HKSAR v. Lam Chun Man

HCMA455/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.455 OF 2005

(On Appeal From KCS 16601 OF 2004)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 2 August 2005

Date of Judgment : 2 August 2005

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J U D G M E N T

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1.The appellant was convicted on 6 May 2005 of one charge of careless driving and was sentenced on the same day to payment of a fine of $2,000.  He now appeals that conviction.

2.The facts were simple.  It was at about 7 p.m. on 28 September 2004 the appellant was driving in Kowloon City Road on the northeast-bound carriageway.  Ahead of him was a taxi.  It was in the same lane.  As the taxi approached the intersection with Ma Tau Kok Road, the traffic became congested and slow.  The taxi was near the intersection when the light turned to amber.  The taxi-driver stopped his vehicle and permitted a passenger who was in the rear seat of the taxi to alight.  She demanded that he do so.  His evidence was that the passenger paid the fare and opened the rear left side door of the taxi and reached to her right to pick up her handbag which she had placed on the seat.  At that point when clearly the door was opened to some extent, but not necessarily to a great extent, the appellant came into collision with the taxi having left the lane behind the taxi and proceeded along the narrow laneway between the taxi and the parked vehicle in a layby in Kowloon City Road.

3.The appellant made a statement to the police and the admissibility of that statement was not challenged.  He told the police that the taxi had made a sudden lane change in front of him, and then come quickly to a stop.  He said that in order to avoid colliding with the taxi, he swerved to the left to attempt to navigate the narrow passage between the taxi and the layby where the vehicle V3 was parked.  He said that as he passed the taxi, the passenger in the rear seat opened the door and that he came into collision with it. 

4.Ms Wong, for the appellant, in her effective address to me, points out that there is some evidence that the motorcycle driven by the appellant came into collision with the outer part of the door and not the leading edge which one might have expected, she argues, had the door been opened prior to the appellant’s approaching it to the narrow passage. 

5.The magistrate, however, did not accept this evidence.  He found that both the taxi-driver and the passenger to be witnesses of truth.  Where the statement of the appellant was exculpatory, he placed no weight upon the exculpatory portions of the statement.  The effect was that he disbelieved the explanation given by the appellant.  He believed both the taxi-driver and the passenger so he was sure their evidence was the truth.  His findings of fact was that the door was opened to an extent that the appellant ought to have seen it upon his approach and avoided it. 

6.The magistrate further relied upon the Road Users’ Code rules.  He was permitted to do so by virtue of Section 109 of the Road Traffic Ordinance.  That Code sets out provisions upon the passage to the left to the vehicle in the accepted circumstances.  The magistrate’s Findings of Fact found that the appellant had taken the left hand side of the taxi as his passage in order to jump the queue to which the traffic light ahead of the taxi.  He did not rely upon breaches of the Code as rules of law and did not consider them offences.  He did, however, rely upon the Code in coming to the conclusion that a reasonable, competent and prudent driver would not have driven as the appellant did.  He said in his oral reasons this :

“The defendant was approaching a traffic light in congested traffic, which light was either amber or certainly thereafter red, and he chose to drive in through a narrow space between V1 and V3 at a speed which did not allow him to stop in time when PW3 opened unexpectedly her door.  …. It falls squarely into the sort of driving which objectively is a marked departure from that of a reasonable, competent and prudent motorist, particularly a prudent motorist.”

7.It is not my task to retrial the facts.  It is my task to consider the approach the magistrate had made to the facts and the law and to determine whether or not he had been in error.  I cannot find no fault in his approach either to the facts or to the law.  Whilst having some sympathy for the appellant, this appeal is dismissed.

Ms Mary Sin, SADPP of the Department of Justice, for HKSAR

Ms Maggie Wong, instructed by  Messrs Ng & Partners, for the Appellant