HKSAR v. Surinder Singh

HCMA 615/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 615 OF 2012

(ON APPEAL FROM TWS 543/2012)

____________________

BETWEEN

____________________

Before: Hon Fung J in Court

Date of Hearing: 27 November 2012

Date of Judgment: 27 November 2012

Date of Reasons for Judgment: 29 November 2012

_________________________________

REASONS FOR JUDGMENT

_________________________________

1.The Appellant Surinder-Singh was convicted of careless driving after trial before Chu Esq, Magistrate, and was fined $2,500. He has abandoned his appeal against sentence, and is only appealing against the conviction.

2.I dismissed the appeal at the hearing and now give my reasons.

Prosecution case

3.At around 7:30 a.m. on the day in question, PW1 was driving a taxi on the Lantau Link heading towards Kowloon.  PW1 was in the middle of 3 lanes, and his speed was about 75-80 kph. 

4.PW1 saw the Appellant’s motorcycle coming up on his right at about a meter away travelling at a faster speed.  The motor cycle brushed against the right headlight/indicator of the taxi, and within about a second of this first impact, the taxi bumped into the rear of the motorcycle, throwing off the compartment box at the cycle’s tail.  The motorcycle went on for about 10-20m before falling down.

Defence case

5.The Appellant said he was on the right side of the middle lane all along.  Suddenly, he was hit by the taxi from behind and he fell down.

The Magistrate’s reasons

6.The Magistrate noted the Appellant said in Court that he applied the brake after the collision but he said in his statement that he applied the brake when the motorcycle was cutting lane.  The Magistrate accepted PW1’s evidence that he was not able to tell whether he had braked before or after the impact.

7.Trial counsel submitted that after the first impact of brush, the motorcycle should have been bumped to swerve the right.  The Magistrate viewed the two impacts as virtually part of the one incident because of the shortness of time.

8.The Magistrate disbelieved the Appellant:

(1) He said there was no other vehicle in front or behind at round the time of the accident, but that could not be the case at the relevant time on a major highway in Hong Kong;

(2) The Appellant was evasive in not being able to say how long after he had looked behind before the collision took place.

Grounds of Appeal

9.The grounds of appeal by Mr Poon, for the Appellant, can be summarised as follows:

(1) There should have been no collision if the motorcycle were travelling faster than the taxi;

(2) Even if there were the first brushing, the motorcycle should have served right, and there should not have been the second impact by the front of the taxi against of the rear of the motorcycle;

(3) Even if there were the second impact, given the motorcycle were travelling faster than the taxi, the extent of the damage to both the vehicles should not have been so serious as shown in the photographs;

(4) The Magistrate failed to properly consider the discrepancy in braking by PW1;

(5) The Magistrate was wrong in disbelieving the Appellant if he were so generous to PW1 on the discrepancy in braking.

Discussion

10.Mr Poon’s grounds actually came down to the point that if the motorcycle were travelling faster than the taxi, there would have been any collision at all, or at any rate a head-tail collision between the two vehicles.  Hence, the prosecution case is inherently improbable.

11.Mr Poon’s submitted that Newton’s law of motion postulated that there would always be a reaction to an action.  Hence, when the motorcycle brushed against the right front of the taxi, it would have been bounced back to swerve right so that a more severe head-tail impact would have been avoided.

12.I daresay that it would be a Utopian state if the law of physics were to resolve all traffic cases.  Unfortunately, there are a host of factors such as human actions and reactions in the sudden occurrences making the assumption of variables (such as speed and direction) as constant not viable, and there are always limitations in human observations which could never approximate scientific measurements under laboratory conditions.

13.The effect of the prosecution case is that the motorcycle was trying to overtake the taxi, and hence it must be travelling faster than the taxi at some stage.  There was a brushing between the two vehicles on the right front of the taxi followed immediately by the taxi bumping and pushing the rear of the motorcycle.  Given the uncharted reaction of the driver when an impact took place, the prosecution case was not inherently improbable as Mr Poon would like to have put it.  It simply means the motor cycle was not successful in completing the overtaking.

14.The Magistrate noted the discrepancy on braking, but he accepted the explanation that PW1 could not tell exactly when he braked. I see nothing wrong with this given that the accident happened in such a short time and out of the sudden. 

15.On the other hand, the Appellant was trying to convince the Magistrate that there was no other vehicle on the road. He made the observation well before the accident, and should have remembered it in more details if he were volunteering such information.  I see nothing wrong in the Magistrate rejecting his evidence.  There was no unfairness in the treatment as the substance of the two pieces of evidence were different.

16.Ultimately, it is a one on one case and the Magistrate had the benefit of hearing the oral evidence.  There is no basis to upset his findings.

17.There is without doubt that the accident was caused by careless and unsuccessful overtaking by the Appellant. 

18.In the premises, the appeal was dismissed.

Miss Joey Ma, Public Prosecutor, for the Respondent

Mr Jackson Poon, instructed by Messrs Or & Partners, for the Appellant