R V Hui Kee Fung

HCMA000196/1994

Headnote

[Litigants are not entitled to the unrestricted use of the court's time. They are only entitled to such time as is needed to permit the issues which the case raises to be fully and fairly ventilated.

Appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The mere desire to obtain another finding on the facts is not sufficient to justify the invocation of an appellate process which treats the findings of fact by a court of first instance as so sacrosanct as our system of criminal justice does.]

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 196 OF 1994

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 26 July 1994

Date of delivery of judgment: 26 July 1994

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J U D G M E N T

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Keith, J.:

1. On 25th January 1994 at Shatin Magistrates' Court, following a hearing which spanned a number of days, the Appellant was convicted, after pleading not guilty, of careless driving. He was fined $3,000. He now appeals against his conviction.

2. The facts were straightforward, and it is surprising that the case lasted as long as it did. At about 11:20 p.m. on the evening of 5th June 1993, PW1 was driving his van along Tai Chung Kiu Road towards Shatin. His evidence was that as he reached the junction with Siu Lek Yuen Road, he was travelling at about 30 - 40 km. per hour. The traffic lights were green in his favour, and he crossed the junction behind three or four other vehicles. As he came out of the junction, he heard a "bang", his van skidded and it came to a halt. He had not seen what had hit his van. When he got out of his van, he saw a Jaguar motor car close by which had also come to a halt. There was no dispute that the Appellant had been driving the Jaguar that night. PW1 also saw that the rear off-side of his van was damaged.

3. Where the Jaguar had come from had been observed by PW2, who had been sitting on a bus which had been stationary at the traffic lights in Tai Chung Kiu Road facing Ma On Shan waiting to turn right into Siu Lek Yuen Road. The traffic lights at the time were green in favour of vehicles crossing the junction but red for vehicles intending to turn right. PW2's evidence was that while the traffic lights were still green in favour of vehicles crossing the junction, he saw a car (which it was not disputed was the Jaguar) coming out of a street on his left. He did not see what happened then, but the reaction of the other passengers on the bus told him that an accident had happened.

4. The relevant evidence of the other prosecution witnesses was as follows:

(1) The evidence of PW5, a Principal Technical Officer attached to the Transport Department, was that when the traffic lights in Tai Chung Kiu Road at this junction were green in favour of vehicles crossing the junction, they would have been red for vehicles coming out of the road from which PW2 saw the Jaguar come.

(2) The evidence of PW6, a police officer, was that the traffic lights at the junction were working properly that night.

(3) The evidence of PW4, an Electronics Inspector of the Traffic Aids Section of the Electrical and Mechanical Services Department, was that the Section's records showed that no complaint had been received that the traffic lights at that junction had not been working properly that night.

5. If the magistrate accepted the evidence of the prosecution witnesses, it was plain that the Appellant had driven his Jaguar into the junction when the traffic lights were red against him, and that he collided with PW1's van as it was properly crossing the junction when the traffic lights were green in PW1's favour.

6. The Appellant's evidence was that he had waited "for several tens of seconds" before the traffic lights changed to green. He turned right into Tai Chung Kiu Road, and after travelling in the middle lane for thirty feet or so, the van skidded into his off side. If the evidence of the Appellant was true, what must have happened was that the traffic lights had just changed to red for vehicles in Tai Chung Kiu Road which were crossing the junction, that PW1 had jumped the lights, but that in doing so he had collided with the Appellant's Jaguar.

7. The magistrate saw and heard the witnesses. She was in an infinitely better position than I to assess their reliability and credibility as witnesses. She believed PW1 and PW2, and disbelieved the Appellant. I cannot interfere with her finding that the Appellant drove into the junction when the traffic lights were red against him. Any driver who does that departs from the standard to be expected of the reasonable, prudent and competent driver, and her conviction of the Appellant for careless driving in view of her findings of primary fact was therefore inevitable.

8. The first point taken by Mr. Luk on behalf of the Appellant is that the magistrate failed to take adequate account of three features of the evidence: PW1's evidence that he did not see what had hit his van, PW2's evidence that he did not witness the collision, and PW1's evidence that his van had skidded, the inference being that he was driving too fast on a wet road. There is no doubt that the magistrate took account of this evidence. She referred to it in her Statement of Findings. The fact that she did not go on to refer to the evidence in that part of her Statement of Findings headed "Reasons for Findings" does not begin to mean that she failed to take adequate account of it. In any event, I do not see how any of this evidence is inconsistent with the Crown's case of what had happened. If PW1 was crossing the junction normally when the traffic lights were green in his favour, he would not be expecting a car to come into the junction from his right. It does not follow that because PW2 did not keep the Jaguar in his sights until the collision, PW2 saw nothing wrong with the Appellant's driving of the Jaguar. And the skidding of the van is consistent with PW1 applying his brakes after the collision.

9. When PW2 was originally interviewed by the police and asked to mark on a plan of the scene where the bus on which he was travelling had stopped, he marked it as having stopped in a lane different to the lane in which he stated in evidence it had stopped. He gave the magistrate an explanation for his error. The magistrate accepted that explanation. Mr. Luk argues that the magistrate erred in accepting that explanation. That argument is wholly untenable. It was for the magistrate to make her own assessment of the witnesses. Simply because she makes an assessment of a witness which is adverse to the Appellant does not begin to mean that her assessment was wrong.

10. In para. 3 of that part of the Statement of Findings headed "Findings", the magistrate found as a fact that the rear offside of PW1's van had been hit by the front nearside of the Appellant's car. Mr Luk complains there was no evidential basis for that finding. That argument is equally untenable. The evidential basis for that finding was the evidence of PW1 and PW2 which the magistrate accepted. Once she accepted that evidence, the finding which the magistrate made as to who hit who was inevitable.

11. Finally, Mr. Luk argued that even if the magistrate could reasonably have found on the evidence that the Appellant had driven through the traffic lights when they were red against him, that did not necessarily mean that he had been driving carelessly. Disobedience to traffic lights is only a factor to be considered, but it is not conclusive evidence that a driver was driving carelessly. Technically, that is correct. The ultimate question to be asked is whether the driver was departing from the standard to be expected of a reasonable, prudent and competent driver in all the circumstances of the case. However, as I have already said, any driver who drives into a junction when the traffic lights are red against him cannot complain if the court decides that he was thereby departing from that standard.

12. For these reasons, this appeal must be dismissed. However, I wish to make a couple of observations before departing from this case. It is necessary at all times in litigation, whether civil or criminal, to keep a sense of proportion. I fear that the Appellant and his advisors completely lost sight of that in this case. Although I do not want to minimise the offence of careless driving, and although a conviction for careless driving can have an impact on the civil liabilities of those who have been involved in an accident, the offence of careless driving is hardly the most serious in the criminal calendar. Indeed, in this case the disputed facts fell within a very short compass indeed. Despite that, the prosecution witnesses were cross- examined by the Appellant's solicitor at such length that the trial spanned many days. Then, when the magistrate did no more than accept the evidence of the prosecution witnesses, and reject that of the Appellant, this appeal was mounted, raising a number of criticisms of the magistrate which were, on analysis, obviously and wholly unsustainable.

13. Two lessons can, I think, be learned from all this. First, litigants are not entitled to the unrestricted use of the court's time. They are only entitled to such time as is needed to permit the issues which the case raises to be fully and fairly ventilated. Secondly, appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The Judge does not even see the witnesses. It will be rare indeed for a Judge to say that the findings of fact made by the magistrate were so contrary to the weight of the evidence that doubts as to the correctness of the magistrate's findings exist. There may occasionally be cases in which a defendant believes that he has been the victim of a miscarriage of justice, because the magistrate has chosen to believe the witnesses who gave evidence against him and disbelieve him. But if there are no sustainable grounds of appeal, a belief in one's innocence is not sufficient to justify the invocation of an appellate process which treats the findings of fact made by a court of first instance as so sacrosanct as our system of criminal justice does.

14. In my view, this would have been an appropriate case for the Appellant to be ordered by the magistrate, pursuant to section 69(1) of the Magistrates Ordinance (Cap. 227), to pay the taxed costs of the prosecution up to the legal maximum of $5,000. However, I have wide powers under section 120(1) of the Ordinance to make such orders as to costs as I think fit. For the reasons I have given, this is a case in which, in my view, I should exercise those powers. I therefore order the Appellant to pay the taxed costs of the prosecution in the magistracy up to a maximum of $5,000, and the taxed costs of the prosecution on this appeal up to a maximum of $10,000.

Representation:

Mr. Albert Luk inst'd by Messrs. Ng & Shum for the Appellant.

Ms. Jenny Betts, S.C.C., for the Crown.