HKSAR v. SHEKHAWAT, TUSHAR

HCMA 9/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 9 OF 2014

(ON APPEAL FROM ESS 20635 OF 2013)

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J U D G M E N T

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Introduction

1. The appellant was convicted after trial of dangerous driving by Special Deputy Magistrate Yue King-tin, Robin (the Magistrate) on 28 November 2013. He was fined $6,000 and disqualified from driving all classes of motor vehicles for six months or until the completion of a driving improvement course, whichever was later.  The appellant appeals against the conviction.

2. Essentially the issue that the Magistrate had to resolve at trial was which of the two opposing accounts of the circumstances of a car accident between two vehicles did the evidence support. The car accident was between a taxi and the appellant’s car. The taxi driver’s version of the accident was that he was driving along the outside lane of a two-lane carriageway when he made a right-hand turn, crossing the oncoming outside lane. The appellant’s car which was travelling in the same direction as him, sought to overtake him by moving into the oncoming outside lane and colliding into the right front of the taxi. The appellant’s version was that he was travelling along the outside lane when the taxi which was travelling on the inside lane suddenly turned right into his car causing it to career out of control onto the oncoming carriageway.

Evidence at trial

3. The location of the accident was outside No. 84 Pokfulam Road where the roadway consists of four lanes, with two lanes heading downhill towards Central, and two lanes heading uphill towards Aberdeen. The traffic lanes are separated by continuous double white lines. At the trial, the outside and inside lanes towards Central were referred to as R1 and R2 respectively, and the outside and inside lanes towards Aberdeen were referred to as L2 and L1 respectively. I will do the same in this judgment. For ease of reference I include exhibit P2 which is a schematic diagram of the scene of the accident.

4. The prosecution case was that at about 10:30 am, a taxi driver was driving his taxi along R1 at a speed of 10 to 15 km/h, having entered from the slip road. He saw the taxi sign light up outside No.84 Pokfulam Road which was on the opposite side of the road and slowed his taxi and turned on his right hand indicator for about 10 seconds in order to turn into the estate. At this point, he saw a public light bus on the outside lane, L2, travelling towards him. He said the bus was not going too fast and was about 6 to 7 car spaces away. He then turned right. When his taxi had turned about 60 or 70 degrees into the opposite oncoming lane, L2, he saw a black shadow approach from behind him and hit the right front of his taxi. As a result of the collision, his taxi was pushed back into its original lane, R1. He said that he saw no vehicles behind his taxi from the time he was travelling along Pokfulam Road.

5. The defence case was that the appellant was travelling along R1 at about 50 to 60 km/h, whereas the taxi driver was travelling on the inside lane, R2, at about 20 to 30 km/h. When the appellant’s car approached No.84 Pokfulam Road and was alongside the taxi, the taxi suddenly turned sharp right, without putting on his right hand indicator, and hit the left front of his car. As a result of the impact, his car was pushed across the continuous double white lines onto the oncoming carriageway careering out of control and eventually hitting the public light bus and another taxi.

6. The only independent witness to the incident was the driver of the public light bus. He was PW2 at the trial. His evidence was that he was travelling on the outside lane heading towards Aberdeen, L2. He was about 2 to 3 public light bus spaces away from the taxi ahead. He saw the appellant’s car move out from behind the taxi swerve into his lane, L2, and the inside lane, L1, and swerve back into his lane hitting the rear of his bus and then another taxi behind him. He said that he did not actually see the collision between the taxi and the appellant’s vehicle but observed that the appellant’s vehicle came from behind the taxi out of control and crossed the continuous double white lines onto the oncoming carriageway. He did not see the taxi turn right into his lane or a collision between these two vehicles in front of him in his lane as claimed by the taxi driver. This was significant. The taxi driver claimed that he was driving along R1 and entered L2 in order to make a right-hand turn into No. 84 Pokfulam Road. The appellant’s vehicle, he claimed, was overtaking him by crossing continuous double white lines and travelling along the oncoming outside lane, L2, when it collided into the right front of his taxi.

The Magistrate’s decision

7. The Magistrate in his statement of findings rejected the evidence of the appellant and also rejected the evidence of the bus driver. He therefore accepted the evidence of the taxi driver and found the case proven against the appellant on the charge of dangerous driving. They were the three main witnesses before the Magistrate together with photographs that were taken at the scene of the accident and schematic diagrams of what had taken place according to the witnesses.

8. I am of the view that the Magistrate was plainly wrong to reject the evidence of the appellant and the bus driver as he did. In my view, he fell into error by not considering the evidence as a whole and by focusing inappropriately on the photographic evidence of the damage caused to the vehicles. In his reasoning, he noted that the photographs depicted a huge dent in the left front door of the appellant’s vehicle and on this basis he said that the only irresistible inference to be drawn was that the huge dent in the left front door of the appellant’s vehicle was caused by the collision with the taxi which was inconsistent with the appellant’s account that the taxi hit the left front corner of his vehicle. He found on this basis that the appellant’s evidence was incredible and refused to accept his account as to what had happened. The Magistrate’s reliance on this fact to reject the appellant’s evidence was, in my view, without proper foundation. The appellant said he was travelling in the outside lane with the taxi travelling along the inside lane and as he was approaching No. 84 the taxi was towards the front left corner of his car when he suddenly turned right without any indication and hit his front left corner. He explained that that the cars were almost parallel when the taxi driver suddenly made a right-hand turn. He also explained that he was travelling at about 50 to 60 km/h whereas the taxi was travelling at a slower speed. The appellant’s vehicle collided with the taxi and then later collided with the bus and another taxi. The vehicle was therefore extensively damaged. I do not find the huge dent in the left front door of the appellant’s vehicle to be inconsistent with his account that as he was travelling at a fast speed along the outside lane when the taxi driver suddenly turned right into his car.  

9. Having rejected the appellant’s evidence, the Magistrate had to address and deal with the bus driver’s evidence which contradicted the evidence of the taxi driver. He noted that the bus driver had testified that he was 2 to 3 public light bus spaces from the taxi when the appellant’s vehicle came from behind but did not see the actual collision. He concluded that as the bus driver had an unobstructed view ahead of him, in that it was a straight stretch of road and broad daylight, it was inherently improbable that the bus driver did not notice what happened to the taxi in the opposite oncoming lane. The bus driver did not see the accident as claimed to have happened by the taxi driver, and it would appear that this led the Magistrate to find that the bus driver’s observation of the incident to be unreliable and hence he attached no weight to his evidence. The taxi driver claimed that he was travelling along the outside lane, R1, when he saw the taxi sign light up at No. 84. He claimed he put on his indicator to turn right and had already done so when the appellant’s car collided into his vehicle which was travelling in L2. If you accept the taxi driver’s account of the incident, it means that the appellant was in that lane in an effort to overtake the taxi. I also note that the taxi driver, according to his account, was making a right-hand turn in the face of oncoming traffic. He said the bus was 6 to 7 car spaces away while the bus driver said he was 2 to 3 public light bus spaces away. 

10. The taxi driver testified he had made his right hand turn from the outside lane, R1, into the oncoming lane, L2, which he had nearly completed, in that he had turned about 60 to 70 degrees. He said he saw a black shadow of a car hit the right front of the taxi.  In the diagram he drew for the court of the accident, he depicted his taxi being hit at the right front by the left front of the appellant’s vehicle and at the point when he had crossed the continuous double white lines by turning right into the oncoming outside lane, L2. See exhibit P5.

11. The point of impact as stated by the taxi driver was the same as stated by the appellant.  Yet the Magistrate found the appellant’s account was inconsistent with the huge dent in the left front door of his vehicle and on this basis said his evidence was incredible and refused to accept it. The Magistrate addressed the taxi driver’s evidence on the point of impact between the two vehicles by reassessing his testimony and concluding that at its highest what he said was that it might have been the right front corner of the taxi that hit the left front corner of the appellant’s car. When the taxi driver was asked whether it was his taxi’s right front corner which hit the left front corner of the appellant’s car, he said “Should be.” The Magistrate explained that as the taxi driver testified he saw a black shadow, he found he did not know which part of the appellant’s vehicle collided with his taxi. But this ignored the taxi driver’s evidence as depicted in the schematic diagram he drew for the court showing clearly the point of impact between the two vehicles. The Magistrate wrongly rejected the appellant's evidence on the basis that he did.

12. I do not see anything inherently improbable in the bus driver not noticing “what happened to the taxi” when it was in the opposite outside lane, R1, further away from him. The expression “inherently improbable” has particular meaning and application when used to analyse evidential matters. “Inherent” means involved in the constitution or essential character of something. “Improbable” means not probable, not likely to happen or be true. Thus, by definition, evidence that is inherently improbable is evidence that by its very nature, or on its face, could not be true. For evidence to be inherently improbable what is claimed to have occurred in fact could not have occurred or it is obviously false on its face. The bus driver’s attention was drawn to what was occurring ahead when he saw the appellant’s vehicle coming from behind the taxi careering out of control, crossing the continuous double white lines and heading towards him. And at that stage, he gave a clear and detailed account of what he saw of the incident. It was consistent with the taxi turning suddenly right into the appellant’s vehicle which was pushed and veered onto the wrong side of the road into oncoming traffic. The Magistrate was plainly wrong to reject the bus driver’s evidence in its entirety simply because he did not see the initial collision which resulted in the appellant’s car careering out of control onto his carriageway.

Appeal by rehearing

13. The Court of Final Appeal in its judgment in Chou Shih Bin v I (2005) 8 HKCFAR has made it clear that an appeal under section 113 of the Magistrates Ordinance, Cap 227, is by way of a rehearing on the evidence before the trial court which can be supplemented by further evidence as the intermediate appellate court may admit according to its statutory powers. The various forms of appeal, including an appeal by way of rehearing, were discussed and explained by McWalters J in HKSAR v Ip Chin Kei and Ors, [2012] 4 HKLRD 383 where he helpfully summarised the relevant legal principles in relation to a magistracy appeal as follows:

“(1) An appeal under s.113 of the Magistrates Ordinance is conducted by way of rehearing on the evidence before the trial court supplemented by such further evidence as the appellate court might admit under its statutory power to do so.

(2) Each party bears its respective burden – the appellant to uphold the appeal and the respondent to uphold the conviction – and the parties, subject to the overriding supervision of the Registrar, or ultimately the appellate judge, will determine the contents of the appeal bundle bearing in mind the burdens they have to discharge.

(3) The Magistrate’s statement of findings will form part of the appeal bundle.

(4) The grounds of appeal will inform the appellate court of those areas where the appellant will seek to persuade the appellate court to depart from the Magistrate on findings of fact or law when conducting the rehearing.

(5) The appellate court will only depart from a Magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong.

(6) Error by the Magistrate, especially an error constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(7) The test in determining whether an error by the Magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(8) Absent the appellate court identifying any error by the Magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the appellate court to be satisfied that on the evidence adduced by the prosecution the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed. ”

See also HKSAR v Gammon Construction Limited, HCMA 426/2013, 28 February and 20 March 2014, unreported.

14. The function of an appellate court hearing a magistracy appeal is to conduct a rehearing in order to determine whether it is satisfied beyond reasonable doubt of the guilt of the appellant. The appellate court is required to reach its own independent decision on the record of the evidence given at trial supplemented by any further evidence it may admit. An error by a Magistrate or on the record will not necessarily result in the conviction being quashed unless the court ultimately decides on its own appraisal of the case that the guilt of the appellant has not been proved beyond reasonable doubt. An appellate court in recognising that a Magistrate has had the advantage of seeing and hearing the witnesses, will only differ from his or her factual findings or assessment of the credibility of a witness where there is no evidence to support it or it is plainly wrong.

The rehearing decision

15. In my view, the Magistrate was plainly wrong to find that the evidence of the bus driver was inherently improbable and that it should be rejected. It also seems clear to me that the Magistrate wrongly rejected the appellant’s evidence on the basis that the huge dent in the left side of the appellant’s car contradicted the appellant’s evidence when it was not open for him to so conclude. The huge dent in the left front passenger door could have easily been caused by the taxi hitting the left front of the appellant’s car, given the speed at which the appellant’s car was travelling and the nature of the impact. This was consistent with the appellant’s testimony. There is also the possibility that the huge dent may have been caused when the left side of the appellant’s vehicle struck the left rear end of the public light bus.

16. I find that the taxi driver entered Pokfulam Road from the slip road and was travelling along the inside lane, R2. He saw the taxi sign light up at No. 84 and suddenly turned right to cross into the outside lane, R1, in order to make a right-hand turn. At this time, the appellant was travelling along R1 at a fast speed (50 to 60 km/h) and the taxi turned right into the appellant's car causing it to career out of control across the continuous double white lines into the oncoming carriageway which eventually collided into the public light bus and the other taxi. I do not accept the taxi driver’s account of the accident as it is inconsistent with the overall body of evidence presented at trial. According to the taxi driver’s account as to what happened it would mean that the appellant had overtaken his taxi by crossing continuous double white lines and entering into the opposite outside lane at a time when there was a vehicular traffic travelling towards him. Equally so, it would also mean that his taxi had actually turned right into the oncoming outside lane, L2, when there was traffic coming towards him. There is the issue that the taxi driver claimed the collision with the appellant’s car took place in L2. The evidence of the bus driver, which I accept, is that he saw the appellant's car already out of control when it entered into his lane, L2, and that no collision occurred between the appellant’s car and the taxi in the lane he was travelling along. A further point that was made on behalf of the appellant is that according to the taxi driver’s account there was no traffic in the inside lane, R2, which the appellant could have used to bypass the taxi, instead of overtaking it by going onto the wrong side of the road.

17. From my overall assessment of the evidence presented at trial, I am not satisfied beyond reasonable doubt of the appellant’s guilt of the charge of dangerous driving. Accordingly, I allow the appeal and quash the conviction and set aside the sentence imposed by the Magistrate.