Kit Wing Wo v. The Queen

HCMA000268/1985

HEADNOTE

Careless driving - unless evidence so strong that no explanation possible other than defendant's negligence there must be some positive evidence of carelessness - res ipsa loquitur does not apply to criminal charges - only evidence here was that appellant skidded on a wet road. Evidence not sufficient appeal allowed.

BETWEEN: -

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Coram: The Honourable Mr. Justice Penlington in Court

Date of hearing: 11 April 1985

Date of delivery of judgment: 11 April 1985

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JUDGMENT

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Preliminary

1. The appellant is a serving police constable and was convicted of driving a government motor-cycle carelessly on the Waterloo Road fly over on the 28th June 1984. The trial took place on the 14th March 1985, almost 9 months after the accident and the appellant, who was unrepresented at the hearing, was convicted and fined $250.00 and ordered to pay $50.00 costs towards the prosecution.

2. I notice that the information was received in the Magistrates' Court on the 22nd November 1984, some 5 months after the date of the accident. It was therefore inevitable that by the time the matter came on for hearing the witnesses would be giving evidence about events which were by no means fresh in their minds. I have noticed on many previous occasions when dealing with appeals from magistrate's decisions in traffic matters that often the information is filed towards the very end of the 6-month statutory period. This may be justified in very complicated and serious cases, where for instance legal advice is required, but I do not see any reason whatever why it is necessary in a case like this which was essentially extremely simple. I would have thought a decision could have been made whether to prosecute or not within a few days of the accident taking place.

The evidence

3. The Crown called two lay witnesses and one police witness. The first of these was Mr. Kwong Tung-ping who said that on the day in question he was driving his goods vehicle along the Waterloo Road flyover in a southerly direction. There were two lanes in each direction. He said he was in the second lane from the left and was travelling at about 30 m.p.h. It was drizzling and the road surface was wet. There were no vehicles ahead of him in his lane. He said he saw a motor-cycle in the lane next to him going up the slope of the flyover. It was going very slowly and he was catching up with it. He said the motor-cycle seemed to slow down and fell on its side as it slowed. Mr. Kwong applied his brakes and skidded, coming into collision with the motor-cycle. He said that when he first saw the motor-cycle it was "about 4-5 feet (1 police car length)" from the car in front. He said that the car in front of the motor-cyclist "paused suddenly".

4. The other lay witness was Mr. Ip Hong-ming who said that he was driving his private car on the flyover, also in a southerly direction. As he came towards the top of the flyover he saw a vehicle in front slow down and so he also slowed. He said he noticed an object behind him skid sideways to the left. He then stopped and found that a traffic motor-cyclist had been struck by a following goods vehicle. He said that as he was going up the flyover he was doing about 20-25 m.p.h. He said that he thought the distance between his car and the motor-cycle was 2-3 vehicles length.

5. Finally, constable 20463 Kwong Chi-hung gave evidence and produced a plan which he made showing brake marks from Mr. Kwong's vehicle indicating how he had tried to avoid striking the fallen motor-cyclist and he also gave evidence of having interviewed the appellant in hospital when the appellant said that the car in front of him suddenly stopped and that as the road was wet and sloping he skidded to the left and collided with the roods vehicle.

6. The appellant gave evidence and said that be was coming from Boundary Street on to the flyover at about 10 m.p.h. He said he reduced the speed because it was raining and he was about 20 feet from the vehicle in front. The vehicle ahead of him braked and he also braked, but the motor-cycle skidded and he fell to his left into an adjacent lane where he was struck by the roods vehicle.

Findings

7. In his judgment delivered in court at the time the magistrate said that the defendant was going too fast and he rejected his evidence that he was going at 10 m.p.h., even though that seemed to tally with Mr. Kwong's estimate. He said the accident occurred because of the appellant's skid and that was caused by his carelessness. He therefore convicted him of the charge. In his statement of findings, following the filing of the appeal, he said that Waterloo Road urns wet and slippery on that particular day and that "the appellant was driving too fast and/or too close behind another vehicle commensurate with the wet road and traffic conditions".

Decision

8. It is trite to say an appeal court is reluctant to interfere with a finding of fact. The magistrate was quite entitled to accept or reject whatever evidence he thought fit. He has specifically rejected that of the appellant. What he has not however done in his statement of findings is to find that either the appellant was driving too fast or he was too close behind another vehicle or he was doing both. So far as speed is concerned there seems to be no evidence at all that he was driving too fast. Mr. Kwong said that he was going at 30 m.p.h. but that the appellant was going "very slowly, slower than me, I was catching up with it". Mr. Ip who was driving in front of the appellant said he was going 20-25 m.p.h. As to distance, again, Mr. Kwong said that the appellant was 4-5 feet (1 police-car length)" behind the vehicle in front and Mr. Ip said that he thought the motor-cycle was "2-3 vehicles length behind him". Again, this seems to me to be no real evidence that the appellant was travelling too close behind Mr. Ip's vehicle. As I have said we are of course considering evidence given by persons of events which happened some 9 months previously and their recollections must inevitably be not as clear as they might be. This, however, is certainly not the fault of the appellant.

9. What the magistrate appears to be saying is that the road was wet and slippery the appellant had a duty to drive at a speed and it a distance behind this car in front of him so that if that car braked suddenly he would be able to stop in time. This is certainly what the road code says and the Road Traffic Ordinance certainly provides that failure to comply with its provisions is a factor a court can take into consideration when deciding if anybody has been guilty of careless driving. There must, however, in a crminal charge be some direct evidence of negligence. The court is not entitled to simply apply the doctrine of res ipsa loquitur. That doctrine applies in civil cases but there must be some positive evidence of carelessness in a criminal prosecution unless the evidence is so strong that, in the absence of any explanation from the defendant he must have been negligent. If there is such positive evidence then the court is entitled to say that the driver had not performed the standard of care required. In Scott v. Warren (1974) C.L.R.117 the prosecutor appealed against dismissal of a prosecution and submitted to the Divisional Court that the defendant had a legal duty to leave between himself and the proceeding vehicle sufficient space to enable him to pull up without colliding with it in any circumstances or emergency and that if he did not and collided prima facie he was driving without due care and attention. The court dismissed the appeal and approve a dicta in Brown & Lynn v. Western SMT Co. Ltd. (1945 SC 31) that the following driver was bound so far as reasonably possible to take up such a position and to drive in such a fashion as would enable him to deal successfully with all traffic exigences reasonably to be anticipated. It seems to me that, particularly in the context of the crowded road traffic conditions in Hong Kong, a criminal court cannot say simply that if a motor-cyclist has to make an emergenoy stop and skids that in itself is enough evidence of carelessness. The only evidence here which might justify a finding of carelessness is that of the driver of the goods vehicle who said that his estimate of the appellant's distance between the motor-cycle and the car in front was "about 4-5 feet (1 police-car length) . I do not think that is sufficient. It is true that the appellant himself in evidence did not suggest any reason for the skid apart from the wet road. Hong Kong roads do get covered in oil and rubber and when wet can become dangerous. A police motor-cyclist should be well aware of that and take suitable precautions, but it is not enough to prove only that the accident happened that neither of the other driver were at fault and to conclude beyond reasonable doubt that the remaining participant was careless.

10. The appeal will be allowed and the fine and costs if paid will be remitted.

Representation:

P.V. Colon, C.C. for the Crown.

Appellant, KIT Wing-wo in person.