HKSAR v. YEUNG MAN ON

HCMA1272/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. HCMA 1272 OF 2004

(ON APPEAL FROM TWS 7857 OF 2004)

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J U D G M E N T

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1. In this case, the appellant seeks to overturn his conviction for careless driving.  It arose out of an incident on the Tuen Mun Highway.  That is the road that has four lanes.  The appellant was in the second lane and behind him was a motorcycle and behind that was a policeman on a motorcycle, and the policeman says that he saw the appellant move to the third lane, that the motorcycle then started to go forward but that the appellant’s vehicle then came back into the second lane, very nearly causing a collision with the motorcycle that had to swerve.  If it occurred like that, then the careless driving would have been proved.

2. The appellant gave evidence below.  He said that was all correct, save that once he had moved into the third lane, the motorcycle actually got in front of him, so that when he pulled back into the second lane, there was no danger because the motorcycle was now in front of his vehicle.  So the position of the motorcycle was the crucial issue in the case.

3. The magistrate heard the policeman and the appellant and, on the evidence he heard, he was sure that it was the police officer who had got it right.  He had the advantage of seeing and hearing the witnesses.  But I will not dispose of the case just on that basis.

4. These small cases where perfectly nice gentleman like the appellant here with a clear record comes along and says, “Look, it was like this” and a policeman says differently are some of the hardest ones to try in the Judiciary because it really comes to just assertion and counter-assertion.

5. It seems the way to approach it is first of all to say to oneself, “Has the policeman got any reason deliberately to misstate the position?”  And there is, of course, no suggestion made by this appellant that the policeman deliberately made up a case against him, and there is nothing in the evidence to suggest that that would be so.  So one can reject that as a possibility.

6. It comes down to mistake.  So where does the scope for mistake lie here?  If it is the defendant’s mistake in his driving, that it was just a moment’s inattention, a failure to look in his mirror properly and see where the motorcycle was.  That is a very easy thing to have happen.

7. The scope for the motorcyclist policeman to be wrong in what he observed is very much less.  If the appellant is right, nothing happened in front of the policeman that would have caused him to act as he did act because it is common ground that the policeman very soon after the manoeuvre the appellant carried out stopped the appellant and accused him of doing that which supports the prosecution’s case.  It seems to me the scope for the policeman making a mistake here disappears.  The magistrate obviously shared that view and, as I have said, he had the advantage of actually hearing and seeing the witnesses.

8. The appellant has addressed me very sensibly today but I regret to say that he said nothing that makes me doubt the correctness of this conviction.  I do not accuse him of bad faith.  I suspect he believes entirely in the rightness of his own case by now.

9. But on the evidence available to me, the order I consider to be just is to confirm the conviction by the magistrate and dismiss the appeal.