HKSAR v. Lam Chi Kit

HCMA 1215/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. HCMA 1215 OF 2004

(ON APPEAL FROM ESS 5137 OF 2004)

____________________

BETWEEN

Before:   Deputy High Court Judge Line in Court

Date of Hearing:   22 March 2005

Date of Judgment:   22 March 2005

J U D G M E N T

1.In this case the appellant seeks to overturn his conviction for careless driving.  It arose from a minor incident in the bay in front of Central Plaza in Harbour Road, just down the road from the District Court.  Page 17 of our bundle shows the road as it bends between raised pavements.  The road in front of the main door to the building forms a dog-leg.  There is no dispute that there was contact between the front offside corner of a PLB-style bus that was the shuttle bus belonging to Central Plaza and the rear nearside door of the appellant’s taxi. 

2.The prosecution’s case was that the taxi driver must have steered his vehicle to the left as he was passing and so scraped the corner of the stationary bus, and the case for the appellant, who gave evidence below, was that he had in fact stopped to let a pedestrian go by and the bus set off and drove into him.  The bus driver and a security man, who was down at the scene directing traffic at the time who said he witnessed the accident, both said the bus was stationary.  That is not an easy thing to  make a mistake about.  Either it started up or it did not. 

3.The magistrate believed the two prosecution witnesses.  He did not say the appellant here was deliberately not telling the truth, far from it.   He said that, on his finding, the appellant taxi driver merely made an error and had not appreciated it, and the error that he made was to put some left lock on his vehicle, in other words turn his vehicle to the left, too soon.  He had not waited to clear the bus but he started to make the left-hand turn which would be necessary for him to negotiate the dog-leg.  In his view, and I agree with it, is that it is the sort of error you can make just by some simple carelessness not realising it. 

4.Now, the magistrate was in a much better position than I am in to judge whether or not PW1 and PW2 were telling a lie about it because it is not just what people say but it is the way they say it that is important.  There is nothing in the evidence before me that would indicate bad faith by either PW1 or PW2 and, on the face of it, to come and commit perjury, a serious offence, in a court over a very small incident like this was something the magistrate, with all the advantages he had, judged to be unrealistic in these circumstances.

5.Now, the appellant has argued his appeal very nicely and he makes a point which must be answered about the position of the wheels of the two vehicles as shown on a sketch prepared by a policeman.  The wheels of the bus are shown as pointing outwards.  That is consistent with the case for the appellant, but of course it does not in fact tell me whether or not the bus moved because obviously it could have been parked with its wheels in that position ready to move off and consistently with having swung into the rather awkwardly shaped parking space where it was stationary at some stage. 

6.The sketch shows the wheels of the taxi pointing straight forwards and the appellant makes the point, “Well, if I’d moved my vehicle to the left, why doesn’t it show my wheels pointing to the left?”  It is a good point, it is one the magistrate considered, but is met by the fact that if he had made the left turn and put on some lock, had the scrape and then took the lock off before getting out of his car, it would have straightened up the wheels. 

7.The appellant also made a point about the nature of the damage which was to be seen in some photographs before me.  It is common ground whoever is right in this that the impact was at a slow speed.  The appellant says, “Look, it’s a dent not a scrape and you’d expect a scrape if I was going by rather than if I was stationary and he’d driven into me”.  On the other hand, though, the photographic evidence does not demonstrate a dent to the exclusion of some sort of low speed contact because the shape of the damage pointed out by the appellant to me here is one that looks to me about 6 inches long and it is as consistent with a scrape as with a dent, or so it seems to me.

8.The final point the appellant makes is that if there was going to be contact between his moving vehicle and the stationary bus at the level of his rear door when he had driven by, he would have had to have put on a huge amount of lock and made a really big swerve to the left to have the impact.  He wanted to have me leave court and go into his taxi to have a reconstruction of the matter. 

9.I explained why that is something that cannot reasonably occur and that both the magistrate and I are people who drive motorcars and know how they move.  This is the sort of scrape you get if you put on some lock too soon leaving a narrow parking space, and if you look at page 17, the picture from above looking down at the shape of the road, it is clear that the appellant was going to have to put on some left lock to negotiate the dog-leg.  It is a question of degree.  I can see how the application of a modest amount of lock could result in the rear of the taxi just making contact with that protruding corner of the bus.

10.Accordingly, I regret to say that on the evidence before me my judgment is that the order of the magistrate should be confirmed and the appeal dismissed. 

Ms Peggy Lo, Government Counsel, of Department of Justice, for HKSAR

Appellant, in person