HKSAR V Yeung Wai Lee

HCMA84/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 84 OF 2011

(ON APPEAL FROM KCV 123 OF 2010)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 7 July 2011

Date of Judgment : 22 July 2011

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J U D G M E N T

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1.On 20 December 2010 the appellant was convicted after a trial before Deputy Special Magistrate Sit Wing Kwun of an offence of crossing continuous double white lines contrary to Regulations 11(1)(a) and 61(1) of the Road Traffic (Traffic Control) Regulations made under the Road Traffic Ordinance, Cap. 374. He was fined $2,500.

2.This is his appeal against conviction.

3.The appellant represented himself in the lower court and before me.

The prosecution’s case

4.It was the prosecution’s case that at 11:07 p.m. on 10 April 2010 the appellant drove a light goods vehicle east bound along Bailey Street [Kowloon]. At this location Bailey Street east bound and west bound are separated by continuous double white lines.  There are three lanes of traffic in either direction. The appellant’s vehicle was observed to move from the 2^nd lane to the 3^rd lane and at a point where Sung Chi Street intersects the west bound lanes of Bailey Street he crossed the double white lines, and proceeded to come to a halt at the kerb of Bailey Street west bound.  He was then approached by a police officer (PW1) who advised the appellant that he had committed an offence.

5.The appellant gave evidence.  He told the magistrate that on that evening he was driving his light goods vehicle and his wife was the only passenger.  He intended to find a place to park and allow his wife to go to collect their son who was dining at a restaurant somewhere on Bailey Street and probably on the west bound side.  He had entered Bailey Street east bound by executing a left turn from Ma Tau Wai Road which was itself 50 odd metres from the junction of Bailey Street and Sung Chi Street (Sung Chi Street does not cross Bailey Street but intersects with it).  Having seen Sung Chi Street to his right he moved into the 3^rd lane of Bailey Street east bound and proceeded to make a right hand turn across the continuous double white lines intending to enter and park in Sung Chi Street.  He abandoned this manouvre when he realized that Sung Chi Street was a one-way street and he was not permitted to enter it. 

6.Having committed himself thus far and rather than drive into a one-way street, the wrong way, he continued to make another right hand turn and stopped facing west at the kerb on Bailey Street.

7.Prior to realizing that Sung Chi Street was a one-way street he believed that he was permitted to cross the continuous double white lines if he was legally able to drive into Sung Chi Street.

8.The magistrate concluded that the appellant’s account was untruthful and that of the police officer was truthful.  This is somewhat strange inasmuch as apart from the fact that there were discrepancies as to the sketches prepared by the police officer of the location of the appellant’s vehicle prior to executing its turn, there was no real issue of fact upon which it was necessary to determine that the officer was a truthful witness.  His evidence in respect of the appellant’s driving that evening was not challenged.  Likewise insofar as the appellant’s account was concerned the magistrate rejected that part of his evidence which was peripheral to the matters in issue.  The magistrate concerned himself with whether it was more or less practical for him to stop and wait in Sung Chi Street whilst his wife collected their son.

9.This is what the magistrate said:

“(a)(i) At the material times, the Appellant was looking for a place to drop off his wife. The Appellant’s wife was to pick up their son who dined with his grandparents in a restaurant nearby. The Appellant did not know the exact location of the restaurant; his wife did not tell the Appellant where he should drop her off; and it was the Appellant’s decision to stop his vehicle in the ‘dark’ Sung Chi Street. The Appellant said that for it could have saved his wife and his son from crossing the Bailey Street, he chose Sung Chi Street to stop his vehicle.

(ii) Such being the case, I did not understand how the Appellant knew if he stopped his vehicle at Sung Chi Street, it could have saved his wife and his son from crossing Bailey Street. The Appellant did not even know where the restaurant was at all!

(iii) At all time, it was the Appellant’s own decision to stop in the ‘dark’ Sung Chi Street. Given that the Appellant knew nothing about the exact location of the restaurant, why did the Appellant bother to make the turn and drive to that ‘dark’ street so as to stop and drop off his wife there? It could be more convenient for the Appellant to stop at the space behind the public light bus on the east bound of Bailey Street (See Exhibit P2 at 4’55”) but he did not make it.

(iv) Further, I did not understand why the Appellant chose a dark street to drop off his wife.

(v) I found the Appellant’s evidence simply illogical and incredible.”

The magistrate then said:

“20. Despite I rejected the Appellant’s evidence, I reminded myself that the burden of proof was on the prosecution and it had to prove its case beyond reasonable doubts. If any reasonable doubt arose, the benefit of doubt should go to the Appellant. I also noticed that there was no independent witness to tell the Court what had happened at the material times. Therefore, I had to be very careful when I dealt with PW’s evidence.

21. I had carefully considered all the evidence, exhibits and submission, I found that PW was an honest and reliable witness. His evidence was consistent and logical. I accepted his evidence and gave full weight to it.”

And finally he said this :

“22. It was undisputed that the Appellant did make a turn crossing the continuous double white lines which separating the east bound and the west bound of Bailey Street. The issue was whether the Appellant had a reasonable excuse to make such a move or not. Having carefully considered the evidence, I found that the Appellant had no reasonable excuse at all.”

10.In approaching the matters as he did the magistrate has misunderstood the very essence of the defence case, notwithstanding that at paragraph 22 he purports to address the real issue he has not done so.

11.Regulation 11 of the Road Traffic (Traffic Control) Regulations makes it an offence to cross continuous double white lines without reasonable excuse.

12.A driver may however cross double white lines if he or she is intending to make a right turn into or out of any road, premises or place adjacent to the highway.

13.Thus it was in the instant case that the appellant would not have committed this offence had he been permitted to turn right from Bailey Street east bound into Sung Chi Street.  In such a situation he is permitted to cross the continuous double white lines.  The problem was that he was not permitted to do this as Sung Chi Street was a one-way street and could not be legally entered from Bailey Street—east or west bound.

14.It was the defence case properly understood that when he appreciated that Sung Chi Street could not be legally entered he continued to turn right into Bailey Street west bound.  This in the circumstances amounted he said to a reasonable excuse.

15.Integral to this defence was the fact that whilst there was on the kerbside of Bailey Street east bound a no right turn sign to indicate that vehicles could not enter Sung Chi Street from Bailey Street east bound, that sign was obscured by an illegally parked public light bus.  It was the appellant’s evidence that had he seen this sign he would not have turned right as he did.

16.Thus it can be seen that no question of the credibility of the police officer’s evidence arose.  He described the appellant’s driving in much the same way as did the appellant.  It was accepted in the trial that the public light bus was parked illegally on Bailey Street east bound in the 1^st lane from the left and that the sign to indicate that a driver could not turn right into Sung Chi Street was at that point obscured.

17.Whilst the magistrate found that the appellant had crossed the continuous double white lines (which was not in issue) and could not legally enter Sung Chi Street (which was also not in issue) he failed to say why it was that the appellant’s account that he was unable to see the no right turn sign did not amount to a reasonable excuse.

18.Certainly from the exhibits it appears that the no right turn sign is obscured at the point where a vehicle would make a right hand turn into Sung Chi Street.  These exhibits (photographs) also show a number of vehicles parked behind the public light bus.

19.The issue for the magistrate to determine was whether in all of the circumstances the fact that the appellant did not see the no right turn sign amounted to a reasonable excuse.

20.This was never addressed by the magistrate.  Instead he made findings as to the credibility of the police officer (which was not in issue) the evidence of the appellant as to why he wanted to drive into Sung Chi Street—(which was irrelevant).

21.He did not address the only real issue in the trial.

22.The appeal is allowed.  The conviction is quashed and the sentence set aside.  The fine if paid is to be refunded to the appellant.

Mr Betty Fu, SPP of the Department of Justice, for the Respondent

The Appellant in person, present