HKSAR v. CHOW CHUN WAH

HCMA891/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.891 OF 2000

(ON APPEAL FROM STS 1425 OF 2000)

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J U D G M E N T

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1. The appellant was summonsed for the offence of careless driving. He pleaded not guilty and was convicted after trial. He sought to appeal against the conviction. There was another summons against him regarding the fittings and conditions of the appellant's medium goods vehicle. However, he was acquitted of this summons after trial.

2. This was a case involving a chain collision. The prosecution case was that on 14 October 1999, at about 7 p.m., a bus driver was driving a double-decker bus on the second lane along Shing Mun Tunnel Road in the direction of Tsuen Wan. The weather was fine, the road was dry and the lighting was sufficient. There was a private car ahead of the bus. The car had to drive from the first lane into the second lane in front of the bus as there was a stationary vehicle on the first lane. When this private car suddenly came to a stop, the bus driver had to reduce his speed and stopped the bus. Then the bus driver heard a "bang" sound. He alighted from the bus to check and found that the appellant's vehicle had collided with the rear part of the bus. Behind the appellant's vehicle was a truck. This truck appeared to have collided with the rear part of the appellant's vehicle.

3. The prosecution had called the bus driver ("PW1") and the driver of the stationary car ("PW2"). PW2 explained that he had to stop the car in the first lane in order to remove some garbage hooked onto his car. He saw the approach of the bus and how it had slowed down. He also heard the "bang" sound. However, he did not see how the collisions had taken place. The prosecution had also called the officer ("PW3") who drew the sketch and the vehicle examiner ("PW4"). Obviously the main witnesses for the prosecution were PW1 and PW2.

4. As to the appellant, he had chosen not to give evidence at the trial. Having considered the evidence and the submissions, the learned magistrate convicted the appellant.

5. Counsel for the appellant managed to formulate a total of seven grounds to appeal against the conviction. There were nine points under the first ground. The gist of the complaint was really that there was no evidence to show how the accident had taken place, and in particular, there was no evidence on distance, speed and momentum of the cars involved. For the second ground, the appellant argued that the magistrate had made some speculative findings based on the damage of the vehicles. The third ground stated that the learned magistrate had not paid sufficient attention to certain material facts such as the way in which the front bumper of the truck was damaged.

6. As to the last four grounds, they were as follows :

(4) The learned temporary special magistrate failed to have sufficient regard to or erred in rejecting the possibility ("the Possibility") that the appellant's vehicle was pushed forward by the truck and rammed into the bus.

(5) Even assuming that the learned temporary special magistrate were right in rejecting the Possibility, the burden of proof was on the prosecution and there was no real evidence to show that the appellant was either speeding or travelling too close behind the bus.

(6) After rejecting the Possibility, the learned temporary special magistrate did not state the bases on which she relied in support of her conclusion that the appellant failed to keep a reasonable distance form the bus in front.

(7) Since the distance maintained between the bus and the appellant's vehicle before the accident was the main basis for the magistrate's conclusion that the appellant drove carelessly at the material time, the conviction was unsafe and unsatisfactory.

7. The magistrate was fully aware that neither PW1 nor PW2 had actually witnessed how the collision had occurred. They only knew that collision had taken place within a matter of seconds and they both heard the "bang" sound.

8. After consideration, the learned magistrate rejected the possibility that the appellant's vehicle was being pushed by the truck to hit the bus. She stated, inter alia, that :

"Had it been true that his vehicle was pushed by the Truck behind and thus causing it to ram into the Bus, the Appellant would have no time to steer his vehicle to the right [as shown in the sketch produced.] ..."

9. The magistrate also relied on the details of the damage to rule out the possibility of the appellant's car being pushed to hit the bus and finding that there should not be sufficient force for the appellant's vehicle to be pushed forward by the truck.

10. The learned magistrate further stated that :

"The Appellant must have kept a reasonable distance from the Bus in front had he been driving as a prudent driver would but he failed to do so and therefore did not allow himself sufficient space and time to stop when the Bus suddenly braked.

Furthermore, as could be seen in 'Exhibit P3-11 and 12', there was a long brake mark on the road behind the Truck. This indicated that its driver had applied the brake and thereby reduced its speed.

Since the Truck had slowed down, all the more there could not have been such great force to push the Appellant's vehicle forward hitting the Bus and causing the kind of damage on the Bus as it was.

In the premises, I must reject the submission by the Appellant's counsel that the Appellant's vehicle was pushed forward by the Truck from behind hitting then onto the Bus."

11. I have considered the authorities cited by the appellant. The case of R. v. Li Tat Man [1991] HKLR 368 was also a magistracy appeal case involving the charge of careless driving. Hooper J (as he then was) found that even if a driver had not kept his speed in proportion with the distance of his vehicle and/or had collided with a stationary vehicle, it did not necessarily mean the driver had driven carelessly. However, the learned judge stated clearly that whether or not a driver had driven carelessly depended upon all the circumstances prevailing at the trial. In allowing the appeal, the judge said that :

"With the greatest of respect to the magistrate, in neither of these two situations does it necessarily follow that the defendant has been guilty of careless driving. It all depends upon the circumstances prevailing at the time. There was no evidence in this case that the appellant was driving excessively fast. The last thing a driver would expect to find in the third lane of a carriageway at that time of night would be a stationary vehicle without lights on facing in his direction." (Emphasis added)

Hence, it could be seen that the appeal was allowed on the basis of the special circumstances of the case.

12. The authority of R. v. Luk Hung Kuen [1994] 3 HKC 557 was another relevant authority. In allowing the appeal, the court had referred to Penlington J's (as he then was) decision in R. v. Kit Wing Wo [1985] 1 HKC 204. The important passage was as follows :

"What the magistrate appears to be saying is that when the road was wet and slippery, the appellant had a duty to drive at a speed and at a distance behind the car in front of him so that if that car braked, he would be able to stop in time. This is certainly what the road code says, and the Road Traffic Ordinance certainly provides that failure to comply with its provisions is a factor a court can take into consideration when deciding if anybody has been guilty of careless driving. There must, however, in a criminal charge be some direct evidence of negligence. The court is not entitled to simply apply the doctrine of res ipsa loquitur. That doctrine applies in civil cases but there must be some positive evidence of carelessness in a criminal prosecution unless the evidence is so strong that, in the absence of any explanation from the defendant, he must have been negligent. If there is such positive evidence, then the court is entitled to say that the driver had not performed the standard of care required. ..."

13. As to the other authorities cited, I believe they were simply illustrations of how the foregoing general principles had been applied to the particular circumstances of individual cases.

14. Regarding the present appeal, the first question to ask was : had the magistrate wrongfully invoked the concept of res ipsa loquitur. I found that the learned magistrate had not done so. In her Statement of Findings, after a careful analysis of the evidence, the magistrate clearly stated that she was satisfied that the prosecution had proved the offence beyond all reasonable doubt. And from the way she had approached the evidence, it was obvious that she had borne in mind of the basic principle that it was for the prosecution to prove the offence. It was not a situation where the magistrate simply relied on the fact of collision and assumed, without more, that the appellant was guilty of careless driving. Quite the contrary, she had given a careful evaluation of the prosecution case and found that she could make the necessary inference from the available evidence.

15. The next question to ask was whether the appellant was correct to say there was no evidence to support the conviction and that the magistrate had erred by making speculative findings rendering the conviction unsafe and unsatisfactory.

16. I would disagree with the simple statement that there was no evidence to prove the offence. It was true that there was no direct evidence regarding how the collision had occurred, but there was certainly circumstantial evidence based on which the magistrate could make inferences. The magistrate had done just that.

17. In one of the grounds, counsel had complained that the learned magistrate was not an expert and she was not qualified to assess matters such as the distance between the vehicles, the momentum or the force required to push forward the appellant's vehicle to ram into the bus. I could not agree that an expert was always required to give evidence on such matters. In some cases, expert evidence might be useful or even crucial to assist the court, but in the present case, the magistrate had applied her common sense and exercised her judgment as a jury in reaching a finding. I could see nothing wrong about that. In relation to the issue of whether the appellant's vehicle could have been pushed, one needs only to look at the relative sizes of the two vehicles in question to make a sensible evaluation. Actually, counsel's own remarks in his ground of appeal 2(b) showed that assessment based on the damage could be made by a non expert.

18. As the respondent had pointed out, the magistrate had considered all the relevant factors and arrived at the conclusion. She was entitled to reach that factual finding of carelessness on the part of the appellant for having failed to keep a proper look out at the material time.

19. I was not persuaded that the conviction was wrong or unsafe and unsatisfactory. At the time, the weather was fine, the road was straight, the ground was dry and the lighting was sufficient. Considering all these and the circumstances as analysed by the magistrate, I found that the conviction was justified. I believe this was a clear case where the circumstantial evidence was so strong that in the absence of any explanation from the defendant, the court was entitled to find that the driver had not performed the standard of care required, (see above, judgment of Penlington J in R. v. Kit Wing Wo [1985] 1 HKC 204).

20. I would dismiss the appeal accordingly.