R. v. Tong Yat Kai

HCMA000685/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.685 OF 1996

--------------------

--------------------

Coram : Hon Stock, J. in Court

Date of hearing : 9 August 1996

Date of judgment : 9 August 1996

-------------------------

J U D G M E N T

-------------------------

1. This is an appeal against conviction for a road traffic offence. The appellant was said to have opened the door of his van on 1st December 1995 in Apliu Street, Kowloon without reasonable excuse so as to cause danger to another person. He was convicted by a magistrate in May 1996 and fined.

2. The facts are relatively straightforward. The complainant was driving his vehicle along Apliu Street. He saw the appellant's goods van and it was double parked. That much is a common ground. The complainant said that he was travelling about 15 kph. His evidence was that when he was parallel with the van he heard a bang. What had happened was that the appellant had opened the door of the van whilst the complainant's vehicle was passing it and caused the van's door to strike the complainant's vehicle. A police officer went to the scene of the accident. He noticed that at that stage the private car was about four or five feet ahead of the van.

3. The appellant's case was that he was indeed double parked, waiting for a parking space to become available. There was ample room for vehicles to pass to his right. Through his wing-mirror, he saw the complainant's vehicle approaching some 90 feet away and at a speed of about 50 kph. At that point, that is when the complainant's vehicle 90 feet away, he opened the door of his van. He said that he opened it just a little, because he wanted at first to retrieve his mobile telephone. His evidence then was that having retrieved his mobile telephone, he opened his door further and there was a collision. He was quite satisfied that if the complainant had steered his vehicle straight ahead in the lane in which he was then travelling, as indeed there was every indication he intended to, there was no prospect of danger of an impact to the door of the van. However, before the appellant could alight from the van the vehicle collided with the door of the van, and the door was damaged. The suggestion was that the complainant had taken no care to pass the vehicle in its existing configuration and had properly started too early to manoeuvre his vehicle towards the left part of the carriageway which lay ahead of the goods van.

4. The magistrate in her Statement of Findings emphasised, rightly in my view, that it was incumbent on the van driver to ensure that it would safe to open his van door. That was so whatever the complainant's speed. If indeed the complainant was approaching at 50 kph, she said, "the care to be exercised was all of great help." She noticed that the damage to the van door was to its outside, a fact inconsistent with the appellant's version of events.

5. I have listened to Mr Wu's able address to me. He emphasises that there were number of discrepancies. In particular, a change in the complainant's evidence from saying at one stage that he had been travelling in the left hand part of the road prior to reaching the van rather than in the middle and changing that in cross-examination to say that he was at all times travelling in the middle of the road. And then he drew my attention to a conflict of evidence between the main prosecution witness and the evidence of an officer, as to whether there were vehicles double parked on the right hand side of the road.

6. In my judgment the discrepancies are not significant in the light of what the appellant himself said that he did. The magistrate was quite right in saying that the discrepancies were not such as to affect the evidence about the appellant opening his van door. The occupant of a parked van must take great care when he knows there are approaching vehicles about to pass his own. If indeed there was a change of course, then that sort of manoeuvre is to be expected and anticipated, especially if there is free usable road space in front of a double parked vehicle. What the appellant did, according to his own evidence, was to open the door wider at the second stage and, in my judgment, it is self-evident that he did so without ensuring that it was safe to do so in relation to the vehicle which he had already seen.

7. Mr Wu has drawn my attention to the case of Sever v. Duffy [1977] RTR 429 in which a magistrate was said to be entitled to take the view that in the circumstances of that particular case the occupant of a stationary vehicle had done all that it was reasonable for a driver to do. That case, turned, as do all these cases on its particular facts, and it is an noteworthy distinction that in that particular case, the evidence of the defendant, which was accepted, was that immediately before he opened the door of his car he was unable to see any other vehicle. That is not the situation in this case.

8. Then Mr Wu urges upon me the fact that the appellant said that the left hand side front wing-mirror of the private car had hit his door whereas the driver of the private car said that it was his fender. It was pointed out that the van door was much higher than the rear of the private car and therefore it was inherently unlikely that the fender struck the appellant's vehicle. If indeed, it was the merits as Mr Wu said the distance between the two cars was wider than suggested by the complainant. That it seems to me is not a central point to this case at all but more particularly it is a point which enures against the interest of the appellant. The appellant admitted that he opened the door when he did. And if it was the mirror of the private car which struck his van, it shows that the private car was indeed keeping a more healthy distance and if the fender had been damaged.

9. In my judgment there is no merit in this appeal and accordingly it is dismissed.

Representation:

Mr D.G. Saw, A.S.C.P., for Crown

Mr Paul Wu, inst'd by Phyllis K.Y. Kwong & Leung, for Appellant