R. v. LAU KWONG CHI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 76 OF 1995

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J U D G M E N T

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1. On 25th October 1994 at Western Magistrates' Court, the Appellant was convicted, after pleading not guilty, of careless driving. No penalty was imposed, but he was ordered to pay $400.00 costs. He now appeals against his conviction and sentence.

2. The case against the Appellant was based on the evidence of a single witness, PW1. PW1 had been riding his motorcycle at about 8:00 p.m. southbound along Pokfulam Road. The road consisted of two lanes in the direction in which he was travelling, and he was in the outside lane. He was waiting at a junction controlled by traffic lights. When the lights changed to green, he moved off. Not long after he had moved off, when his speed was no more than 30 k.p.h., a taxi which was travelling along Pokfulam Road in the opposite direction crossed in front of him. It was heading for a garage on PW1's left. When the taxi turned into PW1's path, it had to cross double white lines dividing the southbound from the northbound traffic, and it was less than 10 feet in front of PW1's path. PW1 braked but he was not able to avoid colliding into the nearside rear door of the taxi - although the photographs show that the point of impact was by the wheel. The driver of the taxi was the Appellant. That was PW1's evidence.

3. If PW1's version of these events was true and accurate, the conviction of the Appellant for careless driving was inevitable. He had crossed in front of PW1 when it was unsafe to do so. No-one criticised the Appellant for attempting to cross the double white lines at this point in order to get to the garage. The criticism of the Appellant was that he attempted to do so at a time when the road was not clear of traffic.

4. However, the Appellant in his evidence denied the accuracy of PW1's version of events. He claimed that when he began to cross the southbound lane, the traffic lights were still red. The collision occurred, not in the outside lane, but in the nearside lane, and to collide with him, PW1 must have jumped the traffic lights.

5. The magistrate saw and heard both PW1 and the Appellant give evidence. He was therefore in an infinitely better position than I to assess their reliability and credibility as witnesses. He believed PW1 and disbelieved the Appellant. There is no basis upon which I can interfere with his findings of fact. As I said in Hui Kee Fung (MA 196/94), "appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The Judge does not even see the witnesses. It would be rare indeed for a Judge to say that the findings of fact made by the magistrate were so contrary to the weight of the evidence that doubts as to the correctness of the magistrate's findings exist". The appeal against conviction must accordingly be dismissed.

6. Since the magistrate imposed no penalty on the Appellant, it is surprising that the Appellant decided to appeal against sentence. In fairness to the Appellant, he thought that he could appeal against the 10 penalty points which, by virtue of section 4(1) of, and the Schedule to, the Road Traffic (Driving-Offence Points) Ordinance (Cap. 376), he automatically incurred on his conviction. However, having convicted the Appellant, it was wholly appropriate for the magistrate to order the Appellant to pay costs to the prosecution - even though the magistrate erroneously described them in his Statement of Findings as "court" costs. I have been considering whether this was an appropriate case to exercise my power to increase the sentence by imposing a fine, but in the end I have decided not to.

7. Accordingly, the appeal against sentence is dismissed, but I see no reason why the Appellant, having lost his appeal, should not make a contribution toward the prosecution's costs of the appeal. Since the Appellant is now semi-retirement, I propose to order him to pay a nominal sum of $250.00 toward the prosecution's costs of the appeal.