HKSAR v. Lam Ngan Chau

HCMA 531/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 531 OF 2005

(ON APPEAL FROM TMS 9777 of 2004)

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BETWEEN

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing:  26 October 2005

Date of Judgment:  26 October 2005

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J U D G M E N T

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1.This Appellant, a man in his late 20s, appeals against his conviction before Colin Mackintosh, Esq. in the Magistrate’s Court at Tuen Mun on a charge of careless driving.

2.A police officer on traffic patrol was driving a Volkswagon along the first and slow lane of a three-lane carriageway while the Appellant was driving a light goods vehicle along the second lane of that carriageway.  The police officer was travelling at about 70 kph while the Appellant was travelling at about 60 kph.  It was dark at the time, and the officer had his headlights on.  As he was catching up with the Appellant, suddenly the Appellant switched on his left indicator and cut into his i.e. the officer’s lane.

3.According to the officer, the Appellant’s manoeuvre made it necessary for him i.e. the officer to brake sharply and swerve left onto the hard shoulder to avoid a collision.  According to the Appellant, he was aware of the approach of the officer’s car, and he switched on his left indicator in good time and moved across slowly at a shallow angle into the first lane.

4.The Magistrate, having seen and heard them, felt sure that the officer’s version was accurate and that the Appellant’s version was not.  On the officer’s account, he found the charge of careless driving proved beyond reasonable doubt.

5.The essence of the case put forward on the Appellant’s behalf on this appeal may be taken from two paragraphs of his counsel’s written submission (in which the officer is referred to as “PW1”).  The first of these paragraphs is para. 10 which reads:

“It is submitted that the evidence disclosed PW1’s intention to overtake the appellant’s vehicle at speed in the slow lane was a very important factor in determining whether the appellant’s driving was careless or not.  This issue was not considered properly by the Magistrate in his reasons, or if it was, no satisfactory reasons were given for rejecting PW1’s “prima facie” negligence.”

6.In this connection, the Magistrate said this in the oral reasons which he gave for convicting the Appellant:

“I also note the police officer accepts that on his account, he was catching up with the defendant and would have passed him on his near side which, strictly speaking, he shouldn’t have done.  However, given the circumstances that – that was not a contributing factor to this incident.”

7.Be all of that as it may, the truth of the matter is that the Magistrate was not really concerned with causation.  Nor was he trying the officer.  On his finding of a sudden switch of lanes, he was entitled to find the Appellant guilty of careless driving, subject to whether there is anything in the next point taken on the Appellant’s behalf in this appeal.  This is contained in para. 13 of his counsel’s written submission.  This paragraph reads:

“The Magistrate failed to take into account the reasonable possibility that not only was PW1 “prima facie” negligent in attempting to overtake on the inside, but that the appellant was quite reasonably aware that he shouldn’t stay in the middle lane unnecessarily and was moving into the slow lane anticipating that PW1 would overtake him on his right.

Had the Magistrate considered this factual scenario, and bearing in mind the burden of proof, he should not have come to the firm conclusion that the appellant was careless by driving as he did.”

8.The Appellant did not say that he switched lanes in anticipation of the police officer overtaking him on his right.  It was not incumbent on the Magistrate to imagine in favour of the Appellant such a defence at variance with the version which the Appellant gave in evidence.

9.In the result, the appeal is dismissed.

Mr Duncan Percy, instructed by Messrs C Y Lam & Co., for the Appellant

Ms Polly Wan, SGC, of Department of Justice, for the Respondent