HKSAR v. LEI KONG MENG

HCMA 511/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 511 OF 2008

(ON APPEAL FROM KCS 2792-2794/2008)

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J U D G M E N T

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1.  The Appellant was convicted after trial of three offences:

(1)  careless driving;

(2)  failing to stop after an accident; and

(3)  failing to report an accident.

2.  The trial was conducted in Chinese, but upon the application of counsel for the Appellant, the appeal was heard in English.  At the conclusion of the appeal, I allowed the appeal with reasons to be given later.  I shall now give reasons for my judgment.

Prosecution case

3.  Briefly, the prosecution case was that at about 11:05 p.m. on 13 August 2007, PW1 was driving his taxi southwards along Canton Road.  When PW1 approached the junction with Austin Road, he stopped behind two vehicles waiting for the traffic light to turn green.  After about 10 seconds, the traffic light turned green, and PW1’s taxi started to move.  When he had moved forward by no more than half a taxi length, he saw the Appellant’s taxi cutting from the second lane into the first lane in front of his taxi.  PW1 said he pressed his horn do warn the Appellant but the Appellant continued cutting in front of him and the Appellant’s taxi hit the right wing mirror, the right side mud-guard and the right indicator lamp of PW1’s taxi.

4.  After the Appellant had cut in front of PW1, he stopped the taxi in front of the stop line.  PW1 found a scrap of paper and jotted down the Appellant’s taxi registration number and the time of the accident (Exhibit P4).  Then, PW1 alighted from his taxi to examine the damage, and he saw the Appellant leave the scene.  His taxi turned eastwards into Austin Road.  PW1 called the police and he waited for the police to arrive at the scene.  It was also in evidence that when the police located the Appellant’s taxi on 26 August 2007 and took photographs of it, at that time, the Appellant’s taxi was undamaged.

Defence case

5.  The Appellant in evidence said that he had cut into the 1^st lane of Canton Road somewhere near the junction with Bowring Street.  He had never crossed the double white line to cut into the 1^st lane.  The Appellant stated that PW1 had cut into the 1^st lane behind him and at that time had footed his horn.  He had stopped in front of the stop line, but did not alight because his passenger was in a hurry.  Under cross-examination, the Appellant admitted that at one stage, he did overtake PW1’s taxi to cut into the 1^st lane, but it was not at the place alleged by PW1.  The Appellant agreed that all along there were two occasions when PW1’s taxi was in front of him, and he had to cut from the 1^st lane into the 2^nd lane and overtake the PW1’s taxi to get back into the 1^st lane, but this had happened these occasions were before the alleged incident.

Magistrate’s findings

6.  The learned Magistrate found PW1 and PW2 to be credible and honest witnesses.  The learned Magistrate, after considering the evidence of the Appellant, had rejected his evidence and ultimately conducted that the reason the Appellant had stopped finally in front of the stop line and did not alight was because he had knowledge and suspected that when he had cut in front of PW1, the two cars had collided and that was why the Appellant had stopped in front of the stop line prior to proceeding.

APPEAL

Fresh Evidence

7.  At the hearing of the appeal, Mr Bedford on behalf of the Appellant sought to adduce fresh evidence by way of an affirmation of a Mr Wan Yiu Kan made on 7 November 2008.  He was the person responsible for taking care of and arranging repairs for taxis including LA 4211, the taxi driven by the Appellant at the relevant time.

8.  Mr Bedford’s argument was that the learned Magistrate in his Statement of Findings had concluded that the pictures taken by PW2 (Exhibit P2) some 13 days after the accident cannot be relied upon to show that there was no damage to the taxi on the day of the accident.  Mr Bedford submitted that as the Appellant was appearing in person, at the trial and he lacked the experience and knowledge to conduct his defence properly and that had failed to call Mr Wan.  I do not agree.  It is clear from the start that the Appellant knew that the charge alleged against him was that he had cut in front of PW1’s taxi and a collision had happened, and the Appellant was well aware that his defence at the time was that there was no collision.

9.  Therefore, it not necessary to have any knowledge or experience of legal matters to conclude that if he had a witness who is able to testify to the fact that on the day of the alleged accident, his taxi was not damaged, he would have summoned him.  And it is only common sense that the learned Magistrate used when he made the observation that the photographs were unhelpful to show whether the Appellant’s taxi was damaged on the day of the accident because the photographs were taken some 13 days later.  The Appellant had offered no reasonable explanation for his failure to adduce such evidence.  The application to adduce fresh evidence is therefore refused.

Grounds of Appeal

10.  Mr Bedford’s first ground of appeal is that it was physically impossible for the accident to have happened in the way as described by PW1, taking into account:

(a)  the sequence of collision described by PW1;

(b)  the fact that both taxis were virtually identical in terms of build, make and model; and

(c)  the direction of alleged impact on PW1’s taxi as against the direction in which the Appellant’s taxi was moving.

11.  According to PW1, there were three damages to his vehicle, namely: the right wing mirror, the right side of the mud-guard and the right indicator or lamp casing.  PW1 said that he did not notice the Appellant’s taxi until he heard the sound of something hitting his right wing mirror.  According to PW1, the Appellant’s taxi first hit his right wing mirror as he was cutting in front of him.  As the Appellant’s taxi continued to turn into the lane in front of him, PW1’s taxi’s mud-guard and indicator lamp were damaged.

12.  I agree with Mr Bedford that had the accident happened in the way as described by PW1, the damage on his vehicle would not be limited to what he had described.  Furthermore, after the alleged accident, PW1 said he had footed his horn at the Appellant who then stopped in front of the traffic lights and alighted from the car.  Yet PW1 chose not to alight from the car, but claimed that he was making his own notes inside the taxi when the Appellant came out of the car and saw that PW1 did not alight, he then went back into his taxi and drove off.  If the accident had happened, would it not make more sense for PW1 to alight first and obtain the necessary details of the Appellant and then make his notes?

13.  I agree with Mr Bedford that the conduct of PW1 was strange, to say the least, and, I found at the end of the day, that there is a doubt as to what actually happened at the time.  Furthermore, although PW1 alleged that his right wing mirror was damaged, no photograph was taken of that wing mirror nor was the police officer’s attention drawn to that.  I therefore find that there is a doubt as to what actually happened at the time.  It was not properly resolved at the trial and the doubt would have to be resolved in favour of the Appellant.

14.  In the circumstances, I have therefore allowed the appeal and quash the convictions of the Appellant on all three summonses.