HKSAR v. Chan Mun

HCMA000654/1999

HCMA 654/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.654 OF 1999

(ON APPEAL FROM TMS 1684/1999)

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Coram: Hon Nguyen J in Court

Date of Hearing: 15 December 1999

Date of Judgment: 15 December 1999

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J U D G M E N T

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1. The Appellant was convicted of careless driving by Mr Joseph Yau sitting in Tuen Mun Magistracy. The allegation was that on 1 October 1998 at 6:38 p.m. at Hoi Chu Road in Tuen Mun, he drove a taxi on the road carelessly.

2. The only substantive witness against him was PW1 who was driving a motor-cycle which belonged to Pizza Hut. PW1's evidence was that he was proceeding along the slow lane when he saw a taxi parked ahead of him which obstructed his own path. As a result, he changed lanes from the first lane to the second lane. Very shortly after he changed lanes, a taxi appeared in front of him on the second lane and was diagonally on the fast lane. This taxi was the taxi driven by the Appellant. The evidence showed that, however, the Appellant's taxi was not the only taxi which was parked in the slow lane and there were other vehicles also parked on the slow lane. When PW1 saw the taxi diagonally in front of him, he tried to avoid the collision but could not and he collided onto the right rear door of the taxi.

3. When PW1 gave a statement to the police 18 days after the accident, he told the police officer who recorded the statement that all along he was on the second lane, and there was no mention of him being on the first slow lane. This was, of course, an inconsistency between what he told the police and what he said in court. The trial Magistrate had put this down to civilian witnesses not realising the importance of statements given to the police, and hence quite often would say things which are not totally accurate. I regret that I do not agree with that. Whether civilian witnesses know what a police statement is going to be used for, they must realise that they are supposed to be telling the police the truth about what happened. Ms Ko, for the Respondent, has submitted that this was not an absolutely crucial matter about which there was a discrepancy.

4. My view is that it is important whether PW1 was all along on the second lane or whether he had switched from the first lane to the second lane. It is important because if PW1 was all along travelling on the second lane, then a taxi driver who was parked on the first lane and who subsequently moved his vehicle to get on to the second lane would be and could be expected to observe and see PW1 coming along on the second lane. On the other hand, if PW1 had changed from the first lane to the second lane at a distance of, according to him, three to four meters behind the last parked vehicle, then because of the speed that PW1 was travelling at, and because of the proximity of the distance from where he changed lanes to where the collision occurred, the Appellant might not be in a position to observe the approach of PW1. The evidence is not clear whether the Appellant's vehicle was the last of the parked vehicles. If it was not, then, of course, his view of the approaching PW1, who was on the verge of changing lanes, would have been blocked by the vehicle behind him.

5. The Magistrate was, of course, entitled to find that PW1 was a truthful and reliable witness. However, on careful consideration of all the evidence, I am left with a lurking doubt about the safety of this conviction.

6. The appeal is allowed and the conviction is quashed.

Representation:

Ms Catherine Ko, SGC of the Department of Justice, for HKSAR

Mr P.K. Chan, instructed by Messrs Tsang, Chan & Woo, for the Appellant