HKSAR v. Li Yuk Kwan Caesar

HCMA112/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 112 OF 2006

(ON APPEAL FROM FLS 10489 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 23 March 2006

Date of Judgment : 23 March 2006

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J U D G M E N T

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1.The appellant appeals his conviction for careless driving contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374. 

2.The facts found by the Magistrate were that the appellant was driving his Volvo private car behind two other vehicles, a light goods vehicle (“LGV”) and another private car, in the fast lane of the Tolo Highway.  It was daylight, the weather was fine and the road was dry.  Traffic ahead of the three vehicles had stopped.  The LGV which was the lead vehicle braked as did the other private car behind it.  The appellant’s vehicle also braked but did not slow sufficiently to avoid colliding with the other private car which was then pushed into the LGV. 

3.The appellant’s case at trial was that he had been driving carefully and had left sufficient distance between his vehicle and the private car ahead of it, but for some reason his vehicle had not braked properly.  He produced, with the consent of the prosecution, a report by an expert witness, a Dr Bullas, who was a researcher with the Transportation Research Group at the University of Southampton. 

4.That report together with the appellant’s own evidence really formed the basis of the appellant’s case.  It explained the phenomenon of “bituplaning” whereby a vehicles’ braking efficiency can be reduced in circumstances where a road has recently been repaired.  However the report itself clearly stated that the bituplaning phenomenon did not occur where vehicles were fitted with an anti-skid braking system.  The appellant’s vehicle had such a system, and it was in working order. 

5.The prosecution case was that the road had not in any event been recently repaired and, from the evidence of the police officers and other witnesses at the scene, showed no signs of oil deposits or slipperiness.  The evidence of the drivers of the LGV, that is PW1, and of the other private car, PW2, was to the effect that the LGV applied its brakes heavily to avoid the traffic congestion ahead of it and that it did so effectively.  PW2 said he also braked and would have avoided the LGV except that because his vehicle was struck from behind by the appellant’s Volvo, he was forced into the LGV.  Both PW1 and PW2 said that there was no grease on the road. 

6.The Magistrate, in her findings, said :

“… Neither PW1 nor PW2 complained of any difficulty in stopping as a result of the road surface itself and nobody saw any signs of grease or oil on the road.  The evidence as to when the road had last been repaired was uncertain as far as the prosecution evidence was concerned, but such evidence as was given suggested that it had not been repaired recently.  However it is clear that the Appellant’s vehicle was fitted with an ABS braking system, which was in working order and the report, clearly states that ‘The bituplaning phenomenon has been shown not to occur when ABS (anti-lock braking) is in operation’.” 

7.Accordingly, the Magistrate addressed the fundamental issues which were raised by the appellant’s case and dismissed that case.  She accepted the evidence of PW1 and PW2 as she was entitled to do, there being nothing intrinsic to their evidence so as to undermine its credibility.  She then concluded :

“… having considered all the evidence the only inference which can be drawn is that the Appellant on this occasion did not leave himself sufficient room to stop in the circumstances.  …”

8.In my view that there can be no criticism made of the Magistrate’s findings of fact.  The appeal cannot succeed and it is dismissed.

Ms Catherine Ko, SGC of Department of Justice, for HKSAR

The Appellant, in person