date of Judgment: 6th January, 1977. ----------------- JUDGMENT ----------------- 1. The appellant was convicted of careless driving contrary to the provisions of Section 14(1) of the Road Traffic Ordinance, Cap. 220. He has appealed against his conviction on the ground there was no evidence or no sufficient evidence whereon to found the conviction. 2. The Crown called one witness a Police Constable who said he was on motor-cycle patrol at Tung Tau Chuen Road near Ming Tak Street on the 21st of April, 1976. That he got off his motor-cycle to observe the traffic. Unfortunately this witness did not say exactly where he was standing but under cross-examination the Police Constable did say that he had a clear view of Ming Tak Street. He said that he saw the appellant drive a public light bus out of the minor road Ming Tak Street and turn right crossing the major road, Tung Tau Chuen Road, and that this maneuver caused a taxi driving along the far-side of Tung Tau Chuen Road to brake sharply. The P.C. said that he then stopped the appellant's public light bus and told the appellant that he had driven carelessly and that he would be prosecuted for careless driving. 3. The appellant on the other hand contended that he had crossed the northern carriageway of Tung Tau Chuen Road having been waved on by a bus driver that when he had arrived at the middle of the road he started to turn right, he saw a taxi approaching from his left along the southern carriage way and that the taxi slowed and the driver waved him on. 4. The learned magistrate in his Statement of Findings said "It seems highly unlikely to me that a taxi driver, or any driver, would willingly yield precedence to the defendant in such circumstances. Furthermore I was not at all impressed by the defendant and I saw no reason to disbelieve the the policeman and accordingly I convicted as charged". 5. On the other hand I was impressed by the appellant who when he appeared before me explained that due to the construction work being carried out by the Mass Transit Company traffic at this junction was very congested and he was adamant that the taxi driver seeing him half way across the road slowed down and gestured him to proceed and I see nothing highly unlikely in this. There is no evidence that the Police Constable could see whether the taxi driver gestured to the appellant or not and again unfortunately he was not asked. The only person who was in a position to prove or disprove the appellant's version of the incident was the taxi driver and he was not called as a witness. In cross-examination the Police Constable agreed that he stopped the taxi driver and took his particulars and when asked by the appellant why the taxi driver hadn't been called as a witness the Police Constable quite reasonably explained that it was not up to him to decide who should be called as a witness. The Prosecuting Officer then informed the learned magistrate that they had written to the taxi driver, presumably just before the case was heard, to see if he would be willing to come to court to give evidence, but the Prosecuting Officer said that the taxi driver replied saying that since the incident happened so long age he just couldn't recollect it. This perhaps is not surprising as the offence was alleged to have taken place on the 21st of April, 1976 and the case was not tried until the 26th November, 1976. However, it is most unfortunate that the Police, according to the evidence of the Police Constable, having decided to prosecute the appellant on the 21st April and having all the particulars of the taxi driver did not soon after the incident take a statement from the taxi driver from which he could have refreshed his memory and thus dispelled any doubts in this case. 6. Under the circumstances I do not feel that it is safe to let this conviction stand and this appeal is therefore allowed and the fine of $125, if paid, be remitted to the appellant.
Representation: Appellant in person. S.P. GRAHAM for respondent/Crown. |