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Tse Wai Lung v The Queen

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date11 September 1979
Year1979
Judgement NumberCACC741/1979
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000741/1979 TSE WAI LUNG v. THE QUEEN

CACC000741/1979

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 741 OF 1979

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BETWEEN
Tse Wai Lung Appellant

AND
The Queen Respondent

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Coram: Silke, J. in Court

Date of Judgment: 11 September 1979

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JUDGMENT

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1. The appellant was convicted on the 29th June 1979 in North Kowloon Magistracy of the offence of careless driving, it having been reduced from the original offence of dangerous driving, and of the offences of "having been knowingly involved in an accident which occurred owing to the presence of the said vehicle on the said road whereby injury was caused to a person Li Wah did fail to stop"; and "being the driver of a vehicle, namely a private car exhibiting the registration mark BW 522 on a road and having been knowingly involved in an accident which occurred owing to the presence of the said vehicle on the said road whereby injury was caused to a person Li Wah and not having given to any police officer or any other person the particulars specified in paragraph (2)(a) of Sub-section (1) of Section 27 of the Road Traffic Ordinance, did fail to report the said accident and give the said particulars at a police station or to a police officer as soon as reasonably practicable within twenty-four hours after the occurrence thereof."

2. Both of these latter offences contrary to subsections (1) and (2) of section 27 of the Road Traffic Ordinance.

3. He appeals against both conviction and sentence.

4. The facts are relatively simple.

5. A motorcyclist, Mr Lee Wah (2PW), was riding his machine along Clear Water Bay Road in the direction of Sai Kung at about midnight on the 25th January 1979.

6. He was being followed by a car driven by Mr Chiu King Wah (1PW). Mr Chiu in turn was being followed by another vehicle which overtook him in a perfectly reasonable manner. Mr Chiu had then been travelling at about 30 m.p.h.

7. After it overtook him on this two lane highway upon which there was a solid, and on the side of the road upon which the vehicles were travelling a broken, white line the vehicle went on and overtook Mr Lee Wah's motorcycle. In doing so the near side front between the near side door and front struck Mr Lee's motorcycle which fell, with its rider, to the ground. Mr Lee Wah was injured, though not seriously. The overtaking vehicle continued on its way without stopping.

8. Mr Chiu, who stopped his car and rendered assistance to Mr Lee, says he noted the number of the overtaking vehicle. He had his headlights on and could see the other vehicle from some distance after the accident. He says he wrote it down after he "picked up" the motorcycle. He gave a Statement to the police - and immediately prior to giving evidence he read this. In evidence he said the vehicle number was BW 522. Mr Lee did not get the number.

9. Mr Bunting, for the appellant, criticised the evidence of Mr Chiu but with respect to him the Learned Trial Magistrate was entitled to and did rely on his evidence. I am not prepared to say he was wrong so to do.

10. There is one point however, and this is the reason why I have referred to the overtaking vehicle as "a vehicle" - Mr Chiu described it as a "White - dual purpose vehicle - like a van". The informations all describe it as a "private car". No point was taken on this in the course of the hearing of the appeal but it has some relevance in relation to the evidence of the prosecution witness as to identity.

11. On the 13th February - over two weeks later - a constable from the Accident Enquiry Section Kowloon, at that section, saw the appellant. Why the appellant was there we do not know.

12. The constable's evidence continued "Defendant gave me a statement that he drove BW 522 at that time".

13. He went on to say that he inspected BW 522 outside the section - but without describing its nature - and said the "nearside front corner was dented" and he found a brush mark about 3 inches long. The defendant informed him he did not know about the damage.

14. And this was the whole of the evidence produced by the prosecution to tie appellant up with BW 522.

15. It was not made the subject of any cross-examination by the person representing the appellant in the court below.

16. There was a submission of no case made but not on the question of identity. The submission was refused the appellant gave evidence, basically first a denial of any knowledge of the accident, then that he drove BW 522 past there every day and on 25th January at the time. He said in relation to the dent "I cannot explain every dent - I have to park and may be other vehicles dent it".

17. The sole ground of appeal is that "The Trial Magistrate in ruling that the defendant had a case to answer in respect of the three charges was wrong" - and this is based on the rather extraordinary manner by which the Prosecution sought to prove identity.

18. It is Mr Bunting's submission that (a) the constable's evidence as to "Defendant gave me a statement ....." is secondary evidence of a document and thus, without something further, inadmissible;

(b) that it is ambiguous in any event;

alternatively: (c) that it was evidence of an admission against interest and that there should have been affirmative evidence of its voluntary nature.

19. As to the taking of a point not raised - indeed I might go so far as to say conceded - in the court below it is Mr Bunting's submission that the constable's evidence was wrongly admitted - that without it the Crown had no case and therefore even if not taken below it is open to him on appeal to advance the arguments he has.

20. The other side of that coin is the possibility that the court can look at the whole of the evidence and from it fill the gap - if there be one - in the case for the prosecution.

21. As both Mr Bunting and Mr Iu for the Crown were under the impression that the apparent dichotomy as between R. v. Power [1919]...

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