THE QUEEN v. TO KAI YIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 126 OF 1985

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BETWEEN

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JUDGMENT

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1. The Appellant pleaded not guilty to a charge of disobeying a "no stopping" sign "contrary to (for full wording of law see overleaf)". As there is no overleaf in my copy I am unable to quote the "full wording of law".

2. At the trial there were two witnesses - a police officer and the Appellant. The police officer said that when he was 30 to 40 feet from the Appellant who was riding a motor cycle he saw the appellant stop and remain stationary for about 15 seconds. The Appellant's evidence was that he decelerated but did not top at the place alleged.

3. Faced with this conflict of evidence the learned Magistrate was able to accept the police officer's version and reject the Appellant's.

4. The learned Magistrate's Statement of Findings reads:-

5. Before me the Appellant has attacked the findings on the basis that, if the police officer took 15 seconds to travel 30 to 40 feet he must have been travelling at only 2 m.p.h. - a speed at which it would be extremely difficult to remain balanced on a motor cycle.

6. It seems to me that if this point had been made before the learned magistrate he may well have come to a different view. I think therefore that in a case such as this where the learned magistrate had to be satisfied that the officer was not mistaken and, in effect, that the Appellant's version was untrue, the evidence of distances and speeds was such that if the Magistrate had considered the implications he may well have had doubts about the accuracy of the officer's observations. I therefore think that the conviction is unsafe and unsatisfactory and I accordingly allow the appeal.

7. Appeal allowed. Conviction quashed. Fine if paid to be refunded.