HKSAR v. Lam Ka Kit

HCMA000802/1998

HCMA802/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 802 OF 1998

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Coram : Hon Pang J in Court

Date of hearing : 31 March 1999

Date of judgment : 31 March 1999

Date of handing down reasons for judgment : 5 June 1999

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REASONS FOR JUDGMENT

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1. These are my reasons for dismissing the Appellant's appeal against his conviction on one charge of Careless Driving, contrary to s.38(1) of the Road Traffic Ordinance.

2. The Appellant Lam Ka Kit was convicted following his trial at the San Po Kong Magistracy. The incident giving rise to the charge took place at about 4:43 am on 4 October 1997. One Mr Cheng, who appeared at the trial as PW1, was driving a private vehicle in the direction towards Shatin. On reaching the toll booth at the Lion Rock Tunnel, he stopped his vehicle in order to make payment. The Appellant who was driving another private vehicle rammed into PW1's car from the rear.

3. The police officer who attended the scene after the accident gave evidence as PW2. He prepared a sketch drawing which was produced as Exhibit P1 at the trial.

4. The Appellant elected to give evidence at the trial. He said at the material time as he was approaching the toll booth at about 40 kmph and PW1's car suddenly cut into his lane without any form of warning. Despite applying his brakes immediately, he collided into PW1's vehicle. He then alighted from his car and saw PW1 talking into a mobile telephone. As the car which he was driving was borrowed from his friend he was in a hurry to return it to him. He did not speak to PW1 because he was in such a hurry. It was only on the advice of his friend on the following day that he reported the matter to the police.

5. There are a total of five grounds of appeal and in my view they can be conveniently grouped under three broad headings. The first is that the learned Magistrate failed to give any or any sufficient reasons as to why he accepted PW1 as a truthful witness but rejected the evidence of the Appellant. The second ground is that the learned Magistrate failed to resolve the material inconsistencies in PW1's evidence. The third ground is that the learned Magistrate failed to give sufficient weight to certain parts of the evidence.

6. On the first point, the learned Magistrate was criticized for failing to deal with the apparent inconsistencies in PW1's evidence as to whether his vehicle was stationary or in motion at the time when the Appellant collided into his vehicle. On this point, I note at page 5 of the learned Magistrate's Statement of Findings, the original of which was written in Chinese that he had addressed himself on this part of the evidence. He took the view that at the time of the collision whether the car was stationary or otherwise was not important. He observed that as PW1 did not expect there would be a collision therefore he could not be expected to remember clearly whether in fact his car was stationary or proceeding at a very slow speed at the time. He went on to state expressly that this in no way affects neither the credibility or reliability of PW1. I am of the view that there is no substance in this ground of appeal.

7. The learned Magistrate was further criticized for overlooking the fact that the damage sustained by the Appellant's vehicle was consistent with his account of the incident. It was also submitted he had failed to give proper weight to the observation by the defence that even though PW1 was recorded to have said that the Appellant had driven off without stopping, he was nevertheless found to be a credible witness by the Magistrate. It appeared from the evidence at the trial that the Appellant did stop after the collision although there was no verbal exchange between PW1 and the Appellant. The effect of such discrepancies, it was said, would have undermined the accuracy and reliability of the evidence of PW1.

8. The learned Magistrate stated in his Statement of Findings that he had carefully considered the evidence of the Appellant. He rejected the Appellant's account of the incident and the reason given was that the Appellant's account is simply not the truth. In support of his findings, the learned Magistrate stated that he could not accept the Appellant's explanation that he did not inform his friend about the accident simply because his friend was asleep at the time and he did not want to disturb him. He also found it incredible that the Appellant did not even attempt to negotiate for a compensation by PW1 at the time of the collision if it was the Appellant's case that the collision was caused solely by the negligence of PW1. He had stated his Reasons for disbelieving the Appellant and that he had considered the evidence of the prosecution witness carefully. In so doing he must have considered the discrepancies in PW1's testimony.

9. The learned Magistrate had the benefit of observing the demeanour of both the prosecution witness and the Appellant when they gave evidence and based upon which he made a finding of fact. This Court is not prepared to interfere with those findings unless there are cogent reasons for so doing. The learned Magistrate had quite properly and adequately dealt with the alleged inconsistencies in the evidence at the trial. On the second and third grounds of appeal, I am unable to accept the criticisms levelled against the learned Magistrate by the Appellant's Counsel and I can see no merits in these two grounds.

10. For the reasons given, the appeal against conviction is dismissed.

Representation:

Mr Simon Kwan Wai Kit, GC, for DPP of HKSAR

Mr Peter Cosgrove, inst'd by M/s Ivan Tang & Co., for the Appellant