HKSAR v. YEE HING CONSTRUCTION TRANSPORTATION CO LTD

HCMA 677/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 677 OF 2005

(ON APPEAL FROM TMS 12145 OF 2004)

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J U D G M E N T

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1.  The Appellant is a company.  It was the registered owner of a vehicle, namely a concrete mixer.  The vehicle turned over on its side while being driven on a road by a driver employed by the Appellant.  When the vehicle was examined its braking system was found to be defective.  As a result, the Appellant was charged with using the vehicle on a road when every part of its braking system and the means of operation thereof was not in good and efficient working order and properly adjusted, contrary to regulations 5(4) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations.  The Appellant was convicted after trial before Colin Mackintosh, Esq. in the Magistrate’s Court at Tuen Mun.  It now appeals against conviction.

2.  At the trial, the prosecution called a motor vehicle examiner who, upon examining the vehicle after the accident, found that the connecting rods of the vehicle’s brake piston were fractured.  That rendered the vehicle’s brakes ineffective.

3.  The Appellant called a mechanic who gave evidence to the effect that the connecting rods could have been fractured as a result of the accident.  But the Magistrate was satisfied beyond reasonable doubt, on the motor vehicle examiner’s evidence, that the connecting rods were fractured before the accident, so that the Appellant had indeed used the vehicle on a road with defective brakes.

4.  Three perfected grounds of appeal against conviction were filed, but Ground 3 was not pursued.

5.  Ground 1 reads:

“There was a material irregularity during the course of the trial in that there was a change in the nature of the prosecution case, thereby rendering the trial unfair and the conviction unsafe and unsatisfactory.

Particulars

1.  The Motor Vehicle Examiner (MVE) report (Exhibit 6 AB-41) which was reflected in the prosecution’s brief facts was adopted as the prosecution’s opening (AB 51-D) and suggested their case was initially as follows:

“Compressed air brake system has no compressed air pressure supplied due to air compressor defective.  (Air compressor piston connecting rod broken)”

2.  The learned Magistrate found in his statement of findings, that:

“There was no room for doubt that the water cooling pipe had been inappropriately repaired as a result of which the flow of cooling water to the compressor for the air brakes was restricted.  …  The restriction in the flow of cooling water caused overheating to the compressor.  The overheating caused friction and the friction caused the connecting rod of one of the pistons to fracture.” (AB-10)

3.  The real nature of the mechanical defect (and therefore the prosecution’s case) was only apparently discovered by D2’s  cross-examination (i.e. the Appellant AB 9 para. 10).  And irrespective of the credibility of PW3 the MVE report and the learned Magistrate’s findings are different.  The start of the prosecution case was one of restricted compressed air, whereas the Magistrate’s finding was overheating.  The learned Magistrate makes no reference in his findings as to lack of compressed air.

4.  Had the prosecution pleaded their case accurately, the Appellant’s cross-examination would have been different and D1’s expert would have had an opportunity to deal with the new allegation.”

Related to that is Ground 2, which reads:

“Further and in the alternative to Ground 1, there was a material irregularity in the trial, in that the prosecution failed to properly, accurately and fairly disclose material details to the defence prior to the trial, namely the real issue of the expert’s evidence which in fact was the ultimate issue in this trial.  This rendered the trial unfair and the conviction unsafe and unsatisfactory.”

6.  These two grounds treat overheating and lack of compressed air as if they were alternative problems.  In fact, they were related problems.  Overheating caused friction.  Friction broke one of the connecting rods.  That led to the other connecting rod breaking.  With the connecting rods broken, the piston did not pump compressed air into the braking system’s reservoir.  And that lack of compressed air rendered the brakes defective.

7.  The most that can be said is that the position became clearer in the course of the cross-examination of the motor vehicle examiner by counsel for the defence.  That was of course before the mechanic called by the defence went into the witness-box, so that there was ample opportunity to get him to deal with what the motor vehicle examiner said.  On any view of these two grounds, I am satisfied that the defence was not prejudiced.

8.  Accordingly, the appeal is dismissed.