R. v. LIU TAK CHO

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.976 OF 1996

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J U D G M E N T

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1. The appellant was convicted on 19th June 1996 after trial of careless driving. The facts alleged by the prosecution were that on 20th May 1995 at about 2:30 pm at Tam Kon Shan Road, New Territories, the appellant was the driver of a container lorry towing an empty trailer, when he was said to have driven passed a light goods lorry driven by the 1st prosecution witness at the trial and to have collided with the off-side of that light goods lorry so as to cause damage and thereby had driven his vehicle carelessly.

2. The appellant conducted his own defence in the court below and during the course of the prosecution case, certain photographs taken by a policeman, PW3, were placed in evidence. These were photographs taken of the container lorry and they now appear in the appeal bundle. There was reference by the same witness to the fact that he had taken photographs of the light goods vehicle and that those photographs were not available because they were not on the file having been produced in another trial arising out of the same incident against the same appellant for failing to stop after an accident. It is regrettable that the appellant, being in person, was not advised that he could ask for an order that the photographs be produced and that the trial could be adjourned to enable that to be done. It goes without saying that where the interest of justice requires that a defendant in person be advised of such matters, it is incumbent upon a magistrate to do so.

3. An application was made to me by Ms Remedios that the photographs which ought to have been placed before the court below should be considered by me in this trial. Having considered the provisions of s.83V of the Criminal Procedure Ordinance which govern admissibility of fresh evidence on appeal, I accept that there is a reasonable explanation for the failure for the defendant in the trial below, the appellant here, to adduce the photographs of the light goods vehicle and I permitted their production before me.

4. It was the evidence of the 1st prosecution witness in this matter that the careless driving amounted to a brushing of the side of his vehicle by that driven by the appellant. The evidence of PW1 was this :

"- Defendant also got into his vehicle and started off and he in fact moved before I did.

- Then his vehicle brushed at my light goods vehicle.

- The trailer towed by Defendant's container truck swept against my light goods vehicle as a matter of fact.

- It was the nearside rear part of Defendant's trailer that brushed against my light goods vehicle.

- My offside rear, driver's door ..... & also the mirror were hit.

- My vehicle was stationary when it was hit."

It is clear from this evidence that the allegation by PW1 was that the part of the container lorry and trailer which came into contact with his light goods vehicle was the nearside rear part. There is no evidence from him that any other part of the vehicle or trailer struck his vehicle.

5. The damage to the light goods vehicle is apparent from the three photographs which I now have before me and which the learned magistrate did not have before him. It is unfortunate that he did not have the benefit of those photographs.

6. There are three areas of damage to the light goods vehicle. The first area is to the off-side rear of the tray of the vehicle and the wooden upper right panel enclosing the tray; the second are two scratches along the driver's door and thirdly, damage to the off-side driver's mirror. It is quite obvious from the photographs of the container lorry and the light goods vehicle and the measurements taken by the police officers (Exh.P3) that the nearside rear part of the defendant's trailer could not have hit the driver's door mirror of the light goods vehicle. The heights of the respective parts of the vehicle are so disparate as to prohibit contact at that point.

7. Mr Cheung asked me to find in the evidence of PW1 that contact between some other part of the container vehicle and trailer might have occurred. But that evidence does not exist. That being so, there is a direct refutation in the photographs of the light goods vehicle of the evidence of PW1 as to the nature of the damage to his vehicle arising from the alleged careless driving of the appellant. Had the learned magistrate had the benefit of that evidence, it would have been a matter which he would have had to resolve.

8. As matters stand, I must have a lurking doubt about the conviction in the face of the evidence of the photographs of the light goods vehicle and this appeal against conviction is allowed and the fine is set aside.