HKSAR v. TANG WAI LIM

HCMA671/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.671 OF 2004

(ON APPEAL FROM TMS 1214 OF 2004)

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

1. The appellant was convicted of careless driving by Mr Daniel Ho sitting in Tuen Mun Court on 3 June 2004.

2. The allegation by the prosecution was that on 29 August 2003 while the appellant was driving a private car on a road in Yuen Long, he drove carelessly in that while reversing the said car he collided with a 70-year-old man who died in hospital on 17 September 2003. There were no eye-witnesses to the incident.

3. The prosecution evidence consisted of a statement made by the deceased in a telephone conversation that he had with his daughter, shortly after the accident, when he told his daughter that he had been knocked down by a car and that an ambulance had been called.

4. The other pieces of evidence relied upon by the prosecution were two cautioned statements made by the appellant. In the first statement, he admitted that he had parked his car at a bus stop on the road in question behind another parked private car. After that, as he wanted to park in the space in front of the other car, he reversed his car for one metre. While he was reversing, he heard someone call him whereupon he stopped his car and alighted when he saw the deceased sitting on the ground behind his car.

5. In his second statement, he said that the old man was sitting at the back of his car in the middle but was more to the left of his vehicle. He described the way he reversed his car as follows : first, he looked at his left hand mirror, then he turned his head and looked to the back of his vehicle on the left and he saw no persons behind his car. He then looked to the front of his car and engaged the reverse gear to reverse his car. As he was reversing he looked at his rear view mirror inside the car and saw there were no persons behind his car.

6. Photographs of the scene and a sketch map were produced which showed that to the left of the appellant's car was a metal fence which ran continuously along the road except for the break at the bus stop where the appellant's car was originally parked.

Grounds of appeal

7. The first ground of appeal advanced by Mr Tse on behalf of the appellant was that the magistrate erred in law in treating the telephone conversation between the deceased and his daughter as part of the res gestae and thereafter admitting it into the evidence relied upon by the prosecution.

8. A similar ground of appeal was argued before me in HKSAR v. Wong Kok Fung and Anor [2002] 4 HKC 266. What I said in that case at page 269 was as follows :

"7. ... There were submissions by counsel for both sides about whether the utterance by the boy sitting on the bench about where the two appellants had gone was hearsay evidence or whether it was part of the res gestae. The case of R v Yiu Man Chung (HCMA 156/1996, 8 May 1996, unreported), was quoted where Leong J (as he then was) considered what was said by Lord Ackner in R v Andrews [1987] AC 281, where he said :

(1) The primary question which the judge must ask himself is can the possibility of concoction or distortion be disregarded?

(2) To answer that question, the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

8. In my view that utterance by the boy should have been considered by the magistrate and it would have been open to the magistrate to take it into account or to reject it outright. ..."

9. The magistrate, in his Statement of Findings, did take into account all the considerations stated by Lord Ackner and came to the conclusion that there was no possibility of concoction or distortion and the magistrate came to this conclusion after he considered the circumstances in which the particular statement was made by the deceased.

10. In those circumstances, I consider that the magistrate was quite entitled to take into account that statement by the deceased person. That statement having been properly admitted and accepted in evidence, the possibility of the deceased falling down onto the ground is immediately removed. The deceased was a frail person, aged 70, who had that same morning just been discharged from hospital. That statement by the deceased shows that he was involved in the traffic accident and that fact taken together with the admissions made by the appellant in his two cautioned statements, established that the traffic accident that the deceased was involved in was being hit by the appellant's car.

11. The second ground of appeal advanced by counsel was that when the magistrate concluded how the accident happened, that was mere speculation on his part and there was no evidential basis for such a conclusion. Linked to this ground is Ground 3 which was that the magistrate had relied upon the doctrine of res ipsa loquitur to convict the appellant. I do not agree. The evidence relied upon by the prosecution was as summarised by me above, and based upon that evidence the magistrate was quite entitled to come to the conclusion that he did.

12. When the magistrate considered whether the deceased could have approached the appellant's car from the front or from the left or from the right, that was an exercise which the magistrate need not have gone through but which was clearly an attempt by the magistrate to be as fair to the appellant as possible. There can be no argument with the magistrate's conclusion that to adopt the proposition that the deceased had approached the appellant's car from the left was the approach which was the most favourable for the appellant.

13. In my view, it was quite clear from the evidence that the deceased must have walked out onto the road from the pavement which was to the left of the appellant's car. Quite clearly if the deceased had approached the car from the front or from the right the appellant would have been able to see him.

14. The last ground of appeal was the complaint that the magistrate should not have relied upon the fact that the appellant when reversing his car did not turn his head to look at the back of his vehicle and, instead, just relied on looking at the rear view mirror in his car. In my view, the magistrate was entitled to rely upon that as one of the bases for saying that the appellant's manner of driving fell below the standards of a reasonable and prudent driver in that he failed to exercise the degree of care and attention that a reasonable and prudent driver would in the circumstances.

15. The appeal against conviction is dismissed.