HKSAR v. Leung Shun Cheong

HCMA000794/2002

HCMA794/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.794 OF 2002

(ON APPEAL FROM WSS 4450 OF 2002)

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Coram: Deputy High Court Judge Carlson in Court

Date of Hearing: 27 August 2002

Date of Judgment: 27 August 2002

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J U D G M E N T

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1)The appellant appeared before Mr Wyeth at Western Magistrates' Court on 6 June 2002. He faced a summons for careless driving arising out of a slight collision that occurred at about 2 p.m. on 3 November 2001. The matter can be stated shortly.

2)The appellant was driving his car along Stubbs Road in the direction of the Peak. He then arrived at a point in Stubbs Road where there is a confluence of three roads, a well-known spot, that is Middle Gap Road, Mount Cameron Road and Coombe Road. The appellant turned off Stubbs Road to his left and entered Coombe Road. Following behind was the main prosecution witness (PW1) who was driving his motor car; sitting next to him was his wife. They followed the appellant into Coombe Road. Their evidence was that the appellant having entered Coombe Road, appeared to hesitate, so they waited behind him. He then appeared to come to a stop and, without warning, reversed his vehicle which collided with the front of PW1's vehicle. The prosecution case, quite obviously, was that this amounted to a clear case of careless driving in that the appellant had not made sure that it was safe to reverse when he did.

3)The appellant gave evidence and his account of it was materially different. He says he drove into Coombe Road with the intention of turning into a car park on the right which is close to the beginning of Coombe Road. He proceeded down Coombe Road driving slowly. A dog ran out in front of him. He applied his brakes to avoid the dog and suddenly he was run into by the vehicle driven by PW1. What the appellant was saying was that PW1 had not allowed sufficient distance between his vehicle and that of the appellant's to deal with this unforeseen emergency. These were the two versions that were placed before the magistrate.

4)PW1's evidence was confirmed by that of his wife who gave evidence to the same effect. Then a policeman was called (PW3). He had given evidence that he had some difficulty in communicating with PW1. There were linguistic difficulties. PW1 is a French national as is his wife. He accepted in cross-examination that from the aftermath of the collision, which was a very slight one, it was difficult for him to work out who was at fault. His evidence was not entirely clear about what PW1 had actually said to him but there was some indication that he may have said that he was following the appellant's vehicle and that the appellant stopped suddenly and then reversed which was, perhaps, slightly different to the evidence that PW1 had given to the magistrate which was that the appellant had gone into the road and appeared to hesitate and stopped in a more gradual way, before reversing.

5)The magistrate had all of this before him. His task, of course, was to decide where the truth lay in this matter. He has given a very careful summary of the evidence before him in his Statement of Findings and come to the conclusion that PW1 and his wife had given the proper account of events and, having heard the appellant give his evidence, he rejected the account that had been given by him. The magistrate had seen the witnesses. There is nothing from his account of it in his Statement of Findings that would lead me to the conclusion that the findings that he arrived at were not ones that were plainly open to him. I am afraid that the appellant has failed to demonstrate that the magistrate has fallen into error in coming to the view that he did, with the consequence that this appeal must stand dismissed.

Representation:

Miss Grace Chan, SGC of the Department of Justice, for the Respondent

Appellant in person