HKSAR v. Simon Christopher Wiggs

HCMA664/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 664 OF 2010

(ON APPEAL FROM KCS 14809 OF 2010)

--------------------------

Before : Deputy High Court Judge P. Li in Court

Date of Hearing : 9 March 2011

Date of Judgment : 12 April 2011

------------------------

J U D G M E N T

------------------------

1.On 29 July 2010, the appellant was convicted of careless driving[1] after trial. He was fined $2,500. He appeals against the conviction.

2.The accident occurred in the roundabout at Clear Water Bay Road junction Silverstrand Beach Road.  There were two lanes in the roundabout.  At about 8:30 a.m. on 29 January 2010, the appellant was driving his car (LV3221) along the inner circle of the roundabout.  When he cut into the outer circle to exit to Tai Au Mun direction, his car collided with PW1’s car (NH7587).  The latter was driving along the outer circle exiting also to Tai Au Mun direction.  The near side rear of LV3221 was dented above the rear wheel.  There were scratch marks at the off side front of NH7587 near the bumper and the panel near the front wheel.  The Prosecution alleged that the appellant failed to take due care while cutting into the outer circle causing the collision. 

3.The appellant argued that PW1 failed to look out for and show consideration to his car while he was cutting into PW1’s path to exit the roundabout.  The appellant pointed out that PW1 was in breach of the Road Users’ Code.

4.The Deputy Magistrate rejected the evidence of the appellant. [2]  Based on the appellant’s estimates on distance and speed at the material time, coupled with the damage of both cars, the Deputy Magistrate concluded that the appellant’s defence was inherently improbable. [3]  Alternatively, she found that the appellant had erred in his judgment when cutting into PW1’s lane when both cars were only 1.5 car length apart. 

5.After carefully considered the evidence of PW1[4], the Deputy Magistrate found that PW1 was honest and reliable.  She found that while both cars were leaving by the Tai Au Mun exit, the appellant cut into PW1’s lane at a short distance in a very fast speed.  The appellant failed to exercise due care and caused the collision.  She convicted the appellant as charged.

6.The appellant raised three grounds of appeal. As counsel for the appellant requested, I shall first deal with Ground 3.

Ground 3

7.Under Ground 3, the appellant criticized the Deputy Magistrate for failing to keep in mind that the prosecution case must stand upon its own feet.  The Deputy Magistrate erred in convicting the appellant on his own evidence which had already been rejected by her as inherently improbable.

8.It is necessary first to look at the approach of the Deputy Magistrate in the Statement of Findings.  After summarizing the evidence in the beginning, she analyzed the appellant’s evidence in detail. She rejected the defence case on reasons as set out in paragraph 4 above.

9.She then went on to consider the Prosecution evidence.  Before she did so, she reminded herself :

“… even if I rejected the defendant’s version of events, I must consider whether the Prosecution’s evidence on its own had proven the charge against the Defendant beyond reasonable doubt.”[5]

She then analyzed the evidence of PW1 at length before concluding that PW1 was honest and reliable.  She finally accepted PW1’s evidence as truth of the matter.[6]

10.The Deputy Magistrate then made some findings of facts.  She then concluded that :

“… the Defendant had not exercised due care and attention when changing lanes and exiting the roundabout.”[7]

From the above, I am sure the Deputy Magistrate was aware that she must base on the Prosecution evidence to convict the appellant.  In fact, she had convicted the appellant on PW1’s evidence.

11.In relation to these findings of facts, the appellant argued that they do not support the finding of carelessness.  The Deputy Magistrate seemed to have applied the principle — res ipsa loquitur. 

12.Firstly, I agree with the Deputy Magistrate. The findings of facts supported the conclusion that the appellant had failed to exercise due care when cutting into PW1’s lane at a very high speed.  In fact, the contact points between the two cars were consistent with this conclusion. 

13.Secondly, the Deputy Magistrate had reminded herself three times in the statement of findings that the burden was on the prosecution to prove the elements of the charge beyond all reasonable doubt.[8]  I am confident that the Deputy Magistrate was well aware of the burden and the standard of proof.  I do not think she had applied the principle of res ipsa loquitur.

14.The appellant further argued that once the Deputy Magistrate had rejected the appellant’s evidence as unreasonable and inherently improbable, she should not base on the appellant’s evidence to convict.  The appellant relied on the Deputy Magistrate’s comment in paragraph 66 of the Statement of Findings :

“Hence, even on the basis of his own evidence, I found the Defendant to be guilty of careless driving.”[9]

15.In paragraphs 9 and 10 above, I have already indicated that the Deputy Magistrate based on PW1’s evidence to convict the appellant.  There is actually no need to dwell on this point. However, for the sake of completeness, I would nevertheless comment on this argument.

16.In the statement of findings, the Deputy Magistrate rejected the appellant’s evidence on two bases :

(a) The appellant admitted that the distance from the point he entered the roundabout to the point of collision was approximately 18 meters.  He was travelling at about 25 to 30 km/h while PW1 was 30 to 35 km/h.  By her calculation based on this data, she concluded that either both cars arrived at the Tai Au Mun exit at the same time or PW1 arrived there first.[10]  If that was the case, the two cars could not have resulted in the damage as in the evidence.  She thus concluded that the appellant’s evidence was inherently improbable based on these calculations.

(b) Alternatively, she proceeded to analyze the appellant’s version of facts leading to the accident.  She concluded that the appellant had not exercised due care.  Firstly, the appellant had not performed a shoulder check before cutting into PW1’s lane at the outer circle.  Secondly, when he cut into the outer circle, both cars were only 1.5 car lengths (7 meters) apart.  Given the speed of both cars, there was insufficient time for PW1 to brake and avoid the collision.[11]

17.When the Deputy Magistrate used the term “inherently improbable”, she referred to the conclusion based on the calculations as set out in paragraph 16(a) above.  That was one of the reasons she rejected the defence.  She had not convicted the appellant on this.

18.When she said she could have convicted the appellant on his own evidence in paragraph 66 of the statement of findings, she was in substance rejecting the appellant’s evidence as set out in 16(b) above.  This is evident in three other paragraphs in the Statement of Findings :

a. In paragraph 42, the Deputy Magistrate commented :

“However, even if I had accepted the Defendant’s version of facts, I found that on his own evidence, he had not exercised due care and attention that a reasonable and prudent driver would in the circumstances.”

b. In paragraph 51, she commented :

“Having considered all the facts, I found that on the Defendant’s own evidence, he had exercised an error of judgment by thinking that 1.5 car lengths was sufficient for him to cut in front of PW1 into the outer circle.  He knew PW1 had increased her speed “considerably” in the short time between the 2 times he checked his mirrors before cutting into the outer circle, yet continued to change lanes.”

c. Later in paragraph 64 of the Statement of Findings, the Deputy Magistrate commented :

“… I found that on his own evidence, he had erred in judgment when he cut into the outer circle.”

19.In paragraph 66 of the statement of findings, the Deputy Magistrate was in effect repeating her comments cited above.  Her conclusion was that the defendant was guilty of careless driving. While this comment may not be necessary, her intention was to reiterate her findings that the defendant had erred in his judgment when cutting into the outer lane. 

20.Given the above, I am sure that the Deputy Magistrate had convicted the appellant based on the evidence of PW1.  She had applied the burden and the standard of proof correctly.  In the circumstances, I reject this ground of appeal. 

Ground 1

21.I now turn to Ground 1 of the appeal.  The appellant complained that the Deputy Magistrate rejected the defence evidence because the appellant did not perform a shoulder check.  This point was never put to the appellant during cross-examination.  The appellant relied on Browne v Dunn (1894) 6 R 67.  The principle in this case is that in cross-examination, counsel should put questions to direct a witness to the fact which imputation is intended to be made.  It should not be left unchallenged as the witness might have an explanation in relation to that fact.  However, this principle does not need to be applied in minute detail.  Counsel’s duty is to make it plain to the witness that his evidence is not accepted and in what respects it is not accepted. 

22.The Deputy Magistrate commented in paragraph 46 of the Statement of Findings :

“… Despite the fact that he repeated many times in court the procedure he adopted before cutting into the outer circle, there was no mention that he conducted a shoulder check before he changed lanes.”

23.The main dispute in this case is the circumstances under which the appellant cut into the outer circle.  The appellant had given evidence at length as to the sequence of events when he cut into the outer circle.[12]  He was cross-examined in detail as to the checking of mirror and the speed of both cars before and at the time of cutting lane.[13]  In fact, at the beginning of the cross-examination, the prosecutor specifically asked :[14]

“Q: Now, you knew that you have to cut from the inner lane to the outer lane, you should not affect the vehicle in the outer lane, right?

A: Correct.

Q: Now, if you think that this is not safe to do so, you have to drive around the inner lane, once again, to find a safe opportunity so that you can cut into the outer lane, do you agree?

A:   Correct.”

24.Having carefully considered the transcript, I am sure the issue was plain to the appellant at the trial.  The prosecution was challenging his manner of driving at the time of cutting lane.  Although shoulder check was not specifically put to him, the appellant’s mind was clearly directed to the relevant issue. 

25.As to the need for shoulder check when changing lanes, the Road Users’ Code recommends that :

“… Even with your mirrors, there are blind spots which they cannot cover, so it is important to take a quick glance over your shoulder for a final check.”[15]

26.In the circumstances, I am of the view that the Deputy Magistrate was entitled to consider the Road Users Code.  She should not be criticized for relying on the appellant’s failure to perform shoulder check.  The Deputy Magistrate had not shifted the burden of proof to the appellant.  It was a finding of fact.  I reject this ground of appeal.

Ground 2

27.In Ground 2, the appellant argued that the Deputy Magistrate was wrong to make calculations based on estimates of speed and distance by the appellant.  The criticism was directed at paragraph 38 of the Statement of Findings. 

28.In the trial, the appellant gave evidence as follows :

a. The distance from the point he entered the roundabout to the point of collision was approximately 18 meters. 

b. He was travelling at about 25 to 30 km/h.

c. PW1’s speed was 30 to 35 km/h.

29.It is plain that these data are estimates. The Deputy Magistrate was fully aware of this.  The result of her calculations was also expressed in a range, i.e. 2.16 to 2.6 seconds and 1.85 to 2.16 seconds.[16]  These figures showed the time range that the appellant and PW1 could have arrived at the Tai Au Mun exit.  They obviously are not calculations of precision.  In using these figures, there was no indication that the Deputy Magistrate had adopted an attitude of scientific precision in her analysis. 

30.The appellant also complained that there was no evidence that one and a half car length was approximately 6.75 meters as mentioned in the oral reasons for verdict.[17]  

31.Apart from what PW1 said during her cross-examination that one car length was 4.5 meters[18], the appellant did confirm that 2 car lengths was about 9 meters[19] and one and a half car length was about 7 meters.[20]  From all these data, one could easily calculate one and a half car length by multiplying 4.5 meters by 1.5 and arrive at 6.75 meters.  Despite this calculation, the Deputy Magistrate did accept the appellant’s estimate that one and half car length was about 7 meters. 

32.The appellant chose to give evidence on distance and speed.  He could not complain when his evidence was used to make calculations and used as a reference to assess the reasonableness of his defence.  In fact, the Deputy Magistrate had taken the evidence of the appellant to the highest in making these calculations, it was to his advantage.

33.As a matter of fact, the Deputy Magistrate had not rejected the appellant’s evidence merely because of these calculations.  After the conclusion based on these calculations, she went on to analyze the appellant’s evidence in relation to the events leading up to the collision.  She concluded that the appellant failed to exercise due care.  She repeated this finding in paragraphs 42, 51 and 64 of the statement of findings.  Having read the statement of findings carefully, I am sure that the latter was the main reason for rejecting the appellant’s evidence.  In the circumstances, I also reject Ground 2.

Conclusion

34.This case is a one-on-one situation.  The Deputy Magistrate had the advantage of observing the conduct of PW1 and the appellant during the trial.  She had analyzed their evidence in detail.  She found that PW1 was honest and reliable.  She accepted PW1’s evidence and rejected the appellant’s evidence.  I see no reason to interfere. 

35.Base on the above analysis, I dismiss the appeal.

Mr Francis Lo, SADPP of the Department of Justice, for HKSAR

Mr David Boyton, instructed by Messrs Au & Associates, for the Appellant