HKSAR v. Chan Tin Chun

HCMA000941/2003

HCMA941/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.941 OF 2003

(ON APPEAL FROM NKS 7271 OF 2003)

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Coram: Hon Lunn J in Court

Date of Hearing: 4 December 2003

Date of Judgment: 4 December 2003

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J U D G M E N T

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Appeal against conviction

1.On 8 September 2003 the appellant was convicted after trial by Mr Mierczak at North Kowloon Magistracy of the offence of careless driving on 22 February 2003 at Argyle Street in Kowloon, contrary to section 38(1) of the Road Traffic Ordinance, Cap.374. The magistrate imposed a fine of $1,500. The appellant appeals against his conviction only.

Introduction as to the facts

2.At about 1:20 p.m. on 22 February 2003 the appellant was the driver of private car, index number GW2297, travelling westbound in Argyle Street. Mr Li Kim Pang (PW1) was the driver of his private car, index number FY1967, also travelling in Argyle Street in a westbound direction. PW1 was travelling in the 3rd lane and the appellant in the 2nd lane of Argyle Street. That was a matter in issue. It was suggested, but denied in cross-examination of PW1, that both vehicles were in the 3rd lane with PW1 behind the appellant. A collision occurred between the two vehicles resulting in damage to the front nearside of PW1's vehicle and to the right rear of the appellant's vehicle. A police officer (PW2) attended the scene and drew a sketch of the positions of the vehicles and of debris on the road surface from the broken indicator and headlamp lights of the appellant's vehicle. The appellant's vehicle had been moved by the time that PW2 arrived. His sketch depicts PW1's vehicle wholly inside the 3rd lane of Argyle Street, parallel to the lane divided markings facing the junction with Nathan Road. The broken glass is depicted on the surface of the road in front of the front nearside of PW1's vehicle. The appellant's vehicle is depicted on the other side of the junction with Nathan Road in the 1st lane.

3.PW1 testified that the appellant's vehicle had manoeuvred from the 2nd lane into the 3rd lane of Argyle Street and come to a sudden stop in front of the path in which he was driving his vehicle. Despite decelerating and swerving his vehicle, PW1 testified that he was unable to stop and a collision resulted between the two vehicles. That account of course was the issue in the trial. The appellant did not give nor call evidence.

The learned magistrate's Statement of Findings

4.Having rehearsed the evidence led before him the learned magistrate determined at page 6 :

" I was satisfied on all the evidence before me that the appellant had in fact changed into the 3rd lane from the 2nd lane as described by PW1, and without any indication of so doing. Further it was whilst he was straddling in between the 2nd and 3rd lane that the appellant had suddenly stopped, and PW1 could not stop in time and the collision occurred as he described."

Of that he concluded

" ... the appellant was clearly not exercising the degree of care and attention that a reasonable and prudent driver would have in the circumstances. I found that all the necessary elements had been made out beyond a reasonable doubt and I found the offence proved. Accordingly I convicted the appellant."

Grounds of appeal against conviction

By Ground A(1)

5.Complaint is made on behalf of the appellant that the learned magistrate made a finding of fact which is said to be inconsistent with PW1's evidence, namely, that the appellant's car was about two car lengths away from the white line of the Nathan Road junction that is the stop line when it cut in. This was not a finding of fact at all, but a purported recitation of the evidence of PW1, as is apparent from reading the whole paragraph. However, it is incorrect because PW1 testified that it was his car, not the appellant's, which was that distance away from that white line. Since he said that the appellant's vehicle was only 10 feet in front of his own vehicle, nothing turns on this mistake.

Grounds A(2) and A(3)

6.Complaint is made on behalf of the appellant by this ground that the magistrate failed to consider that on PW1's evidence as to speed and distance of the vehicles and the junction of Nathan Road the collision could not have occurred as described by PW1.

7.Of course, PW1 was describing a scene which unfolded in a short period of time as, he testified the appellant cut into his lane that is the 3rd lane, from the 2nd lane and stopped suddenly. Estimates of speed and distance of witnesses in those circumstances have to be viewed in that context. There were no radar guns to measure speed nor tape measures to measure distance. No doubt, the very experienced magistrate bore all these considerations in mind when he said :

" I found PW1 to be an honest and believable witness and I accept what he says. There are some discrepancies in his evidence but such are minor and would not cause me to disbelieve him in any way, shape or form. ..."

Ground B

8.By ground B the appellant complains :

(1)	That the magistrate failed "to consider and reconcile" what is said to be the inconsistency between a sketch drawn by PW2 of inter alia the final resting position of PW1's vehicle and PW1's evidence. The sketch shows it, i.e., the vehicle, in the middle of the 3rd lane. PW1 said he had stopped on the right side but within the lane .
(2)	It is asserted that the learned magistrate "erred in law and in fact to rely on PW2's incorrect sketch".

As to (2)

9.In his oral reasons for verdict and in his written Statement of Findings the learned magistrate referred to the sketch in the context of the location of the collision damage debris from PW1's vehicle in particular that it was in front and on the left-hand nearside of PW1's vehicle. Given that the collision damage was as described earlier that is hardly surprising. There is no substance in this complaint.

As to (1)

10.Given that PW1's evidence, accepted by the learned magistrate, was that he had maintained only a slight swerve to the right in his attempt to avoid the collision not that he had swerved violently to the right there is no point of substance in this complaint either.

Ground C

11.It is contented that the learned magistrate failed to warn himself that PW1's account in testimony was self-serving.

12.That that was an issue in the case is readily apparent from the cross-examination of PW1, succinctly summarised by the learned magistrate in his Findings at page 5 :

" .. I am satisfied it was never the case that the appellant was at all times in front of [PW1] in the 3rd lane and had just stopped and the appellant had driven into the back of him. ... "

13.The issue of that being of a self-serving nature for PW1 was clearly known to the magistrate. Indeed the learned magistrate said of his approach to the testimony of PW1 at page 6 :

" I must say that I looked at PW1's evidence in light of the fact he has an admitted record of careless driving. I gave myself all of the necessary warnings and treated his evidence with caution, but as I say he was honest and believable and I accept his evidence."

14.There is no substance in this ground of appeal.

Conclusion

15.On the evidence before him the learned magistrate was perfectly entitled to find as he did, namely :

" I was satisfied on all the evidence before me that the appellant had in fact changed into the 3rd lane from the 2nd lane as described by PW1, and without any indication of so doing. Further it was whilst he was straddling in between the 2nd and 3rd lane that the appellant had suddenly stopped, and PW1 could not stop in time and the collision occurred as he described. ..."

16.There being no substance in any of the grounds of appeal. This appeal is dismissed.

Representation:

Miss Peggy Lo, GC of Department of Justice, for the Respondent

Mr Kenny Chan, instructed by Messrs Fung & Fung, for the Appellant