HKSAR v. Cheung Ngai

[English Translation – 英譯本]

HCMA 292/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 292 OF 2016

(ON APPEAL FROM KCS 39217/2015)

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Before: Hon Barnes J in Court

Dates of Hearing: 19 January and 9 May 2017

Date of Judgment: 15 May 2017

JUDGMENT

1.The appellant was charged with one count of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap 374 of the Laws of Hong Kong. The appellant pleaded not guilty and was convicted after trial in the Kowloon City Magistrates’ Court by Deputy Magistrate Percy YUE and fined $1,500. The appellant appealed against the conviction.

Facts of the case

2.Miss Kwok Ka Ting, Anthea, Public Prosecutor, on behalf of the respondent recounted the cases of both sides in her written submissions dated 5 August 2016, which I adopt as follows:

“Prosecution case

3. It was alleged in the charge that the appellant, on 14 June 2015 at 10:05 am, at the roundabout of Clear Water Bay Road and Ying Yip Road, did drive a private car bearing registration number LL6329 carelessly. The prosecution mainly relied on the evidence of PW1 (Mr. Chong). According to Mr. Chong, he was the driver of private car NC8110 at the material time. He drove along Silver Bay Road and entered Ying Yip Road through the Clear Water Bay Road Roundabout.

4. The Clear Water Bay Road Roundabout consisted of two traffic lanes, ie an outer circle and an inner circle. PW1 entered the outer circle of the roundabout at a speed of 30 km/h. He saw that the private car driven by the appellant was at the inner circle at the distance of approximately 8-10 metres ahead of PW1 to the right hand side. At that time, the weather was very good. It was a holiday and there was no vehicle on the road. The traffic was very smooth.

5. PW1 drove along the outer circle of the roundabout. When he reached the junction with Ying Yip Road, he switched on the left indicator light, turned left and went straight into Ying Yip Road without the need to cut into another lane. Ying Yip Road is a one-lane two-way traffic road. After PW1 had entered Ying Yip Road, he saw that the appellant’s car cut from right to left when entering Ying Yip Road and later rammed into the right rear wing of PW1’s car. PW1 stopped his private car immediately following the collision. His car was not moved forward nor was it moved at all whereas the appellant’s private car straddled the hatched area on the right of the junction leading to Ying Yip Road. PW1 got out, checked and found that there were scratches on the right rear wing of his private car. Consequently, he demanded compensation from the appellant which the appellant refused. A report was therefore made to the police.

6. Under cross-examination, PW1 pointed out:

i. When he was manoeuvring his private car onto the roundabout, the appellant’s car was in front of him to the right. The collision took place at Ying Yip Road. At the time, his car was in front of the appellant’s private car.

ii. The speed of PW1’s private car at the roundabout was 30 km/h and there was no deceleration when it was entering Ying Yip Road.

iii. PW1 noticed that when the appellant’s private car was in the inner circle of the roundabout, its right indicator light was on. After PW1 had entered Ying Yip Road, the appellant’s private car cut into Ying Yip Road in a very slow speed and hit his private car.

iv. PW1 denied that the offside front of his car collided with the nearside front of the appellant’s private car.

v. PW1 pointed out that the damage (scratch marks) on the offside front of his private car was caused when parking the car in the Mainland. PW1 denied that two collisions took place between his car and that of the appellant.

vi. PW1 agreed that there were white marks on the offside rear wheel of his car but denied that it was a result of the collision with the appellant’s private car. PW1 believed that they were marks left behind by mud water after raining.

vii. PW1 said that the traffic was smooth at the material time. He denied that there were many vehicles at the roundabout. Nor was the traffic congested there.

viii. PW1 denied that foul words were used at the time or after the report was made.  He only questioned the appellant’s manner of driving.  PW1 agreed that he demanded HK$10,000 as compensation from the appellant at that time to which the appellant replied, “Even spraying the whole car won’t need $20,000.”

Defence case

7. The appellant was not legally represented at the trial. After the magistrate had ruled that there was a prima facie case, the appellant elected to give evidence. He did not call any defence witness. According to the appellant, the situation at that time was as follows:

i. The appellant had over 13 years of driving experience. He was a safety officer by occupation and he had received education up to university level.

ii. On the day in question, he was driving his private car (royal blue color SUV) in Hang Hau heading towards the direction of Sai Kung at the speed of 10-odd km/h. He entered the inner circle of the Clear Water Bay Road Roundabout through the single-lane Hang Hau Road. Before entering the roundabout, it occurred to him that his bike was in need of repair. Therefore, he intended to proceed to Ying Yip Road.

iii. Seeing that there was no vehicle on the roundabout, the appellant turned on the left indicator light and cut into Ying Yip Road. When his whole [car] was well into Ying Yip Road and went past the safety island on the right hand side of the Ying Yip Road junction, the appellant saw, from the right rear-view mirror, that PW1’s car entered Ying Yip Road at the speed of 30 km/h.

iv. The bodywork of both cars was very close. He did not hear any collision. He heard, however, the alarm sound which indicated that the two cars were very close. The appellant thought that the two cars collided and he, as a result, swerved the car to the right before it came to a halt. PW1’s private car, nevertheless, continued to move forward for a distance of approximately one vehicle’s length. At that point in time, the offside rear of PW1’s private car again brushed across the nearside front of the appellant’s private car. As a result, two collisions occurred arising out of this incident respectively.

v. After both parties had got out of the cars, PW1 demanded compensation in the sum of $10,000 from the appellant or a report to be made to the police. The appellant considered that it was PW1 who overtook his car but PW1 on the contrary pointed the finger at him. The nearside front of the appellant’s private car was damaged with minor scratches over the bumper and near the fog light.

8. Under cross-examination, the appellant said:

i. Prior to the accident, he turned on the left indicator light when entering Ying Yip Road and not the right indicator light.

ii. At the time, he noticed that an orange-coloured Land Rover was waiting on the roundabout but there was no sight of PW1’s car.

iii. To enter Ying Yip Road, he agreed that he had to cut into the outer circle.  However, he did not see PW1’s car in the outer circle at that time.  When turning into Ying Yip Road, he did ensure that there was no vehicle in the outer circle before cutting lanes.  He said that his car was a bit towards the right when entering Ying Yip Road.  He did not see PW1’s private car when he was on the Clear Water Bay Road Roundabout.  He first saw PW1’s private car only when he got to the Ying Yip Road junction and drove past the safety island.

9. The appellant disagreed that PW1’s private car was already in front of his when he was turning left.  He expressed that he was astonished when he first saw PW1’s car.

10. When closing the case, the appellant pointed out in particular the following:

i. The police refused to draw a sketch of the accident scene.  This was unreasonable and a departure from the normal practice as well.

ii. The appellant pointed out that there were elongated scratches caused by a hard object rubbing against the surface on the offside front of PW1’s NC8110 as depicted in exhibit D1(25).  When he received the charge sheet, nevertheless, the police did not mention this item of damage at all; and

iii. Other than that on the offside front and offside rear of PW1’s private car, the offside front wheel and offside rear wheel of his car were also stained white.  The appellant opined that these were marks left behind following the collision with his private car.”

Reasons of Findings

3.The magistrate’s Statement of Findings are as follows:

“Analysis of evidence

15. I bear in mind that the burden of proof rests on the prosecution and the defendant is under no duty to prove his innocence. The standard of proof on the prosecution is one of beyond all reasonable doubts. The defendant has a clear traffic conviction record in Hong Kong. I accept that the defendant’s past driving record was good and his propensity to commit the offence is, therefore, relatively low.

16. I have heard the evidence of both sides. There was no independent witness in the present case. Only two persons, ie PW1 and the defendant, knew what had actually happened at the material time. The incident took place at 10:05 am. Both PW1 and the defendant were involved in the matter. They were both interested parties as regards who had or had not driven carelessly. Neither of them was a completely “independent witness”. They both might try to minimize their involvement in the matter.

17. A careful driver, when driving, should at any time keep a safe distance with the vehicle in front. Where there are two or more lanes at the entrance of the roundabout, a careful driver should choose the lane that is most convenient and with the smoothest traffic flow to drive past or drive out of the roundabout. Furthermore, a prudent driver should, when manoeuvering on the roundabout, pay extra attention and maintain a safe driving distance.

18. I have carefully observed PW1 and the defendant’s demeanour when giving evidence and the contents of the evidence of each of them. After careful analysis, I accept the evidence of PW1. His evidence was simple and straightforward. Although PW1 appeared impatient or impolite when he was giving evidence, that by no means affected the credibility and reliability of his testimony. PW1 said that he was travelling in the left first lane at a speed of about 30km/h when entering the roundabout at Clear Water Bay Road and then proceeding to Ying Yip Road. Prior to the incident, he first saw the private car driven by the defendant in the left second lane, ie the inner circle, of the Clear Water Bay Road Roundabout at a distance of about 8-10 metres ahead of PW1’s private car to the right. Subsequently, PW1 reached the junction with Ying Yip Road. He turned on the left indicator, turned left and drove straight into Ying Yip Road. There was no need for him to cut into another lane. Upon entering Ying Yip Road, PW1 saw that the defendant’s private car cut from right to left when entering Ying Yip Road and rammed into the right rear wing of PW1’s private car. After the collision, he immediately stopped his private car. At the time of collision, his private car was not propelled forward nor was it moved afterwards. There were scratch marks on the right rear wing of the private car. The nearside front of the defendant’s private car was also damaged. PW1 requested compensation from the defendant which the defendant refused. A report was therefore made to the police. I accept that PW1 was an honest and reliable witness.

19. I do not accept defendant’s evidence. His evidence, as I notice, was inconsistent and lacked rational explanation. It is now summarized as follows:

- When cross-examining PW1, the defendant indicated that, at the time of the incident, there were many vehicles on the Clear Water Bay Road Roundabout; when the defendant was cross-examined, however, the defendant said that,  on the roundabout at that time, there was only one orange-coloured Landrover other than his private car;

- The defendant mentioned that he had not seen PW1’s car from the time it entered the roundabout to the time  it reached Ying Yip Road.  On the contrary, PW1 said that when he first saw the defendant’s private car, the defendant was at the inner circle at a distance of about 8-10 metres ahead of his car to the right.  Had the defendant kept a proper lookout of the road conditions at that time, he should have been able to see PW1’s private car from the rear-view mirror;

- The defendant mentioned that he had not seen PW1’s private car when he cut into the left first lane from the left second lane.  This does not make sense either.  According to PW1, at that time, he was travelling along the left first lane of the roundabout at a speed of 30km/h.  Subsequently, PW1 entered Ying Yip Road through the left first lane which was the most convenient lane and nearest to the junction. Consequently, the only reasonable inference to be drawn was that the defendant failed, in a careful and prudent manner, to keep a proper lookout of the road conditions at that time;

- The defendant said that, at the material time, his car collided twice with that of PW1’s.  Nevertheless, at the time of the so-called first collision, the defendant, as he put it, did not hear any collision and only felt that a collision had occurred.  Furthermore, the alarm of his private car sounded indicating the two vehicles were too close.  Afterwards, he saw that there were scratch marks over the right front and right rear of PW1’s car and therefore inferred that two collisions had taken place.  I mentioned before that I accepted all of PW1’s evidence including the part where PW1 said that his private car was hit and damaged in the Mainland well before 14 June 2015.  Furthermore, what the defendant said, i.e. he did not hear any collision and just felt that a collision had taken place, was also unreasonable.  As a result, I do not accept that there were two collisions put forward by the defendant.

- Also, the conversation that the defendant had with PW1 following the accident again did not support his version, ie PW1’s private car had, on two occasions, hit the left front of the defendant’s car.  The defendant said that PW1 had, at that time, demanded HK$10,000.00 as compensation from him or a report to be made to the police.  Had the accident happened as the defendant described, then it should be the defendant who got out of the car and demanded compensation from PW1.  Nevertheless, the defendant was, in fact, the one replying PW1: “Even spraying the whole car won’t need $20,000”

- The defendant mentioned that both the offside front wheel and offside rear wheel of PW1’s car were stained white.  The defendant opined that they were marks left behind following the collision with his private car.  He pointed out, however, his private care was greyish blue in colour.

20. Further, I had the benefit of seeing the photos provided by Defence i.e. exhibit D(1)(9)-(12) and (18).  I noticed that both cars, at that time, were already at Ying Yip Road, having left the Clear Water Bay Road Roundabout.  PW1’s private car sat precisely on Ying Yip Road whereas the defendant’s private car was behind that of PW1’s to the right, straddling the hatched area.  Against this background, I decline to accept the defendant’s explanation, i.e. he was the first one driving into Ying Yip Road and PW1, when entering Ying Yip Road, overtook him from his nearside rear direction and collided with his private car.

21. In my view, the defendant had failed, in a careful and prudent manner, to keep a proper lookout of the road conditions at that time.  Had he paid attention to the road conditions, he should have noticed PW1’s private car in the left first lane of the Clear Water Bay Road Roundabout.  From the defendant’s evidence, I am of the view that the defendant was travelling on the Clear Water Bay Road Roundabout on his way to Sai Kung.  Suddenly, it occurred to him that the bicycle was in need of tyre repair and therefore he changed route and proceeded to Ying Yip Road.  This sudden change caused his car to lean toward the right when entering Ying Yip Road.  While the defendant was concentrating on cutting into the left first lane from the left second lane at the roundabout, PW1’s private car was already well into Ying Yip Road coming from the left first lane of the Clear Water Bay Road Roundabout.  The defendant was careless and caused his car to collide with the car in front i.e. PW1’s private car because the defendant was preoccupied with cutting into the lane and entering Ying Yip Road.

22. For the above reasons, I find that the prosecution has proved the charge of careless driving against the defendant beyond reasonable doubt.  Under such circumstances, the defendant is convicted of careless driving.  ” [emphasis added]

Grounds of appeal

4.The appellant, who was unrepresented, was basically repeating what he said at the trial.  He reiterated that the incident had happened as how he described instead of PW1’s version adopted by the magistrate.  The appellant placed emphasis, in particular, on the white scratches and other marks on PW1’s car.  He said these marks supported his version: the two cars had collided twice as he described. The appellant also complained that PW1 was impatient and was unable to indicate the correct location in question during cross-examination.  Hence, the defendant was unable to make comparisons between the prosecution’s version and that of his.

My consideration

5.A magistracy appeal is conducted by way of rehearing on the basis of the testimony and evidence before the  magistrate (and also any fresh evidence which the appellate court may admit): see Chou Shih Bin v HKSAR[1]. In my view, as far as the facts of the case are concerned, the appellate court has to bear in mind that the magistrate enjoyed the advantage of hearing and seeing the testifying witnesses.  The appellate court cannot rely on the written transcripts to decide whether the witnesses are credible and reliable: see Raymond Chen v HKSAR[2]. It was entirely for the magistrate to decide whether a witness was credible and reliable.  Nevertheless, where a finding of fact made by the magistrate was unreasonable, irrational or inherently improbable, or where, in dealing with the evidence, the magistrate misquoted, omitted or failed to consider or analyze material matters, the conviction would be rendered unsafe.

6.nbsp;                 Plainly, PW1 and the appellant gave different versions as to what had happened.  According to PW1, having left the roundabout, he entered Ying Yip Road and the appellant suddenly rammed into his car from his offside rear direction.  According to the appellant, however, he was well into Ying Yip Road when PW1 “overtook” him from his left.  The two cars were very close in distance and subsequently two collisions took place.

7.The burden of proof lay on the prosecution.  It was incumbent upon the prosecution to prove beyond reasonable doubt that the appellant drove carelessly.  If what the appellant said was or might be true, then the prosecution has failed to prove the guilt successfully.

8.Since the appellant testified in court, the magistrate was bound to give careful consideration to his testimony and analyze independently whether it was or might be true.

9.In my view, the magistrate erred in the manner she analysed the appellant’s testimony.  She wrongfully considered the defence case against the background of PW1’s testimony which she had ruled to be truthful (ie PW1’s testimony that was mentioned in para 19 of the Statement of Findings, to which I added emphasis by underlining).  Based on PW1’s testimony, she ruled that the appellant’s testimony was not credible.  As a result, she failed to give complete independent consideration to the appellant’s testimony.

10.The respondent contends even if the magistrate made the above mistake, since the appeal is conducted by way of “rehearing”, the court, when considering the appellant’s version, could have arrived at a firm decision that it was simply impossible for the two cars to collide twice as put forward by the appellant. 

11.I have considered the appellant’s testimony before the magistrate.  In my judgment, what he described is not something totally impossible.  If he really entered Ying Yip Road first and PW1 “overtook” him from his left side, this caused the front parts of both cars (the nearside front of the appellant’s car and the offside front of PW1’s car) to collide.  Out of natural response, the appellant immediately stopped the car and swerved it to the right.  Depending on the circumstances and the reaction of PW1 at that time, it was not completely impossible for the offside rear of PW1’s car to “brush across” the nearside front of the appellant’s car.

12.The appellant does not bear the burden of proof.  When the magistrate considered the evidence, she had to pay particular attention that both interested parties might try to minimize their responsibility in the matter.

13.The appellant claimed that PW1 “overtook” him from his left.  PW1’s vehicle was a “cross-border vehicle” and he had both Hong Kong and China driving licences. The appellant had cross-examined PW1 on whether he should overtake from the left-hand side or the right-hand side when overtaking vehicles in Hong Kong. PW1 replied surprisingly: “I don’t know”[3]. It is possible that PW1 might try to minimize his responsibility which resulted in the collision of two vehicles.  Bearing this in mind, I cannot rule out the possibility that PW1 “overtook” the appellant’s car from the appellant’s left-hand side.

14.I understand that the magistrate had already reminded herself that PW1 and appellant might try to minimize their involvement in the matter (para 16 of the Statement of Findings).  In my view, the magistrate failed to give her full attention to the evidence of PW1 when considering it.

15.The appellant claimed that PW1 had a poor attitude during cross-examination.  Having read the transcript, I agree with the above claim.  The appellant was not legally represented.  It was possible that the appellant was unable to conduct his cross-examination smoothly due to the unco-operative attitude of PW1 at that time.

16.In my judgment, it is not necessary to delve into the matter of whether the white scratches appeared on the offside front wheel and the offside rear wheel of PW1’s car were a result of the collision with the appellant’s car.

17.In my view, when PW1 demanded $10,000 as compensation from the appellant, the appellant replied: “Even spraying the whole car won’t need $20,000[4],” it was, by no means, an indication of acceptance of responsibility on the part of the appellant.

18.To sum up, in my view, the magistrate failed to give independent consideration to the testimony of the appellant as to whether it was true or might be true when handling this “one against one” case where there was no independent witness or evidence. A particular matter in this regard is whether PW1 did “overtake” from the appellant’s left but made a denial of it in order to minimize his involvement in the matter.

19.For the reasons above, I find that the conviction was unsafe.  As a result, I allow the appeal, quash the conviction and set aside the sentence.

The Appellant in person, present.

Kwok Ka Ting, Anthea, Public Prosecutor of the Department of Justice, for Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.