HKSAR v. Lam, Joseph Chok

HCMA 139/2023

[2025] HKCFI 2247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 139 OF 2023

(ON APPEAL FROM FROM ESS 26888 OF 2022)

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J U D G M E N T

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Background

1.The Appellant was convicted of “Careless driving”[1] following a trial before Mr CHU Man-hon, Gary (the “Magistrate”). He now appeals against the conviction.

2.The Appellant was driving a private car with registration number AL 1229 (“the vehicle”) along the downward slope from Ground Floor to the Lower Ground Floor of Cheung Kong Centre (“CKC”).

3.Upon reaching a left bend leading to the carpark of CKC, the right front bumper of the vehicle made contact with one of the pillars which was the 4^th one from the top of the slope.

4.It is the prosecution’s case that the Appellant drove his car carelessly in that he did not pay due care and attention when driving.

5.In his evidence, the Appellant admitted colliding with the pillar but denied driving carelessly. He maintained that as the road surface was wet the vehicle skidded that caused the accident.

The Magistrate’s findings

6.The Magistrate rejected the Appellant’s evidence and did not accept the vehicle had skidded. He ruled further that the Appellant was driving carelessly with the following reasons:

“41. It was undisputed that the Defendant’s right front corner of his bumper did collide with the said pillar when turning left. Since the Defendant’s evidence has been rejected and it follows that there isn’t any sensible explanation and according to HKSAR v Wing Kin Wah HCMA 490/2005 and Lee Kin Yip HCMA 215/2009, the Court could draw an irresistible inference that the Defendant did not exercise due care and attention when driving downslope and when making the left turn which in turn caused the right front corner of his bumper to collide with the 4^th pillar.

42. Even without the above case law for the Court to draw the inference, in my view, there is ample evidence from the CCTV to show that the Defendant was not paying due care and attention when driving. I have carefully examined the CCTV footages at different angles. Even though the surface of the road was wet, I find that there was no skidding. I find that the Defendant simply did not pay due care and attention when driving downslope because he should have controlled his speed properly by applying more brakes before and when making the turn. He also misjudged the timing to turn which caused him to collide with the pillar. A careful and prudent driver driving along that road would be able to complete the turn without colliding with the pillar just like the car in front of him moments earlier as can be seen in the relevant CCTV footages.

43. By reasons of the aforesaid, I am satisfied that the Prosecution has proven each and every element of the offence beyond reasonable doubt. The Defendant is convicted of the offence accordingly.”

Grounds of Appeal

7.Mr Kim McCoy[2], counsel for the Appellant, advanced 4 grounds in the appeal:

Ground 1

The learned Magistrate erred in fact and law in convicting the Appellant on the single summons for careless driving as there was insufficient evidence to prove that the Appellant had driven on a road carelessly, namely that he failed to exercise the degree of care and attention that any reasonable and prudent driver would have exercised in the specific factual circumstance.

Ground 2

The learned Magistrate erred in fact and law in convicting the Applicant despite there not being positive evidence of carelessness due to the doctrine of res ipsa loquitur not applying in such cases.

Ground 3

The learned Magistrate erred by concluding that the Prosecution had fully and properly put the Prosecution case to the Defendant.

Ground 4

The learned Magistrate erred in concluding the evidence of the Appellant was both incredible, unreliable and was self-contradictory, which led to the learned Magistrate wrongly rejecting the Appellant’s evidence entirely.

Discussion

8.It is trite that the doctrine of res ipsa loquitur has no application in criminal law and the burden of proof rests squarely on the prosecution to prove that the defendant fell below the standard of a reasonable driver in a case of careless driving[3].

9.In other words, the mere fact that an accident has happened does not call for an explanation from the defendant and is not enough to prove careless driving without evidence on the defendant’s driving manner.

10.By reading paragraph 41 of the Magistrate’s Statement of Findings, it transpires that the Magistrate has applied the doctrine of res ipsa loquitur in arriving at his conclusion. The cases he cited do not support his propositions.

11.The Magistrate’s reasoning is basically that, as a collision has happened and the explanation given by the Appellant is rejected, the Appellant must have driven carelessly as there is no sensible explanation to explain why the collision happened. In my view, with respect, the doctrine of res ipsa loquitur has been applied here.

12.In Wing Kin Wah, a case relied on by the Magistrate, the defendant collided with a lamp-post at the side of the road and lost control of his car causing another car to crash onto his. In his judgment, the late Deputy High Court Judge Carlson had the following to say in the concluding paragraph:

“12. The manner of the Appellant’s driving as found by the Magistrate, which was that he had inexplicably zigzagged along the road shortly before he collided with the lamp-post, in the absence of any sensible explanation, clearly amounted to careless driving. The Magistrate was correct in coming to that conclusion and accordingly, this appeal must be dismissed.” (emphasis added)

13.It is in this context that the learned judge mentioned the phrase “in the absence of any sensible explanation”. The defendant in that case was zigzagging shortly before he collided to the lamp-post and it was on that basis that he was accused of careless driving. What called for an explanation was the zigzagging but not the collision.

14.In Lee Kin Yip, another case relied on by the Magistrate, the defendant was charged with careless driving and failing to provide breath specimen. He was seen zigzagging on the road before crashing onto the railings that caused his vehicle toppled over. The late Mr Justice Tong considered Wing Kin Wah and reiterated the principle that, if a vehicle is seen being driven irregularly on the road without reasonable explanation, an inference can be drawn that the driver was driving carelessly or even dangerously.

15.In order to illustrate the meaning of “driving irregularly”, the learned judge gave the following examples: (i) swerving out of the lane, (ii) hitting a lamp-post or railings, (iiii) zigzagging and (iv) vehicle toppled over. All of the above examples were present in the case.

16.In my view, the learned judge did not mean that hitting a lamp-post or railings alone will call for an explanation, otherwise he will be applying the doctrine of res ipsa loquitur. As in Wing Kin Wah, the focus of the learned judge was on the irregular or atypical driving manner of the defendant, but not the consequence of it.

17.In my judgment, if there exists evidence that a driver drives irregularly or atypically, this will then call for an explanation from the driver as to his driving manner and without which, an inference of carelessness can be drawn. However, if there is no such evidence and the only evidence is that an accident has happened, that will not call for any explanation and no inference of carelessness can be drawn merely because of the presence of an accident.

18.In the present case, the Magistrate was mistaken in applying the doctrine of res ipsa loquitur in a criminal case.

19.In paragraph 42 of the Statement of Findings, the Magistrate gave an alternative reason for the conviction. He found that the CCTV footages covering the accident showed that the Appellant was driving carelessly. The Magistrate concluded that there was no skidding, the Appellant failed to control his speed properly, misjudged the timing to turn, and a careful and prudent driver driving along that road would be able to complete the turn without colliding with the pillar, just like the car in front of him passed moments earlier. The Magistrates did not elaborate further why he took such views.

20.I watched the CCTV footages carefully for several times. The footages showed the Appellant’s car going along the road downslope, bending to the left then made contact with the pillar. I found it difficult to tell, by watching the footages only, if the vehicle was travelling in an appropriate speed, whether any skidding occurred, or what caused the vehicle made contact with the pillar.

21.The fact that another vehicle passed through uneventfully some moments ago is simply irrelevant.

22.I do not find the reasons given by the Magistrate in paragraph 42 convincing.

23.In the premises, I find the Magistrate mistakenly applied the doctrine of res ipsa loquitur in finding the Appellant drives carelessly.

24.Also, there is insufficient evidence on the Appellant’s driving manner to prove carelessness beyond reasonable doubt.

25.The Appellant succeeds in Grounds 1 & 2 of the Grounds of Appeal.

26.Regarding Ground 3, Mr McCoy complained that the prosecution did not put to the Appellant when questioning him that no skidding has ever happened and therefore, it would be unfair for the Magistrate to reject the Appellant’s evidence that skidding did happen.

27.The Magistrate rejected the evidence of the Appellant because he found that some aspects of his version of facts were incredible and self-contradictory which adversely affected his credibility. There is nothing peculiar to the issue on whether skidding has occurred that may require the Appellant to address on in his evidence which could have changed the Magistrate’s view.

28.In my view, whether the prosecution has put to the Appellant that there was no skidding is neither here nor there. No prejudice has been caused to the Appellant by not putting to him as such. Ground 3 is not valid.

29.For Ground 4, the Magistrate gave a detailed reasoning[4] in rejecting the Appellant’s evidence. The Magistrate found that some aspects of his evidence were inconsistent with physical evidence and self-contradictory. He also found that the Appellant was evasive in answering questions.

30.I am of the view that the Magistrate is entitled to take into account those factors in arriving at his conclusion not to accept the Appellant’s evidence. I see no reason to disturb it.

Conclusion

31.The Appellant is successful in this appeal on Grounds 1 and 2.

32.The appeal is allowed and the conviction and sentence are set aside.

Mr LEE Chuk Kwan, Derrick, Public Prosecutor of the Department of Justice, for the Respondent

Mr McCoy, Kim Joseph and Leung, Mr Sebastian John instructed by Messrs David Fenn & Co. for the Appellant