HKSAR v. Poon Kit Wa

HCMA 416/2020

[2021] HKCFI 3353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 416 OF 2020

(ON APPEAL FROM KCS 515938 OF 2020)

________________________

BETWEEN

________________________

________________________

REASONS FOR JUDGMENT

________________________

1.The Appellant appealed against the conviction after trial of one count of careless driving, contrary to section 38(1)  of the Road Traffic Ordinance, Cap 374. The appeal against conviction was dismissed and here below are my reasons.

Facts 

2.As described in the Respondent’s written submission, the incident happened at a roundabout at the intersection between Po Ning Road and Po Shun Road (“the Roundabout”).

3.The Roundabout is a “spiral roundabout” with two lanes, an outer lane and an inner lane, with three exits/entrances, namely Po Ning Road, Po Shun Road and Po Lam Road (in a clockwise direction).  So if a vehicle enters the Roundabout from Po Ning Road, the first exit will be Po Shun Road and the second exit will be Po Lam Road. 

4.There are two lanes on Po Ning Road entering the Roundabout.  The first left lane allows a vehicle to turn left and enter Po Shun Road via the first exit, or go straight and enter Po Lam Road via the second exit.  However, the second left lane only allows a vehicle to go straight and enter Po Lam Road via the second exit.

5.According to PW1, he was driving his taxi on the first left lane of Po Ning Road, and had entered the Roundabout from the first left lane, that is the outer lane of the Roundabout from Po Ning Road, and he was heading towards Po Lam Road.

6.While he was on the outer lane of the Roundabout, the Appellant who had entered the Roundabout from the second left lane of Po Ning Road into the inner lane of the Roundabout, suddenly appeared and collided with his taxi, causing damage to the front right wheel of the taxi. 

7.A police officer (PW3)  who arrived at the scene shortly after the accident, gave evidence that the Appellant told him that before the collision, she was driving on the second lane of Po Ning Road, and when she entered the Roundabout, she was on the inner lane.  She then turned left intending to exit the Roundabout to enter Po Shun Road when the taxi suddenly approached her from the outer lane and the collision occurred.

8.The Oral Admission was challenged on the ground that there was no caution administered before the admission, and there was no notebook record of the admission and the Oral Admission was not put to the Appellant during the cautioned interview that took place some days after the accident. 

9.The learned Magistrate adopted the alternative procedure in dealing with the Oral Admission.  At the end of the day, the learned Magistrate found that the police officer who arrived at the scene was only questioning the Appellant as to what happened, and therefore, it was too premature to require cautioning at that stage, as at that time he had not formed the view that the Appellant was a suspect.

10.The learned Magistrate also considered that the lack of a caution was only technical in nature and there was no unfairness caused to the Appellant.  The learned Magistrate also noted that at the caution interview, the Appellant had made it clear to PW3 that she would not answer any question. So the learned Magistrate found that there was no bad faith on the part of PW3. So the learned Magistrate refused to exercise his discretion to exclude the Oral Admission.    

11.The Appellant had chosen not to give evidence at all at the trial.  The learned Magistrate found that the prosecution witnesses were honest, reliable and truthful. Therefore, at the end of the day, the learned Magistrate found that the evidence of PW1 was supported by his dash cam video which was produced in Court as Exhibit P4.

12.It is clearly proper for the learned Magistrate to draw an irresistible inference that the Appellant was travelling on the inner lane of the Roundabout, and had failed to observe the traffic on her left, including the taxi driven by PW1.  She was in the wrong in cutting into the outer lane without making a proper lookout, and therefore convicted the Appellant. 

Grounds of Appeal

13.Mr Shah on behalf of the Appellant, submitted basically that the evidence of PW1 should not be relied upon. Mr Shah asserted that Exhibit P4 supported the Appellant’s case. However, I do not see how it would have supported the Appellant’s case. 

14.Mr Shah contended that since the Appellant was already on the Roundabout when PW1 entered the Roundabout, she had the right of way, which is a totally unmeritorious point, because whoever goes into a roundabout first does not give that person a right of way.  It is trite to say that once on the Roundabout, the Appellant had to give way to traffic on the outer lane before she could safely cross the outer lane for the Po Shun Road exit. 

15.As to Mr Shah’s complaints that the Oral Admission should not have been admitted, and that the learned Magistrate should not have drawn an irresistible inference in the circumstances.  Again I do not see any merit in that. The learned Magistrate had explained fully as to why the Oral Admission was found admissible, and I do not need to repeat his reasoning here.  Save only to say that I find that the learned Magistrate had not committed any error in making that conclusion, and for drawing the irresistible inference that he did.

16.So at the end of the day, I had no hesitation in dismissing the appeal against conviction.

Mr Geoffrey Wong, PP of the Department of Justice, for the Respondent

Mr Mohammed Jawadullah Shah, instructed by Michael Pang & Co, for the Appellant