The Queen v. Kutt Gerhard Friedrich Roger

Case No.HCMA 1763/1990

Court

High Court CFI

Date23 May 1991

Judge—

Case Document

100%Judiciary

HCMA001763/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1763 OF 1990

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BETWEEN

THE QUEEN

Respondent

AND

KUTT GERHARD FRIEDRICH ROGER

Appellant

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Coram: Hon. Bewley, J. in Court

Date of hearing: 15 May 1991

Date of delivery of judgment: 23 May 1991

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JUDGMENT

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1. The appellant was convicted of careless driving by Mr Morley in San Po Kong Magistrates Court.

2. On the evening of 7th April 1990 Li Siu Lun and his friend Chan Wai Hung attended barbecue at Pak Tam Chung near Sai Kung. When it Started to rain about midnight they started driving home to Kowloon along Tai Mong Tsai Road. Li was driving his own Car DT 8285 and was followed by Chan in his father's light goods van DN 5402. Their evidence was that Chan was following Li because he did not know the way. Both were young and inexperienced drivers.

3. The evidence of Li, which the magistrate accepted, was that when they reached a straight stretch of road the appellant's car DU 4627 pulled out from behind two oncoming cars and began to overtake them. To avoid a collision Li braked hard and pulled to his left. The appellant's car passed him on the crown of the road and collided with Chan's car behind. He described it thus:-

"While I was trying to avoid it, it tried to avoid me, and after I had avoided it, it had already gone back to its own lane. At the moment of impact, it was already in the other lane, entering into the lane."

4. Chan also testified that the appellant overtook two oncoming cars before the collision. He said that, although he was 20 metres behind Li, he had to brake hard and swerve to the right to avoid running into him and this is why he finished up on the other carriageway, where it is admitted the collision occurred.

5. It was suggested to Chan in cross-examination by the appellant, who was unrepresented but apparently defended himself with some skill, that he was attempting to overtake Li at the critical moment, which was why he was on the wrong side of the road when he collided with the appellant.

6. The magistrate found that Chan had reacted late to the emergency and thereby bore a measure of responsibility for the accident, but was satisfied that he had not attempted to overtake Li and had driven into the path of the appellant solely in an attempt to avoid colliding with the rear of Li's car.

7. PC 46301 arrived at the scene after the appellant's car had been moved to allow traffic to pass. He drew a sketch showing 7-8 metre skidmarks from the rear wheels of Chan's van, although it is conceded by the Crown that they were in fact much nearer the crown of the road than shown. As the appellant's car had been moved the officer made no attempt to locate any skidmarks from his vehicle.

8. PC 46301 then went to the casualty ward of the Prince of Wales Hospital, where he interviewed the appellant at 3:30 a.m. in English, although he admits his English is not very good. According to the PC the appellant told him he overtook two stationary vehicles and had returned to his own lane when the collision occurred. However, the following exchange appears in the record of cross-examination:-

"Court :

Defendant's case is that he only mentioned one vehicle to you, not two that he was overtaking. What say about that?

Because of lapse of time, I can't say if it was two or one. He told me of trying to overtake a vehicle ahead of him."

9. This is consistent with the appellant's case that he overtook one slow-moving Car ahead of him. His version of what occurred is contained in a detailed statement he gave to the police the day after the accident and which he adopted as his evidence in chief. He described it in these terms:-

"I had just over taken a white car which was slowing down near the Bar-B-Q area to the right of the road. As I overtook the white car, I flashed an oncoming car some 100 meters or so away to make the driver aware that I was in the opposite carriage way. I do this out of habit in this area which I know is dangerous on weekends due to the many Bar-B-Q-enthusiasts present on weekends. I proceeded cautiously and my approximate speed at the time was about 50 kph. As I approached the oncoming car, and about 3 car lengths away, a maroon light goods vehicle, a van, DN 5402 driving by Mr Chan Wai Hung driver's license number: D 803772(2), suddenly and without warning crossed over into my lane and accelerated to overtake the approaching car. There was no room on the pavement where I could, steer my car to take evasive action as cars were parked all along the pavement to my left. I immediately slammed on my brakes. My car skidded in a straight line towards to left edge of the Road and almost came to a complete halt, when the van BN 5402 slammed into the front of my car in my lane."

10. The appellant returned to the scene that day and located his own skidmarks, which he said were four metres long in a straight line on his own side of the road. He also measured the van's skidmarks, which were ten metres long and bent from left to right. He drew a sketch which was produced in evidence.

11. The appellant added that he had driven 200,000 miles in U.S.A. and Europe for 15 years without an accident and had received special commendation for safe driving from his company's instructors in Europe.

12. The magistrate found that the appellant was basically a truthful witness but in some respects he found his evidence inaccurate and in some aspects untruthful. He found his evidence that he was overtaking only one car to be a deliberate lie. Likewise his evidence that he was proceeding cautiously at 50 kph as he finished his overtaking maneouvre.

13. The magistrate continued:-

"I did not believe his evidence that he was 100m away from PW3's car when he flashed his lights in the course of overtaking. I found later that he was 50m away from PW1's car at that stage, as PW1 said, and was closer still to PW3's car. I found that this was not a deliberate lie on the Appellant's part, but was a substantial misjudgment of the situation, falling well short of the standard required of an ordinary prudent driver.

I did not believe his evidence that PW1 was trying to overtake PW3's car just prior to the collision. I found that this was not a deliberate lie on the Appellant's part, but was simply an illustration of his total lack of understanding of the difficulty his careless overtaking maneouvre had caused to the oncoming drivers.

I did not believe his evidence that it was perfectly safe for film to pull out to overtake at the time he did so. Again, this was the root cause of the subsequent events. I found that he totally misjudged the distance between him and the oncoming vehicles. I found that the Appellant never saw the oncoming vehicles until he had already pulled out, and then he flashed his lights at them. I found also that they were there to be seen by a normal prudent driver paying proper attention to his driving."

14. Mr Wright, for the appellant, submits that the magistrate was wrong to have found that the appellant lied about overtaking two cars in reliance on the PC's evidence and overlooking his subsequent retraction. I agree that the magistrate was wrong to place weight on this aspect of the officer's evidence but I do not consider that any prejudice resulted. If the appellant began to overtake when it was unsafe to do so, it is immaterial how many cars he overtook and it is also immaterial whether he is lying about it or not.

15. Mr Wright also places great emphasis on the position and skidmarks of Chan's car. These are also irrelevant, provided he was not trying to overtake Li's car. The magistrate came to a very firm view about this aspect of the evidence. He was aware of the risk of collusion but he rejected it and accepted their evidence that they were in convoy.

16. Li's evidence was crucial and his finding that the appellant's overtaking caused him to brake and swerve is decisive. If that evidence is true - as the magistrate found - the appellant was driving carelessly whatever his speed or the number of cars he overtook. The fact that he succeeded in overtaking and rejoining his own carriageway overlooks the train of events that he had unwittingly set in motion.

17. There is no possibility of error on Li's part: either he was a witness of 'truth or he was not. The magistrate found he was telling the truth and I am not prepared to say that he was wrong to do so.

18. This finding means that the appellant was guilty of a serious error of judgment after 15 years of accident-free driving, which the magistrate took into account. It is possible that he was under a genuine misapprehension that Chan tried to overtake Li. He would have seen Chan's headlights on Li's offside after Chan's braking had taken him into the middle of the road

19. The fact that the accident might not have happened but for Chan's slow reaction to the emergency cannot affect the issue. On his assessment of the witnesses the magistrate was right to find it proved beyond reasonable doubt that appellant was guilty of careless driving.

20. The appeal is dismissed.

	(E. de B. Bewley)
	Judge of the High Court

Representation:

Mr D.G. Saw, Crown Counsel, for Respondent.

Mr John Wright, inst'd by M/s Robertson Double, for Appellant.