HKSAR v. Lau Bun

HCMA000081/2004

HCMA 81/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 81 OF 2004

(ON APPEAL FROM NKS 6909 & 6910/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 19 March 2004

Date of Judgment: 19 March 2004

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J U D G M E N T

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1.This is the appeal against conviction. The Appellant was charged with one charge of careless driving and one charge of unlawfully entering a yellow striped light signal crossing. The Appellant was unrepresented at the trial and after trial, he was convicted of both charges. He now appeals against those convictions.

2.The prosecution called one witness (PW1) who was a police officer. At the time of the offence, he saw the Appellant's taxi stationary at a road junction on a yellow striped light signal crossing. There was nothing in front of it but at the time there was a line of stationary taxis behind him. PW1 drew a sketch which was Exhibit P1 showing the position of the taxi and the other vehicles. Seeing that the taxi obstructed pedestrians crossing the road at the crossing, he went up to the taxi and saw the Appellant at the driver's seat reading a newspaper. PW1 then asked the Appellant to drive his vehicle across the road junction and stop behind a lorry. The Appellant did so. PW1 approached him and told him that he had committed an offence of stopping his vehicle on a pedestrian crossing. The Appellant then argued with PW1 whereupon PW1 gave him a fixed penalty ticket and then walked to the rear of the taxi and stood about 6 feet behind the taxi with his back to the taxi. Then suddenly, he heard a sound of an engine, he turned around and saw the taxi reversing towards him at a speed of about 10 kph. PW1 dashed to one side to avoid him. The closest distance the taxi came to him was about half a foot. PW1 thus approached the Appellant again and told him that his taxi almost ran into him and told the Appellant that he was going to charge him with careless driving.

3.The Appellant cross-examined PW1 and PW1 disagreed that he had lied about the event. The Appellant then elected to give evidence and he agreed that he was the taxi driver and that his vehicle was stationary on a yellow striped signal crossing, but he said only the front of his taxi was outside the yellow striped crossing. He said he had a reasonable excuse because he said he was at the head of the taxi queue as he had waited for some 45 minutes and if he did not stop on the crossing then some unscrupulous taxi driver would go in front of him. The Appellant then said that subsequently he was approached by PW1, he said he apologized to PW1 and he started his vehicle intending to move on. But PW1 stopped him and accused him of laughing and then said that he was going to charge him because of his poor attitude. Then he was told to move his vehicle across the road junction. PW1 approached him again and stopped his motor bike at the right front of the taxi. The Appellant asked for a chance and PW1 said he would not give it to him. Eventually PW1 told him to move on and he said because the van in front of him was just 3 feet away and due to the presence of PW1's motor bike, he had to reverse his vehicle, so he reversed and he could see PW1 through his rear view mirror and he said PW1 was in no danger. It was after that PW1 then told him that he would be charged with careless driving.

4.The findings of the Magistrate was very straightforward and simple. The Magistrate, after reminding himself that the Appellant had a clear traffic record, found that he believed PW1, he found PW1 to be a credible and honest witness. He also found that the Appellant's evidence was unbelievable and so he rejected the Appellant's testimony and accepted the evidence of PW1.

5.At the end of the day, he was satisfied that the way the Appellant had reversed his taxi at such a speed causing PW1 to dash to one side to avoid being hit by the Appellant's vehicle was indeed a failure to take due care and attention and therefore amounted to careless driving, he therefore convicted the Appellant of careless driving. He also found that the Appellant's reasons for stopping on the yellow striped light signal area i.e. because he did not want another vehicle to come in front of him was not a reasonable excuse justifying his breach of the Traffic Regulation and therefore he was also convicted of that.

6.Now on the appeal Mr Lau represented himself. He said once again that PW1 was lying and he said that the Magistrate had got his evidence wrong by saying that he reversed 3 feet when his evidence was only 3 inches. He said PW1's evidence was wrong because PW1's evidence that he had reversed his taxi some two taxi lanes was not consistent with the traffic condition at that time.

7.It is clear that the learned Magistrate after hearing both witnesses decided that he believed the prosecution witness. This court being a court on appeal has no chance of observing the witnesses give evidence and therefore, it would be very rare indeed for a court on appeal to disturb the Magistrate's findings on the facts.

8.As to the point about the Appellant reversing 3 inches or 3 feet, that has not caused me much concern because it is apparent from the Magistrate's findings that he did not take that into account. What was important in this case is that the learned Magistrate believed the evidence of the police officer that he was standing behind the taxi and the taxi reversed into nearly hitting him and the closest distance was half a foot and it caused the police officer to jump out of the way. So the distance as to whether it was 3 inches or 3 feet is neither here nor there because at the end of the day, the learned Magistrate did not believe the Appellant.

9.I have read the learned Magistrate's Statement of Findings and he has gone through the evidence sufficiently, he has more than sufficient evidence before him to convict the Appellant of both offences. The Appellant representing himself on the appeal did not mention any grounds in relation to his appeal against stopping on the yellow striped line signal crossing, but I have also considered that and I find that the learned Magistrate was not wrong to find that the reason given by the Appellant did not amount to a reasonable excuse justifying his breach of the Traffic Regulation.

10.I cannot find any ground to upset the learned Magistrate's conviction on both charges and therefore the appeal is dismissed.

Representation:

Mr P K Madigan, SGC of the Department of Justice, for the Respondent

The Appellant, in person