HKSAR v. Siu Yau Cheung

HCMA000745/2001

HCMA 745/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 745 OF 2001

(ON APPEAL FROM NKS6551/2001)

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Coram: Hon. Lugar-Mawson J in Court

Date of Hearing: 17 August 2001

Date of Judgment: 17 August 2001

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JUDGMENT

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1.The appellant, Siu Yau-cheung, was convicted after trial, on 11 July 2001 by Mr Raymond Wong, Special Magistrate, sitting at North Kowloon Magistracy, of an offence of careless driving contrary to section 38(1) of the Road Traffic Ordinance. He was fined $1,000.

2.He now appeals his conviction, but not his sentence.

3.He was represented at trial by a solicitor. At trial, he elected not to give evidence or call witnesses on his behalf.

4.The appellant is a taxi driver. Briefly, the facts were that at around 9.15 pm on 28 November 2000, at the junction of Cheung Sha Wan Road with Hing Wah Street in Kowloon, he turned right from the fourth traffic lane of Cheung Sha Wan Road at that junction into the path of an oncoming medium goods vehicle. The driver of the goods vehicle had to brake hard to avoid a collision. Both vehicles momentarily came to a stop with an estimated distance of 1.5 metres between them. The goods vehicle continued on its journey and was not stopped by the police. This junction is controlled by traffic lights.

5.The incident was observed by a traffic policeman on motorbike patrol. As I understand it, he was in the opposite lane of Cheung Sha Wan Road, travelling in an easterly direction. He said in evidence that he had stopped on a red light signal.

6.The traffic policeman was the only witness at trial. He spoke of the appellant approaching the junction at a speed he estimated at between 20 to 30 kilometres per hour, and executing the right turn without slowing down. He gave no evidence as to whether or not the appellant ran a red light on making the right turn. As I understand it, because of the direction of travel he was in, he was not in a position to observe the lights controlling the appellant's turn.

7.It was not disputed at trial that the particular junction which the appellant went through has a "give-way pocket", with a right turn arrow marked on the road.

8.The grounds of appeal are the usual ones set out on form 101. This morning it has been argued before me by Mr Paul Fok, of counsel, on behalf of the appellant, that the fact that there was no evidence before the magistrate that the appellant ran a red light when making his turn is fatal to the conviction.

9.The magistrate was, however, aware of the seeming lacunae in the evidence. In his statement of findings, he said this at paragraphs 7 to 8:

"That the defence further put forward that there was no evidence of traffic lights governing the traffic flow of Cheung Sha Wan Road. In the absence of such evidence on the traffic lights there would be a doubt in the prosecution's case. On further consideration of this point, I was of the view that the main issue of the present case was whether the defendant did, without slowing down, emerge from the pocket into the junction and cause the goods vehicle on the opposite main road to brake immediately. Even though he might turn in accordance with the traffic lights, he had to pay heed and give way to the oncoming traffic on the opposite carriageway. Therefore, the absence of evidence of traffic lights would not cast any doubts in my mind at all. Obviously, any vehicle travelling along the main road has the priority to proceed forward. Any traffic flow cutting across the main road should give way to any vehicle on the main road. Therefore, when any vehicle emerges into the junction from the pocket, the driver should slow down, pay heed to the traffic on the main road and give way to any oncoming vehicles. "

10.Despite Mr Fok's strenuous efforts to persuade me otherwise, even if the junction control light was at green, as the appellant was executing a turn from a major road and crossing an on-flow of traffic, it was incumbent upon him as a careful driver, regardless of the state of the traffic lights, to ensure that he was not crossing a flow of traffic. He clearly failed to do so. The possibility that the goods vehicle driver may also himself have been driving in a careless manner in no way absolves the appellant from driving with proper care. All drivers should be aware that other drivers may be careless and drive with that possibility in mind.

11.It was also argued that the magistrate was wrong to accept the traffic policeman's evidence that he saw "white smoke" coming from the back of the goods vehicle when its driver applied his brakes. To my mind, not only is this such a peripheral issue that, frankly, I cannot see what relevance it has to the issue of the safety of the magistrate's conviction of the appellant, that is what the traffic policeman said he saw. It is speculative to say that there could not have been "white smoke" coming from the back of the vehicle.

12.This case at trial, like so many others, was a simple issue of credibility. There was only one witness. The magistrate made it clear in his statement of findings that he was aware that the prosecution had to prove its case beyond reasonable doubt. He was aware of the problems in the prosecution's case caused by the absence of evidence as to whether or not the junction at the time of the appellant's turn had been controlled by a red light. He accepted the evidence of the sole prosecution witness and no cogent reason has been advanced why he was wrong to do so. Under our system of justice, it is for magistrates to make determinations on matters of credibility and to find facts, not for appellate judges. I have no authority to retry this case on the papers.

13.I am satisfied that the conviction is neither unsafe nor unsatisfactory, the appeal against conviction is dismissed.

Representation:

Ms Polly Wan, SGC, of the Department of Justice, for HKSAR

Mr Paul Fok, instructed by Howell & Co., for the Appellant