THE QUEEN v. AU KWOK KEUNG

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BETWEEN

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J U D G M E N T

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1. The appellant was convicted of careless driving contrary to section 38(1) of the Road Traffic Ordinance, and fined $250.00.

2. He appealed from his conviction on the ground that there was no sufficient evidence upon which to found the conviction.

3. On the 4th October, 1989, I allowed the appeal and said that I would give my reasons later. This I now do.

4. It was not disputed that the incident arose on the 20th December, 1988 at 7.05 p.m. A traffic constable (PW1), who was the only prosecution witness, was riding his motor cycle AM6718 in the middle lane of Kwai Chung Road at a speed of about 45 mph. About 2 metres ahead of him to his right was a public light bus also travelling at more or less the same speed. PW1 said that as they approached the junction with Tai Lin Pai Road, the light bus suddenly cut into his lane from his right, forcing him to brake and swerve into the slow lane to avoid a collision. He then put on his blue light and was able to stop the light bus after it had turned left into Tai Lin Pai Road.

5. The appellant admitted that he was the driver of the light bus at the time. He said that he had stopped at the traffic lights in the inner lane. There was another private vehicle in the right lane. He did not notice PW1. When the lights changed he moved forward and saw two buses which had stopped at a bus stop. As be approached the buses, one moved out to the right into his lane, and he stopped after flashing his lights at the bus. The bus carrded on. The appellant said he saw a motor cycle with its headlamp on stop behind him, but the appellant carried on and turned into Tai Lin Pai Road. Upon seeing that the motor cycle had put on the police blue light, he then stopped.

6. Under cross-examination, PW1 said that it was then getting dark and the street lights had not come on. While agreeing that was winter time, he disagreed with the appellant's suggestion that it became dark at 6.10 p.m. PW1 denied the presence of any buses at the bus stop.

7. In his note of findings which he made at the end of the evidence, the learned trial magistrate noted quite rightly, that he bad two completely different versions before him. As learned Crown counsel pointed out, it was a matter of credibility for the magistrate. while I appreciate that there are bound to be cases where a court can do little more than say which of the witnesses it believes, it is trite to say that where reasons are given which upon consideration of the evidence do not commend themselves to an appellate court, the latter may come to the conclusion that the finding of fact was unsafe.

8. There are two matters in the findings of the learned magistrate which attract attention. He noted as having said:-

"If the defendant did not change lanes I do not see any reason why the officer should stop him and book for an offence. The mere stopping on the road did not, in my view, cause the officer to have sufficient motive to frame the defendant up."

This reference to "framing up" is obviously to the appellant's claim in re-examination that the officer had told lies.

9. Secondly, when dealing with the issue of lights, his note reads :-

"Although the officer said what he needed not to turn on his headlight at the time in a winter evening I find that credible. I said that because it is equally true that a day in July this year, namely, the 29th, also had temperature around 21th."

10. It is to be noted that these two passages are mentioned in different terms in the learned magistrate's statement of findings dated the 4th August, 1989. For the sake of comparison, I will set out the relevant portions : "I did not believe him" (i.e. the appellant) "that the mere stopping of his light bus in front of PW1 would antagonise PW1, bringing about PW1's fabrication of evidence in full view of his passengers." With regard to the lights, he says : "Even though PW1 had said in his evidence that he had not turned on his headlight and the street lights were not lit in that winter evening, I was satisfied this did not affect PW1's credibility as a whole."

11. Because a fairly detailed note of findings was kept at the end of the case, which presunably were announced in court at the same time, I am of the opinion that any subsequent statement of findings which a magistrate may draft ought to reflect accurately what vas said in court rather than to state the reasons in a form which is materially different or to omit a reason which was stated in court for disbelieving a particular witness.

12. On the basis of what the learned magistrate said according to his note of findings at the end of the trial, the first sentence in the first passage cited above - "If the defendant did not change lanes I do not see any reason why the officer should stop him and book him for an offence" - seems to suggest that the learned magistrate placed too great an evidential burden upon the appellant. In the second passage concerning lights on a wintery evening, he suggested a reason in support of the officer's credibility which, with great respect, I find quite incomprehensible. In the first place there was no evidence about what the actual temperature was on the 20th December, 1988, let alone that it was 21th as suggested by him. However, if the temperature on the 29th July happened to be 21th, it would be entirely illogical and unreal to take that as reflecting accurately the weather conditions, including the time for sun set, on the 20th December. With respect there was no basis for any such comparison; it was misconceived and much to the prejudice of the appellant.

13. For those reasons, I found that the conviction was unsafe and allowed this appeal.