HKSAR v. LEE NGAI

HCMA22/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.22 OF 2002

(ON APPEAL FROM STS 6748 OF 2001)

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J U D G M E N T

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1. The appellant was convicted of failing to stop after an accident and damage was caused to 4 meter of concrete divider did fail to stop, contrary to section 56(1)(b)(i) and section 56(5) of the Road Traffic Ordinance, Cap.374. He was fined on both charges. Initially, he was also charged with dangerous driving. He was found not guilty of this charge and instead the magistrate found him guilty of careless driving. Against that conviction, he is not appealing.

2. The facts are very simple. It was an accident on the Lion Rock Tunnel Road near Hung Mui Kuk Road, and the manner of driving, which he admitted to amount to careless driving, caused injury to a passenger, Ms Kwok, and also it hit the concrete divider on the road. The appellant did not elect to give evidence but from what he put before the court below prior to cross-examination by counsel representing him was that he could not have stopped there and then at the scene of accident for fear of causing injury to other passengers and because to stop where the accident happened would create a dangerous situation.

3. This was essentially what the facts were and at the end the magistrate amended the charge with one charge for causing personal injury and damage to property and split it into two charges that is, one charge of causing personal injury and the other charge of causing damage to property.

4. There are two grounds of appeal put forward on behalf of the appellant before this court. Firstly, the magistrate erred in law in splitting one summons into two summonses. I heard submission. I am satisfied that section 56(1) in fact created two offences : causing personal injury is one offence and causing damage to property is another offence. As it often happens in traffic accident that only personal injury was caused or property was damaged and that clearly reflects the intention of the legislature because in either event an offence was committed. If the defendant had been convicted of one charge of causing personal injury and damage the appellant might have complained that the charge or conviction was bad for duplicity. In any event, as Ms Leung for the respondent submitted in her written submission that it caused no prejudice to the appellant because the evidence was there and the evidence was the same. Moreover, the penalty imposed on the appellant was a light one. I am satisfied there is no merit in the first argument advanced by Mr Fok on behalf of the appellant.

5. The second point argued is a point of evidence. It has been pointed out specifically that in some matters PW1 was not clear and he said that he could not remember. That would be understandable. Apparently she must be in a state of shock and the situation was confusing. Nevertheless she could remember the main events very clearly and described the events which the magistrate was satisfied to be reliable and true. For the same token he also accepted the evidence of PW2 and that was Ms Kwok. If you put all the evidence together it is quite clear that the accident happened in the way they gave evidence that the appellant did not stop immediately at the time of the accident and ran on for some time before he actually stopped. He could have done that according to the evidence before the magistrate earlier. And another point is that the appellant had not elected to give evidence, to give his account, give an explanation as to why he did not stop there and then. All in all, the magistrate's finding of facts, in my view, is justified from the evidence that was placed before him. I do not find any real substance in both grounds of appeal. Accordingly, I dismiss the appeal.