HKSAR v. Yin Chi Ming Michael

HCMA 28/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 28 OF 2015

(ON APPEAL FROM ESS NO 37957 OF 2014)

_______________

_______________

________________________

REASONS FOR JUDGMENT
________________________

1.On 23 December 2014 the appellant was convicted after trial by Mr Robin Yue, a Special Magistrate, of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap 374. He was fined some $2,500 and now appeals against that conviction.

2.The facts were not much disputed as the incident was captured on CCTV.  It occurred in the car park of the New World Tower, Central.  The only live witness was PW1 who provided evidence both by testimony and by means of the camcorder installed in his car.  PW1 was driving from the ground floor of the car park to the second floor where the exit is located.  He was travelling at about 8 to 10 km/h.  He drove to the ramp between the first and second floor.  He heard the sound of a car so he stopped in the wrong lane that is the lane for oncoming traffic.  The appellant’s car turned right onto the ramp and collided with the left front of PW1’s car.  The Magistrate accepted, if it is of any relevance, that PW1’s car had been forced to go onto the lane for oncoming traffic by a car parked on his left side.  From the position of the appellant’s vehicle a view of potential oncoming traffic up the ramp is to be had using the convex mirror shown in photo 6 page 26 of the Appeal Bundle.  Photo 8 shows the resultant positions of the vehicles.

3.The appellant exercised his right not to give evidence, putting the prosecution to strict proof.  He did however make a submission of no case to answer at the close of the prosecution case and a submission on his own behalf in closing.  He also put questions to PW1.  To state the obvious there was thus no evidence before the Magistrate as to the appellant’s actions and view of the position of PW1’s car prior to the impact.

4.Irrespective of any fault on PW1’s part the learned Magistrate demonstrated clearly that he was alive to the necessity to analyse the evidence to see if the appellant’s standard of driving had been proved by the Prosecution to fell below that of the reasonably prudent motorist and further if so, had the Prosecution proved that beyond a reasonable doubt?  The Magistrate also gave due and proper allowance for the appellant’s clear driving record as shown in paragraph 8 of the Statement of Findings.

5.Clearly and this is perfectly articulated in Paragraph 28 of the Statement of Findings the major and very proper basis of the appellant’s conviction leaving aside whether he did or should have checked the convex mirror is that when he turned the corner onto the ramp the other vehicle was sufficiently distant, estimated at one vehicle’s length from the appellant’s vehicle, to avoid contact by steering or stopping had he been driving in the manner of a reasonably prudent motorist.  The Magistrate found this proved beyond all reasonable doubt and therefore properly convicted the appellant.

6.Whilst it is a matter of concern that such a trivial offence was even brought to court by the police, on the facts found by the Magistrate a conviction was entirely proper and well grounded.  Therefore on this basis the appeal against conviction is dismissed.

Mr Andrew Li SPP, of the Department of Justice, for the respondent

Ms Maggie Wong, instructed by Yu, Tsang & Loong, for the appellant