THE QUEEN v. CHAN CHUN WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.230 of 1996

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J U D G M E N T

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1. The appellant was convicted on 4th December 1995 of careless driving and was fined the sum of $800.

2. The facts were that the appellant was, on 10th September 1994, driving uphill on Tuen Mun Road in the New Territories. He stopped due to congestion of traffic and another vehicle stopped behind him. It was alleged by the prosecution that when the traffic cleared ahead of the appellant, he rolled back and struck the vehicle driven behind him by another driver. It was these facts that the Magistrate found to be true and upon which he convicted the appellant.

3. It is unfortunate in para.8 of the Finding of the Special Magistrate that he says :

"It was a case one version against another version."

He goes on to say :

"I am satisfied that PW1 is a witness of truth, I accepted his version that the defendant's car roll back and hit his car. I rejected the defendant's explanation that it was PW1 who drove forward and hit his rear as it was unconvincing,"

He purported to cure what would appear on the face of it to be a direction of a finding on the balance of probabilities by ending the paragraph "I find the Crown had proved the case beyond reasonable doubt, accordingly the defendant was convicted as charged".

4. However, there must remain in the eyes of the appellant and in the eyes of anyone reading this paragraph a real possibility that the learned Magistrate had adopted the incorrect standard of proof in respect of this matter. The appeal against conviction is allowed and the fine is set aside.