ATTORNEY GENERAL v. KWAN TAK FU

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 331 of 1984

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BETWEEN

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JUDGMENT

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1. This is an appeal, by way of case states, from the decision of a magistrate that there was no case for the defendant to answer, on his trial for causing death by dangerous driving. I gave an oral judgment which I now reduce to writing. At this trial the defendant was represented by a solicitor, who did not make a submission of no case. The learned magistrate found a case to answer and adjourned the case, because it was then late in the day. On taking up the case again he, of his own motion, reviewed his decision and found no case to answer.

2. In the case stated the learned magistrate sets out various facts which he states he found to be proven. He may have done so because of the wording of Form 97 in the Magistrates (Forms) Rules, which provides for the magistrate stating what was proven and what facts he found. However the form is not to be followed slavishly, section 4 of the Magistrates Ordinance provides that the forms are to be used 'with such variations or additions as circumstances may require'. The magistrate should not, at the conclusion of the prosecution case, have found any facts proven: A.G. v. YAU Ka-ping (1977) H.K.L.R. 76, R. v. CHEUNG Wai-shu Magistracy Appeal 22 of 1984. At the conclusion of the prosecution case he is concerned with an issue of law, not of fact. The issue is whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence : Haw Tua Tau v. Public Prosecutor (1981) 3 W.L.F. 395. His concern at this stage is whether the prosecution evidence, taken at its highest, could support a conviction. I approach the case on the basis that there was evidence before the learned magistrate of the facts he stated he found proven.

3. This evidence is to the effect that the defendant drove a car on a major road, at night, at speed. The system of street lighting indicated that a 30 m.p.h. limit applied. Having negotiated a right hand bend, his car struck a tree, set back two metres from the edge of the road, and on his 'wrong side'. As a result of the collision the car, the bodywork of which was badly corroded, broke into two halves each of which came to rest some distance beyond the tree. Two passengers were killed. The brakes of the car were satisfactory, and in proper working order, at the time of the accident. Some days after the incident the defendant told an officer that he had no recollection of the matter. The prosecutor referred the learned magistrate to Rabjohns v. Burgar (1971) R.T.R. 234, and relied upon the evidence as leading to the inference, that there had been either dangerous or careless driving. The magistrate rejected that view because, firstly, he appears to have thought that a mental element was required, that if the defendant 'had put his mind to it, he would or should have known that his manner of driving could be dangerous to others'. The magistrate was in error in thinking any such ingredient was necessary. He ought to have had in mind what was said in R. v. Gosney (1971) 2QB674, approved in R. v. YAU Chung-kee (1973) H.K.L.R. 257. Secondly, the magistrate considered he ought not to follow Rabjohns v. Burgar because to do so would compel the defendant to give evidence, whereas in England a defendant could make an unsworn statement from the dock. That matter is irrelevant. The question of law, whether there is a case to answer, depends upon the evidence given as part of the prosecution case, and can in no way be dependent upon or affected by, whether the defendant might or might not choose to go into evidence if put to his defence.

4. The questions asked in the case stated are: -

5. The principles applicable in circumstances such as we are dealing with were, in my opinion, very well put by the District Judge whose decision was under appeal in R. v. YAU Chung-kee (1973) H.K.L.R. 257. He said:-

6. That passage was approved by the Court of Appeal which however went on to allow the appeal because of the manner in which the judge had applied the principle.

7. When answering the questions posed by the case stated, l do so on the understanding that the principle for which Rabjohns v Burgar is an authority, is that the facts of a particular case may be such that, in the absence of an explanation, the only proper inference is careless driving (or dangerous driving). On that basis I answer each question 'yes', set the acquittal aside and remit the case to the magistrate with a direction that he find a case to answer and proceed thereafter in accordance with law.