HKSAR v. Man Din Ming

HCMA001264/2001

HCMA1264/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1264 OF 2001

(ON APPEAL FROM NKS 12154 OF 2001)

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Coram: Hon Gall J in Court

Date of Hearing: 5 February 2002

Date of Judgment: 22 February 2002

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J U D G M E N T

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1.The appellant was convicted on 6 November 2001 of one charge of having on 19 December 2000 at Cheung Sha Wan Road at the junction with Hing Wah Street driven a motor vehicle carelessly. He was on 6 November 2001 fined the sum of $1,800. He now appeals that conviction.

2.The charge arose out of an accident which occurred at about 8:15 p.m. between a car driven by the appellant and a motorcycle driven by a Mr Tsui. There were no eye witnesses to the accident and the only person who spoke of the circumstances immediately preceding and leading up to the accident was the appellant.

3.The facts accepted by the magistrate were that at the relevant time, the appellant was driving along the 4th carriageway of Cheung Sha Wan Road, that is, the carriageway nearest the centre divider. He came to the intersection with Hing Wah Street and gave notice of his intention to turn right. The traffic light was green for him and he entered the box which is the appropriate box for turning right. He commenced over the hatched box in the intersection of Cheung Sha Wan Road and Hing Wah Street and entered the 3rd lane of Hing Wah Street, that is, the farthest right hand lane and, at a point where, as the magistrate accepted, one metre of his car was still protruding into Cheung Sha Wan Road, his vehicle was struck by the motorcycle driven by the deceased.

4.The appellant told the police that he did not see the motorcycle prior to it colliding with his car. What he did see, however, was a bus in the middle lane of Cheung Sha Wan Road westbound and he formed a view that he had sufficient time to turn across in front of that bus. It was the opinion of an expert that the deceased had been travelling in the 1st lane westbound on Cheung Sha Wan Road and that he was travelling at the point of impact at a speed of not less than 60 km/h.

5.The magistrate embarked upon a mathematical analysis of the speed of the vehicles and the distances covered by them and came to the conclusion that the motorcycle must have been in view of the appellant at a time sufficiently prior to the impact for the appellant to have taken it into consideration. The fact that he did not do so, made him guilty of careless driving notwithstanding lack of care on the part of the motorcyclist.

6.Is this with this mathematical calculation that Mr Ramanathan for the appellant takes exception. The magistrate calculating the distance travelled by the appellant from the point where he commenced to his turn until his vehicle was in Hing Wah Street coupled with the speed that he admitted he was travelling and the magistrate concluded that in the distance of 50 metres which the appellant said he could see, the deceased would have been in view for 31 metres at 80km/h, 39 metres at 100km/h and 47 metres at 120km/h. To arrive at this calculation, the magistrate took a distance of the width of the 1st and 2nd lanes westbound of Cheung Sha Wan Road minus the one metre which the vehicle was still protruding into Cheung Sha Wan Road. As Mr Ramanathan points out the distance should be in fact of the width of the 1st and 2nd lanes together with the distances of three metres being three quarters of the length of the car (which measured four metres) rather than the measurement taken by the magistrate. With this, I must agree. Given the speeds involved, the appellant travelling slowly, and the agreed high speed of the deceased, that distance of three metres does make a significant difference to the calculation. The difficulty that I have is that the magistrate replied upon that calculation to come with his conclusion that the appellant could see the motorcyclist at a point prior to impact when he should have taken care. If that calculation is in error, and therefore must be disregarded, then there is nothing in the approach of the magistrate to warrant the conviction.

7.Further, Mr Ramanathan argues that as the magistrate accepted the vehicle of the appellant having completed his turn to a point where only one metre still protruded into Cheung Sha Wan Road, the appellant had reached a point in his turn where he would not normally anticipate that the small portion of his vehicle still extending into Cheung Sha Wan Road would be struck by any vehicle in that lane. There is some force in his argument. I must have a lurking doubt as to the conviction. The appeal is allowed and the conviction is set aside.

Representation:

Mr Paul Ho, SGC of Department of Justice, for the Respondent

Mr Kumar Ramanathan, instructed by Messrs Hoosenally & Neo, for the Appellant