HKSAR v. Yuen Siu Keung Silas

HCMA 432/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 432 OF 2005

(ON APPEAL FROM FLS 14213/2004)

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BETWEEN

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Before : Deputy High Court Judge Barnes in Court

Date of Hearing : 22.6.2005

Date of Judgment : 22.6.2005

Date of handing down Judgment : 22.6.2005

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J U D G M E N T

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Background

1.The Appellant was charged with an offence of “Dangerous Driving”, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374.  He pleaded not guilty before Ms. Susan D’Almada Remedios and was convicted after trial. He appealed against the conviction.

2.Although the trial was conducted in English, I conducted the appeal in Chinese as the Appellant was not legally represented. After hearing submissions I dismissed the appeal. I gave oral reasons at the time and I now reduce my reasons in writing, with an elaboration on the background.

Prosecution case

3.The prosecution case, in a nutshell, was that the Appellant ‘jumped the red traffic lights’ at the junction of Lung Sum Avenue and Chi Cheong Street when he drove a taxi, as a result of which he collided with another taxi driven by PW1, who was proceeding to make a right-turn upon a green traffic light in his (PW1’s) favour. PW1 sustained injuries to his neck and waist as a result of the collision and was hospitalised for 11 days, with 26 days sick leave granted.

4.The incident was witnessed by two independent witnesses: PW2 and PW3. PW2 happened to be looking out from the window of his premises overlooking the said junction. PW2 testified that when the Appellant’s taxi crossed the white lines the traffic lights governing the direction of the Appellant’s vehicle were red while the traffic lights governing PW1’s were green.

5.PW3 was a pedestrian at the vicinity. He testified that the lights governing PW1’s vehicle were green at the material time. He was unable to see the colour of the traffic lights governing the Appellant’s vehicle.

6.A principal technical officer of traffic of the Transport Department (PW5) gave evidence as to the sequence of traffic light signals. His evidence was not disputed. It is also not in dispute that that traffic lights were functioning properly. The evidence showed that the traffic lights governing both PW1’s direction and the Appellant’s would start to turn green at the same time. However, the lights governing PW1’s direction would remain green for a longer period than the lights governing the Appellant’s direction.

Defence case

5.There was no dispute that the Appellant was driving across the said junction at the material time and that a collision occurred between the Appellant’s taxi and that of PW1’s. The main contention raised by the Appellant was that at the material time the traffic lights governing the direction of his vehicle were green. The Appellant said he did not see PW1’s vehicle at the time and suddenly there was an impact.

6.The Appellant also called a defence witness (DW2), a part-time lady taxi driver, to give evidence. DW2 said she happened to be driving at the location at the time and saw the Appellant, who was her friend, overtaking her. She saw the Appellant going through the said junction when the lights were green. She herself had slowed her taxi down as she wanted to light her cigarette. After she lit her cigarette and looked up to see that the traffic light had changed to amber, and by the time she reached the white lines the lights had changed to red. She therefore stopped her taxi.

7.DW2 said she heard the sound of collision and knew that the Appellant was involved in a collision. She therefore called the Appellant’s mobile phone to ask if the Appellant was all right. Upon hearing that the Appellant was all right she drove away. She did not call the police.

Grounds of appeal

8.The Appellant repeatedly told me that he had not ‘jumped the red lights’. Referring to the evidence of PW1 and PW2, he complained that the learned magistrate should not have relied on their evidence that the lights governing his direction were red. He claimed neither PW1 nor PW2 was in a position to see those lights.

9.The Appellant claimed that the learned magistrate disbelieved his version even before he had finished giving evidence. However, when I asked him what proof did he have he agreed it was only a feeling he harboured.

10.Regarding DW2, the Appellant told me that since DW2 was a ‘recluse’ after here husband died – after having ‘shut herself from the society’, DW2 might have appeared to be evasive when giving evidence in court. The Appellant agreed that such matter was never brought to the attention of the learned magistrate.

11.The Appellant at one stage said that the learned magistrate had mentioned (via the court interpreter) there was ‘a doubt’ in PW2’s evidence and yet he was not given the benefit of the doubt. After going through the transcript of the proceedings with him, the Appellant accepted that the learned magistrate had not said so.

Judgment

12.In her Statement of Findings the learned magistrate set out the evidence of all the witnesses in detail in the Statement of Findings. She has carefully evaluated the evidence. She found PW2 reliable and PW3 both honest and reliable. She found PW1 to be unshaken when he was being cross-examined. She was fully aware of the discrepancy between the evidence of PW1 and PW2, i.e. whether PW1’s vehicle was completely within the ‘pocket’ at the junction immediately prior to the collision. She has dealt with the discrepancy.

13.Counsel represented the Appellant made details submissions before the learned magistrate, bringing her attention to the various aspects of the evidence -  in particular the evidence of PW2. The learned magistrate was fully aware of the issues involved. She was of the view that PW2’s evidence as to the chronological sequence of looking at the lights appeared to be slightly confusing. She concluded that such confusion was not as a result of any mistake on the part of PW2, but by the questions put during cross-examination. Bearing in mind the incident took place within 5-6 seconds, the learned magistrate found it hardly surprising that a witness appeared to be slightly confused when asked questions in such meticulous details.

14.The learned magistrate gave reasons why she rejected the Appellant’s testimony. She also fully explained why she rejected DW2’s evidence entirely. Quite apart from the fact that the learned magistrate was not informed of DW2 being a ‘recluse’; ‘having shut herself from the society’, having considered DW2’s evidence I am also of the view that her version of the event was indeed peculiar and not believable.

15.I can find no fault with the learned magistrate’s reasoning and findings.

16.Section 37(4) of the Road Traffic Ordinance, Cap. 374 provides:

“(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if-

(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

17.Having considered the facts as found by the learned magistrate, i.e. the way the Appellant ‘jumped the red traffic light’, the way he drove fell far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in the way the Appellant did would be dangerous. The conviction was neither unsafe nor unsatisfactory. For these reasons I dismissed the appeal.

Ms. Olivia TSANG, Government Counsel for Respondent

The Appellant YUEN Siu-keung in Person