HKSAR v. Wong Lap Kan Dicky

HCMA000083/2004

HCMA 83/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 83 OF 2004

(ON APPEAL FROM KCS 5949 /2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 7 May 2004

Date of Judgment: 7 May 2004

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J U D G M E N T

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1.The Appellant was charged with one offence of dangerous driving in the Magistrate Court. He was tried and convicted. He now appeals against that conviction.

2.The case is a very simple case of dangerous driving. There was some bad blood prior to the collision between PW1 and the Appellant. It was admitted in evidence that the Appellant had driven his motorcycle which was in front of PW1's car towards the exit of a car park but at the exit, PW1 had blown her horn because the Appellant had apparently stopped at that exit.

3.At that time, the Appellant had alighted from his motorcycle and approached PW1 and accused her of sounding her horn at him. Then the Appellant drove past the booth of the car park and then stopped the motorcycle at the side of the commercial centre. PW1 then proceeded to exit the car park and after she exited the car park, there was a collision between PW1 and the Appellant's motorcycle. The impact was between the front offside of the car against the nearside of motorcycle. Fragments of the vehicle's front offside indicator light were found inside the Appellant's motorcycle's nearside exhaust pipe.

4.Now, PW1 testified that after she turned left into the street and after travelling for a short distance, there was a collision. When she had turned into the street she had noticed that the Appellant's motorcycle had been stationary at the exit of the car park. Then the motorcycle caught up with her and it was alongside her on her right, then it cut across her path at a high speed of about 40 km per hour and it was when making this cutting manoeuvre that the nearside rear of the Appellant's motorcycle hit PW1's vehicle. So after the impact PW1 then parked his car on the side and made a call to the police.

5.Under cross-examination, PW1 agreed she was very angry and she also testified that the collision occurred immediately upon his cutting into her path. She had braked immediately but was unable to avoid the collision. She said that the Appellant's motorcycle did not fall over and she said that the Appellant had not put on his indicator light before overtaking her.

6.PW2's evidence was that he was on board a stationary container truck in the street. When he heard the sound of an accelerating motorcycle so he looked to that direction and then he saw the collision. He saw motorcycle cut in front of a private motorcar. At that time, he was 20 feet away from this vehicle and nothing obstructed his view. He said that the point of impact was a car's right front and the left rear of the motorcycle and both vehicles coasted forward a few feet and then stopped.

7.Under cross-examination, he said that when he first saw the motorcycle up to the time of collision his eyes never left the motorcycle. After the prosecution witnesses had given evidence, the Defendant elected to give evidence and his evidence was that after he drove out of the car park. Whilst he was preparing to enter the Lam Wah Street, the private car which had been behind him passed him on his left side. He followed her and then overtook her. He had switched on his indicator light before doing so. After overtaking her, he travelled some 3 to 4 car lengths before slowing down at the road junction. He claimed that the private car then collided with his motorcycle from behind.

8.After the Appellant gave evidence, the learned Magistrate then analysed the evidence. He noted that there were minor discrepancies between PW1 and PW2. But he was satisfied that these discrepancies did not affect his ultimate finding of their credibility.

9.The learned Magistrate at page 40 para. 2 considered defence submission that it was strange that after the collision the motorcycle did not fall over and he had this to say: "I also did not find it strange or remarkable, contrary to Defence Counsel's submission that PW1's version of the collision did not result in the falling to the ground of the Appellant's motorcycle."

10.The learned Magistrate after analysing the Appellant's evidence decided he did not believe him and he found as a fact that the Appellant did overtake PW1's vehicle on her right side cutting in front of her at such a close distance that the rear exhaust of his motorcycle collided with the right front headlight and indicator light of PW1's vehicle. I could add here that this finding is definitely supported by the photographs. The learned Magistrate therefore found that on the evidence, the Defendant was guilty of dangerous driving.

11.On appeal, counsel representing the Appellant, Mr Yeung submitted the same points that were raised by Defence Counsel in his final submissions. First of all that the fragments inside the exhaust pipe were an indication that the accident must have happened as the Appellant had said.

12.Well, all I can say is this that the learned Magistrate did not believe the Defendant. He accepted fully the evidence of PW1 and PW2 and photograph saved he made the finding that the collision was between the rear exhaust of the motorcycle and the right front head light and indicator light of PW1's vehicle.

13.Mr Yeung attempted to submit that the kind of collision that as described by the prosecution would not result in the fragments being inside the exhaust pipe. Well, it is clear that there were a lot of fragments as a result of the collision and common sense would dictate that they would fall all over the place because of the pressure of the impact.

14.So I do not find that was any merit in this ground of appeal, as far as the coasting of the motorcycle after collision is concerned. Mr Yeung again submitted what he submitted in the lower court that the motorcycle would have fallen if the collision had occurred as the prosecution witnesses had described.

15.The learned Magistrate accept the evidence to the prosecution witnesses that it did not fall over. There was no evidence to indicate that as a result of this collision, the motorcycle would have fallen over.

16.So the learned Magistrate had ample evidence before him more than sufficient to make the finding that he did. His finding is based on the evidence he had heard given by PW1 and PW2 and the photographs and a reading of the learned Magistrate's Statement of Findings indicated that he did properly consider every aspect of this case, although it is such a simple case, and he made his finding based on the evidence and I find that he was not in error.

17.There is no merit, whatsoever, in this appeal and so the appeal is dismissed.

Representation:

Mr Derek Lai, GC of the Department of Justice, for the Respondent

Ms Dominic Yeung, instructed by Messrs Kwok, Ng & Chan, for the Appellant