R. v. KWOK YAN MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 665 OF 1995

____________

_______________

J U D G M E N T

_______________

1. The Appellant was convicted of careless driving. He was fined $400 and ordered to pay costs $200.

2. The prosecution evidence against him was only the evidence of a police officer who went to the scene to investigate. The evidence was that when he arrived, he saw the Appellant's goods vehicle lying across the road overturned. The Appellant was injured and was identified as the driver.

3. The Appellant gave evidence that a vehicle which cut into his path and he swerved to avoid a collision. As a result the vehicle over turned.

4. The learned magistrate in convicting the Appellant said "Obviously, the doctrine of res ipsa loquitur applies here. Prima facie the Defendant is careless". He did not believe the Appellant's evidence.

5. In his findings, the learned magistrate again said "The case obviously called for an explanation from the Defendant." At the end of his findings he said "since the facts are such that, in the absence of an explanation, I had no alternative but to convict the Defendant. I found the case proved beyond all reasonable doubt and convicted the Defendant of careless driving as charged".

6. It was clear that there was no prosecution evidence whatsoever as to the Appellant's manner of driving before the accident. The Appellant, even though he had no obligation to give an explanation, since the burden of proof lied on the prosecution, nevertheless gave evidence the effect of which was that he was not driving in a careless manner. The learned magistrate relied a principle applicable only in civil law.

7. Mr. Pang for the Crown accepted that the principle of res ipsa loquitur had no application in criminal law and he conceded to the appeal.

8. The appeal was allowed and the conviction was quashed. The sentence of fine and costs set aside.