HKSAR v. Tong Hung Kwok

HCMA000367/1999

HCMA 367/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 367 OF 1999

(On Appeal from NKCC 8909 of 1998)

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Coram: Recorder Ching Y. Wong SC in Court

Date of hearing: 30 July 1999

Date of handing down reasons for judgment: 22 December 1999

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REASONS FOR JUDGMENT

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Charge & Trial

1. On 17th March this year, the Appellant was convicted after trial of the offence of 'Reckless Driving' contrary to S.37(1) of the Road Traffic Ordinance Cap.374. He was sentenced to 14 days' imprisonment and was disqualified from driving all vehicles for 3 months.

2. The Particulars of the charge was that on 11th September 1998, the Appellant drove recklessly "at the junction of Tung Chau Street and Fat Tseung Street, Kowloon". The reason for specifically mentioning the location of the reckless driving will become clear later.

3. The Prosecution's case was basically that the Appellant had deliberately driven his vehicle through the red traffic lights governing his lane and collided with a Porsche motorcar which was crossing the junction. The driver of the Porsche was injured and the car was badly damaged.

4. The Defence's case was that the Appellant had driven through the junction with the traffic lights governing his lane shewing green and that the collision was caused by the Porsche suddenly crossing into his path.

Evidence

5. PW1, the driver of the Porsche, gave evidence to the effect that he entered the right turn pocket of the Southeast bound carriageway of Tung Chau Street following another car when the lights turned green in his favour. He stopped for about one second at the stop line of the pocket and looked at the traffic lights on the opposite side of the junction for his carriageway and saw it was green. He then looked at the opposite direction of Tung Chau Street and saw a vehicle coming along the fast lane and also a good's vehicle (the Appellant's vehicle) in the slow lane some 8 to 10 car spaces away from the stop line. As he did not have an entirely clear view of the opposite lanes, he moved slowly forward into the yellow box and again looked at the same traffic lights on the opposite side of the junction. This time he saw that it was amber. He also noticed that the goods vehicle appeared to decelerate and it was 5 to 6 car spaces from the stop line. When the lights turned red, he immediately turned right into Fat Tseung Street at about 20-30 kph. Within 1 to 2 seconds of negotiating the turn, the rear of his car was hit by the goods vehicle forcefully.

6. PW3, Mr.YAU Kwok-ping was called to give expert evidence in respect of the traffic lights at that junction. His evidence was, inter alia, that the lights thereat operated in 5 stages which together took 100 seconds. Stage A started with the lights shewing green for both directions along Tung Chau Street and permitted vehicles travelling along it in a Southeast bound direction to turn right into Fat Tseung Street. This stage took 26 seconds and at the end of it, the lights for vehicles travelling in the Northwest direction will turn red. Then came Stage B which only shewed green in favour of vehicles travelling along Tung Chau Street in the Southeast bound direction. Again this permitted vehicles travelling in that direction to turn right into Fat Tseung Street. This stage lasted for 12 seconds and included the time taken for the lights to turn amber and then turn red for the vehicles travelling in the Southeast direction.

Statement of Findings & Grounds of Appeal

7. The learned Magistrate in his Statement of Findings noted the various discrepancies in the evidence of PW1 between his statement to the police and his oral testimony and with the evidence of PW3. In respect of the discrepancies with the evidence of PW3, the learned Magistrate said, inter alia:

"PW1 also said he saw the traffic light at point 3 on exhibit 3 was yellow, and at that time the goods vehicle was 5-6 private car spaces from this traffic light. He believed from his experience that the light controlling the goods vehicle must be red and he saw the pedestrian light at point 10 on exhibit 3 was green. He later said he looked at the pedestrian light first at point 10 and then at the light of point 3. However it was clear from PW3's evidence that the light at point 3 should be red for one second before the light at point 10 turned green. I considered this inconsistency carefully but found the witness was mistaken as to which light he saw first." (emphasis added)

8. The one ground of appeal was that,

"When assessing the credibility and reliability of PW1, particularly in resolving the inconsistencies of the account about the accident that he gave to the police and the court, the learned Magistrate did not or did not give sufficient consideration to the evidence of PW3 and exhibit P7 (the light plan) regarding the light sequence."

Discrepancies

9. It is trite law that when there are difficult discrepancies of material, it is the duty of a tribunal of fact to indicate how such difficulties had been satisfactorily resolved. With respect, simply saying that the key witness was "mistaken" is not a satisfactory way of resolving such difficulties; especially when the witness himself had not indicated that he was not sure of that particular piece of evidence which he was giving and that piece of evidence went to the root of whether his evidence was accurate and reliable.

10. Since PW3's evidence as to the time it took for Stage A to be completed, namely 26 seconds, was accepted, this should have raised at least reasonable doubts about the reliability of PW1's evidence as to what he did, what he saw and how he drove. For the Appellant's vehicle to have gone through the red light, the lights would have had to be at Stage B which means that the whole of Stage A had been completed. However, according to PW1, the time span from the point he drove into the pocket (which was at the beginning of Stage A) to the collision was but a few seconds. The difference between a few seconds and 26 plus seconds is too great a discrepancy to be ignored even on the basis that PW1's evidence of time was necessarily only a rough estimate. Half a minute is a long time for negotiating a turn at the lights without stopping for any appreciable period. Having taken all the above into consideration, I felt uncomfortable about the conviction and was of the view that there was a lurking doubt.

Order

11. In the circumstances, the conviction was quashed, the sentence of 14 days' imprisonment and 3 months' disqualification were set aside.

Representation:

Ms. Winnie HO, SGC for the Respondent

Mr. Kevin WONG instructed by M/s Karbhari & Cham for the Appellant