R. v. CHEUNG CHI SHING

1996, No. MA 1401

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted of careless driving after a trial before a magistrate. PW1, the victim, gave evidence that he was pushing a cage from the road over a metal plate between the kerb and the roadway to go up to the pavement. In the course of this, PW1 found something obstructing his way. He stopped standing in a position with his left leg forward and right leg backward. He was about 5 to 6 feet from the pavement facing the shop premises. To his right there was a heavy goods vehicle. At this time, a goods vehicle driven by the appellant passed behind him and rolled over his right foot and injured his right little toe.

2. The accident was witnessed by PW2. He told the magistrate that he saw the appellant's vehicle drive past PW1 and the front left wheel of the vehicle rolled over the foot of PW1.

3. It should be noted that PW2's evidence as to the position of PW1 at the time is this :

"PW1's body was protruding a bit on the road when comparing with the width of the goods vehicle. His foot was protruding as he was pushing things. Before accident occurred, he was pushing the cage. He had stopped for 8-10 seconds as something obstructing him. Then he pushed again and the van arrived. ..... His foot was protruding out of the goods vehicle. He stood with left foot forward and right foot backward."

Later in cross-examination, he told the magistrate he did not see the vehicle of the appellant swerve as it came and PW1 was at that time 6-7 feet from the pavement. When PW1 was pushing, his body moved but he could not say if his feet had moved also and he was not sure if his feet had protruded beyond the heavy goods vehicle.

4. Thus, there was discrepancy between the evidence of PW1 and PW2 as to whether PW1's foot had protruded beyond the width of the goods vehicle and whether PW1 had moved his foot when the appellant's vehicle drove past.

5. The appellant did not give evidence. The magistrate accepted the evidence of both PW1 and PW2. She found their evidence corroborated each other and convicted the appellant.

6. The ground of appeal is that there were vital and obvious discrepancies between the evidence of PW1 and PW2 concerning the position of the right foot of PW1 which the magistrate had not resolved. There was a doubt as to whether the accident happened as described by PW1.

7. It was agreed fact at the time the accident occurred there was a 14 ton heavy goods vehicle parked at the kerb to the right of PW1 about two feet from him. It was also agreed that the appellant's vehicle came from the left of the appellant. The appellant was facing the shops on the pavement. It was also agreed that the width of this goods vehicle was 8-9 feet in width. It was submitted for the appellant that PW1 being 5-6 feet from the kerb and if PW1's right foot was stationary at the time when it was rolled over by the appellant's vehicle, the appellant's vehicle would have collided with the rear of the heavy goods vehicle. There was no evidence that the appellant had swerved after hitting PW1 and there was no collision. It was intrinsically improbable that the appellant's vehicle could have rolled over PW1's right foot if it had not moved and protruded into the path of the vehicle as it passed.

8. Mr Lee for the appellant submitted that there were vital discrepancies between the evidence of the two prosecution witnesses. He referred to R. v. Ng Yau Chuen MA 770/94 where Wong J. in relation to discrepancies in evidence said this :

"... Where there are vital and obvious discrepancies between the evidence of several witnesses, these discrepancies must be resolved in a rational and convincing manner. The magistrate did not seem to have addressed his mind to the real problem. All the witnesses could not be right at the same time."

Mr Lee submitted that the magistrate had not addressed her mind on this vital issue.

9. The magistrate in her statement of findings in relation to whether PW1 had moved his foot said this :

" Though there was discrepancy in their evidence in that P.W.1 said he remained still and P.W.2 said P.W.1 started pushing the cage again when accident occurred, I was satisfied that P.W.1 did not move his feet at the time the incident took place and his right foot was rolled over by the left front wheel of the Appellant's vehicle."

10. Thus, there were vital discrepancies between the evidence of PW1 and PW2 as to whether the right foot of PW1 had moved and had protruded beyond the width of the heavy goods vehicle which had not been resolved.

11. The evidence whether the right foot of PW1 had moved and protruded beyond the width of the heavy goods vehicle is unclear. If it had not, it would be inherently improbable that the appellant's vehicle would have run over the right little toe of PW1 when it was being driven in a straight line and close enough behind PW1 to cause that injury without hitting the heavy goods vehicle two feet to the right of PW1 with a width wider than the distance between PW1 and the pavement. There must be a doubt as to whether the injury happened as the prosecution said it happened. The conviction is not satisfactory. The appeal against conviction is allowed. The conviction is quashed and the sentence set aside.