HKSAR v. Wong Tai Yu

HCMA350/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 350 OF 2011

(ON APPEAL FROM KCS41018‑41020 OF 2010)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 29 June 2011

Date of Judgment : 22 July 2011

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J U D G M E N T

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1.The appellant is a taxi driver. On 15 April 2011 he was convicted after trial before Mr K.C. So, Deputy Special Magistrate, of :

(i) careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap.374, Charge 1;

(ii) having been involved in an accident wherein damage was caused he failed to stop, contrary to section 56(1)(b) and 56(5) of the Road Traffic Ordinance, Cap.374, Charge 2;

(iii) having been involved in an accident wherein damage was caused and not having given the particulars of his name address and identity card to those then present failed to report the said accident within 24 hours to a police officer or at a police station, contrary to section 56(2A) and 56(6) of the Road Traffic Ordinance, Cap.374, Charge 3.

He was fined $1,500 on each charge. This is his appeal against both the convictions and sentences.

2.The 1^st and 2^nd Charges were alleged to have occurred on the evening of 17 July 2010 at Hoi Ting Road, 18 Park Avenue (Kowloon).  To enter this address the appellant, like all other drivers, had to swipe his “Octopus” card on the card reader at the entrance gate.  Once this was done, the entrance drop bar (which prevented entry of vehicles) would be raised.  When leaving through the exit gate the same procedure was required and once the driver’s “Octopus” card was swiped the exit drop bar would be raised and the vehicle permitted to leave.

3.It was the prosecution’s case that on this evening the appellant, having first entered those premises, was in the process of exiting when his vehicle drove past the exit gate card reader and struck the exit drop bar, causing it and the card reader to be damaged.  This was the substance of the 1^st Charge.  PW1, who was a uniformed security guard on duty at the exit gate, said that when the appellant’s taxi struck the exit drop bar he went to the driver’s door of the vehicle and instructed the driver (there was no dispute that this was the appellant) to remain where he was whilst he summonsed assistance from the control room.  It was his evidence that the appellant ignored that instruction, reversed his taxi to the exit card reader, swiped his “Octopus” card which raised the exit drop bar, and then drove away. This was the substance of the 2^nd Charge.

4.There was unchallenged evidence from a police officer that the appellant did not report the accident to the police within 24 hours.  This was the substance of the 3^rd Charge.

5.It was the evidence of PW1 that exit drop bar and exit card reader were damaged by the appellant’s taxi. 

6.PW2 was a police officer who attended the scene.  She confirmed that she had inspected the exit drop bar and found it was bent forward.  She also confirmed that the road surface was very wet and slippery. 

7.It was suggested to PW1 in cross-examination that after the appellant’s taxi had come to rest with the exit drop bar over its bonnet and touching the wind screen he had motioned to the appellant to reverse away from the exit drop bar and then to leave.  PW1 rejected this suggestion. 

The defence case

8.The appellant gave evidence, and said that as it was raining heavily at the time, he approached the exit card reader at a very slow speed of 3‑5 kilometres per hour intending to stop and swipe his “Octopus” card.  However, because of the slippery road surface, instead of stopping his taxi slid forward and the exit drop bar struck the windshield of his taxi as the drop bar was higher than his taxi’s bonnet. The exit drop bar was as a result raised up a little.  The appellant waited for some 30 seconds before a security guard came out [of the guard post] and motioned to him with his hand, which the appellant took to mean to reverse, swipe his “Octopus” card and clear the exit.  He said he did not hear anything said to him by that person because his window was rolled up and it was raining heavily.  There was in his mind therefore no reason to remain at the scene and no reason to report the matter to the police.

Discussion

9.As can be seen from the above irrespective of the appellant’s manner of driving, there was a factual issue as between the two accounts.  Based on the security guard’s account the appellant must have been aware that he was required to remain at the scene.  On the appellant’s account he was being directed to leave.

10.The magistrate accepted the evidence of the security guard and rejected the evidence of the appellant.

11.Having rejected the appellant’s account the magistrate concluded that the appellant drove carelessly. Mr Chan, on behalf of the appellant, submits that the magistrate was wrong to do so firstly because his reasons for determining that the evidence of the appellant was untruthful were flawed and secondly because he failed to take into account the fact that the scene of the accident was a slippery down slope, and at the time it was raining heavily.  Mr Chan’s submission is that the magistrate determined that the appellant drove carelessly because his taxi struck the drop bar and for no other reason.  If that be so he was in error.

12.Was the magistrate in error in his approach to the truthfulness of the prosecution witnesses and the appellant?

13.The magistrate rejected the account given by the appellant that PW1, without inspecting the drop bar, motioned for him to leave the scene.  He regarded this as illogical.  He considered that common sense would dictate that PW1 would not simply direct the appellant to leave without first determining whether the drop bar had been damaged.  Mr Chan submits that in this regard the magistrate was speculating.  I disagree.

14.Given that it was clear to PW1 that there was damage caused to the drop bar, the evidence of PW1 that he asked the appellant to wait was logical.  The converse was illogical.  The magistrate in this regard did not fall into error.  The premise upon which the magistrate concluded that the appellant was not a truthful witness was sound and cannot validly be criticized.  It was a conclusion open to him and properly drawn in the circumstances. 

15.The magistrate also rejected the appellant’s evidence that he approached the exit card reader at 3‑5 kilometres per hour.  The magistrate, however, made no reference to the road conditions beyond this at the time.

16.In R v Luk Hung Kuen [1994] 3 HKC 557, Mayo J (as he then was) cited with approval a passage from the judgment of Penlington J (as he then was) in R v Kit Wing Wo [1988] 1 HKC 204, 206 wherein he said :

“What the magistrate appears to be saying is that when the road was wet and slippery, the appellant had a duty to drive at a speed and at a distance behind the car in front of him so that if that car braked, he would be able to stop in time. This is certainly what the road code says and the Road Traffic Ordinance certainly provides that failure to comply with its provision is a factor a court can take into consideration when deciding if anybody has been guilty of a careless driving. There must however in a criminal charge be some direct evidence of negligence. The court is not entitled to simply apply the doctrine of res ipsa loquitor. That doctrine applies in civil cases but there must be some positive evidence of carelessness in a criminal prosecution …”

17.Can it be said in the instant case that there is positive evidence to establish that the appellant’s driving was careless?  There was no witness other than the appellant as to his manner of driving that evening.  Mr Chan, on behalf of the appellant, submits that in absence of any reference by the magistrate to the prevailing conditions and the location of the accident, the magistrate’s conclusion that the appellant drove carelessly cannot be supported.  I agree. 

18.There was incontrovertible evidence that the road surface was wet, tiled and slippery, and the red rainstorm warning was in force.  The road sloped clear towards the exit drop bar.  These are all matters which could possibly have contributed to the accident.

19.The magistrate’s rejection of the appellant’s evidence that he was driving at a very slow speed was not of itself sufficient to establish that he drove carelessly.  There were other factors which could have contributed to the appellant’s vehicle skidding into with the exit drop bar and these were not addressed.  The fact that the appellant’s vehicle skidded, as it did, does not in the circumstances lead to an irresistible inference that he was driving carelessly.

20.I am satisfied that the conviction on the charge of driving carelessly is unsafe and unsatisfactory. The conviction is quashed and the sentence set aside.  The fine of $1,500, if paid, is to be refunded to the appellant.

21.As to the remaining charges the grounds of appeal can be dealt with succinctly.  Mr Chan submits as to the 2^nd Charge that in fact the appellant had stopped after the accident albeit for 30 seconds and only left when signalled to do so by PW1.

22.This ground of appeal falls at the first hurdle.  The magistrate found that PW1 did not signal the appellant to drive on.  The magistrate accepted the evidence of PW1 that when he approached the appellant’s vehicle he told him to remain where he was whilst he contacted his control centre. 

23.The appellant was involved in an accident whereby damage was caused to the exit drop bar.  He did not stop at the scene and was properly convicted of the offence created by section 56(1)(b) of the Road Traffic Ordinance, Cap.374.

24.Mr Chan further submits that the 2^nd and 3^rd Charges are alternatives and the appellant should not be convicted of both.  I disagree.

25.Section 56(1)(b) and section 56(2A) are separate and discrete offences.  Section 56(1)(b) requires a driver to stop when an accident occurs which results in damage other than to the driver’s own motor vehicle.  Those are the ingredients of the offence.

26.Section 56(2A) requires a driver to report to the police an accident which results in damage (other than to that driver’s own motor vehicle) and where that driver has not provided his (i) name and address; (ii) the name and address of the owner of the vehicle;.(iii) the registration identification marks on number of the vehicle.  The offences are not alternatives since different penalties are provided for each in section 56(5) and (6).

27.In the case of the appellant who does stop after an accident, it may not be necessary to provide the particulars of set out in that section to a police officer or other person.  Much will depend on the circumstances of the accident and the extent of the damage.  Those involved may choose, if they see fit, to resolve matter then and there without the need to exchange their respective details.  This is not the same mischief section 56(2A) is directed towards.  

28.Finally by way of an appeal against sentence in respect of the 2^nd and 3^rd Charges, Mr Chan submits that the magistrate was in error in imposing the same fine, namely $1,500 on each charge, because in effect it is the same offence.  I do not agree. 

29.The penalties imposed were in the circumstances proper.  The appeals against conviction and sentence on the 2^nd and 3^rd Charges are dismissed.

Ms Grace Chan, SPP of Department of Justice, for HKSAR

Mr Chan Pat Lun, instructed by Messrs Hart Giles, for the Appellant