The Queen v. Chan Pui Kwai

HCMA 90/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 90 OF 1991

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 4^th April, 1991

Date of Delivery of Judgment: 4^th April, 1991

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J U D G M E N T

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1.  The appellant pleaded not guilty to a charge of careless driving. The only witness for the prosecution was a bus driver who gave a confused description of the incident which gave rise to the charge.

2.  The incident occurred at about 4.20 p.m. on the day in question on Ching Cheung Road at a point shortly beyond where traffic from Castle Peak Road merges with Ching Cheung Road. On that day there were two lanes forming the carriageway along which both the bus driver and the appellant were travelling. Traffic from Castle Peak Road merged with traffic in the slow lane of Ching Cheung Road. It was common ground that the appellant entered Ching Cheung Road from Castle Peak Road but, whereas the bus driver said that the appellant immediately crossed to the fast lane in Ching Cheung Road, the appellant and a witness he called said that the appellant remained in the slow lane.

3.  It was common ground that the fast lane was impeded by roadworks which effectively reduced the two-lane carriageway to one. Traffic in the fast lane had to cut back into the slow lane in order to proceed beyond the roadworks in the fast lane. It was the appellant’s case that a container truck travelling in the fast lane cut in on him in order to change over to the slow lane. In order to avoid colliding with it he had to brake and actually come to a halt to allow the truck into the slow lane. As he was about to move off again the bus run into his rear. That version was supported by the witness he called.

4.  The bus driver’s initial description of the traffic on the carriageway just before the collision was that there were three vehicles on the fast lane: a dump truck, the appellant’s vehicle and the bus; and on the slow lane, more than two bus lengths ahead of the bus, another private car. He gave the speed of the dump truck as about 45 kph and the speed of the private car on the slow lane is about 35 kph. The private car on the slow lane must have been ahead of the dump truck on this description because he said that the truck was unable to overtake that private car and cross to the slow lane before reaching the obstruction in the fast lane. The dump truck therefore slowed to allow the private car in the slow lane to go clear so that the truck could cross into the slow lane. At this time he said that the appellant’s vehicle also moved back to the slow lane. He added that both the appellant’s vehicle and the dump truck were trying to cut into the slow lane at the same time and that the appellant’s vehicle “braked abruptly on seeing the truck cutting into the slow lane”. His bus then ran into the appellant’s vehicle.

5.  Following that description the bus driver then gave evidence as follows:-

“I was all along on the slow lane. When I said earlier I cut out to fast lane I meant the appellant’s vehicle cutting out to fast lane. I was in slow lane when I ran into the appellant’s vehicle. When the appellant’s vehicle cut back to slow lane it was about 2-3 feet from front of my bus. It gave me no indication that it was about to cut back into slow lane. My bus came into contact with it.”

6.  In cross-examination he gave evidence as follows:-

“Q. When your bus and the appellant’s car approached road construction area, you and his car at same speed?

A. Yes.

Q. How far was his car ahead of you?

A. About one car’s length.

Q. The dump truck’s speed was same as yours?

A. Yes.

Q. All three vehicles were at same speed?

A. More or less. About 45 kph.

Q. when the appellant’s vehicle cut into the fast lane, how far was the dump truck in front of it?

A. 3-4 feet. All three vehicles were close.

Q. Because of the road construction only way was to cut into slow lane?

A. Yes.

Q. You slowed down when the dump truck was flashing indicator?

A. I slowed down.

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Q. The dump truck flashed indicator but the appellant’s vehicle did not?

A. Correct.

Q. Was the dump truck able to move into the slow lane at all?

A. Yes. It completely entered slow lane. The appellant’s vehicle also entered slow lane completely.

Q. You slowed down to let them enter?

A. No. After the appellant’s vehicle cut into the slow lane, part of the dump truck was on fast lane.

Q. After defendant cut into slow lane it slowed down?

A. Yes.

Q. So defendant had to slow down?

A. It braked.

Q. Because defendant braked, collision took place?

A. Yes.

Q. Defendant’s car had completely entered slow lane?

A. Yes.

Q. You failed to brake when you hit defendant’s car?

A. Yes.

Court: Q. When you came into contact with defendant’s car, it was completely inside the slow lane?

A. Yes.”

7.  The learned magistrate in his Statement of Findings said:-

“After watching his demeanour and considering his evidence, I found PW1 to be an honest, reliable and accurate witness. He appeared to be uncertain at first but I was sure it was due to his lack of experience in giving evidence. I accepted his evidence about the movements of the vehicles concerned. I believed that when he was travelling on the slow lane, he had left sufficient space between his bus and the vehicle in front of him to enable the dump truck and the appellant’s vehicle to cut in. Neither the appellant nor his witness impressed me as honest, reliable and accurate witnesses. I rejected evidence. I found that:-

(a) After entering Ching Cheung Road the appellant travelled on the fast or outer lane;

(b) Realising that there were road works ahead the appellant abruptly moved over to the slow lane without giving any signals and placed himself very closely in front of PW1’s bus, thus making it impossible for the latter to stop when he had to brake to a halt;

(c) In executing the manoeuvre described in (b) above the appellant had failed to keep a proper lookout in that he had failed to notice the presence of the bus on the slow lane.”

8.  The learned magistrate was able to accept the bus driver’s version that he was always travelling in the slow lane because he thought that his original description (which had the bus crossing to the fast lane) was “uncertain” through lack of experience in giving evidence. But he does not explain how he found the appellant’s manoeuvre to be careless when it was undertake in the following circumstances: (a) the bus driver was ensuring that there was sufficient space between his bus and the vehicle in front of him on the slow lane to enable both the dump truck and the appellant’s vehicle to cross from the fast to the slow lane; (b) the bus and the appellant’s vehicle approached the construction area travelling at the same speed; and (c) the appellant was a car length clear of the bus. If the appellant were guilty of any carelessness in undertaking the manoeuvre, it was not through failure to keep a proper lookout in relation to the bus. A conviction based on a finding that the appellant was careless in that way is, therefore, unsatisfactory.

9.  I accordingly allow the appeal and quash the conviction.

Mr. S.R. Bailey, C.C. for Crown

Appellant Chan Pui Kwai in person