HKSAR v. Butt, Aziz Akbar

HCMA 36/2020

[2021] HKCFI 3101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 36 OF 2020

(ON APPEAL FROM KCS 20776 OF 2019)

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Before:  Hon D’Almada Remedios J in Court

Date of Hearing: 23 June 2021

Date of Judgment:  18 October 2021

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J U D G M E N T

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1.The appellant was convicted of the offence of careless driving contrary to 38(1) of the Road Traffic Ordinance, Cap 374 [1] after trial by a magistrate[2] (“the magistrate”). On 10 January 2020 he was fined HK$1,000. He now appeals appeal against that conviction.

The charge

2.The particulars of the summons alleged that at 1230 pm on 23 December 2018, Butt Aziz Akbar (“the appellant”) drove a private car, registration AM1NAH, carelessly on Nathan Road near the junction of Peking Road, Kowloon.

Prosecution case

3.The prosecution case was that the appellant did not keep a safe distance whilst driving his private vehicle and collided with the taxi in front of him driven by PW1.

4.Three witnesses were called in support of the prosecution case.  The taxi driver Kwok Koon Hung, (“PW1”), the only attending police officer at the scene PC 20672, (“PW2”) and the police officer who followed up on the investigations PC 7097 (“PW3”).

5.PW1’s evidence was that whilst driving his taxi, registration number LX 3999 at around 1230 hours on 23 December 2018, along Nathan Road, he stopped at the red lights near the junction of Peking Road.  When the traffic lights turned green, the vehicle in front of PW1’s taxi started to move forward, he therefor also started to move his taxi forward.  However, PW1 then felt a light impact on his taxi from behind.  He alighted from his taxi to take a look.  He saw the private car driven by the appellant immediately behind his taxi.  He examined his taxi and saw “a little bit of scratches” on the rear bumper of his taxi.

6.Produced at trial were the Admitted facts[3], a sketch of the road layout (Exhibit P1)[4] and photos taken by PW3 (Exhibit P2(1)-(12))[5].

7.PW2 was the first police officer to arrive at the scene.  When he arrived, he examined both vehicles and found that there were some scratch marks on the rear bumper of the taxi (Exhibit P4(3)).  PW1 told PW2 there was a dent on the bumper but he could not see one.

8.PW2 did not see any damage on the appellant’s private car.  Under cross-examination, PW2 agreed that he suggested to the parties that if the matter of compensation could be settled, there would be no need for police disposal.

9.PW3 took over the investigation and was the handling officer of the case.  On 2 April 2019, three months after the incident, PW3 examined the taxi and took some photos (Exhibit P2).  PW3 did not see any damage on the rear bumper of the taxi.

Defence case

10.The appellant elected to give evidence and called no defence witnesses.

11.It was the appellant’s case that at the material time and location, he was driving along the left lane of Nathan Road, at a distance of less than 2 car lengths from the vehicle in front of him. PW1’s taxi suddenly cut into his lane from the right lane.  The appellant braked hard and managed to stop and avoided a collision.  The appellant’s car stopped behind the taxi with a gap of a few inches.

12.PW1 approached his car, saying that the appellant had hit his car.  The appellant disagreed and did not see any damage to the taxi.  PW1 then suggested that if the appellant paid compensation of HK$3,500, he would not call the police.

13.It was the appellant’s case that PW1 claimed compensation when he knew there was no damage at all.  As the appellant refused to compensate PW1, PW1 made these false allegations against the appellant.

Grounds of appeal

14.In his Perfected Grounds of Appeal[6], Counsel for the appellant, Mr James McGowan advances four grounds, namely:

1.  The magistrate erred in accepting PW1’s evidence (“Ground 1”);

2.  The magistrate erred in his assessment of the overall evidence of “damage” (“Ground 2”);

3.  The magistrate erred in rejecting the appellant’s evidence as being “totally unbelievable” (“Ground 3”); and

4.  For the above Grounds and/or generally the appellant’s conviction is unsafe and/or unsatisfactory (“Ground 4”).

15.In his submissions, Mr McGowan argues that PW1 and PW2 gave differing descriptions of the alleged damage.  Mr McGowan summarises, when looking at all the evidence, as the magistrate was obliged to do, these differences, which are not just a matter of semantics, should collectively have caused grave doubt on whether PW1, the key witness, was telling the truth or indeed whether the collision had occurred at all.[7]

16.It was further submitted that the magistrates’ explanations for the discrepancies in the prosecution witnesses’ evidence do not stand up to close examination, notwithstanding his advantage in hearing and seeing the witnesses.[8]

Respondents Submissions

17.Counsel for the respondent, Ms Audrey Parwani SSP submits that the magistrate was correct in his findings, and ultimately the verdict, both of which were supported by the evidence.[9]  Further, Ms Parwani submits that in all the circumstances, the magistrate was entitled to arrive at the finding.

18.Ms Parwani stated in her supplemental submissions[10] that there was no discrepancies between the descriptions of the damage given by PW1 and PW2, and in any event, the description of the damage does not relate to the material issue, which was whether the appellant had been careless in his driving manner at the material time.

19.It was the respondent’s submission that the magistrate did take into account the discrepancies in relation to the scratches as were seen by PW1 and PW2 and not seen by PW3.  There was nothing illogical or irrational about his finding.

Ground 1 and Ground 3

20.Grounds 1 and 3 relate to the credibility of PW1.  This was the main issue at trial.  I shall address these together.

21.For these two grounds, Mr McGowan is advancing the same argument albeit in a different way, that is, the magistrate was incorrect to accept PW1’s evidence and reject the appellant’s evidence.

22.As Mr McGowan has correctly pointed out, this is a straightforward factual dispute between the appellant and PW1 as regards the manner of driving of each other.

23.The magistrate reminded himself of considerations to keep in mind regarding credibility and good character:[11]

“19. Prosecution bears the burden of proof and has to prove the case beyond reasonable doubts. The defence needs not to prove anything. Defendant has a clear record. I remind myself of the Berrada’s warning as to the credibility and the propensity to commit crime by a person with good character, like the defendant.”

24.In consideration of the credibility of PW1, the magistrate addressed this stating: [12]

“21. In respect of the issue of compensation, in my view, it was not uncommon that, for incident involving only minor damage on vehicle, if both parties agreed to settle the matter, it would not be proceeded with by the police. According to PW2, he did mention the issue of the settlement to them at the scene.

22. PW1, after consulting the agent of the taxi and ascertaining the cost of replacement of a new rear bumper, asked for $3,500 for the cost. If it could be settled, then the matter would not be dealt with further by the police.

23. In my view, PW1 only asked for the cost for replacement of a new bumper.”

25.Regarding PW1’s failure to mention settlement discussions in his witness statement, the magistrate said:[13]

“25. In my view, as the matter could not be settled, PW1 would proceed with the matter. Obviously, he would only be asked by the police as to the course of the accident. The discussion of the settlement was not relevant to the course of the accident.

26. It was reasonable and acceptable for him not to mention the discussion of the settlement during the taking of the witness statement.  This did not affect his credibility.”

26.The magistrate accepted PW1’s evidence saying:[14]

“27. Further, PW1 was a taxi driver with a relatively high qualification. He could also speak English.

28. I have taken into account the circumstances of the case, namely, that this incident occurred in a very sudden manner and the defendant was a complete stranger to PW1. I did not believe PW1 would fabricate the case against the defendant.

29. Having considered PW1’s evidence, I found his evidence being clear and straightforward.  He gave a detailed account of the event.  I found him being an honest and credible witness.  I, accordingly, accepted his evidence.”

27.On the other hand, the magistrate found the appellant’s version of events to be illogical and unbelievable.  In rejecting the appellant’s evidence, he said:[15]

“35. Defendant’s allegation was that PW1 cut from his right lane into defendant’s lane. However, before that, defendant only maintained a distance about a little bit less than two cars’ length with the vehicle ahead.

36. In my opinion, it was illogical that there was sufficient distance for the sudden lane-cutting motion as alleged by him and that he could manage to stop without any collision. Secondly, PW1 further asked for compensation in a case of sudden lane-cutting without collision. I found it totally unbelievable.

37. I, accordingly, rejected defendant’s evidence.”

28.The magistrate was well aware that the issue at trial was plainly one of credibility.  It is trite law that on an issue of credibility, an appellant court is reluctant to interfere with the lower court unless the lower court has plainly erred, Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70.  Where facts are concerned, an appellant court does not have the advantage of receiving evidence first-hand as a magistrate does.  Even so, an appellant court will not fail to quash a conviction that it considers it unsafe Chou Shih Bin.

29.The findings of the magistrate on credibility cannot be criticised and I find not reason to interfere with it.  He was entitled to find as he did, aided by the benefit of seeing and hearing the evidence.  Upon review of the evidence, the magistrate was not plainly wrong to accept the PW1’s evidence as he did.

30.I find no merit in Grounds 1 and 3.

Ground 2

31.In Ground 2 it is submitted that the magistrate erred in his assessment of the overall damage to PW1’s taxi.

32.Mr McGowan submits that the magistrate’s explanations for the discrepancies in the PW’s evidence do not stand up to close examination, notwithstanding the magistrate’s advantage in hearing and seeing the witnesses.[16]

33.With respect, I do not agree.  Specifically on damage, the magistrate stated:[17]

“30. It should be noted that PW3 only examined the taxi and took the photographs in April 2019. That was some three months after the incident. In my view, for minor scratch mark, after few months’ time of daily use of the taxi, it might become unclear. Therefore, it could not be clearly seen on the photograph.

31. However, immediately after the incident, the first attending police officer could see the scratch mark on the rear bumper. His observation was consistent with PW1’s evidence.

32. Secondly, as to the nature of the damage, according to PW2, he did not see any damage on defendant’s private car.

33. In my opinion, for a very minor impact with very low speed, it might cause a minor scratch mark on the rear bumper of the taxi with no conspicuous damage to the front of the defendant’s private car.”

34.The magistrate was alive to the evidential discrepancies in relation to damage in the prosecution case.  He accepted the evidence of PW1 and PW2 that both of them had seen minor scratch marks on the rear bumper on the material day.

35.After some three odd months PW3 did not see any damage on the taxi.  No scratch marks could be clearly seen in the photos he had taken in April 2019.  The magistrate deduced that the minor scratch marks on the bumper might become unclear over a period of time.  This was not an unreasonable assumption.  However, even if he erred in his reasoning, what is clear is that there were no discrepancies of damage on the bumper as seen by PW1 and PW2.  PW2 was a police officer who was the first responder at the scene after the incident.  PW2’s evidence supported PW1’s evidence as to the minor damage which were scratch marks on the rear bumper. 

36.I find no merit in Ground 2.

Ground 4

37.Ground 4 is closely related to the previous grounds.  The question that has to be asked here is if the conviction of the appellant is unsafe and/or unsatisfactory?

38.As submitted by Ms Parwani, citing Chou Shih Bin, the appellant needs to show this court that the magistrates finding was unreasonable, illogical or inherently improbable or that the magistrate has misquoted, omitted or failed to consider any significant aspect of evidence.[18]

39.The magistrate has provided clear reasons for his verdict, analysed the evidence carefully and addressed the discrepancies in the evidence.  I am not satisfied he is plainly wrong or that he has erred.  I do not find that the conviction is unsafe or unsatisfactory.

Conclusion

40.The magistrate was justified in reaching his conclusion that the appellant was guilty of the offence of careless driving in that the appellant did not pay sufficient attention to the traffic ahead and collided with PW1’s vehicle.

41.For the foregoing reasons the appellant’s appeal against conviction is dismissed.

Ms Audrey Parwani, SPP of the Department of Justice, for the respondent

Mr James H.M. Mcgowan, instructed by Chan & Ho, for the appellant