THE QUEEN v. CHOW HON YUNG

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.633 OF 1993

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J U D G M E N T

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1. The appellant was convicted after trial at the North Kowloon Magistracy of careless driving. He now appeals against this conviction.

2. On 6th March 1993 at about 7:25 am, PW1 was driving along Bute Street towards the junction with Canton Road which was perpenticular to Bute Street. He was doing 20 Kilometres per hour. At Canton Road immediately before the junction, there was a “Give way” sign. Traffic from Canton Road going into the junction had to give way to traffic travelling along Bute Street. The defendant drove along Canton Road and as he drove into the junction, he hit PW1’s vehicle and injured him. The defendant did not give evidence at the trial. The police officer who made enquiries of him was called and testified to the effect that the defendant had told him that he, the defendant, had stopped in front of the “Give way” sign. Seeing that no vehicle was coming from Bute Street, he entered into the junction intending to go across Bute Street. When he drove out, he had a collision with the vehicle driven by PW1.

3. In the Statement of Findings, the learned magistrate dealt with the evidence before him and made the following findings :

“(1) PW1 was travelling at about 20 kilometres per hour along Bute Street,

(2) Defendant was driving out from Canton Road to Bute Street where there were dotted double white lines indicating ‘Give Way’,

(3) Though PW1 braked, there was a collision.”

The magistrate then dealt with what the defendant was alleged to have said to the police officer. He had apparently rejected the appellant’s version and found that he had paid insufficient attention to the road condition when he drove out into the junction.

4. In this appeal counsel for the appellant submitted that the learned magistrate had failed to evaluate the discrepancies in the evidence and that he had failed to resolve them or make any specific finding thereto. It was argued that the conviction was therefore unsafe and unsatisfactory. Counsel for the Crown argued that it was not necessary for the magistrate to deal with every single issue. The learned magistrate had indeed made some findings of fact and it is important that these findings were supported by the evidence which was sufficient to found the conviction.

5. I agree that it is not necessary for a tribunal, particularly a Special Magistrate, to deal with the evidence in detail on every issue and to make specific findings in respect thereof. If the evidence is clear and sufficient for a conviction, I think that the court is entitled to convict.

6. The first discrepancy which counsel alleged that the magistrate had failed to resolve was the position of defendant’s vehicle. He submitted that the witness PW1 said in evidence that when he first saw the appellant’s vehicle, it was 20 feet away from him and that the appellant’s vehicle was about 10 odd feet from the junction. Yet when PW1 was asked to indicate on the sketch the position of the appellant’s vehicle, he drew a cross in the junction. Counsel submitted that the magistrate had failed to make a finding as to where the appellant’s vehicle was. I think the important thing is whether when PW1 was driving along Bute Street towards the junction, the defendant had driven out of Canton Road without giving way to the traffic. This part of the evidence is quite clear. PW1 said at page 6 of the appeal bundle that he saw the appellant suddenly drove out from Canton Road intending to go across Bute Street. He further said that when he first saw the appellant, the latter’s vehicle was at the mouth of the road, that it was going into the junction and was 20 feet away from him. The witness further said at page 7 that the appellant had not stopped or reduced speed when he was driving out. Again at page 8, PW1 said that when he first saw the appellant, his own vehicle was 20 feet from the junction. I think the evidence is quite clear and consistent on this aspect of the case. When the witness PW1 was at about 20 feet from the junction, the appellant drove out when he should have given way. The witness could not brake in time or avoid a collision. In fact the learned magistrate did make a finding on this. The accident occurred within a very short time and PW1 would not perhaps be too precise as to where the vehicle was at any particular time. I do not think that this submission has any substance.

7. The second discrepancy alleged that the witness said that there were cars parked by the side of Bute Street and Canton Road and yet what he drew on the sketch did not show any cars parking on Bute Street. It was argued that any cars parked on Bute Street might have obstructed his view of the appellant’s vehicle. The evidence on this aspect appears on page 7 of the appeal bundle :

“Q:       Were there vehicles parked on Canton Road?

A:         Yes on my right.

Q:        What kind of vehicles?

A:         Most of them were heavy goods vehicles, and medium goods vehicles.

Q:        At that ime, every day, both sides were fully parked?

A:         Sometimes.

Q:        On that day in question, what was parking position?

A :        Bute Street first lane. At Canton Road, some double parked.”

8. On the sketch appearing on page 22, PW1 had drawn some cars on the left hand side of Canton Road before the road junction but did not draw anything on the right hand side of Bute Street. Counsel argued that PW 1 had deliberately done so in order to give the impression that his view of cars coming from Canton Road was not obstructed whereas the appellant coming out of Canton Road would have his view to the left blocked by the row of parked cars. I do not think this can be sustained. I notice from the sketch which was drawn by the appellant that Bute Street was a single carriageway in that area whereas Canton Road was a dual carriageway. All the witness said was that there were sometimes cars parked on the first lane of Bute Street. This would be on the left hand side of that street. It is therefore not surprising that PW1 did not draw any cars parked on his right hand side of Bute Street. I do not think there is any discrepancy on this issue.

9. Counsel also submitted that the verbal statement made by the appellant to the police officer was given in evidence. That was in the nature of a “Sharp” statement. The magistrate should have made a specific finding on that statement. I think it is clear that the learned magistrate did deal with the appellant’s verbal statement to the officer in his Statement of Findings (see page 18 of the appeal bundle). It appeared that the defendant had said that he stopped in front of the “Give Way” sign and double white lines, and when he saw no vehicle coming from Bute Street he drove across the road. Having referred to this verbal statement, the learned magistrate said :

“If he (the appellant) saw no vehicle coming from Bute Street eastward, how could his vehicle be hit by the vehicle coming from Bute Street eastward.”

As I said earlier, the learned magistrate did not ignore the appellant’s statement but had apparently rejected the allegation that the appellant has stopped in front of the “Give Way” sign and saw no vehicle. This is because the learned magistrate went further and found that the appellant had paid insufficient attention to the road condition when he drove out. I do not think this can be subject to any criticism.

10. Then it was alleged that PW1’s evidence regarding the blowing of the horn was inconsistent with the police officer’s evidence. It appears that he had testified to the effect that he braked upon seeing the appellant’s vehicle emerged and he blew the horn. When he was cross-examined, he said that this was somehow not recorded in the statement but the police officer had told him during the interview that so long as he had applied his brakes, that was adequate. The officer however gave a different version. He said that PW1 did not tell him that he had blown the horn or that he had told PW1 that it was not necessary to record that down in the statement. I accept that this is a discrepancy which has two possible effects. First, this goes to PW1’s credibility. Second it may throw some light on PW1’s manner of driving. Since the learned magistrate was mainly concerned with the appellant’s manner of driving and whether he was careless, it is not surprising that he made no specific finding as to the manner of driving of PW1. Since the evidence is clear both from PW1’s oral evidence and the positions of the two vehicles after the collision as indicated by the officer as well as by the appellant himself, the learned magistrate was perfectly entitled to accept the evidence of PW 1. The fact that PW1 might also be careless, and I put no higher than that, does not absolve the appellant’s obligation to exercise due care and attention. I do not think I can accept this argument.

11. There is also the allegation that PW1 was inconsistent as to whether he had stopped or just reduced his speed while he was driving on Bute Street to allow pedestrians to cross the street. It was submitted that the magistrate had failed to resolve this discrepancy. I think PW1’s evidence on this aspect must be read as a whole and not quoted out of context. I should perhaps set out this part of the evidence in full. It appears on page 8 of the appeal bundle.

“Q:       You were driving 20 kilometres per hour?

A:         Yes. Some pedestrians crossing the road at Bute Street.

Q:        How far were you from pedestrians?

A:         I can't tell now.

Q:        How many pedestrians?

A:         1 male carrying 2 children going to school.

Q:        You stopped to let them pass?

A:         No, reduced speed.

Q:        What gear you were using?

A:         From 2nd gear to 3rd gear.

Q:        You were crossing a junction, you increased your speed?

A:         I could use 3rd gear at the spot.

Q:        You stopped to let them pass?

A:         Yes. Off gear.

Q:        After pedestrians had passed, you started from stationary?

A:         Yes.

Q:        You started on 2nd gear?

A:         Yes.

Q:        You changed to 3rd gear when 20 feet from defendant vehicle?

A:         No. En route I changed to 3rd gear.

Q:        How long had you been travelled on 2nd gear?

A:         About 4 shops’ space.

Q:        Can you tell in feet?

A:         About 1½ length of this court room.

Q:        When you were in 3rd gear, could you see defendant’s car?

A:         Not yet.

Q:        How long had you travelled on 3rd gear, you saw defendant’s car?

A:         About 1 court room length.”

12. I think it is clear from this part of the evidence that PW1 was talking about what he had done at some distance prior to reaching the junction with Canton Road. He had at one stage stopped to allow pedestrains to cross the street. He then started on 2nd gear, travelled about 4 shops’ space and then changed to 3rd gear and after travelling another distance before reached the junction and saw the appellant’s vehicle. When he was asked whether he had stopped to let the pedestrians pass his answer of “No, reduced speed” was at first sight inconsistent with the rest of the evidence. However when one looks at the questions and answers immediately following, one would suspect that he was not answering the correct question when he said no. This is because it is unlikely that a person would reduce its speed by changing from 2nd gear to 3rd gear! I therefore do not find that the evidence when looked at in the proper context shows any real discrepancy. There is no substance in this submission.

13. Finally it was submitted that the learned magistrate had made no specific finding whether the appellant has stopped or not before entering the junction. I do not think this is important. It was quite clear that there was a “Give Way” sign and that there were double dotted white lines at the junction. It was not a “Stop” sign at which all vehicles must stop. Since it was only a “Give Way” sign, the important thing is not whether the appellant had stopped or not before entering the junction. The crucial issue is whether he had paid sufficient attention to the traffic coming from his left along Bute Street. It is clear from the evidence that he did not and the learned magistrate had so found. If the appellant had not stopped, it would be further evidence to show that he was careless in his driving. But as I said he was not required to stop but only to give way and to exercise due care and attention and keep a proper look out for traffic from his left. That apparently he had not done. I think this submission also fails.

14. In the circumstances, I am of the view that the learned magistrate had come to the correct conclusion. There is no merit in this appeal which must be dismissed.