HKSAR v. CHAN MOU SHING

HCMA 634/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 634 OF 2016

(ON APPEAL FROM ESS 25863 OF 2016)

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J U D G M E N T

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1.  The Appellant appeals against his conviction after trial in the Magistrates’ Court on a charge of careless driving. It is convenient to take the circumstances of the case from paragraphs 2 to 11 of the Magistrate’s Statement of Findings, which reads:

“ 2. The incident took place in an unnamed road outside Lei Moon House Low Block, involving an ambulance and the Defendant’s private car with registration number BB 1211. There were two lanes on the road in opposite direction. The ambulance was parked on one side of the road. There was a distance of about 5 meter from the nearside rear mirror of the ambulance to the pavement of the other side of the road and therefore sufficient space for a car to pass the other side of the road.

3. The prosecution relies on the evidence of two ambulance men (“PW1” and “PW2”) and a police officer (“PW3”).

4. At the material time, PW1 was at the driver seat of the ambulance while PW2 was also in the back compartment of the ambulance. Another ambulance man Mr Chow, the supervisor, was also in the ambulance. At that time, D was driving his car along the same road in the opposite direction of the ambulance.

5. The prosecution case is that the nearside rear mirror of the Defendant’s car collided with the nearside rear mirror of the ambulance.

6. The following facts are not disputed or challenged in a material way by the defence. PW1 saw the Defendant’s car approaching the ambulance towards him. The Defendant continued to drive his car past the ambulance on the nearside of the ambulance and then stopped his car out of his volition. Subsequently, both PW1 and Mr Chow got out of the ambulance, and the Defendant got out of his car.

7. Mr Chow said that there was a collision and that he would call the police. The Defendant told PW1 and Mr Chow that he was in a hurry to go to the airport. Both of them exchanged information. The Defendant gave one of the ambulance men his name, identity card number and telephone number. Then, the Defendant left the scene.

8. When the Defendant’s car travelled past the ambulance, both PW1 and PW2 heard a sound, but they did not see the collision. At that time, there was no other vehicle. There was a crack on the nearside rear mirror of the ambulance as shown in photographs P2 (2) and (3).

9. PW3 made enquiries into the incident. He found out that the crack was 1.4 to 1.5 meter from the ground. Later, he measured the nearside rear mirror of the Defendant’s car in a different place. He found out that it was 1.24 to 1.34 meter from the ground. These measurements can be seen in sketch plans P4 and P5.

10. The defence case is that there was no collision between the two vehicles. It alleges that the sound heard by PW1 and PW2 was caused by something else, that PW1 and PW2 prompted the Defendant to stop his car and that the Defendant supplied his personal information without any admission of the collision.

11. At issue is whether there was a collision between the two vehicles.”

2.  The Magistrate resolved that issue against the Appellant, taking the view that the only reasonable inference is that there had been a collision between the two vehicles.  If that be right, the conviction is warranted since the ambulance was stationary while the Appellant’s car was moving. 

3.  All of the Perfected Grounds of Appeal filed on the Appellant’s behalf are directed to attacking the finding that there had been a collision between the two vehicles.

4.  The Perfected Grounds of Appeal read as follows:

“ 1. It is respectfully submitted, the Learned Deputy Magistrate erred and was wrong in fact and/or principle in convicting the Appellant of careless driving in finding and concluding that “the only reasonable inference is that there was a collision between the two vehicles” [paragraph 24. Statement of Findings] as a matter of conjecture and/or by erroneously finding and/or by placing undue weight on the following:

a) The Appellant “stopped his car out of his own volition” [paragraph 6. Statement of Findings];     

b) “Both PW1 and PW2 heard a sound, but they did not see the collision” [paragraph 8. Statement of Findings] further to PW1 agreeing in cross examination that “he could not tell which part of the Defendant’s car caused it” because “it took place very fast” [paragraph 17. Statement of Findings]; 

c) That “[a]part from the collision between the two vehicles, there is no explanation of the sound heard by PW1 and 2” [paragraph 18. Statement of Findings]; 

d) That the Appellant was aware or suspected that there had been an accident and on that basis supplied “his personal information to PW1 and Mr. Chow” [paragraph 21. Statement of Findings];     

e) That the discrepancy of PW3’s evidence of measurements in sketch plans P4 (the ambulance—1.4 to 1.5 metres) and P5 (the Appellant’s vehicle—1.24 to 1.34 metres) can be explained by it not being large, that the measurements took place on a different road surface and at a different time, and that the measurement of the Appellant’s vehicle is affected by its tyre pressure [paragraph 22. Statement of Findings];     

f) There is no evidence of any damage to the Appellant’s vehicle given the very slight damage to the ambulance [paragraph 25. Statement of Findings]; and    

g) PW1 stated in cross-examination that he felt the ambulance shake during the incident (which had not been stated in his witness statement or examination-in-chief), given that the damage was slight and the “movement ought to be very small” being a justification “to omit this minor detail when making a witness statement or testifying in the witness box” [paragraph 26. Statement of Findings].   

2. By reason of the foregoing ground(s), the conviction is unsafe and unsatisfactory.”

5.  As for Particulars (a), (b), (c) and (g) of Perfected Ground 1, the fact that the Appellant had stopped his car of his own volition, the fact that the two ambulance men each heard a sound, the fact that there was no explanation for the sound apart from a collision between the two vehicles, and the fact that one of the ambulance men felt the ambulance shake are all matters which can properly be put into the scales when deciding whether there had been a collision between the two vehicles.

6.  The Magistrate’s Statement of Findings shows that he was well aware of the proper approach to circumstantial evidence and to the drawing of inferences.  The Magistrate, having seen and heard him giving evidence in the witness-box, was free to accept PW1’s evidence under cross-examination of having felt the ambulance shake even though he did not refer to that matter in his witness-statement or his evidence-in-chief.

7.  As for Particular (d) of Perfected Ground 1, this is what the Magistrate said in paragraph 21 of his statement of findings:

“ 21. Barring any accident, by the time when PW1 and Mr Chow went out of the ambulance, the ambulance should have been far away behind the Defendant’s car. It is inherently improbable for the Defendant to look at the ambulance behind him, to stop his car or to check his car. In my view, he was aware or suspected that there had been an accident. On this basis, he supplied his personal information to PW1 or Mr Chow.”

8.  That view is one which the Magistrate was entitled to take.

9.  Particular (e) of Perfected Ground 1 involves explaining something which might, if not satisfactorily explained, raise a reasonable doubt as to whether a collision between the two vehicles had taken place.  The Magistrate was entitled to act on such an explanation.  His approach involved reasoning, not conjecture.

10.  As for Particular (f) of Perfected Ground 1, what the Magistrate said in paragraph 25 of his Statement of Findings is this:

“ 25. There is no evidence of any damage to the Defendant’s car. Given the very slight damage to the ambulance, this does not necessarily mean that there was no collision between the two vehicles.”

11.  That view is one which the Magistrate was entitled to take.

12.  Perfected Ground of Appeal 1 fails.

13.  So must Perfected Ground 2 fail, for it relies on the matters put forward under Perfected Ground 1 for its i.e. Perfected Ground 2’s contention that the conviction is unsafe and unsatisfactory. That contention is, in the circumstances, not made out.

14.  The appeal was ably and thoroughly argued.  There is, however, no basis for disturbing this conviction.

15.  The appeal is therefore dismissed.