HKSAR v. EDEH, BARTHOLOMEW DARLINGTON

HCMA 447/2022

[2023] HKCFI 1277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 447 OF 2022

(ON APPEAL FROM KCS 27271 OF 2021)

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REASONS FOR JUDGMENT

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1.  The appellant appealed against his conviction after trial by the magistrate[1] of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374. He was and sentenced to a fine of HK$2,000.

2.  At the hearing of the appeal I dismissed his appeal against conviction and said I would hand down my reasons for doing so. This I now do.

The charge

3.  The particulars of the charge, alleged that on 11 July 2021 at 9:50 pm, opposite to the Hong Kong Polytechnic University, Princess Margaret Road, the appellant drove a private car displaying registration mark XJ7875 on a road carelessly.

The prosecution case

4.  The prosecution case was simply that the appellant whilst driving the private car XJ7875 (the appellant’s car) along Princess Margaret Road suddenly changed lanes into the lane where PW1 was driving his private car GG5463 (PW1’s car). When the appellant changed lanes he cut in front of PW1’s car causing PW1 to brake and swerve to avoid a collision.

5.  In support of the charge the prosecution called two witnesses, PW1 and PW2 and relied upon the video recorded footage (the video footage) from PW1’s car camera. PW2 was the investigating officer who received from PW1 the disc containing the video footage (exhibit P1) taken from the PW1’s car camera capturing the incident.

The defence case

6.  The appellant gave evidence at the trial. He did not dispute that whilst driving the private car he changed lanes into the lane that PW1’s car was travelling and in doing so went in the front of PW1’s car. It was the appellant’s case that before he changed lanes he turned on his right indicator light, observed that PW1 had slowed down a little bit to allow him to change lanes. At the time he changed lanes there was sufficient distance between his car and PW1’s car.

7.  The appellant further alleged the video footage contents had been altered and was not entirely accurate.

The magistrate’s findings

8.  The magistrate having carefully considered the evidence of PW1, PW2 and the video footage capturing the incident from PW1’s car camera, accepted that (i) the footage accurately reflected what happened at the material time, (ii) it had not been altered or tampered (iii) full weight should be given to the footage and (iv) found PW1’s evidence to be truthful and reliable wholly consistent with what was shown in the footage.

9.  The magistrate accepted the evidence of PW1 that while he was driving along the right lane on Princess Margaret Road, the appellant overtook him from the left lane and suddenly cut into the front of his car, causing him to brake immediately and swerve to the right to avoid a collision. The distance between the right rear of the appellant’s car and the left front of PW1’s car was only 1 to 2 feet when the appellant cut into PW1’s lane.

10.  The magistrate rejected the appellant’s case that PW1 was allowing the appellant to change lanes or that there was a sufficient and safe distance between the two cars when the appellant changed lanes. She found when the appellant drove and changed lanes his driving fell below that of a reasonable and prudent driver.

Grounds of appeal

11.  The appellant who was not legally represented at the hearing of appeal filed his grounds of appeal by letter dated 12 January 2023 as follows: -

(i)  the appellant took all necessary precautions as well as exercised due diligence by signaling to alert PW1 while changing lanes;

(ii)  there was another vehicle coming behind him at full speed which prompted him to signal his changing of lanes to PW1 who was driving at a slower speed of about 40 km/h than the appellant who was driving at about 45 km/h;

(iii)  as PW1 had driven at a slower speed and the appellant had his indicator on – PW1 gave the appellant the impression that he slowed in order to allow the appellant to change into PW1’s lane;

(iv)  PW1’s evidence was false and the video footage did not support PW1’s evidence that there was only about a foot’s space between the appellant and PW1’s car when the appellant changed lanes; and

(v)  The appellant found falsity and inaccuracies in the evidence of the PWs. For example, PW2 had falsely stated that the appellant had rejected an invitation to assist with the investigation. Contrarily the appellant had actually gone to the police station uninvited to help with the investigation. As a result of these lies the appellant believed that the car-cam footage was altered or edited in such a manner so as to show the appellant was guilty in order to penalize him.

Consideration

12.  The magistrate accepted PW2’s evidence that when PW1 gave the footage to him it was the same as the one shown to the court. She rejected the appellant’s allegation that it had been tampered with. The magistrate accepted PW1 was a truthful and reliable witness. She found that PW1’s evidence was supported by the objective evidence of the video footage. The magistrate had the advantage of seeing the witnesses give evidence and was fully justified in reaching her conclusion on the veracity of the witnesses’ evidence and the video footage.

13.  However, this being an appeal from a magistrate, it was a rehearing before this court based on the material before the magistrate. I have watched the video footage of the incident closely. The video footage demonstrates the appellant’s manner of driving.

14.  The video footage depicts that the appellant whilst driving on the left lane changed lanes and crossed into the lane and at the front of PW1’s car. The lane that the appellant’s car was travelling on forked off onto another road very shortly after he changed lanes. Immediately prior to the appellant changing lanes the appellant’s car was travelling on the inside lane overtaking PW1’s car. At that time the right indicator light of the appellant’s car was on. It is clear that the appellant’s change of lane was made very close and just before the road forked off. The change of lane into the PW1’s lane was therefore sudden and across PW1’s car at a very close distance. As can be heard from the audio recording of the video footage, as soon as the appellant’s car crossed into PW1’s lane PW1 sounded his car’s horn. The magistrate rightly rejected the appellant’s case that PW1 had slowed down to give the impression that he was allowing the appellant to cross into his lane.

15.  The video footage supported PW1’s evidence that appellant’s sudden change of lane cutting across PW1’s car causing PW1 to break, swerve and sound his horn was clear evidence that the appellant’s standard of driving fell below what would be expected of a competent and careful driver. He quite plainly drove without due care and attention in changing lanes which in all the circumstances amounted to careless driving.

Conclusion

16.  I am in full agreement with the magistrate and her findings. After a thorough review of the evidence I was satisfied that the conviction was properly reached.

17.  For the above reasons the appellant’s appeal against conviction was dismissed.