THE QUEEN v. MAK KING-YEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellant Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 700 of 1988

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J U D G M E N T

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1. The Appellant was found guilty after trial on a charge of careless driving.The incident out of which the charge arose occurred at about 10.50 p.m. on 27th July, 1987 on the TaiYip Street flyover in Kwun Tong Road.

2. There were four lanes on the flyover, two for eastbound and two or westbound traffic. Westbound traffic passed under a blue and white traffic sign which indicated that the outer lane took traffic to To Kwa Wan and Hong Kong and the inner took traffic off the flyover and down to Kwun Tong Road. Eight metres west of the sign there were chevron markings on the road surface straddling the meeting point of the two lanes. They served as a warning than the last opportunity for lane changing had been reached because 10 metres on from he westernmost marking a concrete divider began which effectively kept vehicles to whatever lane they were committed to from that point on. Running parallel with the divider were two double white lines marking the division between ease and westbound traffic. In the eastbound carriageway there was another parallel concrete divider separating the two eastbound lanes.

3. PW1, a housewife, said in evidence that she was driving alone along the westbound outer lane at about 40 kilometres per hour. At some stage as she was approaching the area where the concrete divider began in her carriageway a BMW vehicle overtook and then cut in front of her and proceeded ahead of her in her lane. A few seconds later, when she was at the chevrons, an orange coloured car travelling in the inner lane of her carriageway drew alongside, overtook and began to cut into her lane. This gave her such a fright that she immediately braked. The next thing she knew was that her car had come to a stop and she thought she had collided with one or other of the two concrete dividers. When she "looked up" she saw smoke coming from the bonnet of her vehicle. She "hadn't a clue" as to how she had ended up at "the divider" and was very frightened. She could not get out of the driving side door as it was jammed but she managed to climb out on the passenger side. She went to look for the orange coloured car which had not completed the cutting in manoeuvre but had reverted to the inner lane and continued on down to Kwun Tong, Road. Whilst she was looking for it she turned around and then found that she had collided with a taxi. She had not seen the taxi prior to that and it was only then that she realised that she had not collided with one of the concrete dividers but with another vehicle. She had no idea as to how she came to collide with the taxi. She began to cry and ''nobody seemed to wish to give her any information". She said that the road surface was slippery at the time as a result of earlier drizzling rain. In cross-examination she said that the vehicle was owned by her husband's company and that she did not usually drive it; that she accelerated from 40 to 45 k.p.h. as she was ascending the flyover; and that the orange coloured car had entered her lane to about one third of its length before reverting to the inner lane. She marked on the sketch, drawn by the traffic policeman who came to the scene, a point only one metre from the commencement of the divider in the westbound carriageway as the point where the front of the orange coloured car was when one-third of it was occupying her lane.

4. PW2 was a passenger in the Appellant's vehicle, the orange coloured car. He said that as they approached the sign indicating the destinations of the two lanes the Appellant's vehicle moved slightly to the right then swerved left as he felt a vehicle came up on the right at a fast speed.

5. PW3, the taxi driver, said he was driving at 30 miles per hour in the outer lane of the eastbound carriageway when PW1's car suddenly hit his. He was knocked unconscious, had his leg and cheekbone broken and was admitted to hospital for a month.

6. PW4, a passenger in the taxi, said he was knocked unconscious and was admitted to hospital for six months.

7. PW5, the traffic policeman who drew the sketch, said that he found the front nearside of the taxi against the concrete divider on the eastbound carriageway and PW1's vehicle straddling the double white lines dividing the two carriageways with the nearside front touching the offside rear of the taxi and with the rear facing southwest, that is, the vehicle had almost revolved full circle to face the direction from which it had come. He found that the windscreen of the taxi was smashed and the offside front and door seriously damaged. PW1's vehicle was also seriously damaged on the offside front, the bonnet crumpled and the wind-screen cracked. He found a skidmark traceable from PW1's vehicle extending 18 metres from the point of impact across the double white lines and back eastwards along the westbound outer lane to a point 16 metres west of the commencement of the concrete divider in the westbound carriageway. In cross-examination he said that the road surface was dry and that PWI had told him that "the changing of lanes had occurred just before the chevron markings".

8. The Appellant said in evidence that before reaching the sign indicating the direction of each westbound lane he decided to change from the inner to the outer lane. He checked and found the outer lane clear and gave an indication of his intention to change. He then saw in his rear vision mirror that there was a vehicle coming at a very fast speed along the outer lane. At that stage no part of his vehicle had actually crossed into the outer lane. He then decided not to change, slowed down and swerved to his left. He estimated the speed of the oncoming vehicle at 50-60 m.p.h. Shortly afterwards he heard the sound of a collision.

9. In her Statement. of Findings the learned magistrate, said :-

"I found that PW1 gave a considered and credible account of what occurred ..... I accepted the evidence of PW1 that the collision (sic Sc. 'attempt co cut in') took place very close to the splitting of the road (Sc. the beginning of the concrete, divider), if not on the shadow lines (Sc, chevron markings)..... If the Defendant had taken the care that he alleged that he had taken, he would doubtless have seen PW1's vehicle approaching ant not commenced that manoeuvre. I found that the Defendant had not kept any sufficient or any adequate lookout".

10. Mr. Plowman, on behalf of the Appellant, advances four main grounds of appeal but it will not be necessary to consider two of theme. The two which fall for consideration allege that the learned magistrate failed to resolve the conflicting evidence given by PW1 and PW2 regarding the lane cutting incident and failed to pay sufficient regard to certain "inherent improbabilities" in PW1's evidence.

11. If the Appellant's vehicle had cut in to the extent that PWI alleged at or near the position she marked on the sketch it would have required a sharp turn to the left -- almost a right angle turn --before he could have regained the inner lane without colliding with the concrete barrier. PW1 was, therefore, wrong about the place where the attempt to cut in occurred, or about the extent to which his vehicle entered her lane, or about both. On the other hand, as regards the evidence of PW2, although there was the strong likelihood of bias in favour of the Appellant, there was nothing inherently incredible in his evidence.

12. The learned magistrate did not say that she rejected PW5's evidence regarding what he said PW1 told him at the scene about the point at which the attempt to cut in took place. If she accepted his evidence, there was an inconsistency between what PW1 then said and what she said in court which needed to be explained before her evidence as to where the attempt took place could be readily accepted. This was an important inconsistency because the further to the west that PW1 could convince a court that the attempt was made the shorter her braking distance became and the weaker the "objective evidence" to support an inference of excessive speed on her part. The weakness in PW2 evidence was , as I have just said, the likelihood of bias in favour of the Appellant. That bias may have led him to understate the extent of the Appellant's divergence to the right but, given the consistency between his evidence to the offect that the manoeuvre occurred before and not on the chevron markings, and PW1's allegation to PW5 at the scene, there was a sounder basis for accepting his evidence on this point rather than PW1's.

13. If the learned magistrate had considered these matters she may well have been able to conclude that the Appellant was careless. But she did not consider them and one is left with the impression that she found that PW1 gave "a considered and credible account" because the witness' demeanour convinced her that she was honest and truthful.

14. With all due respect to the learned magistrate 1 must say that that was the hidden trap in this case. On the evidence there were two plausible versions of the Appellant's manoeuvre. One was PW1 to the effect that the Appellant suddenly cut in to her lane and then retreated and that PWI in her evidence mistakenly pinpointed the position too far westward. The other was that the Appellant, having signalled that he was about to change lanes, and having then become aware that a vehicle was accelerating in the other lane at such a speed as to prevent him from doing so in safety, decided not to change.

15. When I mentioned during argument that they were the two versions Mr. Bruce agreed generally but pointed out that the evidence from the Appellant was that there was no vehicle in the outer lane when he made his decision to change. That is one interpretation of the appellant's evidence. Another is that when he said the lane was clear he meant, not that there was no traiffic at all to be seen in that lane, but that there was sufficient clearance for him to change. The only obstacle to accepting the Appellant's version, however interpreted, was the evidence of PW1.

16. Whatever caused PW1 loss of control of her vehicle the fact was that she suffered a severe shock. It is therefore understandable that she should have no recllection of some parts of the incident ("I had no clue as to what happened"); that she would have recorded mistaken memory impressions during the horror ( "I thought I struck the concrete divided"); and that the trauma could have caused a reconstructed recollection which attributed blame beyond herself for the dreadful consequences of the collision with the taxi ("the road surface was wet and slippery"). Hers may well have been the classic example of the witness who appears to be honest, sincere and truthful because she is relating what she believes to be a genuine recollection but is unaware of what is genuine and what has been reconstructed to fill a psychological need. PW1 may well have been relating a genuine recollection. In the circumstances of this case, however, where there were two fairly equally competing versions it was incumbent on the learned magistrate to make a careful evaluation of all the evidence, in particular the objective factors disclosed by PW5's evidence and sketch plan, to see whether PW1's version was consistent with it before accepting it. This was not a case where the demeanour of the witness was all important in determining the central issue, namely, whether the Appellant did undertake the manoeuvre which PW1 alleged.

17. As the learned magistrate did not evaluate the evidence bearing in mind that demeanour was not the determining factor in this case I think that the conviction is unsafe. I therefore allow the appeal. The conviction and sentence are quashed.