Mckeever Stephen James v. HKSAR

HCMA 381/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 391 OF 2011

(ON APPEAL FROM ESS48839-41/2010)

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BETWEEN

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Before: Hon. Wright J

Date of Hearing and Judgment: 19 July 2011

Date of Judgment: 26 May 2011

Date of handing down Reasons for Judgment: 22 July 2011

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REASONS FOR JUDGMENT

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1.The appellant was tried by Deputy Special Magistrate Hau Cheuk-man sitting at Eastern Magistracy on three summonses alleging that he drove a motor vehicle, registration PC 361, carelessly on 2 August 2010 contrary to s. 38(1) of the Road Traffic Ordinance , Cap. 374, and that, thereafter, he failed to stop after an accident contrary to ss. 56(1) (b) and 56(5) of the Ordinance and failed to report an accident contrary to ss. 56(2A) and 56(6) of the Ordinance, damage having been caused to another vehicle car, registration KN 6268.

2.The appellant was unrepresented at trial. He was convicted and, in respect of each summons, ordered to pay a fine of $4500.00. He gave notice of intention to appeal the convictions. In due course he instructed solicitors and, they, counsel. Grounds of appeal were filed which indicated a belated intention to appeal, also, the sentences. On 19 July 2011 I allowed the appeals against the convictions as a consequence of which it was unnecessary to consider the appeals against sentences and ordered that the prosecution pay the appellant's costs of appeal: I indicated that I would provide my reasons and thereafter which I now do.

3.For the sake of completeness I indicate that had I confirmed the convictions, or any of them, I would have granted leave out of time to appeal the sentences it being plain that, on any view of the facts, each sentence was excessive.

4.In order for the prosecution to succeed against the appellant it was necessary for it to prove, inter alia,  that he drove the designated motor vehicle carelessly in respect of the first summons, but not necessarily that a collision had occurred. In respect of the second and third summonses, proof of knowledge on the part of the appellant of a collision in which damage had been caused was a necessary element of each offence.

5.The offences were said to have occurred in Connaught Road Central, near Exchange Square. It was not in dispute that KN 6268, driven by the first prosecution witness (PW1), had been travelling in an easterly direction along Connaught Road Central as had PC 361 driven by the appellant. Connaught Road Central intersects Pedder Street: traffic flow across that intersection was controlled by traffic lights. At that intersection there were three lanes for traffic, two of which permitted vehicles to continue along Connaught Road Central and the third of which, the near side lane, permitted vehicles either to continue along Connaught Road Central or to turn left into Pedder Street. KN 6268 was in the right most of those three lanes.

6.However, some distance before reaching that intersection there commenced a filter lane adjacent to the right-most lane which extended through the divider between the eastbound and westbound carriageways of Connaught Road Central: this permitted motor vehicles, in effect, to make a U-turn so as to travel in a westbound direction along the opposite carriageway of Connaught Road Central.

7.It was the evidence of PW1, to quote the magistrate’s summary in his Statement of Findings, that whilst his vehicle was stationary "... behind two or three vehicles for the red traffic light" he "... heard a bang sound coming from the rear of side of his vehicle but felt no impact". It was his evidence that he was at the "... start of the diverging lane" and considered the space for the appellant's vehicle to pass him as being insufficient. When he heard the bang he sounded the horn of his vehicle for two or three seconds. He saw the appellant's motor vehicle driving in the slip lane. It did not stop. PW1 concluded that it was the appellant's vehicle which had caused the sound he had heard. The magistrate’s Statement of Findings is silent as to how it came about that the appellant was subsequently contacted by the police, but presumably PW1 noted the registration number of the appellant's motor vehicle.

8.It was the appellant's case when he testified that he had entered the slip lane and proceeded on his journey in an unremarkable fashion. He was unaware of any impact with another vehicle or another vehicle hooting to attract his attention.

9.A sketch plan as well as photographs of the area were before the magistrate. Despite this, the magistrate failed to appreciate, or at least to resolve, two issues: first, that the photographs quite clearly showed that the width of the slip lane at a point three or four vehicle lengths from the intersection was, approximately, the same as the width of each of the other three traffic lanes; second, the movement of vehicles in the slip road was not governed by the traffic lights at the Connaught Road Central/Pedder Street intersection.

10.In regard to the first issue, the magistrate recorded the evidence of PW1 as being that he had stopped "... behind two or three vehicles for the red traffic light". PW1’s own evidence, accepted by the magistrate, thus places his vehicle three or four vehicle lengths from the intersection. What the magistrate did not appreciate was, first, just where on the road that placed KN 6268 in relation to the commencement of the slip lane and, second, that this demonstrated both that PW1’s evidence that his vehicle was at the "start of the diverging lane" was not correct and that his estimation of the width of the slip lane next to where he said he was stopped also was incorrect. The magistrate did not deal with these conflicts in PW1's evidence. They were material.

11.As to the second issue it was the appellant's evidence that when he reached the slip road, although there was traffic around him, he was able to proceed slowly and, according to the magistrate "...he was not aware whether the traffic light was red or green because the traffic was heavy and he was focusing on the way to split (sic) road". It was the appellant's evidence that there was no car in front of him at the time he entered the slip road - which he had been able to do - proceeding slowly and focusing on the slip road. Of course, PW1's evidence is that his vehicle was not in the slip road.

12.The magistrate found the appellant's evidence to be "... self contradicting and unreasonable" based on his conclusion that even though the appellant was driving in or entering the slip road "... if at such circumstances (sic), a driver still didn't look at the traffic light trying to follow its signal, he was driving carelessly.". This is the only basis disclosed in the statement of findings for the magistrate finding that the appellant drove carelessly. With respect, the duty which the appellant was under was to pay attention to the road and traffic conditions in and surrounding his path of travel, not to traffic lights which controlled traffic flowing in a direction different to that in which he was travelling even if those traffic lights may have had an effect on the general traffic conditions.

13.There was another aspect to this trial which had greater relevance to the second and third summonses but was also relevant to the first summons, although, in the circumstances, of no assistance to the prosecution.

14.A second prosecution witness (PW2) referred to by the acronym "SPC 204" testified: I took that acronym to stand for "Senior Police Constable". The fundamental problem with the evidence of PW2 was that it was largely inadmissible yet the magistrate relied heavily on it. PW2 gave evidence of his observations of damage to PW1's motor vehicle and, later, of the appellant's vehicle and, significantly, the lack of damage to it. No criticism was to be passed of that portion of his testimony.

15.However, he then went on to express a variety of opinions as to possible points of contact between the motor vehicles and to speculate on the mechanics of what he appears to have assumed to be a collision between them. It suffices to record, verbatim, a portion of the magistrate’s summary of that evidence:

... PW2 located the appellant's vehicle under the appellant's home. PW2 examined his vehicle. There was no damage at all or even a scratch mark or dust. The whole body was normal. But on the left front wheel, there was a white mark on the tyre. That white mark was some kind of white colour powder. An also the left front wheel has been damaged with relatively new mark. The white mark and damage had no cause of collision of any other vehicle but those were the only marks PW2 could find on the appellant's vehicle...

PW2 believed that the damage on PW1's car was not made by metal and he observed that the white powder mark on the appellant's car was not matching to PW1's damage. Also the position of the left front wheel of the appellant's vehicle was higher than the damage on PW1’s vehicle. The white powder mark was not made by the contact with PW’s free. The front wheel of the appellant's vehicle was higher than the near wheel of PW1’s vehicle. PW2 disagreed that the damage on PW1’s vehicle was not caused by any contact with the appellant's vehicle although the white powder mark and the damage on PW1’s vehicle were not matching. PW2 elaborated that he clearly saw the damage of PW1’s vehicle was a new and fresh black mark at 9 PM on the day of the incident when he took the photos marked as P2 in trial. This black mark was caused by a spiral or curved movement caused by a turning wheel. The appellant's vehicle was blue. So PW2 believed that the contacts of the two vehicles were not on their bodies but it was the left front wheel of the appellant's vehicle as it was turning right, the extension of the wheel had to go beyond its body so it was in contact with PW1’s vehicle. So that's why the mark was black and also with curves instead of being parallel. And as the appellant's vehicle had left the scene, it was impossible for police to find a point of the tyre of the appellant's vehicle which could make contact with PW1’s vehicle.

and then his use of that opinion evidence in the course of  what he called "The Finding":

In addition, PW2's evidence collaborates with PW1's evidence. His evidence supports that it's possible that a contact was made by the turning front wheel of the appellant's vehicle to PW1's vehicle. The front wheel of the appellant's vehicle was higher than the rear wheel of PW1's vehicle and that's why there was no metal contact and the only contact he might think of was the wheel of the appellant's vehicle had contact with the body of PW1's vehicle. In his evidence that black mark on the photos marked P2(8) and (9) was a spiral one caused by a turning wheel. The black mark was a new and fresh one... [emphasis supplied]

16.There was no evidence at all that PW2 was possessed of any expertise which enabled him to express opinions of this nature. There was no attempt to qualify him as an expert: the magistrate made no finding that he was an expert in matters of this nature. On that basis his opinion evidence was inadmissible and the magistrate was wrong to rely upon it. The magistrate also made no attempt whatsoever to reconcile the inherent contradictions in PW2's evidence which are self-evident from the passages quoted.

17.Ms Chan, for the respondent, submitted that the witness was entitled to rely upon his daily experience of life to make a finding that there was a collision between the two motor vehicles. That may be so in respect of other matters but when the witness condescends to expressing opinions of this nature, it is necessary that he be possessed of recognised expertise in that field.

18.After rejecting the appellant's evidence as "self contradicting and unreasonable" as a result of his misunderstanding of the appellant's evidence concerning the traffic lights, the magistrate went on to deal with the appellant's evidence concerning whether there had been contact between the two vehicles. The appellant had testified that he had felt no impact, heard no sound of an impact and heard no hooting. It was his case that there had been no contact between the two vehicles. He had simply continued his journey home and was unaware of any allegation of a collision until he was approached by the police.

19.The magistrate rejected this evidence as well saying, simply, that because PW1 had heard a bang and sounded the horn of his motor vehicle "... the appellant must also have heard a bang sound inside his own vehicle.” That, with respect, does not follow. The magistrate continued with his rejection of the appellant's evidence: “At least, the appellant must have heard of the horn sound.". That fails to recognise or deal with the fact that, by the time PW1 sounded the horn of his motor vehicle the appellant's vehicle would have been travelling away from PW1's vehicle almost at right angles to it.

20.In view of the erroneous basis of his sole finding of carelessness on the part of the appellant, that conviction could not stand. Once there was no evidence on which to base a finding that there had been a collision between the two vehicles during which damage had been caused and of knowledge on the part of the appellant of that collision, no duty could have arisen on the part of the appellant either to stop or to make a report to the police: see Harding v Price [1948] All E.R. 283.

21.An appeal from a decision of a magistrate is a rehearing on the materials before the magistrate. Given that the magistrate misunderstood both the evidence of PW1 and the appellant I was unable to rely upon his findings of fact. I also was unable to rely, in the circumstances of this matter, on his acceptance of PW1's evidence and his rejection of the appellant's evidence even recognizing the advantage that he had of hearing and seeing the witnesses testify. In the result, there was insufficient evidence for me to be satisfied that the prosecution had proved the commission of any of the offences beyond reasonable doubt.

22.On any basis, this matter was trivial. It was not appropriate to order a retrial.

Ms. Eva Chan, Public Prosecutor, Department of Justice, for the Respondent.

Mr. Chan Pat-lun, instructed by Messrs. Hart Giles, for the appellant.