Ma Kwok Keung v. HKSAR

FAMC000011/2004

FAMC No. 11 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 11 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
HCMA NO. 912 OF 2003)

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 2 April 2004

Date of Determination: 2 April 2004

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DETERMINATION

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Mr Justice Chan PJ:

1.The magistrate found the applicant guilty of careless driving based not on the evidence of the other driver involved in the collision but on the evidence of the applicant which the magistrate wholly accepted.

2.The magistrate accepted that before cutting from the second lane into the third lane, the applicant had turned on his right indicator and had slowed down, and that upon seeing the lorry in the third lane slowing down, he thought that the lorry driver was prepared to give way to him, and that further thinking that there was sufficient space in front of the lorry, he then cut into the third lane. As a matter of fact, the lorry driver did not give way and the lorry hit the rear of the applicant's car as it moved into the third lane.

3.However, the magistrate also noted that the applicant admitted that he did not know that the lorry driver had the right of way or how far away the vehicle in front of the lorry was.

4.The magistrate considered that the applicant should have known that the lorry had the right of way, that he should have made sure that there was sufficient space in front of the lorry before he cut into the third lane, and that he should have waited for the lorry to come to a halt or until the driver had given him a clear signal to go ahead. The magistrate said that the applicant's failure to do all these indicated that the applicant had failed to meet the standard of care required of a reasonable careful and prudent driver. The judge agreed with that conclusion. We take the same view. The applicant was convicted not merely because he did not know the driver had the right of way, but also because he failed to ensure that it was reasonably safe before he cut into the third lane. The magistrate did not put the onus of proof on the applicant. He accepted and relied on the applicant's own evidence which like any other evidence was evidence on which the court can rely to come to a conclusion. Neither had the magistrate misunderstood the evidence that was given by the applicant.

5.We do not think it is reasonably arguable that the applicant had suffered substantial or grave injustice. The application is dismissed.

Representation:

Mr Kelvin Leung (instructed by Messrs Wong & Tang) for the Applicant

Miss Mary Sin, SADPP of the Department of Justice, for the Respondent