HKSAR v. To Chiu Yin

HCMA000033/1997

IN THE HIGH COURT OF HONG KONG

(Criminal Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 33 OF 1997

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Coram: Hon. Barnett, J. in court

Date of Hearing: 28 May 1997

Date of Delivery of Judgment: 28 May 1997

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JUDGMENT

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1. The appellant in this case faced charges of careless driving and failing to report as soon as reasonably practicable after an accident causing damage. He pleaded not guilty to both charges. After trial, he was convicted; he was fined $2,000.00 for careless driving, and $500.00 for failing to report.

2. The facts of the case were derived largely from statements made by the appellant himself. The magistrate in convicting the appellant accepted what the appellant said in his statements. He was driving a tractor-trailer combination, he was following another vehicle at speed of about 40 kilometres an hour on the Tai Po Road. The road surface was wet, the vehicle in front was about 80 feet ahead. When it came to a bend, the other vehicle braked and appeared to be having difficulty. The appellant himself braked, his vehicle jack-knifed and hit the railings. The railing was damaged as was the vehicle. It was not a good place to stop and very sensibly, it must be said, the appellant drove on until he could stop his vehicle where it was not obstructing traffic.

3. Those then were the facts which the magistrate accepted. He also had the assistance of a Dr. Kwok, a forensic scientist, and an expert in accident investigation. The conclusion the magistrate came to was this: that in travelling only 80 feet behind the vehicle in front, the appellant was not observing the guidelines laid down by the road users code; that he should have been driving at a distance of at least 80 metres in the conditions; and because of that it was necessary for him to brake harder than might otherwise have been the case and that led to the jack-knifing.

4. The appeal today against the conviction of careless driving is based on two grounds: first, it is said the statements made under caution by the appellant should not have been admitted in evidence. That is because the statements were taken in an accusatory manner. There are two difficulties with this: first, at the trial, counsel then representing the appellant allowed the statements to be admitted without objection. Counsel relied upon the weight which should or should not be attached to the statements. Second, having been taken through some of the questions and answers this morning, it is plain to me that there was nothing accusatory or unfair about the statement taking. In any event, the magistrate was conscious of the statements and properly found that they were taken fairly. So there is nothing in that point.

5. The second ground is that the magistrate based his conviction on the fact that the appellant could not control his vehicle on a downhill slippery surface. It is said that the magistrate failed to consider that the speed and distance were not a contributory factor. As I have already indicated, the speed, the distance and the road conditions were contributory factors, they were factors which the appellant should have taken into account as he was driving that morning. Had he done so, and had he observed the provisions of the road users code he would have driven at a greater and safer distance behind the vehicle in front. It would then not have been necessary for him to have braked so hard, and there would have been no jack-knifing. The magistrate, in his statement of findings, very carefully analysed the evidence and the road users code. There is no reason for me to say that he was wrong in convicting the appellant as far as careless driving is concerned.

6. As far as the second charge is concerned, the magistrate found that the appellant failed to report the accident causing damage as soon as practicable and in any event within 24 hours. The appellant said that he was feeling unwell after the accident, that he made a superficial inspection of his vehicle and then removed it to a safe place, that he reported to his employer and then waited for a tow-truck which towed his vehicle to the garage where the principal damage, that is to the diesel fuel tank, was observed. On that evidence, the magistrate convicted.

7. In my view, he was right to do so. The appellant had at least two opportunities to report the accident: first, when he phoned his employer; second, when the real damage was pointed out at the garage. In fact, he did nothing. It was for the police, some 5 hours after the accident, to track him down. The damage to the vehicle led to the spilling of a substantial quantity of diesel fuel on the road. This made the slippery surface even worse. It appears to have caused further accidents. The reason for reporting accidents, therefore, is obvious.

8. In the circumstances, therefore, the convictions were correct. The appeal is dismissed.

Representation:

Mr. Isaac Tam, Government Counsel, for Respondent.

Mr. Osmond Lam, instructed by Messrs Cheng, Yeung & Co., for Appellant.