HKSAR v. Chin Chi Kwong

[English Translation – 英譯本]

HCMA 559/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 559 OF 2008

(ON APPEAL FROM KCS NO. 5270 OF 2008)

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Before: Hon Barnes J in Court

Date of Hearing: 17 September 2008

Date of Judgment: 17 September 2008

Date of Reasons for Judgment: 22 September 2008  

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REASONS FOR JUDGMENT

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1.The appellant was convicted after trial by the Special Magistrate on one count of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong, and was fined $1,800. He appealed against conviction.

2.At the conclusion of the hearing, I allowed the appeal, quashed the conviction and set aside the fine. I also awarded the appellant costs of the appeal and in the magistrates’ court, to be taxed by the Registrar of the High Court if not agreed. I now set out the reasons for my judgment.

The undisputed facts

3.On the undisputed facts, at the material time the appellant was driving a private car (HT9128) along Castle Peak Road in the first lane from the left. There were three lanes at that location. Traffic on the left first lane could go straight ahead or turn left into Tai Po Road. In front of HT9128 was another private car (FA3692) driven by the first prosecution witness (PW1). When the two cars were proceeding on the left first lane, a private car (3388) suddenly cut from the left second lane into the left first lane (i.e. the lane on which PW1 was proceeding) in front of FA3692. According to the sketch (P4) drawn by the witness in court, the car 3388 cut into the section of left first lane that led to Tai Po Road.

4.PW1 could not apply the brake in time and his car FA3692 collided with 3388. Later, HT9128, driven by the appellant, then slightly hit FA3692. Both HT9128 and FA3692 sustained minor damage. It was raining at the material time and the road was slippery.

The issues

5.The issues at trial were: whether the appellant was ‘following too closely’ and failed to keep an appropriate distance from the preceding vehicle, as a result of which the two vehicles collided; and whether the appellant’s manner of driving fell below that expected of a careful, prudent and attentive driver.

The prosecution evidence

6.PW1 was only able to say that more than one second after his car collided with 3388, his car was slightly hit from behind by the appellant’s car. He did not notice whether there was any vehicle behind him prior to the collision.

7.According to the relevant written record, the appellant said during the interview with the police that at the material time he was proceeding at 10km/h in the left first lane and was about 3 cars’ length behind FA3692. The road surface was wet and slippery and the traffic was smooth. When 3388 suddenly cut in from the adjacent lane, it collided with FA3692 in front of the appellant. He was unable to apply the brake in time and his car hit the rear of FA3692.

The defence case

8.The appellant’s testimony was by and large similar to the written record. What was different was that, according to the appellant, he had ‘started to slow down’, and his car slightly ‘skidded’ towards FA3692 when FA3692 collided with 3388, and he had ‘applied the brake’ and swerved to avoid a collision but still hit FA3692.

9.The appellant denied that he had failed to keep a safe distance from the vehicle in front.

The Magistrate’s findings

Analysis of the evidence

9. I bear in mind that the prosecution bears the burden of establishing guilt of the defendant. The prosecution has to prove beyond reasonable doubt each and every element of the offence in the present case. The appellant is under no duty to prove his innocence. I have considered the evidence of the prosecution witness, the exhibits and the demeanour of the prosecution witness when giving evidence in court. I have also carefully assessed the evidence and submissions of the defence. I have also observed the demeanour of the appellant when he gave evidence in court. The present case, which involves choosing between the version of the prosecution witness and that of the appellant, has to be approached with extra caution. In my observation, the evidence of the prosecution witness is very clear, straightforward and not at all evasive, and the witness was unshaken under cross-examination.

10.   The appellant testified that he was proceeding at 10km/h and was 3 to 4 private cars’ length from the vehicle in front. According to page 46 of the Road Users’ Code, double braking time is needed when the road surface is wet and slippery. It was raining when the collision occurred and the road surface must be rather wet and slippery. It can be seen from exhibit P2(10) that the front of the appellant’s car was towards the right. This shows that at least the appellant did take evasive action before the collision. However, if the appellant’s car was proceeding at 10km/h, it could cover a distance of about 11 metres in roughly 4 seconds, i.e. twice of the two-second safe distance. And given a private car is 4.5 to 5 metres in length, a distance of 3 to 4 private cars’ length translates to 13.5 to 20 metres. The appellant could not possibly have travelled a distance of 3 to 4 private cars’ length within 4 seconds. And as a matter of fact, despite the braking and evasive action, the appellant’s car still rammed forward. In other words, the appellant could not have been doing only 10km/h or keeping a distance of 3 to 4 private cars’ length from the vehicle in front. Besides, the appellant mentioned that he “started to slow down” when he saw the car 3388 cutting in, and that he “immediately applied the brake”. Had he “started to slow down” or had he “immediately applied the brake”? The two phrases bear different meanings. This indicates that the appellant was uncertain of the course of event. The appellant’s demeanour when giving evidence in court also showed that he was hesitant and uncertain about the incident. I refuse to accept his evidence.

11.   Although I do not accept the appellant’s evidence, the burden of proof is in any event on the prosecution. I have examined all the evidence and I find the prosecution witness veracious and reliable. I accept his evidence that the accident happened in the way he described. I have also considered the record of interview of the appellant (exhibit P3). In my view, it was a mixed record, commonly called a statement. I have considered the contents of the entire record. I only accept the statement therein that the appellant was unable to apply the brake in time and his car hit FA3692. On the other hand, the witness mentioned that as soon as his car came to a halt, with a “tick” sound the collision occurred. The witness was proceeding at 30km/h. If the appellant had been proceeding at 10km/h, the distance between the two cars would have lengthened as they proceeded. Therefore, in my view, the appellant was either travelling too fast or following too closely, which resulted in his failure to apply the brake in time and the collision with FA3692. This plainly shows that the appellant’s driving manner fell below that expected of a careful, prudent and attentive driver. Having considered the testimony, evidence and particular circumstances of the case, I rule that the prosecution has proved that such driving manner of the appellant fell far below that of a careful, attentive and prudent driver. I find that the prosecution has proved the charge against the appellant beyond reasonable doubt. I have no hesitation in convicting the appellant of careless driving.

Grounds of appeal

10.Mr. Fong, Counsel for the appellant, has put forward two grounds in support of his contention that the conviction is unsafe:

(1)   The Magistrate wrongly applied the evidential principle of res ipsa loquitur; and

(2)   The Magistrate failed to consider, adequately or at all, the following circumstances which the appellant had mentioned in his evidence:

(i)    It was raining at the material time;

(ii)   The appellant’s car ‘skidded’; and

(iii)  It was beyond the appellant’s anticipation that the car in front of PW1’s car suddenly cut lanes.

11.Mr. Fong has cited the judgment in R v. Kit Wing Wo [1985] 1 HKC 204in support of his argument.

Discussion

12.A magistracy appeal is conducted by way of rehearing on the basis of the testimony and evidence before the magistrate (and also any fresh evidence which the appellate court may admit): see Chou Shih Bin v. HKSAR, FACC 11/2004 . In my view, as far as the facts of the case are concerned, the appellate court has to bear in mind that the magistrate enjoyed the advantage of hearing and seeing the testifying witnesses, whereas the appellate court can only rely on the transcripts of the hearing. It was entirely for the magistrate to decide whether a witness was credible and reliable. However, where a finding of fact made by the magistrate was unreasonable, irrational or inherently improbable, or where, in dealing with the evidence, the magistrate misquoted, omitted or failed to consider or analyse material matters, the conviction would be rendered unsafe.

13.The Magistrate very carefully considered and analysed the defence case and gave detailed reasons for rejecting the appellant’s version of the events and his evidence on the speed of his car and its distance from the vehicle in front. That said, the Magistrate had indeed not adequately considered the point that it was beyond the appellant’s anticipation that the car 3388 suddenly cut lanes in front of PW1.

14.On the overall circumstantial evidence in the present case, in particular the minor collision between the appellant’s car and PW1’s car, there was nothing to show that the appellant was ‘driving too fast’. Was he ‘following too closely’?

15.In the present case, the Magistrate referred to the contents of the Road Users’ Code. This Code is not legislation. As the Transport Department states in the foreword to the Road Users’ Code:

A failure on the part of any road user to observe any rule or follow any advice in the Road Users’ Code is in itself not an offence, but any such failure may be taken into account in any proceedings (whether civil or criminal, and including proceedings for an offence under the Road Traffic Ordinance) when deciding if a road user was at fault or not and to what extent, and may also be relied on for establishing or negativing any liability under any of these proceedings.

16.A common traffic accident is a vehicle being hit by a following vehicle. The mere occurrence of such collision does not automatically mean that the driver of the following vehicle was careless. Whether that driver was careless must depend on all the circumstances.

17.The doctrine of res ipsa loquitur does not apply to criminal charges (see the case of Kit Wing Wo). However, I do not agree with Mr. Fong’s submission that the Magistrate had applied the doctrine of res ipsa loquitur to the present case.

18.Regarding the duty of a following driver, Lord Justice-Clerk (Lord Cooper) had the following to say in Brown & Lynn v. Western SMT Co. Ltd 1945 S.C. 31 at p. 35:

We were urged in the course of debate to substitute our own definition of the limits of a following driver’s duty, and even to prescribe the proper interval at which successive vehicles should keep station when travelling in a city street. I am not prepared to do so. The distance which should separate two vehicles travelling one behind the other must depend upon many variable factors – their speed, the nature of the locality, the other traffic present or to be expected, the opportunity available to the following driver of commanding a view ahead of the leading vehicle, the distance within which the following vehicle can be pulled up, and many other things. The following driver is, in my view, bound, so far as reasonably possible, to take up such a position, and to drive in such a fashion, as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated: but whether he has fulfilled this duty must in every case be a question of fact, just as it is a question of fact whether, on any emergency disclosing itself, the following driver acted with the alertness, skill and judgment reasonably to be expected in the circumstances.

19.Put simply, in Lord Cooper’s observation, the distance which a vehicle should keep from the vehicle in front depends on all the circumstances such as their speed and the nature of the locality. The following driver should, so far as reasonably possible, take up such a position and drive in such a fashion as will enable him to deal successfully with all traffic emergencies which can reasonably be anticipated. Whether the driver has discharged that duty is a question of fact. What was the emergency that disclosed itself? Was the reaction of the following driver one that could reasonably be expected in the circumstances at that time?

20.The above observations have been adopted by the English Court of Appeal in Scott v. Warren [1974] R.T.R. 104.

21.In Scott v. Warren, Lord Widgery CJalso quoted the following passage of the judgment of Lord Stevenson in Brown & Lynn (at p. 44):

… I think there is a general duty on the driver of a vehicle to keep between him and the vehicle ahead such a space as will enable him to draw up without colliding with the forward vehicle after he sees that it is about to stop, or has stopped. I admit a possible exception, viz, that the conditions of road and traffic do not compel him to shorten the distance. I do not think that the fact that the forward vehicle makes an emergency stop is by itself sufficient to justify breach of the rule I have laid down. A motor driver constantly has to face unexpected situations. If he drives with care he will be alert to meet them and take all reasonable precautions to do so.

22.Lord Widgery CJ took the view that the judgment of Lord Stevenson did not differ from the test laid down by the Lord Justice Clerk, except that Lord Stevenson pointed out that a driver could not simply rely on the emergency stop of the vehicle in front as a defence. Lord Widgery CJ pointed out that even for emergency stops, the matter was one of degree in every case.

23.In Kit Wing Wo Penlington J also cited Brown & Lynn and Scott v. Warren. I respectfully concur with and adopt the said test.

24.In Hong Kong, given the traffic conditions, the undisciplined cutting of lanes of vehicles is, it can be said, something within the anticipation of other drivers. However, the present case did not simply involve a vehicle cutting from one lane into another.

25.According to the sketch, over which there has been no dispute, vehicles in the left second lane and left third lane had to turn right whereas those in the left first lane could either go straight ahead or turn left. The section of the left first lane for turning left forked with the section for going straight ahead. The private car 3388 cut from the left second lane into the left first lane, then crossed the ‘fork’ close to the dividing line at the railings and cut into the section of the left first lane for turning left.

26.In all the circumstances at the material time, in particular the rainy condition and the slippery road, the cutting of lanes of 3388 was very dangerous. Such conduct of the driver of 3388 of ignoring the road signs and crossing the ‘fork’ and the dividing line could not have been ‘reasonably anticipated’ by other drivers on the road there and then. The appellant’s failure to react in time and avoid a minor collision with PW1’s car did not mean that his driving manner fell below that expected of a careful, prudent and attentive driver. The conviction was unsafe.

Judgment

27.For the above reasons, I have allowed the appeal, quashed the conviction and set aside the fine.

Costs

28.In view of the prosecution’s case in its entirety, it was quite clear to me that the appellant had not by any conduct brought suspicion upon himself or misled the prosecution into thinking that the case against the appellant was stronger than it actually was (see HKSAR v. Tong Cun Lin (1999) 2 HKCFAR 531and HKSAR v. Wong Yiu Wah & Ors [2002] 1 HKLRD 547). In exercise of the discretion under section 8 of the Costs in Criminal Cases Ordinance, Cap. 492 of the Laws of Hong Kong, I ordered that the appellant be awarded costs of the appeal and in the magistrates’ court, to be taxed by the Registrar of the High Court if not agreed.

Ms. Maggie Yang, Senior Public Prosecutor, for the HKSAR.

Mr. Frederick Fong, instructed by Louis K.Y. Pau & Co., for the Defendant.

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