R. v. Lee Wing Ming

HCMA001076/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1076 of 1996

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Coram: Hon Leong, J. in Court

Date of hearing: 8 January 1997

Date of judgment: 8 January 1997

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J U D G M E N T

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1. The appellant was charged with careless driving, being driver of vehicle in an accident whereby personal injury was caused to a Ms Li failed to stop and failed to report the accident in person at the nearest police station.

2. The evidence against the appellant came from two prosecution witnesses. PW1 told the magistrate that on the morning of 26th April 1996 at 8:25 am when she was boarding a No.15 bus, the bus doors started to close and the bus moved off. Because of that she fell out of the bus on to the ground and she sustained injury in the fall. Her friend PW2 was behind her at the time. PW2 shouted to the bus driver to stop the bus and it stopped. PW2 then spoke to the driver who made no response. Later the bus was driven away. PW2 told the magistrate that she was behind PW1 and saw her board the bus. When PW1 had one foot on the steps, the doors closed and the bus moved. PW1 fell to the ground. PW2 also told the magistrate that she went forward and shouted very loudly to the bus driver that some one was lying on the ground. The bus then stopped. The bus driver made no response when she shouted at him. The bus then moved away.

3. The appellant admitted he was the driver at the time and he had told passengers to step inside the bus and that he would close the door before he actually closed the doors. He had looked at the rear mirror before he moved off. He said he never heard anyone shouting someone had fallen. In other words, his case was one that he was unaware of the accident.

4. The magistrate concluded the evidence of PW1 and PW2 were "entirely fair, honest and accurate" and "mutually corroborative to a very high degree". The magistrate did not believe the appellant's evidence that he was unable to see to the left because passengers did not move into the bus and he had looked at the rear mirror that no one had fallen. He found the appellant had closed the door and set off before PW1 was safely on board and that caused PW1 to fall. He found the appellant was aware that PW1 had fallen to the front of the bus and PW2 had informed the appellant of what happened.

5. The appellant's complaint is that the magistrate's finding that PW1 fell from the bus was wrong because PW1's version of event is against the law of physics. Mr Yee for the appellant submitted that the evidence was not certain if the appellant had one or two feet on the steps of the bus and if she had two feet there, when the doors closed she could not have fallen from the bus and if she fell when the bus moved, she would have fallen behind the bus instead of ahead of the bus. There is no expert's evidence on how falling objects from moving vehicles behave. Mr Yee's submission is one based on speculation. The crucial issues were whether PW1 had fallen from the bus when the bus moved and before she was safely on the bus and the appellant, when he moved the bus, was aware that PW1 was still boarding but nevertheless moved off regardless. That the evidence is not certain whether PW1 had two feet on the step or one foot is of little weight.

6. The magistrate had assessed the evidence of PW1 and PW2 and accepted their evidence and he could not be criticized for his finding that PW1's fall was caused by the appellant closing the doors and moving off before PW1 was safely on the bus. The magistrate was entitled to infer from the evidence that after PW2 shouted to the appellant, the bus stopped for a while that the appellant knew what happened but nevertheless drove away without reporting to the police.

7. The magistrate having heard the evidence from the appellant was entitled to reject his evidence that he had looked at the mirror and ensure no one had fallen before he moved away.

8. Mr Yee submitted that the appellant was not careless even if he moved away the bus but instead PW1 was reckless in getting on the bus when the door was about to close. The first part of his submission cannot be right. Moving off a vehicle when a person is still boarding it must be careless driving in every sense of the offence. There is no evidence to support the latter part of his submission.

9. On the evidence accepted by the magistrate, the magistrate was entitled to convict the appellant on all three charges. The appeal against conviction is dismissed.

Representation:

Miss Denise Chan, C.C., for Crown

Mr Kent K.S. Yee, inst'd by M/s Chan, Lau & Wai, for Appellant