HKSAR v. Wong Kim Wah

HCMA000918/1999

HCMA 918/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 918 OF 1999

(On appeal from TWS 1602 of 1999)

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Coram: Deputy Judge Gill in Court

Date of hearing: 27 January 2000

Date of judgment: 27 January 2000 at 11.12 am

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J U D G M E N T

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1. On 9 August 1999, G M Surman Esquire, Deputy Magistrate, convicted the appellant after trial of driving a public bus carelessly. He now appeals that conviction.

2. The appellant was charged following a collision between the KMB bus he was driving and a pedestrian. At the time, 11 o'clock in the morning, he had negotiated a left turn into the Kwai Fong MTR Bus Terminal for the purpose of setting down and picking up passengers at a bus stop stationed there. As he was proceeding, a pedestrian stepped out into the roadway from his left into the path of the bus. During the course of the inquiry that followed the appellant made a cautioned statement. When the matter came to trial, the victim was not fit to give evidence and there were no other live witnesses. The police officer who took the appellant's statement had been summonsed to attend the scene after the event. His evidence included providing details of the scene supported by a diagram and photographs and so on. In fact, the prosecution's case relied almost entirely on the appellant's cautioned statement. He had, at trial, objected to the admissibility of the statement on the grounds that it was not voluntarily given. The magistrate, however, found it was voluntary and admitted it. The appellant takes no point with that at this appeal. At the trial, he did not give evidence. After trial, the magistrate found as follows and I quote from his statement of findings:

"(a) the appellant drove KMB bus DH5399 at the material time and place;

(b) there was an accident - a collision between the appellant's bus and a pedestrian;

(c) the road surface was damp as shown in the photographs;

(d) the appellant was driving in excess of 10 kilometres per hour and that he was slow in responding;

(e) the accident took place at a distance of between three and four steps and about 1.9 metres from the nearside kerb;

(f) very close to where the accident happened the Kwai Fong MTR exit disgorges passengers who must cross the road where the accident took place in order to catch buses."

3. From these primary facts, the magistrate went on to draw what he described as the only inference available and found that the appellant was not exercising the degree of care and attention that a reasonably competent and prudent driver would exercise in the circumstances.

4. There is no question but the magistrate applied the correct test to establish whether or not there was careless driving. The question remains: was he justified on the facts in finding the appellant guilty?

5. An appellate court will generally be reluctant to interfere with a lower court's findings of fact where they are in dispute because it lacks the advantage of listening to the evidence as it unfolds and assessing witnesses as they give it. In this case, however, I am much in the same position as the magistrate, for he was relying almost entirely on the written word and that is available to me in the same form.

6. I have read with care the perfected grounds of appeal prepared by counsel, Mr Macrae, SC, upon which he has expanded before me. I propose not to reproduce them.

7. I pay particular heed to his complaint that the magistrate was wrong to find that the appellant admitted he was driving in excess of 10 kilometres per hour and that he was slow in responding; that is, slow to react to the victim's presence on the carriageway. He says, and a reading of the translation of the cautioned statement shows he is quite right, that the appellant in fact said:

"... perhaps at the time the actual speed of DH5399 my vehicle was over 10 kilometres per hour so I for a moment had no time to respond so that I was late for pulling up."

8. There is thus no evidence of precise speed; indeed in cases such as this it is usually impossible to establish exactly what speed a vehicle was travelling at at any given point of time. What is clear is that there is no evidence of a speed manifestly above 10 kilometres per hour beyond conjecture and that is really quite slow - only about six or seven miles per hour.

9. The next point is the appellant's admission: "I was late for pulling up." This implies lack of attention. Perhaps the magistrate picked up on this as being an admission of lack of care. But may it not also be a spoken reaction to the misfortune of having been involved in an accident with a pedestrian and mean no more than "I could not stop in time to avoid the collision?" There is a natural and unavoidable delay between when a driver of any vehicle exercising full concentration becomes aware of an emergency and reacts to it for which no fault can attach.

10. In this case, the victim was struck by the nearside front of the bus. That came to rest 1.9 metres, about six feet, from the kerb. The appellant says he watched as the pedestrian took three or four steps on the carriageway before the impact. This must all have happened in the space of only about one or two seconds. Certainly there was nothing to suggest the appellant's reaction was unreasonably slow. That the point of impact is close to where passengers frequently cross is really neither here nor there. The accident, in my view, on the evidence available, could just as likely have been because the victim chose to step on to the carriageway without regard for his own safety as to have been the result of lack of care on the part of the appellant. In my view, the magistrate finding that an inference of lack of care was the only one to draw fell into error, rendering the conviction unsafe.

11. Thus I allow the appeal and quash the conviction.

Representation:

Mr Jonathan MAN, Ag. Senior Government Counsel, for Respondent

Mr A Macrae, Senior Counsel, instructed by M/s Tsang