HKSAR v. Leung Siu Chun

HCMA000696/1999

HCMA696/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.696 OF 1999

(On Appeal from STS 900091/99)

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Coram: Hon Nguyen J in Court

Date of hearing: 14 December 1999

Date of judgment: 14 December 1999

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J U D G M E N T

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1. The Appellant was convicted by Mr Nelson Lam of the offence of careless driving on 2 June 1999 and fined $3,000. He now appeals against the conviction.

2. The facts of the case were that on 1 September 1998 at 3:20 a.m., the Appellant was driving a taxi from Fanling to Shatin along the outer lane of the Tolo Highway. That was a dual carriageway with three lanes. On reaching near Ma Wo, the Appellant saw a stationary taxi which was stopped perpendicularly to his direction, about 50 metres away, and which was occupying the Appellant's lane and part of the middle lane. The Appellant applied his brakes but his taxi continued to skid towards the middle lane. Eventually it collided onto the stationary taxi and knocked down the driver of the stationary taxi who was standing beside his taxi. As a result, the driver died and both taxis were damaged.

3. There were no eye-witnesses to the accident. The prosecution relied on a cautioned statement made by the Appellant, and on the evidence of two police officers who attended the scene. In his cautioned statement, the Appellant admitted that at the time of the accident the road was wet and slippery. Since it had been drizzling, he had put on his windscreen wipers. He said in his cautioned statement that he saw the other vehicle when he was 50-60 metres away. After he applied the brake, he swerved to the middle lane but could not avoid the collision. The first police officer gave evidence that the road was dry when he arrived at 3:30 a.m., which was 10 minutes after the accident. The second police officer gave evidence that the road was wet but was not slippery.

4. The learned Magistrate in his Statement of Findings mentioned the case of Rabjohn v. Burgar (1972) Crim.LR46. In that case it was held that "although the res ipsa loquitur adoption could not apply to a criminal case unless and until something is suggested by a defendant by way of an explanation, the facts may be so strong that the only inference is that there has been careless driving".

5. The Appellant at the trial did not give any evidence. What has been argued on his behalf, again by Mr Chan, was that the conviction was unsafe and unsatisfactory.

6. The Magistrate had found that the Appellant had departed from the standard of a reasonable, prudent and competent driver in all the circumstances of the case. The basis of that finding by the Magistrate was that the Appellant had failed to reduce or adjust his speed in view of the fact that the road was wet and the light was dim. Counsel for the Appellant submitted that the Magistrate should not have relied on the admission made by the Appellant in his cautioned statement.

7. In my judgment, the Magistrate was entitled to rely on what the Appellant had said in his cautioned statement that the road was wet and slippery. That was confirmed by PW2. Quite clearly, PW1 was mistaken when he said that the road was dry. At the time of the accident the Appellant was going downslope along the fast lane. He said that at the time he was travelling at a speed between 80-100 km/h. Whatever his speed was, in my judgment, he should have travelled at a speed which would have enabled him to stop on time in the event that an emergency arose. He had to bear in mind that he was travelling downslope and the road was wet and slippery. The learned Magistrate was quite entitled to find that by not adjusting or reducing his speed, he had departed from the standard of a reasonable, prudent and competent driver.

8. The other ground relied upon by Mr Chan was about the lighting condition of the road. There was evidence that three of the street lamps were out of order by the time the police officers arrived. It is not clear, of course, when the street lamps were out of order. It is therefore not clear whether at the time of the collision, the three street lamps or any one of them were on or off. Whatever the position about the street lamps was, the fact is if a driver finds that the lighting is dimmer than usual, then he is duty bound to reduce or adjust his speed accordingly. The dimmer the lighting, the more difficult it is for a driver to see; so proportionately has he got to reduce his speed.

9. I find nothing in that ground of appeal. The appeal against conviction is dismissed.

Representation:

Miss Ho May Yu, Lily, SGC of the Department of Justice, for HKSAR

Mr P.K. Chan, instructed by Messrs Tang, Chan & Woo, for the Appellant