HKSAR v. Ng Chun Ming

[English Translation – 英譯本]

HCMA 427/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPEAL AGAINST CONVICTION

MAGISTRACY APPEAL NO 427 OF 2016

(ON APPEAL FROM KCS 7727/2016)

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Before: Hon Yeung VP in Court (sitting as an additional judge of the Court of First Instance)

Date of Hearing: 8 November 2016

Date of Judgment: 8 November 2016

Date of Reasons for Judgment: 21 November 2016

REASONS FOR JUDGMENT

1.The appellant (Ng Chun Ming), a KMB bus driver, was driving a bus PJ8827 along Salisbury Road in the direction of Tsim Sha Tsui Pier at the time of the offence. The prosecution alleged that when the appellant was approaching the Hong Kong Cultural Centre, he switched from the second to the third lane from the left at about 45 – 50 kmph in order to overtake the preceding bicycle in the second lane and then cut back into the second left lane. Mr Cheng, the cyclist, pointed out that while the appellant was driving and changing lanes, the left rear of the bus was about 1.5 feet away from the right handle of his bicycle, causing him to stop abruptly and swerve to the left, but it did not lead to any collision between the bus and the bicycle.

2.Mr Cheng testified that the bus was originally travelling at about 35 – 40 kmph behind him, but it accelerated to about 45 – 50 kmph when crossing over into the third lane to overtake his bicycle, and then cut back to the second lane.  If what Mr Cheng said is true, the appellant was indeed driving in such a manner with no reasonable consideration for Mr Cheng, which constituted careless driving.

3.At the scene, Mr Cheng told the investigating police officer that the bus was travelling to the right of the bicycle, namely in the second lane, but it suddenly accelerated and cut into the first lane. There was a discrepancy between what he said and his testimony.  However, the trial magistrate took the view that Mr Cheng, whether he was in the first or the second left lane, had been affected by the way the appellant was changing lanes, which caused him to swerve to avoid a collision.  The trial magistrate was of the view that the appellant was driving in a manner which constituted careless driving.

4.Under cross-examination, Mr Cheng admitted that after the incident, he followed the bus back to Tsim Sha Tsui bus terminus where he talked to the colleague(s) of the appellant.  After that he said to the appellant, “Thanks to your colleague(s), I’m going to stir up the matter”.  However, during the trial, neither the prosecution nor the defence had asked Mr Cheng what he had said or done to the appellant’s colleague(s), which caused him to react in such an unusual way.  And they did not question him about the actual meaning of “going to stir up the matter” either.  The stance of the trial magistrate was that “stir up the matter” was not the same as “exaggerate the matter”.  The trial magistrate was of the view that what Mr Cheng had said did not affect his credibility and reliability.

Discussion

5.The facts of the present case are simple.  The prosecution solely relies on Mr Cheng’s evidence to support the allegation against the appellant.  However, I want to point out that a cyclist travelling at high speed on a busy road would be easily affected and startled by other vehicles.

6.Mr Cheng said at the time of the offence he was travelling at about 40 kmph, which was an extremely high speed under the circumstances at the scene.  When the appellant was driving past him at an even higher speed, it would easily make him panic, leading to his discontent with the driving manner of the appellant.

7.Mr Cheng disagreed that after the incident he was travelling on the broken white line between the first lane and the second lane.  However, he failed to properly explain why he had told the police officer that the appellant was cutting from the second lane into the first lane where he was travelling in.

8.After talking to the appellant’s colleague(s), Mr Cheng said to the appellant “Thanks to your colleague(s), I’m going to stir up the matter”, which suggested that Mr Cheng could have been further provoked by the appellant’s colleague(s), making him feel even more discontent with the appellant.  At trial, both parties did not question Mr Cheng about the actual meaning of “stir up the matter” as referred by him. However, what he said can be reasonably construed that his discontent with the appellant was triggered or intensified as he was provoked by the appellant’s colleague(s).

9.In any criminal case regardless of the severity of the offence, the prosecution bears the burden to prove beyond all reasonable doubts that the defendant is guilty as charged.  Otherwise, the court cannot convict the defendant.  Mr Cheng said he was “going to stir up the matter”.  In respect of the background of the present case, especially when there is no corroborative evidence to support the allegation made by Mr Cheng, that is sufficient to constitute a reasonable doubt.  The prosecution bears the burden of dispelling the said reasonable doubt before the court shall find the appellant guilty as charged.  However, the prosecution did not ask Mr Cheng to clarify what he was referring to when he said he was “going to stir up the matter”.  The prosecution failed to dispel all the reasonable doubts in respect of the offence the appellant was charged with.

10.Mr Cheng might not be a dishonest witness.  However, it could be the case that he got startled when the appellant was overtaking him at high speed which made him subjectively consider the appellant’s driving manner improper.  It could also be the case that his discontent with the appellant grew as he was provoked by the appellant’s colleague(s) which made him unconsciously intensify his allegations against the appellant.

11.In my view, there is a lurking doubt in this matter which makes me feel unsafe about the conviction of the appellant.  Hence, I allow the appeal and quash his conviction and sentence.

Mr Lee Sze Yin, Charles, Public Prosecutor of the Department of Justice, for the Respondent.

Mr Cao Yuan Shan, instructed by Ho, Tse, Wai & Partners, for the Appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.