R. v. CHAN KWOK HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1287 OF 1996

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J U D G M E N T

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1. The appellant was convicted of careless driving. The prosecution evidence against him was the evidence of another driver who testified that the appellant's taxi cut across her path after overtaking her and caused her to brake and steer to the left to avoid a collision. She later reported the incident to the police. The second witness called by the prosecution was the police officer who investigated the case. He interviewed the appellant after he obtained from the owner of the taxi that the appellant was the driver of the taxi at the relevant time. PW2 admitted in cross-examination that he did not serve on the appellant a notice of intended prosecution as required under s.68(1) of the Road Traffic Ordinance, Cap.374. There was no evidence that the appellant was warned of prosecution of careless driving at the time of the incident or within 24 hours thereof.

2. The appellant did not give evidence and the magistrate convicted him on the evidence of the prosecution. The magistrate in his findings did not refer to the absence of the notice of intended prosecution. It would appear that its absence was not considered by the magistrate in convicting the appellant.

3. The appellant appealed that the magistrate erred in not considering the absence of the statutory notice.

4. The relevant part of s.68 provides as follows :

"(1) Subject to subsection (2), a person prosecuted for an offence under sections 36, 37, 38 or 41 ... shall not be convicted of such offence unless -

(a) ...

(b) ...

(c) within 14 days ... a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed was served on him ...

(2) The provisions of subsection (1) shall not apply if it appears to the court or magistrate that

(a) the person prosecuted was not prejudiced in his defence by a failure in comply with the provisions of that subsection;

..."

5. It was the prosecution case that no such notice was served on the appellant and s.68(1) had not been complied with. In Lau Shu Kei v. R. [1972] HKLR 459, Huggins J. held that even though the magistrate rejected the appellant's evidence, the court still had to determine whether there was an inherent probability of prejudice. In other words it was incumbent for the magistrate to consider the issue if that issue was raised. On the burden of proof of whether the appellant was prejudiced he said at page 464 :

"Alternatively, counsel for the Crown argues, the existence of prejudice is peculiarly within the knowledge of the person prosecuted and the onus is on him to establish the positive rather than for the prosecution to establish the negative. I cannot accept that. I think the correct approach is that indicated by Lord Loreburn in Hayward v. Westleigh Colliery Co. Ltd. (1915) AC 540 and this means that the burden of proof is upon the prosecution in so far as the burden of proof is material at all. It can be material only in a case where the court is left in doubt whether the scales tip in favour of prejudice or no prejudice. The proper approach is to ask whether or not, on the evidence available, it does appear to the court or magistrate that any prejudice has resulted. True, if the evidence is indecisive, the prosecution will fail ..."

6. There is no evidence from the prosecution on the issue of prejudice and neither was there any such evidence from the appellant who did not give evidence nor call evidence. The magistrate's failure to consider the non-service of the notice was a material irregularity. The prosecution had failed to discharge the burden of proving no prejudice was caused to the appellant.

7. The prosecution indicated that it would leave the matter for the court's decision. The conviction cannot stand and the appeal is allowed. Sentence is set aside and any fine paid shall be refunded.