HKSAR v. Chau Kwok Wing

HCMA 389/2020

[2021] HKCFI 1039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 389 OF 2020

(ON APPEAL FROM KCS 514800 OF 2020)

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J U D G M E N T

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1.The Appellant was charged on a summons for one count of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap 374. He was convicted after trial and ordered to pay a fine.

2.The Appellant now appeals against his conviction.

3.The case is not a difficult one.  The prosecution case was that, about 7:00 pm on 21 February 2020, PW1 was driving his motorcycle along the first left lane of Tung Choi Street towards the box junction.  The Appellant was driving on Playing Field Road which, at the junction there are give way lines.  Thus PW1 had the right of way.  PW1’s evidence was that he approached the junction, the Appellant did not give way and entered the junction into the path of his motorcycle.  As a result, PW1 said he had to brake hard to avoid the collision.  Both vehicles came to a stop with about 1 metre distance between them, and this was captured in a video footage which was produced in Court.       

4.The Appellant, unrepresented at the trial, had elected to give evidence.  The Appellant’s case was that he was travelling along Playing Field Road behind a coach.  The coach in front of him made a left turn onto Tung Choi Street which is the street on which PW1 was travelling on. At that point PW1’s motorcycle was still about 50 metres away from the junction on his right, and the Appellant said that since the coach was still inside the junction, the Appellant thought that PW1 would not enter the box junction.  The Appellant then proceeded to drive straight through the junction. It was then that both vehicles applied their brakes to avoid collision.       

5.It was clear that as far as the Appellant’s defence was concerned, he said that he felt that since the coach was still in the junction, PW1 was approaching towards the junction, the coach had not cleared the junction, so it was his case that he should be clear to drive straight across to the other side, straight through the box junction.     

6.It is clear that with the give way lines along the road on which the Appellant was driving on, it was his duty to make sure that person with the right of way crossing that box junction has the right of way. So the issue before the learned Magistrate was therefore whether the Appellant was driving in a careless manner.  The learned Magistrate found that the Appellant was indeed driving carelessly because it was his duty to cross the junction in a safe manner.  It was his duty to give the right of way to PW1 and also he found that the Appellant was still behind the give-way lines when PW1 entered the junction.  The learned Magistrate observed that PW1’s motorcycle had maintained a constant speed and never slowed or showed any sign that he was giving way to the Appellant. 

7.The learned Magistrate also noted that the Appellant said, under cross-examination that after seeing PW1 was about 50 metres away from the junction, he accelerated and did not again look at the traffic coming on his right.  Therefore, in a way he was over anticipating what PW1 was going to do.  The learned Magistrate also noted that the car camera footage that PW1 had maintained a constant speed when entering the junction and did not change lanes.  The learned Magistrate found that PW1 was an honest and reliable witness.  After considering all the evidence, the learned Magistrate then convicted the Appellant.

8.The Appellant appealed in person.  In his letter to the Court he submitted two grounds of appeal:

(1) The prosecution video, when played in Court, was not able to slow or pause in the crucial 10 seconds of frames which the Appellant submitted was crucial to his case (“Ground 1”);

(2) The Court, the Prosecution lawyer and witnesses failed to acknowledge the meaning of the “Give Way” sign in conjunctions with a box junction (“Ground 2”). 

9.The learned Magistrate found the footage to be sufficiently clear, was able to assess the Appellant’s driving manner as well as PW1’s driving manner. In relation to Ground 2, the learned Magistrate had considered what the “Give Way” sign, the painted triangle on the road surface and the double-dash lines on the road meant.  If you refer to the Road Users’ Code, it is very clear that the “Give Way” sign and the road markings means that the person travelling on that part of the road has to stop, if necessary, and has to give way, when necessary, to traffic which has the right of way.        

10.It is often misunderstood by drivers on a road coming to a box junction that, the traffic coming from the right, with the right of way, has to give way to the traffic coming from a minor road if they see them.  That is not the case at all, because the person coming into the box junction with the right of way, do not have to give way to the minor road users.  In fact, it is the minor road users coming into the box junction who have the duty to observe the oncoming traffic and give way to the traffic which have the right of way before they can proceed to their destination across the box junction.

11.The Appellant asked this Court what is the box junction for, that is, as I have said to the Appellant, it is to ensure that no unnecessary collision is caused, because when coming to a box junction, everybody has a right of way, then inevitably there is going to be collision. Therefore, the markings are there in order to remind drivers that they have to be careful when approaching a box junction to observe these very basic facts. 

12.The fact that the coach in front of the Appellant had not cleared the junction, it is neither here nor there, it did not absolve the Appellant from observing the basic rule that he had to give way to the traffic coming on his right.  It did not matter if the coach in front of him was still in the box junction.  It was his duty to observe the traffic coming from his right. 

13.I cannot see any ground for interfering with the conviction and so the appeal is dismissed.      

Mr King Chan, PP of the Department of Justice, for the Respondent

The Appellant acting in person