HKSAR v. Lau Yue Wah

HCMA 436/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 436 OF 2007

(ON APPEAL FROM STS 4198 OF 2006)

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BETWEEN

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Before:  The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 13 December 2007

Date of Judgment: 13 December 2007

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J U D G M E N T

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1.This Appellant was convicted before Don So, Esq. in the Magistrate’s Court in Tsuen Wan of careless driving contrary to section 38(1) of the Road Traffic Ordinance, Chapter 374.  Having regard to the grounds on which he appeals against that conviction, the terms of the information laid against him should be set out.

2.As amended, the information was that he “on 13 January 2006 at 11:27 a.m. at Shatin-Lion Rock Tunnel Road (Kowloon bound) opposite to Sun Tin Wai Estate near lamp post no. BE9636, did drive a medium goods vehicle displaying registration mark LL1992 on a road carelessly”.  The charge arose out of an incident in which a motorcycle collided with the Appellant’s vehicle where it was positioned.  Tragically the motorcyclist died as a result.  I should mention at once that the Magistrate indicated that he did not draw any adverse inference against the Appellant for his election not to give or call evidence and that he took the Appellant’s clear record into account in his favour.

3.It is necessary to set out in paragraphs 23 to 26 of the Magistrate’s Statement of Findings, which he put under the heading “Facts found”.  These paragraphs read as follows:

“23.	Based on the above ruling on the evidence, the testimony, the Admitted Facts, the cautioned statement, the relevant parts to which the court attached full weight, the court finds in fact –
	(a)	the defendant, as a careful, prudent driver, was required to look at the map before he started a journey, mapping out the route to a strange destination, as he said inside the cautioned statement, to avoid any unnecessary hassle;
	(b)	Defendant did not do it, but he decided to travel and to find the village on the way;
	(c)	Defendant misjudged the width of the chevron area and the width of the truck allowed the truck to be stationed in that part of the chevron area, exposing some front to the slip road and some rear part onto the first lane of the Sha Tin Road, effectively and unnecessarily obstructing in some way the traffic on the slip road, which was the motorcycle, and the traffic in the first lane, the bus of PW2.
24.	The court rules that it is unnecessary because the defendant could have avoided this dilemma by driving on, finding a right location, junction or tunnel to, say, made a U-turn to come back to the vicinity, drive onto the slip road and enter the village entrance as usual.  The above is what is expected of a reasonable and prudent driver in defendant’s position.  He did not do it.  He failed to do it.  Defendant was not up to the required standard and he is guilty of careless driving.
25.	The bus driver, PW2, was perfectly right to stop.  For the motorcycle, why it did not stop but swerve onto the chevron area towards the right rear of the stationary truck was not clear to the court.  But one thing is for sure: he deserved his right of way.  This is his full right of way, the whole width of the slip road.  He was deprived of some of it and he was affected by the deprivation.
26.	The court believed in PW2’s testimony.  The court believed the motorcycle was travelling in a normal speed.  The motorcyclist was wrong to drive on the chevron area.  He was wrong not to stop in view of the intruding truck, but he was not as blameworthy as the intruder, though.”

4.Ground 1 of the perfected ground of appeal filed on the Appellant’s behalf reads as follows:

“The Learned Magistrate erred in law in concluding that careless driving is constituted;

(a)   by the failure on the part of the Appellant to take or perform certain pre-driving preparations, namely, the failure to study maps and/or failure to map out the intended journey.

(b)   by the failure on the part of the Appellant to adopt a different road path than the one he had used.

Both consideration(s) being extraneous to the vital consideration as to whether or not the Appellant drove without due care and attention or without reasonable consideration for other persons using the road.”

5.The information laid against the Appellant is directed to careless driving in positioning his vehicle so that part of it obstructed traffic.  Perhaps the evidence would have justified a finding of careless driving purely on that basis.  But would the Magistrate have convicted purely on that basis without also proceeding on the basis of preliminary matters, such as mapping out a route, beyond what the information was directed to?

6.The prosecution submitted, to take it from paragraph 12 of their written submissions, that “it would be unreasonable to suggest that the Trial Magistrate had his focus misplaced from the driving manner and driving standard of the Appellant to only the preparatory steps”.

7.But the question is not whether the Magistrate focused on only that.  What the Magistrate said in paragraphs 23 and 24 of his Statement of Findings is, I repeat, as follows:

“23.	Based on the above ruling on the evidence, the testimony, the Admitted Facts, the cautioned statement, the relevant parts to which the court attached full weight, the court finds in fact –
	(a)	the defendant, as a careful, prudent driver, was required to look at the map before he started a journey, mapping out the route to a strange destination, as he said inside the cautioned statement, to avoid any unnecessary hassle;
	(b)	Defendant did not do it, but he decided to travel and to find the village on the way;
	(c)	Defendant misjudged the width of the chevron area and the width of the truck allowed the truck to be stationed in that part of the chevron area, exposing some front to the slip road and some rear part onto the first lane of the Sha Tin Road, effectively and unnecessarily obstructing in some way the traffic on the slip road, which was the motorcycle, and the traffic in the first lane, the bus of PW2.
24.	The court rules that it is unnecessary because the defendant could have avoided this dilemma by driving on, finding a right location, junction or tunnel to, say, made a U-turn to come back to the vicinity, drive onto the slip road and enter the village entrance as usual.  The above is what is expected of a reasonable and prudent driver in defendant’s position.  He did not do it.  He failed to do it.  Defendant was not up to the required standard and he is guilty of careless driving.”

8.It is not clear whether the Magistrate would have convicted purely on the basis of what the information is directed to, namely careless driving by positioning a vehicle so a part of it obstructed traffic.

9.In such circumstances, I do not regard this conviction as safe or satisfactory, and I think that the just and proper course is to quash it.  There is no need to consider the other perfected grounds of appeal filed on the Appellant’s behalf.  The appeal is allowed and the Appellant’s conviction for careless driving is quashed.

Mr Peter Pannu, instructed by Messrs Chong & Partners, for the Appellant

Mr Wong Chi Wai, Beney of the Department of Justice, for the Respondent