HKSAR v. Li Yuen Ming

HCMA 905/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 905 OF 2004

(ON APPEAL FROM TMS 4629/2004)

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BETWEEN

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Before: Deputy High Court Judge Wright in Court

Date of Hearing: 31 December 2004

Date of Judgment: 31 December 2004

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J U D G M E N T

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1.The appellant, who was represented by counsel at trial but represents himself in these proceedings, was convicted of a single charge of careless driving.  It arose out of a collision which occurred between two motor vehicles on 11 February 2004 in Kin Wing Street, Tuen Mun.

2.The Magistrate was faced with two diametrically opposed versions as to how that collision occurred.  I do not propose to traverse the evidence in any detail at all.  The prosecution's case was that a private car with registration HB 3403, occupied by the first prosecution witness, was parked at the roadside with its engine off.  A light goods vehicle with registration EW 8579, driven by the appellant, was similarly stationary ahead.  After approximately three minutes the appellant started to reverse EW 8579.  The occupant of HB 3403 sounded the hooter of the vehicle but to no avail.  The rear of EW 8579 collided with the front of HB 3403. 

3.The version propounded by the appellant when he testified was that it had been his vehicle, EW 8579, which had been stationary when motor vehicle HB 3403 had been driven into it.

4.There was, therefore, a straightforward issue of credibility.  The Magistrate had the opportunity of seeing and hearing the witnesses and forming his own impression of them.  He accepted the evidence of the driver of HB 3403, for reasons which he gave.  He rejected the evidence of the appellant, also for expressed reasons.  Having done so, he made logical and justifiable findings of fact which properly led to the appellant's conviction.

5.In arriving at his decision to accept the prosecution evidence, the Magistrate relied, as he was so entitled, upon evidence of discussions between the driver of HB 3403 and the appellant regarding compensation for the damage caused to HB 3403.  In particular, he found that the appellant had asked the driver of HB 3403 to take the car to a repair shop with which he was familiar; that the appellant had expressed the view that the cost of repairs estimated by that repair shop was too high; and that the appellant had then asked that the car be taken to a second repair shop.  The driver of HB 3403 declined to do so, instead making a report to the police.  Once accepted, this evidence was compelling support for the prosecution version.

6.Evidence was adduced from a second prosecution witness.  According to that evidence, he had been a passing motorist who had observed how the collision occurred.  Immediately thereafter he had approached the driver of HB 3403, told him that he had witnessed the collision, offered his assistance as a witness and provided his contact details.  The Magistrate said, however, that he "ignored his evidence when [he] was considering the prosecution's case".  The reasons which he gave for adopting this course were, with respect, misconceived.  That witness’s evidence could and should have been considered by the Magistrate.  Although he chose not to do so, the remaining evidence was sufficient to discharge the onus on the prosecution.  The appellant was the beneficiary of this approach adopted by the Magistrate.

7.The appellant was correctly convicted.  The appeal is dismissed.

Mr WS Cheung, GC, for Respondent

Appellant, in person, present