R. v.CHEUNG CHOR WAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 273 OF 1996

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J U D G M E N T

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1. This is a simple case. There are two conflicting versions of facts - one given by the victim of the traffic accident and one by the Appellant and his passenger. Even though there are more than one witness in the Appellant's case, it is still a two version situation. The victim's evidence is that she stepped onto the pedestrian crossing when the green light was in her favour and when she was 1/3rd on the fast lane, she was knocked down by the motor cycle driven by the Appellant. The Appellant's version is the green light was in his favour and he saw the victim stepped onto the roadway when he was 3-4 car lengths from her but he could not stop in time to avoid a collision. His witness gave evidence to the same effect. The magistrate accepted the evidence of the victim and rejected the defence evidence. In accepting the evidence of the victim, it is implicit from his finding that the light was green in the victim's favour and red against the Appellant. This is one of the cases where as the Full Court in Lam Tin Chung v. R [1970] HKLR 105 at 107 had said, "the tribunal is left with a direct choice between the evidence of A and that of B with no accompanying factors or features to aid in coming to a decision and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes". The magistrate having assessed the credibility of the witnesses before him accepted the evidence of the victim. That was all he could do in his findings. He needed to do no more in the circumstances.

2. The magistrate in his statement of findings made it clear that the central issue of the prosecution and the Appellant's case was in the forefront of his mind. He found that the red light was against the Appellant when he drove through the pedestrian crossing. He rejected the Appellant's evidence which was intended to show that the victim crossed the road against the red light. The magistrate by so stating concluded that the Appellant was careless and convicted the Appellant. I see nothing on which I should disagree with the magistrate's findings and the correctness of his conclusions. The appeal against conviction is dismissed.