HKSAR v. Ng Chi Lung

HCMA 239/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 239 OF 2005

(ON APPEAL FROM ESS 20387/2004)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 7 April 2005

Date of Judgment: 7 April 2005

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J U D G M E N T

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1.This Appellant was convicted in the Magistracy of an offence of Careless Driving and fined $1,500.  He now appeals against conviction.

2.The incident arose out of a collision which occurred at the southbound entrance to the Cross Harbour Tunnel at about 4.45 am.  The Hong Kong bound tunnel was closed and Hong Kong bound traffic was diverted into the Kowloon bound tunnel.  There was only one lane available for all Hong Kong bound traffic.

3.PW1, who was driving a light goods vehicle, came through the auto-toll lane nearest to the lane into which traffic had to funnel.  Traffic in that lane had no need to merge to the right.  PW1 said he drove through the toll kiosk and headed directly in his lane to the tunnel entrance.  He was driving at 30-40 km per hour.  Traffic was light.  He saw a taxi approach from his left at high speed and cut into his lane causing him to brake suddenly.  There was some confirmation of this braking as tyre marks were found on the road.

4.PW1 avoided that taxi but then saw another taxi, also travelling at a high speed, approach him from the left several seconds after the first taxi.  He braked again.  He had almost braked to a halt when the second taxi collided with his vehicle.

5.According to PW1, the taxi made a manoeuvre like a turn and moved on.  The passenger door of PW1’s vehicle was damaged.  PW1’s account was supported by his passenger, his employer, who said that the second taxi did not slow down or brake before the collision.

6.The Magistrate noted that PW1 and PW2 were consistent in their accounts of the collision, which also tallied with the position of the damage on each vehicle.

7.The Appellant, who represented himself at trial, advanced his case by cross-examination of the prosecution witnesses and by giving evidence.  His evidence was that he had approached the tunnel through a pay kiosk, and had moved to the right to enter the lane going to the tunnel.  He was not aware of another taxi in front of him.  When he reached the tunnel he heard two sounds of braking and after that his right door was hit.  He told the Magistrate that PW1’s vehicle was travelling at a high speed and had been unable to stop, thus colliding with the defendant’s passenger door as he was merging to the right.  The Appellant claimed that PW1 and PW2 had colluded in giving an untrue account of the collision.

8.Today the Appellant relied on further grounds.  He claimed that the Magistrate had twisted the facts in the case, that he assisted the prosecution witnesses and that he had mixed up the facts.  The accident was not due to lane-cutting, as he had already cut into the lane when the vehicle behind cut in and hit his vehicle and at the same time hit 6-7 traffic cones.  He claimed that the Magistrate was unfair as his findings were illogical and not based on the facts.  What PW1 had said was inconsistent with what the Magistrate said and that if he had cut in at a high speed the damage to his vehicle should have been greater.  In support of this claim, he said that he had just paid the toll, so that his speed was not as high as that of PW1’s vehicle which, by going through the autopay channel, would have been travelling at a higher speed.

9.The Appellant claimed he had been very careful in that he looked to the right where there was not much traffic at the time.  Two seconds after he entered the lane, he heard a braking sound behind him and he noted a light dent on the light goods vehicle.  The Magistrate twisted the facts unfairly and showed bias by helping the prosecution witnesses.

10.The Magistrate found that PW1 and PW2 were truthful and reliable witnesses and that they had not colluded.  He found their evidence detailed and consistent and he was satisfied that PW1 had been aware of both taxis, and had taken evasive action as best he could.

11.The Magistrate found that the Appellant was at fault in entering the lane in which PW1’s vehicle was travelling, at a time when it was not safe to do so.  He said that although the Appellant did not deal directly with the issue, it was clear from the evidence that he was unaware of PW1’s vehicle until just before the collision.  That evidenced his inattention and lack of care.

12.This was a matter of fact for the Magistrate to decide.  He had had the advantage of seeing and hearing the witnesses.  He had before him the evidence of the photographs and a sketch.  He accepted the evidence of the prosecution witnesses and was satisfied the prosecution had proved the case beyond reasonable doubt.  It appears that on appeal the Appellant wished to retry the case, but giving full weight to his submissions, I can find no reason to interfere with the Magistrate’s findings, or to disturb this conviction.  Accordingly, this appeal is dismissed.

Miss Olivia Tsang, GC of the Department of Justice, for the Respondent

Ng Chi Lung, Appellant in person