HKSAR v. LEE WAI MING

HCMA982/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.982 OF 1999

(ON APPEAL FROM SPS 14692 OF 1998)

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J U D G M E N T

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1. The Appellant was convicted of careless driving and was fined $3,500 by Mr Allan To. The particulars were that on 6 August 1998 at 8:40 a.m. at Po Lam Road, junction with Ma Yau Tong Road, he did drive private car HF8928 on the road carelessly.

2. The facts of the case were that on that day, PW1 was driving his Mercedes on the fast lane of Po Lam Road when he saw a vehicle emerge from the slip road (Ma Yau Tong Village Road). He swerved to avoid a collision but nevertheless the other vehicle still collided onto his left rear door. PW2 was driving a motor-cycle along the slow lane of the same road when he also saw a motor vehicle, whose registered number he described as 8982, emerge from the slip road onto the main road. PW2 also tried to avoid the collision but he could not, and his motor-cycle then collided onto the right rear door of the emerging vehicle.

3. Prior to the commencement of the trial, the Magistrate had inquired as to whether the identity of the driver was in issue. He was then told by Counsel that it was admitted that the Appellant was the driver of the vehicle HF8928. The Magistrate also inquired whether the time and date and place was as alleged in the summons, and Counsel said that that was the case. Twenty photographs were also produced without objection, which showed the damage caused to the three vehicles involved in the incident.

4. Originally Mr Chan, appearing for the Appellant, was going to argue as a ground of appeal that there was insufficient evidence to show that it was the Appellant's vehicle which drove out from the slip road and caused the alleged accident. When I pointed out that in view of the admissions made at the trial, this ground really could not be argued, Mr Chan then quite properly withdrew that ground of appeal.

5. The other ground that Mr Chan argued was that the learned Magistrate failed to consider, evaluate or reconcile adequately, or at all, the inconsistencies in the evidence of the three prosecution witnesses. The main inconsistency was the evidence of PW1 and PW2 on the one hand and that of PW3 on the other. PW3 was a pedestrian who was waiting for a bus at the nearby bus-stop and described what she saw. She said that she saw the vehicle stopped at the junction with the main road for about five minutes before emerging onto the main road at the speed of about 10 km/h. Quite clearly that witness was mistaken about how the vehicle emerged onto the main road. The criticism is that the Magistrate had accepted the evidence of all three prosecution witnesses and had described their evidence as honest and reliable. PW3's evidence cannot be reconciled with that of PW1 and PW2. The Magistrate was wrong to have accepted her evidence; but in my view that error has not caused any injustice to the Appellant.

6. The other main discrepancy was that PW2 had said that before the accident happened, no vehicles were in front of his motor-cycle, whereas PW1 and PW3 had said that there were several vehicles stopped on the slow lane intending to turn left into the slip road. The Magistrate did deal with this discrepancy and said in his Statement of Findings that he accepted that PW2's evidence on this might have been inaccurate. The Appellant then asked the question if there were vehicles stopped on the slow lane, how did PW2 travel on the slow lane and get to the junction so as to be involved in the accident. Whatever the position was, there was a collision and the collision did cause damages to all three vehicles and some injuries to PW2.

7. The Appellant in this case elected, as was his right, not to give evidence. It was held in the case of Rabjohns v. Burgar [1972] Crim. LR 46, that the doctrine of res ipsa loquitur does not apply to a criminal case. But unless and until something is suggested by the defendant by way of explanation, the facts may be so strong that the only inference is that there has been careless driving.

8. In my judgment, the evidence which was adduced before the Magistrate was sufficient for the Magistrate to find that the Appellant had departed from the standard of a reasonable, prudent and competent driver in all the circumstances of the case. The appeal against conviction is therefore dismissed.