HKSAR v. Chan Chun Keung

HCMA188/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.188 OF 2005

(ON APPEAL FROM KTCC 60 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 24 August 2005

Date of Judgment : 24 August 2005

Date of Handing Down Reasons for Judgment : 15 September 2005

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REASONS  FOR  JUDGMENT

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1.The appellant pleaded guilty to one charge of ‘Driving with an Alcohol Concentration exceeding the Prescribed Limit’contrary to section 39A(1) of the Road Traffic Ordinance, Cap.374.  He was convicted after trial of a further charge of ‘Careless Driving’ contrary to section 38(1) of the same.  He now appeals against the latter.

2.The prosecution case as summarized in the magistrate’s Statement of Findings was as follows :

“	PW1 was Mr Linnitt.  The road in question was a two-carriageway road with only one lane for each direction.  In the night in question at about 00:15 hours, he was driving his car at about 50 kph when Deft, having negotiated a left-hand bend, drove onto PW1’s lane. In order to avoid a head-on collision PW1 veered into the right-hand lane, but Deft’s left slammed past PW1’s left.  A sketch Exh P1 and photographs P2 show the situation.  PW1 was driving a ‘new’ second-hand BMW sports car but just before the collision he was not speeding because the newly paved road surface was uneven and the hard suspension in his car made it uncomfortable to drive fast.
	PW2 was PW1’s wife and passenger who was tendered for cross-examination.  Her testimony was consistent with PW1. Deft, having negotiated his left bend, drove into her lane. It was not a ‘sudden veering’ by Deft to his right but a continuing motion after the bend into the wrong lane.”

3.The appellant did not give evidence, or call any witnesses.  But it is clear from his counsel’s cross-examination of the prosecution witnesses that, according to him, it was PW1 who had come round the bend at speed and it was PW1 who had entered his lane and caused him to swerve to avoid a collision.

4.In giving reasons for finding the appellant guilty, the magistrate said :

“	….. Both prosecution witnesses answered questions in a straightforward manner and without exaggeration. When PW1 and PW2 were asked about Deft’s speed, they could easily have said ‘Oh, he was so fast it was a split second and we collided’, but they both said they did not know because it was difficult to give an estimate. I find them honest and fair. The Defence suggested to PW1 that his estimates of distances and speed made the at-scene findings impossible.  However I do not accept this ‘logic’ because: (a) we do not know how much and how hard each party had braked, and for how long, before the cars collided, (b) we do not know whether PW1 and Deft saw each other simultaneously, (c) we do not know the efficiency of the braking systems of the two cars, and (d) in any event, all distances and speeds were approximations, with PW1 repeatedly saying he did not know Deft’s speed. Defence submits that PW1 and PW2 gave ‘two different versions’ as to when and where Deft came to the wrong side. I cannot agree. PW1 said ‘He drove round the corner into my lane, he did not veer’, while PW2 said ‘He did not suddenly veer, he drove along and into our side’. PW1’s orange marking on Exh P1 did not show that Deft, before the marking, was all the time on the wrong side.  I find no basis to say PW1 and PW2 gave two different versions. Furthermore I find nothing in their testimonies which were inherently improbable. I find both PW1 and PW2 honest and have told the truth. ….
	It is true that PW1, being in possession of a newly acquired albeit second-hand sports car, can make a bystander feel suspicious that he may have been speeding and not the Deft.  However: (a) Driving a sports car does not automatically mean one was speeding, (b) PW1 says he was not speeding because the road surface was rough and the car had hard suspension making driving at speed uncomfortable, which I find logical and convincing, and (c) there is no allegation, less still any proof, that Deft was speeding. This case is not about careless driving due to excessive speed.
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	On the basis of credibility and on the whole of the evidence, I find Deft to have driven onto the wrong side of the road, causing PW1 to take avoidance action, but despite PW1 trying his best, the sides of the cars collided. I therefore find that Deft was not exercising the degree of care and attention which a reasonable, competent and prudent driver would exercise in the circumstances.”

5.Before me, counsel for the appellant advances three grounds.  The first is that the magistrate failed to identify and resolve the contradictions in the testimonies of the prosecution witnesses.

6.Unfolding his argument, counsel draws excerpts from the evidence to show that PW1 and 2 differed on the point at which the appellant crossed into the oncoming lane, the manner in which the appellant crossed into the oncoming lane and where PW1 was when the appellant crossed into the oncoming lane.

7.Having read the relevant transcripts, there is, I find, nothing to this ground.

8.Admittedly, PW1 had said that the appellant drove into his lane as the appellant rounded the bend, at the crest of the bend, whilst PW2 had said that the appellant was completely in his own lane, and did not drive across until one-third down the straight stretch of the road.  But what PW2 actually said was that it was “possibly” a third of the way along, and that she “couldn’t be sure”.  Moreover, PW1 had indicated on a to-scale sketch where the appellant came over, which is some distance from the crest of the bend, a point the magistrate relied on when referring to the “orange marking”.  

9.Turning to manner, the apparent difference lies in the fact that PW1 said the appellant came into his lane “relative normally”, whereas PW2 said he “suddenly veered”.  The fact is, it was counsel who first suggested to PW2 that it was a sudden veer, and PW2’s answer was that she could not remember if it was sudden.  It was only in describing what happened later that she said the appellant “suddenly slammed” into the other side of the road, by which I understand her to mean ‘unexpected’.  That this is so is clear from how she concluded her evidence : “As he approached us, he came over and he veered.  He didn’t suddenly veer onto the wrong side of the road ….. he just drove so he was on our side of the road.”

10.Finally, it is pointed out to me that, according to PW1, he was about “the middle of the piece of straight road” when the appellant crossed over, whilst PW2 said it was “possibly a third of the way along [the appellant’s] side”, which is nearer the bend than where PW1 described.  Frankly, when what concerns one is moving cars and a distance of just 68 metres (which undisputedly was the length of the straight stretch of the road), I do not see how that can be a material discrepancy.

11.Counsel’s second ground is that the magistrate failed to consider factors pointing towards the implausibility of the prosecution case.

12.Here, counsel relies on strict mathematical calculation.  He contends that, given the distance that cars travelling at PW1’s and the appellant’s speed would cover, it was impossible for the appellant to have crossed lane, for PW1 to have driven into the right hand lane to avoid him, and for the appellant to then lurch back to the left and slam into PW1’s car —all within the space of one second according to his calculation.

13.But strict mathematical calculation is notoriously unhelpful in traffic cases, particularly when relied on by non-experts.  In any event, I echo the magistrate’s observation that “all distances and speeds were approximations”.  A slight margin of error, whether in one’s estimation of the distance or speed in question, would also lead to very different conclusions.

14.There is nothing to this ground as well.

15.Counsel’s third and final ground is that the magistrate took into account matters that were not put into evidence.

16.By this, counsel means the magistrate’s reference to braking and braking efficiencies.  He complains that at no time had PW1 and 2 said that the appellant had braked or decelerated, and that at no time had the magistrate raised the point with witnesses or counsel.

17.I do not think there is justification in these criticisms.  Read in its proper context, all that the magistrate meant was that there were too many unknown variables for counsel’s mathematical calculation to be meaningful.  It is also common sense that a driver would almost instinctively apply his brake in such a situation, if only in a kind of knee-jerk reaction, which is what PW1 admitted he might have done when giving evidence.

18.In conclusion, I can find nothing wrong with the ‘Careless Driving’ conviction.  In addition, the fact that PW1’s left rear wheel had been completely slammed off by the appellant’s left car front seems to me to be wholly consistent with the case that it was the appellant who had swerved back after crossing over.  But this is not a point the magistrate had relied on so I will say no more.

19.The appeal is dismissed.

Mr Paul Ho, SGC of Department of Justice, for the Respondent

Mr Oliver Davies, instructed by Messrs Lam Fung & Co., for the Appellant