HKSAR v. Cheung Wai Ting

[English Translation – 英譯本]

HCMA 855/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 855 OF 2004

(ON APPEAL FROM NKS 4236-4238/2004)

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BETWEEN

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Before： Deputy High Court Judge Barnes in Court

Date of Hearing：7 January 2005

Date of Judgment：7 January 2005

Date of Handing down Judgment: 31 January 2005

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JUDGMENT

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Background

1.The appellant was convicted after trial before the Deputy Special Magistrate of the following three offences:

(1)      Careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374, Laws of Hong Kong;

(2)      Failing to stop after accident, contrary to sections 56(1)(b) and 56(5) of the said Ordinance; and

(3)      Failing to report the accident to a police officer after its occurrence, contrary to sections 56(2A) and 56(6) of the said Ordinance.

2.The appellant appealed against the convictions. After the hearing, I allowed the appeal, quashed the three convictions and set aside the sentences. I now give reasons for my judgment. 

Facts of the case

3.In brief, these charges arose from a minor collision that occurred at the junction of Salisbury Road and Canton Road. PW1, a bus driver, was driving in the first lane from the left along Canton Road. When he turned left into Salisbury Road, he noticed that some pedestrians were already standing on the road on the left. So he focused his attention on the left hand side. As he was making the left turn, he suddenly heard a sound of impact from the right front and then immediately saw the appellant’s private car at his right front. The appellant neither stopped nor made a report at a police station or to any police officer within 24 hours.

Findings

On the offence of careless driving

4.In finding that the appellant had driven carelessly, the magistrate had rightly reminded herself of the proper test for establishing the offence, namely whether the appellant had failed to drive with due care and attention as a sensible and prudent driver would have done in the given circumstances. However, the magistrate only gave a brief summary of the evidence of PW1 in the Statement of Findings and then stated in the conclusion (paragraph 20 of the Statement of Findings) that:

Therefore, I find as a fact that the vehicles driven by PW1 and the defendant collided at the material time at the scene of the incident and that the collision occurred in the way described by PW1 in the evidence; the defendant was the driver of private car XX928 at the time of the accident …

No findings had been made on the material facts.

5.Although the magistrate correctly reminded herself that the principle of res ipsa loquitur was not applicable in the present case, she failed to point out why the appellant had driven carelessly in the incident. PW1 did not allege that the appellant had contravened any driving regulations. Nor did he mention how the appellant had been careless in his driving behaviour and/or manner. A vehicle collision by itself did not mean that the appellant had driven carelessly. Therefore, the conviction on careless driving was unsafe and unsatisfactory.

On the offences of failing to stop at the time of accident and failing to report after accident

6.Section 56(1), (2) and (2A) of the Road Traffic Ordinance, Cap. 374, Laws of Hong Kong provides as follows:

(1)      Where, owing to the presence of a vehicle on a road, an accident occurs whereby-

(a)       personal injury is caused to a person other than the driver of that vehicle; or

(b)    damage is caused to-

(i) a vehicle other than that vehicle or a trailer drawn thereby;

(ii) …

(iii) …

the driver of that vehicle shall stop.

(2)      In the case of any such accident, the driver of the vehicle shall, if required, give to any police officer or to any person having reasonable grounds for so requiring the following particulars-

(a)       his name and address;

(b)      the name and address of the owner of the vehicle; and

(c)       the registration or identification mark or number of the vehicle.

(2A)    If, in the case of an accident referred to in subsection (1)(b), the driver of the vehicle for any reason does not give the particulars mentioned in subsection (2), he shall report the accident in person at the nearest police station or to any police officer as soon as reasonably practicable, and in any case not later than 24 hours after the accident.

7.In finding the appellant guilty of the offence of failing to stop at the time of accident, the magistrate had to be sure that the vehicle driven by the appellant met with an accident on the road whereby damage was caused to the bus driven by PW1, and that the appellant did not stop.

8.Although PW1 did mention in his evidence that there were ‘new scratch marks’ on the right front bumper of the bus (Additional Transcript, page 42 line A), the magistrate did not make any finding on ‘damage’. She only found that there had been a collision at that time which occurred in the manner described by PW1.

9.According to the evidence of PW3 (a police constable), the bus did not have any noticeable damage (Additional Transcript, page 48 line S). The magistrate ruled that this witness ‘did not have any interest to serve’ in the present case and that ‘his evidence was clear’. She saw no reason not to accept his evidence and found that he was an independent and reliable witness. As to the point whether the bus had any ‘damage’, the evidence of PW1 and PW3 appeared to be inconsistent, but the magistrate did not make any finding thereon. Therefore, in my judgment, this conviction was unsafe.

10.For the same reason, as the magistrate did not make the finding that the vehicle driven by the appellant met with an accident on the road whereby damage was caused to the bus, no accident within the meaning of subsection (1)(b) had occurred and the appellant was not at all required to report to a police station or a police officer. It is also my judgment that this conviction was unsafe.

Ms. Catherine Ko, Senior Government Counsel, for the HKSAR

Mr. Lawrence Hui, instructed by S.K. Wong & Co., for the Defendant

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.