THE QUEEN v. CHAN KAM CHUEN, ALBERT

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1012 OF 1986

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BETWEEN

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JUDGMENT

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1. The Appellant pleaded not guilty in the Magistrate's Court to a charge that on the 11th of December 1985 at Shung Ling Street near Fu Yuen Street he did drive a private car on the road carelessly.

2. There was one witness for the prosecution, a police constable, who said that at about 5.37 p.m. that day he was on 'anti-crime patrol' when he saw the Appellant's car about 30 odd metres away from him and travelling generally in his direction. The Appellant's car at the time was travelling south to north along Shung Ling Street in the 3rd lane. He said that he saw the vehicle move to the 1st lane near the junction of Shung Ling Street and Fu Yuen Street. Vehicles in the 1st lane of Shung Ling Street were required by the construction of the road and by arrow signs to turn left into Fu Yuen Street. Vehicles in the other two lanes were required to proceed directly ahead along Shung Ling Street. The officer said that he saw the Appellant's car 'cut into the path of the taxi' and that the taxi had to brake 'as emergency'. He said that the closest that the two vehicles, i.e. the Appellant's vehicle and the taxi, came to each other was about 1 metre. He subsequently stopped the Appellant's car and spoke to the Appellant and told him that he was going to charge him with careless driving. The officer also said in evidence that in manoeuvring to the 1st lane, the Appellant had given no signal that he was about to cross the path of the taxi. He did not say in which lane the Appellant's vehicle was at the time he made the manoeuvre, but the sketch which he produced shows that the Appellant moved from the 2nd lane across to the lane which traffic had to use to turn into Fu Yuen Street.

3. The Appellant gave evidence and said that he was travelling in the centre lane, that he was not familiar with the area and he was seeking his way to the Airport. He found he could not go to the Airport in the centre lane and so he stopped and allowed 2 or 3 vehicles in the near lane to proceed. He said he began turning slowly left when a taxi behind him suddenly sounded its horn, that the taxi did not have to brake but that he himself had stopped and allowed the taxi to proceed. He also said that he had given a signal of his intent to change direction through his turning indicator.

4. The Appellant also called a witness and the witness said that he was a passenger in the Appellant's car at the time. He said that when the Appellant was about to move into Fu Yuen Street, there were several cars (presumably he meant several cars in the turning lane) and that the Appellant stopped to give them precedence. He said that the Appellant then started to turn left but suddenly a vehicle behind the Appellant sounded its horn. According to him, the Appellant then stopped to let that vehicle pass and that vehicle was a taxi and that it was about two car lengths behind the Appellant at the time that it sounded its horn. He was definite that that taxi turned into Fu Yuen Street ahead of the Appellant and went on to say 'because we gave precedence to it'.

5. On the evidence, there seems to be no doubt that at some stage the Appellant while he was either waiting to manoeuvre or in the act of manoeuvring to Fu Yuen Street straddled the chevron marking separating the centre lane and the near lane. The learned Magistrate in his statement of findings under the heading 'Comments on Prosecution Evidence' said this:

"The prosecution tendered one police officer as eye-witness. His accounts of where he was as he saw the incident and the movements of the Defendant's vehicle was contradicted by evidence of the Defendant and the Defendant's passenger. I believe the officer could have exaggerated to beef up the prosecution case. I therefore doubted these two accounts. The Defendant was not convicted on such accounts. But I had no reason to doubt what the officer said about the road markings and the conversation he had with the Defendant."

He then went on to make comments on the defence evidence. He said that he did not believe the Defendant's evidence. In dealing with the 2nd defence witness, the Defendant's passenger, he said that he

"appeared to me to be a simple ordinary man. Observing his demeanour in the box, I had no reason to doubt his integrity or recollection of the incident. I accepted his evidence in full in context."

6. The learned Magistrate's reference to accepting the 2nd defence witness' evidence 'in full in context' apparently means that he accepted the whole of the evidence except for one reservation. That reservation related to a statement by the witness early in his evidence that the Appellant was in the right-most lane and then changed that to say the left-most.

7. The learned Maistrate in commenting on that said he believed that was a slip of the tongue and he considered this part of the evidence "was not quite critical for conviction".

8. The learned Magistrate went to make a number of findings. One finding was that the Defendant waited on the chevron markings for 20 to 30 seconds because he could not 'jam' into the traffic in the left lane. He also found that the Defendant then started to move into the left lane thereby threatening the path of the taxi and that he stopped only after the taxi sounded its horn.

9. Those findings are in direct contradiction of the evidence given by the 2nd defence witness and which the learned Magistrate accepted.

10. Those findings form the essential basis of the Magistrate's conclusion that the Appellant drove in such a way as to cause inconvenience to both pedestrian and motor traffic at the junction.

11. The learned Magistrate, having reached an ultimate finding not supported by his findings of primary fact, has reached a verdict which in all the circumstances is unsafe and unsatisfactory and cannot stand.

12. I therefore allow the appeal, quash the conviction and order that if any fine has been paid that it be repaid to the Appellant.