HKSAR v. Fung Kai Tung Augustine

HCMA001174/1998

HCMA 1174/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1174 OF 1998

(On appeal from SPS 12050 of 1998)

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Coram: Deputy Judge McMahon in Court

Date of Hearing: 26 March 1999

Date of Judgment: 26 March 1999

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J U D G M E N T

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1. The Appellant was convicted of an offence of careless driving contrary to s. 38(1) of the Road Traffic Ordinance, Cap. 374 by a magistrate at San Po Kong Magistracy on the 30 October 1998.

2. The facts of the case as found by the magistrate were that the Appellant was driving a private car in Lung Cheung Road West near Choi Hung estate behind a light goods vehicle.

3. The speed limit there was 50 kph. The front of the Appellant's car was 11 metres behind the front of the light goods vehicle. Both vehicles were travelling at 63 kph.

4. The distance between the rear of the light goods vehicle and the front of the Appellant's car was found by the magistrate to be 5.6 metres. The magistrate based his findings of these facts upon the evidence of police officers who had operated a laser gun on an overhead bridge looking down on the traffic travelling in Lung Cheung Road.

5. The magistrate was satisfied on that evidence that the Appellant's vehicle was following too close behind the light goods vehicle.

6. He said in his Statement of Findings:

"I found that the appellant was driving his vehicle at a speed of 63 kph in the same lane behind a LGV, travelling at the same speed, when a distance of only 11.6 metres separated the respective fronts of their vehicles. I was further satisfied that, had the LGV braked abruptly, the distance between their respective vehicles would have been far too short for the appellant to have avoided hitting it even allowing that he would have reacted in the manner of the reasonably prudent driver."

7. The magistrate's conclusions as to the distance between the 2 vehicles being far too short was apparently based on the evidence given before him by a police officer as to the proper separation distances of cars at particular speeds so as to allow them to avoid the vehicle ahead in the event that it stopped. The magistrate was entitled to accept the evidence given by that officer in those terms.

8. At the conclusion of the prosecution case the Appellant elected not to give evidence. The Appellant's present grounds of appeal can be effectively reduced to two. Firstly, that there was no evidence that the light goods vehicle needed to brake abruptly as traffic conditions were smooth at the relevant time, and Secondly, there was no evidence of the stopping efficiency of the Appellant's vehicle brakes.

9. It is fair to say that Mr Tsang for the Appellant relies primarily upon the first of those two grounds.

10. As to that first ground of the Appellant's appeal, it is a trite proposition that there is no requirement in law, for this offence to be established, that circumstances come about in fact demonstrating the shortcomings of the complained of driving by causing an accident or some situation or incident of risk. Further even if the road ahead of the light goods vehicle were clear, it is common experience that a multitude of matters can occur even in good driving conditions requiring or causing the urgent or sudden application of a vehicles brakes.

11. Such an occurrence would not be in the nature of the "extreme exigency" that the courts have held in cases such as Brown & Lynn, Pursers v. Western SMT Co. Ltd. (1945) SC 31 and R. v. LI Tat-man (1991) 1 HKLR 368 a normally prudent driver could safely ignore in his driving precautions.

12. Rather, the possibility of the vehicle ahead braking suddenly is precisely the sort of occurrence that a normally prudent driver should and would always have in mind. A fundamental precaution in normally prudent driving is to keep sufficient distance between the drivers own vehicle and the vehicle in front so as to have time in hand to avoid that vehicle in front if it stops or decelerates suddenly.

13. That disposes of the first ground of appeal.

14. As to the second ground of the Appellant's appeal, the magistrate formed his conclusions on the basis of the assessment of the distance between the light goods vehicle and the Appellant's car being "far too short". He was no doubt aware that there is a range of braking performance amongst even properly maintained cars on Hong Kong roads. His finding that the distance was "far too short" seems to safely encompass this range of performance. There was no evidence placed before the learned magistrate to suggest that the Appellant's car fell outside the common range of braking performance.

15. I might add that there was evidence that the time between the front of the light goods vehicle reaching a position on the road and the front of the Appellant's car doing the same was only 0.66 seconds. Obviously the time taken in that same way between the rear of the light goods vehicle and the front of the Appellant's car was even less.

16. That means the Appellant had but a fraction of a second to react so as to maintain distance between his vehicle and the light goods vehicle in the event it braked suddenly.

17. In my view, on the evidence in this case the magistrate was entitled to come to the conclusion he did.

18. The appeal is dismissed.

Representation:

Mr Simon Tam, Senior Government Counsel, for the Respondent (HKSAR).

Mr Tsang Kam Hung instructed by M/s S T Poon & Co for the Appellant FUNG Kai-tung, Augustine.