The Queen v. Chan Shun-cheong

HCMA000804/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 804 of 1988

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 26th October, 1988

Date of Delivery of Judgment: 26th October, 1988

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J U D G M E N T

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1. The Appellant pleaded not guilty to a charge of careless driving. The prosecution case was put before the court by way of admitted facts. Those admitted facts were that at about 3.55 a.m. on the 14th January 1988 a light goods vehicle driven by the Appellant was travelling along the fourth lane of Kwai Chung Road east bound towards Kowloon. On reaching the section of the road outside the Princess Margaret Hospital, the vehicle mounted the central divider; collided with the central guard railings and finally ran into the steel support pillar of an overhead gantry traffic sign. The Appellant and his female passenger were both trapped inside the cab of the vehicle. They were rescued by Fire Services Officers and taken to Princess Margaret Hospital for treatment. The passenger was certified to be dead on her arrival whereas the Appellant received minor injuries and was treated and discharged.

2. This section of east bound Kwai Chung Road is four lanes wide.

3. The accident occurred on a straight part of the road just pasta righthand bend. The central divider separating the east bound and west bound carriage ways is a concrete pavement with steel railings running along the middle. At the time of the accident the weather was fine and dry and the road surface was dry and in good repair. The street lighting at the scene was good and traffic was light. The speed limit on the road was 70 kilometres per hour.

4. The Appellant was interviewed on the 14th January 1988 some 2½ hours after the accident. He then said that he had been travelling along the outside lane of Kwai Chung Road at about 64 kilometres per hour. As he passed Princess Margaret Hospital, a van, which had been travelling abreast of him on the third lane suddenly cut into the outside lane 3 to 4 feet in front of him. He braked and swerved his vehicle to the right. His vehicle mounted the central divider and cashed into the traffic sign pillar.

5. On the 15th January 1988 he was interviewed again. He then admitted under caution that there was no vehicle near him at the time of the accident and that in fact he had "fallen asleep at the wheel of his vehicle resulting in the collision".

6. On the 19th January 1988 the Appellant came back to the Traffic Office on his own initiative and made a further statement. In that statement he said that the first statement that he had given was correct, that there was an unkown vehicle which had cut in front  of him and caused the accident. He explained that the reason for the discrepancies in the statements was that he felt disturbed and guilty over the death of the deceased. He believed that he would feel better if he was punished in court.

7. The Appellant gave evidence in which he repeated that the accident had been caused because a car came into his lane causing him to swerve to the right. He said that the reason for making his second statement was that he became confused, that he felt repentant and "was afraid Chat if I was convicted I might be sent to prison. I want to avoid trouble from my family. I felt very regretful, and I wanted to be convicted so I will feel better."

8. He said in cross-examination that his working hours were 3 a. m. to 10:30 p m that he was used to working those hours, that he slept at night and in the afternoon. When he finished at 9 or 10 p.m. he would have a bath and go to bed, He said that prior to this journey he had slept the previous afternoon from p.m. to 6 p.m.

9. The magistrate convicted him and gave four main reasons for coming to her conclusion. The first was that it was unnecessary at that hour of the morning for a vehicle to cut in in front of the Appellant in the driving conditions at the time, secondly, that the Defendant had after time to recover from initial shock, admitted that he had fallen asleep; thirdly, that his reason for making contradictory statements wore confused, and fourthly, that he must on his own evidence have had less than five hours' sleep immediately before the accident.

10. In his appeal against the conviction Mr. Lim on behalf of the Appellant relies on six grounds of appeal for the purpose of submitting that in all the circumstances of the case the conviction is unsafe and unsatisfactory. In the main the appeal attacks the learned magistrate's decision to reject the Appellant's account of the cause of the accident as being due to a vehicle cutting in front of him. There is merit submission that the first and fourth reasons were not supported by the evidence. it may well be that in the traffic conditions at the time that it was not necessary for another vehicle to cut in front and change lanes. But drivers are not unknown to do what is unnecessary. It would not be unknown for a road racing driver, for instance, in traffic Conditions at that hour of the morning to undertake such a manoeuvre.

11. The Appellant in his evidence did not say that he had less than five hours sleep immediately before the accident. His evidence was that he had five hours' sleep in the afternoon of that previous day, but he said also "I slept that night" and added that generally he did have a sleep after he finished his work.

12. On the other hand the learned magistrate had before her three statements made by the Appellant and his evidence. The statements and his evidence alleging that a vehicle cut in front of him were clearly selfserving. The statement which he glade under caution was adverse to his interests. Clearly the magistrate was entitled in those circumstances to accept that the statement which he made under caution being adverse to his interest was almost certain to be true. She had sound reason therefore for accepting that version and rejecting the selfserving statement that the accident was caused when a vehicle suddenly cut in in front of him.

13. The issue in this appeal really is whether the magistrate accepted that the second statement as true. It is quite clear that she did. She had good ground for accepting it and it amounted to sufficient evidence to establish a case of careless driving. She was in my view correct in coming to the conclusion that the Appellant was guilty.

14. In the circumstances, therefore; I must dismiss the appeal.

Representation:

Mr. Patrick Lim (Hastings & Co.) for Appellant,

Mr. Duncan Kilgour, C.C. for Crown/Respondent.