The Queen v. Li Tat Man

HCMA001518/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistrary Appeal No. 1518 of 1990

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BETWEEN

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Coram: Hon. Hooper, J. in Court

Date of hearing: 18 December 1990

Date of delivery of judgment: 18 December 1990

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JUDGMENT

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1. On the 26th September, 1990, the appellant was convicted in the Magistrates Court at Western of driving a motor vehicle on a road carelessly, contrary to s.38(1) of the Road Traffic Ordinance, Cap.374.

2. Only two witnesses gave evidence in this case and they were both prosecution witnesses. PW1, Mr Cheung Chin-kai testified that at about 11:10 p.m., he was driving his car along the Island Eastern Corridor travelling on the easternbound carriageway and was, in fact, on the third lane from the left, it being a three lane carriageway. When he was driving near Li King Wan his speed was about 60 km per hour. There was a bus of the China Motor Bus Co. on his left hand side in the first lane. That bus suddenly cut lanes to the right at a slightly faster speed than PW1 was travelling, without giving any signal. PW1 braked abruptly and swerved right to avoid the bus. The lane was wet and while he stopped the car, he made an about turn so that the front faced towards the West. He described the condition as being misty without any rainfall but that the road surface was wet and slippery. His car stopped on the road and he turned back towards the west and saw a taxi was driving towards him. When he first noticed the taxi it was at a distance of about 20 odd metres from him. He saw the taxi making an emergency brake and swerved to the left to avoid collision. That taxi was travelling also on the third lane from the left. It crashed into his car. In cross-examination, he was asked what was the speed of the defendant's vehicle when he first saw him and he replied about 60 odd km per hour.

3. PW2, Mr CHOI Jin-ku was the passenger in the defendant's taxi. He testified that he was sitting on the left hand side of the rear seat of the taxi and when the taxi was approaching Li King Wan along the Island Eastern Corridor, they found a private car. When he first saw the private car it was about 20 metres ahead of them. The speed of the taxi was then about 50 km per hour. He cannot say exactly at what speed it was travelling. He did not see any other car when he first saw the private car it was stationary, not moving. Under cross-examination, he admitted that the taxi driver had reduced speed because there was a curve. He denied that there was an emergency light from the private car. He agreed that the taxi had tried to turn a bit to the left to avoid the collision but because there were other cars passing by on the left at the same time, if the taxi change lane it would be dangerous.

4. In the course of his judgment delivered immediately after the submissions, the learned magistrate said :

"He (the appellant) could not be able to stop his car or to turn to the middle lane in order to avoid collision. By that I found the defendant did fail to drive with due care because he had to ensure he had a clear path in front of him when he proceeded ahead. As there was a curve whereby he could not extend his view clearly, he should have slowed down his speed to the distance where he could bring his car to a stop when situation require."

5. In his Statement of Findings, the learned Magistrate said :

"Taking into consideration that there was no light in private car BT3721, I found the appellant did drive without due care and attention because he was driving at such speed that he could not be able to stop his vehicle in time to avoid collision. Despite there was no evidence to show appellant had exceeded the speed limit, he was negotiating a bend and a competent driver should keep his speed in proportion with distance of his view. Since appellant had collided with a stationary vehicle, I found him failed to drive with due care and attention and I found him guilty of careless driving."

6. With the greatest of respect to the Magistrate, in neither of these two situations does it necessarily follow that the defendant has been guilty of careless driving. It all depends upon the circumstances prevailing at the time. There was no evidence in this case that the appellant was driving excessively fast. The last thing a driver would expect to find in the third lane of a carriageway at that time of night would be a stationary vehicle without lights on facing in his direction.

7. In Brown & Lynn, Pursuers v. Western S.M.T. Co. Ltd. [1945] S.C.31 at p.37, in a case where an accident was caused because of an exceptionally abrupt stop by a vehicle in front, Lord Justice Clerk said :

"I am not prepared to hold that he has been proved to be in fault for failing to make better provision for a contingency so extreme. The rule of reasonable care and foresight cannot be elevated into a counsel of perfection which would require a following vehicle to give a leading vehicle so wide a berth that every possible risk, however remote, would be amply covered."

Earlier on he had said :

"The following driver is, in my view, bound, so far as reasonably possible, to take up such a position, and to drive in such a fashion, as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated : but whether he has fulfilled this duty must in every case be a question of fact, just as it is a question of fact whether, on any emergency disclosing itself, the following driver acted with the alertness, skill and judgment reasonably to be expected in the circumstances."

8. In Webster v. Wall [1980] Criminal Law Review, p.186, a motor cycle which the defendant was riding at night collided with the rear offside of a stationary motor car parked on its nearside of the road. The defendant was charged with driving a motor vehicle without due care and attention, contrary to section 3 and schedule 4 of the Road Traffic Act 1972. The justices found, inter alia, that the car was not displaying any lights which were required to be displayed and the cycle was on dipped headlights immediately before impact; the nearest illuminated street light was about 35 feet away; the road was wet and visibility poor; and the area was subject to a 40 m.p.h. speed limit; and the defendant was travelling at 28 to 30 m.p.h. They rejected the prosecutor's contentions that by driving at almost 30 m.p.h., with a restricted forward visibility, the defendant's driving departed from the standard of care and skill required to be exercised by a reasonable, prudent, competent and experienced driver and therefore he was driving without due care and attention; and that the accident, since it occurred between the defendant's moving vehicle and a stationary vehicle, raised a presumption that the defendant was not maintaining a proper look out. Accordingly, they dismissed the information.

9. It was Held applying Jarvis v. Fuller [1974] R.T.R. 160 that the question was whether any reasonable bench of justices could have acquitted the defendant. Since it was impossible to say that the justices' decision was perverse, it could not be disturbed and, accordingly, the appeal would be dismissed.

10. It is clear the Magistrate based his decision on two factors only (1) that the defendant was driving at such speed that he would not able to stop his vehicle in time to avoid a collision and (2) that the private car was stationary at the time.

11. Unfortunately, it does not necessarily follow from either or both of these two factors alone or together that the defendant was guilty of careless driving. They are also consistent with a standard of driving which was reasonable in the circumstances.

12. In my judgment, the Magistrate misdirected himself in holding that these two factors were enough in themselves upon which to base his decision, and his decision is therefore unsafe and unsatisfactory.

Representation:

Miss Rowena Ng of Albert Leung & Co., for appellant Li Tat-man

Mr D. Saw, Sr. C.C., for Crown