HKSAR v. EDWARD JAMES BEAN

HCMA1195/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1195 OF 1999

(ON APPEAL FROM WSS 12923 OF 1999)

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

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

J U D G M E N T

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

1. The appellant was convicted on 9 November 1999 of careless driving and fined the sum of $750. He now appeals that conviction.

2. The facts as found by the magistrate were that on 25 February 1999 at about 7:15 pm, the appellant drove his car into the Shell Petrol Station at Macdonnell Road for petrol. The pump was on a slightly raised platform. The appellant parked his car approximately some 24 inches from that platform. The petrol was put into his car and receipts were given to the appellant. At this point, the transaction was completed and the appellant proceeded to drive away. The pump attendant at this point was still at the rear of the car with his back to the car facing the petrol pump. He was bented over from the waist towards the petrol pump and was viewed by the appellant in the rear vision mirror of his car. He did not, however, check the side mirrors of the car to see where the pump attendant was. The magistrate held that a reasonable and prudent driver in that situation would either wait for the pump attendant to go away first, or do more than just look at the rear mirror to judge whether the car was clear of all dangers.

3. The appellant before me argues that the pump attendant was in an unusual position, he was in a position where whilst bented over towards the pump, he was standing on one leg with his right leg slightly raised pointing towards the car and to some degree within the wheel arch of the rear of the car. He argues that that was an unusual situation which should not fall within the ambit of the duty of a driver to be reasonable and prudent and that this, therefore, was a matter outside that which the magistrate should have taken into consideration in deciding whether or not he was careless.

4. Firstly, the magistrate has adopted the proper test in respect of whether the appellant drove carelessly - the test is whether a reasonable and prudent driver in the situation of the appellant would have driven in the way that he did. The appellant caused slight injury to the ankle of the pump attendant and clearly, therefore, a collision did take place between the car and the pump attendant. The appellant argues that it is normal for pump attendants in Hong Kong to remain near petrol pumps and not move away from vehicles when a vehicle has been filled with petrol and that they stand there waiting for the next customer to arrive. I do not take issue with that but point out to the appellant that that perhaps places upon a driver a greater obligation to make sure that the pump attendant is away from his car when he moves off.

5. In this particular case, a view in the rear vision mirror of the car would have shown the pump attendant close enough to the car for his foot, if raised, to have been in a position that it was. As a matter of anatomy, the pump attendant must have been standing reasonably close to the car. In those circumstances, the magistrate cannot be said to be wrong when he said that the appellant ought to have either waited for the pump attendant to go away, or do more than just look at the rear view mirror to judge whether the car was clear of all dangers.

6. In an appeal, it is not for me to rehear the evidence, but to determine whether the approach and the legal tests applied by the magistrate in the court below are in error. I cannot say that the magistrate here is in error. Although this is not a case of any great magnitude, it is one where the appeal must be disallowed and the conviction must stand.