HKSAR v. Mang Ngai Meng

HCMA658/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.658 OF 2005

(ON APPEAL FROM ESS 3884 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 31 August 2005

Date of Judgment : 31 August 2005

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J U D G M E N T

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1.This is an appeal against conviction only.  On 8 July 2005, at Eastern Magistracy, the appellant was convicted after trial of an offence of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap.374.

2.The facts of the offence as found by the magistrate were that at 9:30 p.m., on 30 November 2004, the appellant drove a Citybus out from Tung Tau Wan Road so as to turn right into Stanley Village Road in Stanley and collided with a motorcycle which was proceeding along Stanley Village Road and which had approached that intersection from the appellant’s right hand side.  Immediately after impact between the two vehicles, the appellant’s bus was wholly across the near lane of Stanley Village Road along which the motorcycle had been travelling and its front end projected half way into the far side lane.  The motorcycle with which the bus had collided was on the ground immediately in front of the bus.

3.The appellant appeals on the ground that the evidence was insufficient to found his conviction.  Both he and the motorcyclist (PW1), who fortunately had not suffered serious injury, gave evidence at trial.  PW1 said he had seen the appellant’s bus on his left when it was approaching Stanley Village Road along Tung Tau Wan Road.  When he first saw it, the bus was about two bus-lengths from the intersection.  He assumed it would stop at the intersection in compliance with a stop-sign there.  It did not, but continued into Stanley Village Road and into his path.  He swerved but collided with the front of the bus.

4.The appellant’s evidence was that he had stopped the bus at the intersection and had looked in both directions along Stanley Village Road before proceeding after ascertaining that the road was clear.  He then saw PW1’s motorcycle travelling quickly towards him from the right and stopped.  PW1’s motorcycle then collided with him.

5.The magistrate, in arriving at his conclusion that the appellant had not exercised proper care, took into account the fact that the intersection was governed by a stop-sign, and that there was no reason the appellant would not have been able to see an approaching motorcycle if he had in fact stopped there and had looked properly to his right in the direction from which PW1 was approaching.

6.The magistrate considered also that the final position of the vehicles showed plainly that the appellant’s bus had proceeded across the intersection when the collision took place.  That suggested to him that the bus had not stopped at the intersection.  His dismissed the notion that PW1 might have been speeding on the basis that the lack of injuries to PW1 suggested that he had not been.

7.It is often difficult to determine a charge of careless driving when it is one person’s word or recollection of events against another’s.  But in the present case, PW1 had the right of way and the appellant was obliged to proceed into the intersection only after stopping.  He said before me that he “almost stopped”.  That is not sufficient, and is consistent with PW1’s evidence that the bus did not stop at the intersection.  The photographs of the intersection the appellant produced before me showed he would have had a clear view to his right if he had stopped.

8.In my view, the magistrate gave proper reasons for his conclusion that PW1’s evidence was reliable and that of the appellant was not, and that the appellant had been careless in driving the bus into the intersection.  No complaint can be made of his reasoning in this regard.

9.I might add, in support of the magistrate’s findings, that the fact that PW1 attempted to avoid the bus by swerving his motorcycle to the right only after, as the appellant said before me, “passing on the correct side of the traffic island some 15 yards from the bus”, suggested a last minute change in direction by PW1, and that he was surprised by the bus suddenly emerging from his left into Stanley Village Road as he had said in his evidence.

10.There was sufficient evidence to support the conviction and the appeal is dismissed.

Ms Olivia Tsang, GC of Department of Justice, for HKSAR

Appellant in person, present