HKSAR v. De Vliegher, Pierre-edouard M.R.G.A.

HCMA 410/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 410 OF 2014

(ON APPEAL FROM ESS 6215 OF 2014)

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J U D G M E N T

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1.The appellant was charged with one offence of careless driving and after trial was convicted. He now appeals against his conviction. In the court below and in this court, he is represented by Mr Egan.

2.It is a very simple traffic accident which occurred on a narrow road.  It happened during the daytime at around 5 pm on the 21 September 2013.  PW1, Mr Hui was driving his 7‑seater Toyota Alphard car on Tai Tam Reservoir Road.  He drove from Tai Tam Village Path towards Tai Tam Reservoir Road.  According to the evidence which is not disputed the width of the road was in the region of 3.6m wide, so it was a very narrow road and considering that PW1 was driving a large vehicle and the defendant was driving a Porsche Cayenne which is also a large vehicle bigger than a salon car on this very narrow road.

3.According to PW1, there was no marking on that stretch of the road and he was driving at about 20 km/h on the right side of the road near the hillside.  It is not disputed according to the Road Users’ Code he was driving actually on the wrong side of the road, because according to the Code he should have kept on the left side of the road but he did not do so.  As Mr Egan pointed out selfishly did so, because if he had kept to his side of the road he would have driven quite near the edge of the road which has quite a sheer drop to the sea, therefore he chose to drive on the right side of the road.

4.Behind him was a car driven by PW2 who, as far as I could see, did not contribute much to the evidence because the evidence was largely undisputed.

5.Whilst PW1 was driving along this road, he saw the defendant’s car coming towards him.  So what he did was he then decided to stop on the right side of the road, and PW2 stopped behind him also on the right side of the road.

6.There was a little dispute about the speed of the car of the defendant in that PW1 said he estimated the defendant’s speed at 30km/h whereas the Defendant in his evidence said he was driving about 20km/h.  Be that as it may, the defendant was not driving above the speed limit as it is not disputed that the road has the normal speed limit of 50km/h.  Of course, a prudent and careful driver would adjust his speed according to the situation he faces.

7.It is clear also from the evidence that the defendant was quite cognizant of that stretch of the road because he goes there often.  Thus he upon seeing PW1’s car stopped on the wrong side of the road, then decided to pass on the left side of the road and I accept he was forced to do so in the sense that PW1 was stopped there together with PW2 on his side of the road.  The defendant in choosing to get past the stopped vehicle, unfortunately misjudged the distance between his car and that of PW1 and in passing the wing mirror of the car was hit as the defendant’s car was moving forward.  Eventually the defendant was located and the defendant quite honestly admitted that it was indeed his car which clipped the wing mirror of PW1’s car.  That in brief are the facts, the issue is a narrow one.

8.Mr Egan had pointed out in the trial below and also on the appeal that the accident happened because of the selfish behaviour of PW1.  He chose to drive on the wrong side of the road and he chose to stop on the wrong side of the road, the defendant had no option but to pass him and in doing so, the accident happened.  Mr Egan said that taking the objective test as to whether the prosecution had proven beyond a reasonable doubt that his client drove carelessly, Mr Egan’s point is that the prosecution has failed to do so.  In effect Mr Egan’s point is that there was no sufficient evidence to prove beyond a reasonable doubt that the defendant was driving carelessly.

9.Mr Egan’s second point is that the accident was actually caused by PW1 because he was in breach of the Road Users’ Code in driving on the wrong side of the road and that the learned magistrate had failed to properly weigh this in coming to his decision.  Mr Egan also pointed out and complained that the learned magistrate had misunderstood the law and misapplied the fundamental principle of road‑traffic law as correctly stated by Deputy High Court Judge Line (as he then was) in the case of HKSAR v Richard Mark Scotford HCMA 638/2006 (Unreported, 12 September 2006)[1].

10.Finally in Mr Egan’s appeal grounds, he contended that the learned magistrate’s error was to apply the principle enunciated by Deputy High Court Judge Line (as he then was) to a factual situation which was inappropriate, thus rendering the conviction unsafe and unsatisfactory.

11.This was, as I said, a very simple case, as far as a careless driving goes.  I must state, first of all, that this was a case where the learned magistrate was too prolix in his Statement of Findings.  The facts were largely undisputed and it was unnecessary for him to go through each witness’s evidence in such detail.  It certainly was not a case necessitating a Statement of Findings of 27 pages and, having plowed through all the evidence enunciated by the learned magistrate, I found that in paragraph 69 that the facts were largely undisputed.

12.The issue is a very narrow one as well.  It is whether the defendant was driving without due care and consideration as an objective, careful, prudent and attentive driver would have done and has the prosecution proven the facts beyond a reasonable doubt.

13.Mr Egan very correctly pointed out that, first of all, PW1 has a bad driving record, he had many driving convictions and summonses in the past while the defendant has a clear driving record.  This should therefore had weighed into the learned magistrate’s assessment of PW1’s credibility, reliability and propensity.  Well certainly, the learned magistrate did take that into account at paragraph 81 of his Statement of Findings.  But that is actually not so important in the present case because the facts were largely undisputed.  It is not disputed that PW1 did stop whilst the defendant was passing his car and therefore the defendant had the duty to make sure when he was passing the stopped vehicle, even though it was on the wrong side of the road, that he left enough space in between the two cars so as not to cause collision.

14.As I said this was a very narrow road, these were two big cars, if the defendant was not sure that he could leave ample space in between the cars, then he should have done so very slowly or even, if necessary, he should have stopped his vehicle, got out of his car, have a look and make sure that there was enough space for his car to go through and then proceeded on his way.

15.I accept totally that PW1 was in the wrong in stopping on the wrong side of the road in taking the wrong side of the road and was in breach of the Road Users’ Code, but it does not absolve the defendant from driving with the due care and consideration as expected of a careful, prudent and attentive driver.  It may cause a delay for the defendant to arrive at the beach and may take a longer time, but in the circumstances of the case, because of the narrowness of the road, because of the danger that if he went too near the edge of the road the car may fall down the side of the road.  Taking into account of all these, then his manner of driving was indeed at the material time below that of what a careful, prudent and attentive driver would have done looking at it objectively.

16.Despite the skilful of argument Mr Egan in the appeal, the matter still remains that the learned magistrate did remind himself in his somewhat prolix Statement of Findings, in paragraphs 93 and 94, about the standard of care of a driver and the standard of the proof and at paragraphs 71 and 72 he did remind himself that the standard of proof is one of beyond a reasonable doubt.

17.As the Statement of Findings was so long, it was often very difficult to actually focus on exactly where the learned magistrate was going or what he was thinking, but after a careful reading of the last 10 paragraphs of the Statement of Findings, I am satisfied that he did consider the main issues of the case, he did consider the law applicable and he correctly identified the principle as stated in the case of Scotford as it should be applied in the case, therefore there are no grounds for disturbing the conviction and so the appeal is dismissed.

Mr Prakash L Daryanani, SPP of Department of Justice, for the respondent

Mr Kevin B Egan, instructed by Oldham, Li & Nie, for the appellant