R. v. CHIU CHI HO

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.932 OF 1995

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J U D G M E N T

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1. This was an appeal against a conviction for careless driving and a fine of $3,000, a suspension of the driving licence for 12 months and an award of costs of $2,000.

2. A collision took place at the junction of Shatin Rural Committee Road and Tai Po Road Slip Road at about 11 a.m. on 10th March 1995 between a car driven by the appellant and one driven by PW1, Cheung Yu. In his evidence Cheung Yu said that he approached the crossing, which is controlled by traffic lights, at a speed of 40 km/h, that the lights turned to green when he was about 30 metres from the traffic lights, and that he drove into the junction and there collided with the appellant's vehicle.

3. The appellant gave evidence, as did his mother who was a passenger in his car, to the effect that when he was about 10 private car lengths, i.e. approximately 40 yards from the traffic lights he saw that the lights were already green. He further said that after the accident the lights were still green. His mother, Madam Chan Man Chun, gave evidence along similar lines.

4. In her Statement of Findings, the learned Magistrate said this :

"I believed and accepted the evidence of PW1 that as he drove into the said junction, the traffic light was in his favour. He stated in evidence that he saw the traffic light controlling his traffic change from red and amber to green when he was about 30 metres from the traffic lights and his speed at the time was 40 kph. It would have taken him less than 3 seconds to cover 30 metres at the speed he was doing. According to the evidence of PW4, whose evidence I also accepted and believed, the traffic lights controlling PW1's traffic were green for 59 seconds and that when PW1's lights were green, the appellant's lights were red. Therefore, as PW1 drove into the junction, the traffic lights would still be in his favour, whereas, the traffic lights controlling the appellant's traffic would be against him.

I rejected the evidence given by the appellant and his witness who was the appellant's mother that the traffic lights were in their favour as the appellant emerged into the said junction. According to the appellant, he was about 10 private car lengths from the white stop line when he saw the first set of traffic lights facing him was already green and that as he got to about a car's length from the stop line, the lights were still green. When he got to the stop line, he observed that traffic was stationary on both sides of Shatin Rural Committee Road and as the traffic light was still green, he emerged into the junction. His car was then hit by PW1's car and even when both cars were stationary after collision, the appellant could see that the traffic lights controlling his traffic were still green. It was most incredible that his traffic lights were green for such a long time, when the traffic lights were already green as he was about ten car lengths from the white stop line and that the traffic lights were still green after the collision. Whereas, according to the evidence of PW4, the appellant's lights were green for only 18 seconds."

5. The only reason, therefore, given by the learned Magistrate for her decision not to accept the appellant's evidence and the evidence of his mother was that their evidence about the traffic lights still being green after the accident was incredible. The evidence before her was that the traffic lights would be green for approximately 18 seconds. In dealing with PW1's approach to the traffic lights, she had assessed that it would take him 3 seconds to cover 30 metres. If you apply the same assessment to the evidence of the appellant, then he would have arrived at the traffic lights within 3 seconds of having seen that they had turned green. Thereafter, he had 15 seconds before the traffic lights would again turn to red. The accident itself would have taken only a matter 2 or 3 seconds, and so more than 10 seconds would elapse before the lights would turn to red. In other words, there was nothing incredible about his claim that the traffic lights, which were green as he approached the junction, were still green after the accident.

6. As this was the only reason given by the learned Magistrate for her decision on credibility, and as that reason was based on a false premise, the position was as if the matter of credibility remained unresolved. In that event, of course, I had to allow the appeal.