THE QUEEN v. NG YING

Road Traffic Ordinance - careless driving - burden of proof on the prosecution throughout - defendant under no obligation to disprove the Crown's case - police officer standing on the ground not competent to testify as to the speeds of two vehicles coming towards him, as to the braking by a driver of one of those vehicles and as to the alleged risk caused by defendant to that driver. Held: Appeal allowed and conviction quashed.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 155 OF 1985

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JUDGMENT

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1. This is an appeal against conviction on a charge of careless driving.

2. Evidence on the topography of the area where the incident occurred is not in dispute.   At its junction with Tonkin Street where there was a set of traffic lights, Laichikok Road had four lanes on which were painted arrow signs indicating that vehicles on the innermost lane near the kerb should turn left into Tonkin Street and those in the other three lanes should proceed forward into the continued stretch of the same road which narrowed into a 3-lane carriage way.

3. PC 13570, the sole prosecution witness, was standing on the pavement next to the said 3-lane carriageway and opposite to the traffic lights when, according to him, and I quote his own words:

"There was a goods vehicle approaching the junction, registration No. CA 1269, in the first lane (innermost) and another goods vehicle in the second lane also approaching. Suddenly almost at the junction CA 1269 cut to its right into the second lane causing the other goods vehicle to brake and avoid it ……. When he (Defendant) changed lanes his speed was about 25 m.p.h. and the speed of the affected vehicle was about 20 m.p.h.. The vehicles were about 50 feet from me. I produce a sketch I made the same day to illustrate the incident ......"

4. Under cross-examination PC 13570 did not deny that there were a few vehicles in the two lanes involved and some of those vehicles were in front of Defendant's van, yet he maintained that he could see the incident clearly.

5. For his part Defendant, who appeared in person stated that he was at some distance from the traffic lights in question when he saw the "turn left" arrow sign. As he was then in the innermost or first lane and intended to go straight ahead, he switched on the indicator to denote his wish to enter the adjacent lane In addition to that indication and before veering to his right side he had noted that traffic at his rear was light and satisfied himself that there was no car immediately behind him. By then he had reduced his speed from 20 m.p.h. to 5 m.p.h. on account of his approach to the traffic lights which were showing red and because of the presence of two stationary vehicles in the second lane. He went on to say that while he was driving his van to a position behind those two vehicles, traffic lights changed to green and he could thus drive on. However, after he had passed the junction he was stopped by PC 13570 and booked.

6. The learned magistrate believed and accepted the testimony of the prosecution witness and convicted Defendant. In the Statement of Findings he related Defendant's case and remarked as follows :

"... Under cross-examination himself by the prosecutor, Defendant said traffic was flowing without hold-up. When the prosecutor asked him if that were the case why he had changed lanes at the low speed of 5 m.p.h.. Defendant replied that he did so because the lights ahead were red. This and futher answers on this point seemed unlikely to me. Furthermore, if the lights were red when he approached the junction and started to change lanes, I think it difficult to understand why he did not put that to PW1 (PC 13570) when cross-examining him. And why did he not mention' this point when telling his story before he was cross-examined. It seemed to me that when the prosecutor asked the question why he changed lanes at such a low speed, Defendant 'invented' the red light ...."

7. With due respect to the learned magistrate it seems that he had put the onus of disproving the Crown's case on Defendant when the burden of establishing the charge beyond a reasonable doubt squarely lay on the prosecution's shoulder. As regards PC 13570's evidence I find it difficult to believe that he was able to tell the speeds of Defendant's van and the unknown goods vehicle in question as being respectively at 25 m.p.h. and 20 m.p.h. when he was standing at a far-off place away and those vehicles were coming towards him. I further am puzzled that, under the same circumstances, PC 13570 could say with certainty that the driver of the unknown goods vehicle had braked to avoid a collision with Defendant's van, when such statement ought to have come from that driver's mouth. In this connection, one may well say that that braking, which did not entail a complete halt, is as consistent with PC 13570's allegation as it is consistent' with a deceleration by that driver to let Defendant's van pass without any risk.

8. Another dubious point that sprang to my mind is that PC 13570 asserted that the gap between Defendant's van and the unknown goods vehicle was 3 feet at the time of the alleged offence. In this regard if one were to look at his sketch one could notice that from the spot where he stood he could not see that gap, because the front part of Defendant's van had blocked it.

9. An inconsistency in PC 13570's evidence is that although he stated that Defendant changed lane before reaching the junction - which is also Defendant's story - PC 13570's sketch disclosed that change as having taken place at that junction.

10. In the light of the foregoing I conclude that the prosecution evidence is fraught with doubts, so that it would be unsafe to let the conviction stand. I therefore allow, the appeal and quash the conviction.

CERTIFIED TRUE COPY

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Rosaline CHAN/Stenographer

11th March, 1985