THE QUEEN v. TSOI MING CHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 979 OF 1991

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JUDGMENT

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Sir Derek Cons, V.P.:

1. Tsoi Miny Ching ("the defendant") was convicted in the court below of failing to comply with a traffic signal. The evidence against him came from a constable patrolling on a motor cycle. He gave evidence that he came up to a particular junction where there was a separate set of lights controlling the left turn. Waiting for the left turn were two vans, the second one of which was driven by the defendant. The first van, possibly misled by the lights which controlled the direction straignt ahead, turned left across the red light. The defendant followed him. The defendant in his evidence said that he then saw that the light, which the van in front had been covering from his sight, was red, so that he stopped immediately. That is confirmed by the constable, the only difference being where the defendant stopped. The constable said that he stopped further round the corner, for the purpose of letting pedestrians cross.

2. In either event it seems that the constable accepted that during the stopped period he was still behind the defendant's van. The constable's evidence continues that when the defendant started to move he did as well, overtook him and stopped both the defendant's van and the first van.

3. The defendant suggested that it did not happen that way at all, because the constable was at all times in front, the implication being that the constable did not really see what had gone on at the traffic lights, but had been misled into thinking that the defendant had gone a long way over the white line when in fact we had only gone a few inches, if that.

4. For the constable's version to be acceptable, either the first van moved off extremely slowly or the constable managed to move off extremely quickly. It is suggested that the road into which the traffic turned is a busy road, which would not give sufficient pace for the constable to manoeuvre as would have been necessary. So that all in all his evidence should be approached with suspicion.

5. This factor was not considered by toe magistrate below. All he recorded was:

"Having heard the Prosecution Evidence and the evidence of the defendant, I find PW1 (i.e. the constable) a truthful and reliable witness. I have no hesitation to accept his evidence.

I feel that had his mind been directed to the points to which mine has now, it may well be that he would nave come to a different conclusion. But at least I am left with a lingering doubt; and for that reason I am bound to allow the appeal, and set aside the fine, conviction and order for costs.