HKSAR v. Dossenbach Juerg Paul

HCMA 579/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 579 OF 2011

(ON APPEAL FROM ESS 13031 OF 2011)

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BETWEEN

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 22 February 2012

Date of Judgment: 22 February 2012

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J U D G M E N T

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1.The Appellant appeals against his conviction in the Magistrates’ Court on a charge of careless driving. The lane in which he was driving his car merged into the lane in which the first prosecution witness was driving a goods vehicle. As he had to, the Appellant steered into the goods vehicle driver’s lane. And there the car and goods vehicle came into collision.

2.In the witness box, the goods vehicle driver said that he had sped up while the Appellant had slowed down.  But in his statement to the police, the goods vehicle driver made no mention of the Appellant having slowed down, and he agreed under cross-examination that his recollection had been clearer when he gave that statement.  So there is reliable evidence that he had sped up.  But, as it seems to me, there is some reason to question the reliability of his evidence that the Appellant had slowed down.

3.It might have been possible safely to convict despite that problem, provided that it had received sufficient consideration by the magistrate.  But I do not think that it has.  Accordingly, even on the first ground of appeal alone and without going into the other grounds of appeal, this conviction is unsafe.  I allow the appeal to quash the Appellant’s conviction.

Mrs Lisa Remedios, instructed by K M Cheung & Co, for the appellant

Mr Frederick Chung, of the Department of Justice, for the respondent