HKSAR v. Cheng Yiu Hau

HCMA001162/2002

HCMA1162/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1162 OF 2002

(ON APPEAL FROM KCS 5957 OF 2002)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 11 February 2003

Date of Judgment: 14 February 2003

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J U D G M E N T

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1.This is an appeal against a magistrate's refusal to award the appellant costs following the magistrate's acquittal of the appellant on a charge of careless driving.

2.The facts of the case were that the appellant had driven his taxi out into Clear Water Bay Road from Sheung Sze Wan Road in the New Territories on the charged date intending to cross to the far side of the road and turn right so as to proceed towards Kowloon.

3.The prosecution's case against the appellant was that he had failed properly to look to his right while pulling out into Clear Water Bay Road and so did not see a motorcycle and its rider in the near side lane travelling from the right and towards the intersection from the direction of Kowloon. The prosecution alleged that as a result of his failure to keep a proper lookout in that regard the appellant drove his taxi out into Clear Water Bay Road and into the path of the approaching motorcycle with which he collided.

4.The fundamental issue to be decided by the magistrate at trial was whether the appellant had properly looked to his right while pulling out into Clear Water Bay Road.

5.It was common ground that the motorcycle had been travelling from the appellant's right towards the intersection. It was also common ground that the appellant had failed to see the motorcycle, which had its headlight on, until a few seconds prior to impact.

6.The appellant, in his evidence, said he had looked properly to his right. He said he saw no motorcycle and proceeded out into the intersection. He then saw a dazzling light, from the motorcycle presumably, and stopped. His taxi was then struck by a motorcycle sliding along the road. He said he saw the rider lying unconscious elsewhere on the road.

7.The magistrate in acquitting the appellant gave him the benefit of the doubt. The magistrate found on the evidence as a whole that it was possible that the appellant had looked properly to his right but that at that time the motorcycle was out of sight, but travelling at such a speed that it came upon the appellant before he had crossed the intersection. In coming to that conclusion the magistrate apparently accepted the appellant's evidence to the effect that certain answers he had given to the police during a cautioned statement he had made were mistaken and wrong.

8.In considering the question of costs sought by the appellant on his acquittal the magistrate said immediately upon the application having been made before him :

" All matters considered, I take the view that it is a case where the defendant has, through his conduct, brought suspicion upon himself. I do not think it's appropriate case where defence cost should be granted, whether in its entirety or partially. For these reasons, application for defence cost is refused."

and, later, in his Statement of Findings provided for the purpose of this appeal, the magistrate said :

" ... In my view, the answers [in the appellant's cautioned statement] were clumsily answered and the police were misled into thinking that their case was stronger than it actually was. For example, the Defendant in answer No.8 told the police when he looked to his right, he could see around 150 metres away, thereby suggesting that he had a good visibility of the road on his right. In fact, the Defendant had to clarify the true meanings of his answers in the witness box."

9.So the magistrate in refusing the appellant his costs of the trial had relied on particular answers the appellant gave to the police when interviewed under caution as causing the prosecution authorities to think their case against him was stronger than it actually was.

10.Those questions and answers in the appellant's cautioned statement particularly pointed to by the magistrate in his Statement of Findings were, in context, as follows :

"Q[8]: When you looked to the right, how far away could you see?

A[8]: Around (deletion) 150 metres.

(and later)

Q[18]: Where had you been looking at since you drove off till your vehicle fully entered the lane of Clear Water Bay Road Kowloon-bound?

A[18]: I had been looking to the left all along.

Q[19]: Why did you only look to the left while turning right?

A[19]: It was because I had already taken a thorough look before.

Q[20]: Since you drove off till you fully entered Clear Water Bay Road (deletion) Kowloon-bound, you only looked to the left. Were (deletion) you sure that there would definitely be no vehicle travelling in Clear Water Bay Road towards Clear Water Bay during the period?

A[20]: (I) wasn't sure.

Q[21]: Since you were not sure if there would (insertion) be any vehicle coming or not, why didn't you notice the traffic condition on your right while turning right?

A[21]: It was because I had already taken a look before. (I) believed that (there) wouldn't be any vehicle coming."

11.The magistrate in the terms of his reasons as set out in his Statement of Findings plainly meant that the contents of these answers as given by the appellant in his cautioned statement were those which had brought suspicion upon him and made the prosecuting authorities believe their case against the appellant was stronger than it actually was.

12.In this regard when the appellant gave evidence at trial he apparently explained the answers he gave. Firstly he said his answer to Question 8 was inaccurate as the actual distance he had been able to see down Clear Water Bay Road to his right from where he had stopped at the intersection was considerably less than the 150 metres stated in that answer. He said that the 150 metres estimate he gave was just an estimate based on what the police had told him of the distances involved and that he had just guessed that the distance was 150 metres. He said the real distance was probably closer to the 60 to 70 metres his own expert witness at trial, a Doctor Eric Lim, a senior engineer employed by a firm specialising in traffic accident reconstruction, had said was a distance a driver at that intersection could see down Clear Water Bay Road to his right.

13.The point of that evidence was that if the approaching motorcycle was travelling in its estimated speed range of 64 to108 k/h before it started to brake to avoid the appellant's taxi, then it would very possibly have been outside the appellant's range of vision when he looked to his right down Clear Water Bay Road before pulling out into the intersection if the appellant's range of vision was in fact 60 to 70 metres. If the appellant's range of vision was 150 metres then it was common ground the motorcycle would have been within his range of vision and should have been seen by the appellant. That was apparently the way the issue was formulated at trial.

14.The magistrate obviously accepted that, by his answer to Question 8 that he had an estimated range of vision of 150 metres, the appellant had admitted, so far as the prosecuting authorities were reasonably concerned, a fact which meant he should have seen the approaching motorcyclist but had not.

15.Further, by his recorded answers to Questions 18, 19, 20 and 21 of the cautioned statement, the appellant appeared to have admitted that after looking to the right before pulling out onto Clear Water Bay Road he paid no further attention to traffic approaching form his right-hand side. In his evidence at trial, the appellant said he had misunderstood the questions asked of him in this regard and thought he was being asked where he had been looking as he approached and started to turn into the Kowloon bound lane on the far side of Clear Water Bay Road. The issue arising in respect of this aspect of the evidence was that if the appellant had continued to keep a proper look out to his right as he entered the intersection, he would have been in a better position to avoid a collision by stopping his taxi before it travelled into the path of the motorcycle.

16.In other words the magistrate found that by all these answers as recorded in his cautioned statement which differed from his evidence at trial, and which the appellant qualified during his evidence, the appellant had admitted facts which suggested to the prosecuting authorities that the appellant had paid insufficient attention to traffic approaching from his right side and had thereby failed to see the motorcyclist in time.

17.And for these reasons the magistrate found that the appellant's answers in his cautioned statement, which the appellant in evidence agreed he had given, but effectively said were wrong or mistaken, had accordingly misled the prosecution into thinking their case against the appellant was stronger than it actually was.

18.The magistrate was obviously aware, in exercising his discretion to refuse costs on the basis of the appellant's inaccurate answers in his cautioned statement, of the principles of HKSAR v. Tong Cun Lin [2000] 1 HKLRD 113 where it was said by Litton PJ in setting out the governing principle :

"... generally speaking, the conduct most relevant to the matters under consideration must be the defendant's conduct during the investigation and at the trial : How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc."

There is nothing to suggest the magistrate in the present case misapplied that principle.

19.It may be that other courts in the same circumstances may have come to a different conclusion so far as the exercise of any discretion in this regard was concerned. But as Yeung J (as he then was) said in HKSAR v. Dove & Another [1998] 1 HKLRD 179 in respect of a similar appeal :

" The issue is not whether this court would have exercised the discretion in favour or against the appellants. Sitting in an appellate capacity, the only issue that I have to decide is whether there was evidence before the magistrate for him to conclude that the appellants had, in fact, brought suspicions upon themselves, and/or misled the prosecution into thinking that the case against them is stronger than it is."

I adopt those comments. In my view there was such evidence before the magistrate so to enable him to exercise properly his discretion in refusing the appellant's costs.

20.In the circumstances there has been shown no sufficient basis to interfere with the magistrate's exercise of his discretion and the appeal is dismissed.

Representation:

Mr Raymond Cheng, GC, for the Respondent

Mr Peter Pannu, instructed by Messrs Chong & Partners, for the Appellant