HKSAR v. LEE YEUNG TAT

1997, NO. MA 489

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.489 OF 1997

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J U D G M E N T

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1. The appellant was convicted of careless driving by a magistrate. He now appeals against conviction.

2. The appellant was riding a motorcycle travelling in the slow lane behind a public light bus. When the public light bus stopped, the appellant pulled out from the slow lane and travelled in the fast lane to pass the public light bus. When he passed the front of the public light bus, an elderly woman came out in front of the bus to cross the road. The appellant tried to avoid the collision by trying to swerve to the right but the collision still occurred. As a result the woman was knocked down by the appellant's motorcycle and seriously injured and later she died.

3. The prosecution evidence against the appellant was that of the daughter of the deceased, PW2, who was with the deceased at the time, the driver of the public light bus, PW1 and a taxi driver, PW3, who had stopped on the opposite lane. PW2 told the magistrate that she and her mother had just alighted from the public light bus and they were there trying to cross the road in front of the public light bus which was then stationary. PW2 said that the deceased looked to the right and then to the left of the road and started to cross. She did not look to her right again before she did so. At that time, PW2 heard the sound of a motorcycle and she shouted to the deceased. At that time the motor vehicle was 10-15 feet away. PW2 failed to stop the deceased who was thereafter knocked down by the motorcycle. PW1 did not see what happened until the accident occurred but she said it was in the middle of the fast lane. PW3 did not see how the appellant's motorcycle approached and how the deceased crossed the road. He saw the impact between the two and he said it was in the fast lane near the opposite carriage way. The location was indicated by him by a "x" on a photograph produced by the prosecution. The appellant's statement to the police formed part of the prosecution case and in this statement he said when he reached the front of the stationary public light bus, he saw the deceased walking in hurried paces from the front of the public light bus, he could not avoid hitting her even though he braked and leaned to the right.

4. The magistrate did not find anything wrong with the speed which the appellant was travelling, which he said was 50 km/h. The magistrate also did not find anything wrong in the appellant pulling onto the fast lane from behind the stationary public light bus. The magistrate however, relying on the evidence of PW3 and his marking on the photograph, considered that the appellant at the time was driving too close to the public light bus and too close to the left of the fast lane and that caused the collision with the deceased. He found that the appellant was not driving with due care and attention expected of a reasonable competent prudent motorcycle driver. On this basis he convicted the appellant.

5. The magistrate said in his finding that the appellant was driving too close said this :

"... Knowing that it is more difficult for other road users to notice the approaching of a motorcycle; the reasonable, competent and prudent motor-cyclist would, after pulling out, drove his motorcycle in or about the middle of the fast lane and certainly would not travel along closely to the side of the public light bus.

There was no evidence to say how close to the public light bus did the Appellant drive. But it was sufficient to say he was too close. ...."

6. In his judgment announced at the end of the trial, the magistrate said :

".... I found that the defendant did fail to meet the standard of a reasonable, prudent and competent driver. In particular, I think a reasonable, prudent and competent driver would drive in a manner which had taken into consideration other road users, and in the circumstances of the case come to think of the possibility of people coming out from the front of the public light bus. It is more so when the vehicle in question is a motorcycle.

A reasonable, prudent and competent motor-cyclist would exercise extra care in the circumstances, as it is known that being a motorcycle it is more difficult for the other road users, in particular pedestrians, to notice the approaching of a motorcycle."

7. Mr Lam for the appellant complains that the magistrate has placed a higher burden for a motor-cyclist and there is no evidence nor is it commonly known that it is more difficult to notice the approach of a motorcycle. Mr Lam also submits that the evidence showed that the appellant was not travelling near the slow lane nor was it close to the public light bus and the magistrate's finding is against the weight of the evidence.

8. All motor vehicle drivers are expected to exercise the same degree of care when driving on the road and it is that of a reasonable prudent competent driver driving the type of vehicle and in the circumstances in question. A motor-cyclist is not required to exercise a higher degree of care. The magistrate's conclusion that the appellant was driving too close to the slow lane or to the public light bus is not supported by evidence. Even if the appellant was driving in the fast lane close to the slow lane, without more, he could not be blamed because the deceased had walked out in front of the stationary public light bus without looking to the right when the appellant's motorcycle was so near to her.

9. The evidence as accepted by the magistrate is insufficient to support the conclusion that the appellant was driving carelessly. The appeal is allowed and the conviction quashed. The fine is set aside.