HKSAR v. Fung Wing Chung Judy

HCMA 438/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 438 OF 2009

(ON APPEAL FROM TWS 5062 OF 2008)

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BETWEEN

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Before: Deputy High Court Judge Geiser in Court

Date of Hearing:  10 July 2009

Date of Judgment:  9 September 2009

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J U D G M E N T

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1.On 4 May 2009, the Appellant appeared before a Special Magistrate sitting at Tsuen Wan Magistracy and was convicted of an offence of careless driving contrary to section 38(1) Road Traffic Ordinance, Cap. 374, Laws of Hong Kong. She was fined $2500.

2.By a notice filed on 9 May 2009, the Appellant appeals against conviction. Having heard arguments by the Appellant appearing in person and a Senior Public Prosecutor on behalf of the Department of Justice, I reserved by ruling indicating I would hand down written reasons at a later date. I do so now.

3.Three prosecution witnesses were called to give evidence. The first being the driver of the other vehicle, a taxi, involved in the accident. He told the court that on the day in question, 19 January 2008, he was driving his taxi in the left hand lane of Container Port Road approaching the roundabout of Kwai Fuk Road. As he approached the roundabout, there was nothing in front of him and no car was in the right hand lane to his side. His speed was about 10 kph. As he entered into the left hand lane of the roundabout, a private car, driven by the Appellant doing approximately 40 kph in the right hand lane overtook him and cut across his path heading for Kwai Fuk Road. As a result, the left rear side of the Appellant’s car came into contact with the right front side of the taxi.

4.PW2 was WPC 6225 who was the officer who investigated the scene immediately after the accident. She identified the Appellant as being the driver of the private vehicle and drew a sketch. She found damage to the left rear side of the private vehicle and damage to the right front part and right indicator of the taxi.

5.PW2 also told the court that at the scene, the Appellant had told her that she was driving on the second left hand lane of Container Port Road, and the taxi was in the first left lane of the same road. Upon entering into the roundabout, she the Appellant was driving in the inner lane. When she was driving into Kwai Fuk Road, the rear part of her car bumped the taxi. This explanation appears to be consistent with the Appellant having cut into the path of the taxi and having caused the collision.

6.PW3 was PC 33423 who told the court that he sent out Notices of Intended prosecution to the drivers of the two vehicles on 21 January 2008. He sent these by recorded delivery. He also, having referred to his investigation report, confirmed that he telephoned the Appellant on 21 January 2008 asking her to give a statement regarding the accident.

7.The Appellant elected not to give evidence nor to call witnesses.

8.The Appellant in her notice of appeal relies on nine grounds of appeal and expanded on them in court before myself. Grounds 1-3 can be taken together and essentially complain that she was not notified that she would be charged with careless driving until 2 months after the incident (Ground 1); that notice of intended prosecution was sent to her by recorded delivery and not registered post as is required by law (Ground 2), and in any event she never received the notice and has thereby been prejudiced (Ground 3).

9.Section 68 of the Road Traffic Ordinance is relevant. It states:-

“(1) Subject to subsection (2), a person prosecuted for an offence under ss36, 37, 38 or 41 shall not be convicted of an offence unless:-

(a) he was warned at the time of the commission of the offence or within 24 hours thereafter that the question of prosecuting him under one or other of the aforesaid provisions would be taken into consideration; or

(b) within 14 days of the commission of the offence, either he was charged before a Magistrate or a summons in respect thereof was served on him; or

(c) within 14 days, excluding public holidays, of the commission of the offence, a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed was served on him, or sent by registered post (emphasis mine) to him, or served on or sent by registered post to the person in whose name the vehicle was registered at the time of the commission of the offence;

(2) Subsection (1) shall not apply if it appears to the court or Magistrate that:-

(a) the person prosecuted was not prejudiced in his defence by a failure to comply with that subsection; or

(b) the person prosecuted by his own conduct contributed to the failure to comply with that subsection.

10.“Registered post” is not defined in the Ordinance, but in my judgment, it is distinguishable from “recorded delivery” which was the mode of sending out the notice of intended prosecution in the present case. This is so because the Introduction to Postage Rates and Services of the Post Office referred to by the Magistrate in his Statement of Findings provides that with regard to registration, the post office will collect the signature of the recipient. In addition, upon payment of a further fee the signature of the recipient is given to the sender. This is not the case with regard to “recorded delivery” where a record is simply kept by the delivery office that the delivery has been successfully completed. There is therefore more risk attached to “recorded delivery” of the recipient not actually receiving the article if he or she has, for example, moved.

11.Despite the fact that the notice of intended prosecution was not sent by “registered post” as required, I find that the Appellant has suffered no prejudice for the simple reason that the notice was sent to the Appellant to the same address as the summons containing the information of careless driving which was duly answered by the Appellant. Moreover, as the Magistrate pointed out in his Statement of Findings, the evidence of PW3, whose evidence he accepted, was that as early as 21 January 2008 he had telephoned the Appellant requesting her to give a statement regarding the accident. Grounds 1-3 accordingly fail.

12.Ground 4 which deals with whether or not the taxi stopped before or after the impact is of no consequence and fails.

13.In ground 5, the Appellant alluded to the taxi driver’s criminal and driving convictions. The Magistrate in his Statement of Findings took heed of these matters, but notwithstanding this, believed his testimony. He was entitled to do so. Ground 5 fails.

14.In ground 6, the Appellant complains that the officer at the scene failed to conduct a breath test on the taxi driver. The Magistrate dealt with this in his Statement of Findings by stating that she, the officer had made a judgment on the appearance of PW1 at the scene and found it to be unnecessary to conduct a breath test. This is a matter entirely for the officer. This ground fails.

15.Finally, grounds 7 and 8 deal with aspects of the prosecution evidence that the Magistrate decided to accept. He, it was who saw and heard each witness testify and it was for him to accept or reject the evidence as he saw fit. There is no merit in either of these grounds and they also fail.

16.For the forgoing reasons, I dismiss the appeal against conviction.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the Respondent

Appellant, in person