HKSAR v. Mak Kwok Wah

HCMA000266/1997

1997, NO. MA 266

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

^{____________________}

^{____________________}

Coram: Deputy Judge Gill in Court

Date of hearing: 10 September 1997

Date of judgment: 10 September 1997

^{____________________}

J U D G M E N T

^{____________________}

1. The appellant, on 26 February 1997, was convicted by Mr Daniel HO, magistrate, for the offence of driving a motor vehicle carelessly. He now appeals that conviction.

2. The prosecution case was adduced by a motorcyclist, PW1, and a police officer, PW2, who was later called to the scene. PW1 said he was proceeding in the outside lane of Tuen Hi Road at around 8 pm. He passed a stationary bus waiting at a bus stop. But as he did so, a taxi emerged from in front of the bus into the lane occupied by him at a distance from him which prevented his being able to avoid a collision, although he did attempt that. The driver was the appellant.

3. Before PW2 the appellant admitted he had pulled out from in front of the bus and that it was blocking his view of approaching traffic.

4. The appellant gave evidence. He said he had stopped in front of the bus, picked up some passengers and began to proceed. He saw the motorcycle overtaking on the inside of a private car, going out of control, as he put it, before it brushed into his taxi which was at that time stationary. He said in cross-examination that he had a clear view and that the motorcycle was approaching at high speed. He denied attempting a manoeuvre to put his vehicle in the fast lane and thus in the path of the motorcyclist.

5. The learned magistrate believed PW1's account, and on the facts found the appellant guilty.

6. His appeal is on the grounds that the magistrate erred in considering the inherent probabilities and improbabilities of the two opposing accounts put before him in evidence, in utilising the alleged admission of the appellant where he had not been cautioned before making it, and in failing to pay significance to the absence of evidence from PW1's pillion passenger.

7. A ground of appeal which particularly requires exploring is the appellant's so-called admission that the bus was blocking his view and that he could not see if any vehicle was approaching along the fast lane. This was included in his narrative to the police officer as he was invited to explain what happened.

8. Given the circumstances, it was not, as I find, a situation where a caution was warranted. The magistrate, in my view, was entitled to take into account what the appellant allegedly said, attaching such weight as was warranted.

9. As is so often the case where a motorist is charged for a traffic offence arising out of an accident, there were material disputes of fact in the evidence that those involved gave which the learned magistrate was required to resolve. He had the witnesses before him, he saw them as well as heard them.

10. He came to his findings of fact after a careful consideration of all that they told him. He was not obliged to query why it was that PW1's passenger was not called to give evidence. He directed himself correctly on the law before, on his findings of fact, finding the charge proved as he did. The process at which he arrived at his decision was without flaw.

11. The appeal is dismissed.

Representation:

Miss Polly Wan Shuk FONG, (SGC) for HKSAR

Mr Zia Bey Murtyzade (Kwan & Kwan), for Appellant