HKSAR v. TSE PUI, JEFFREY

HCMA 931/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 931 OF 2001

(ON APPEAL FROM TMS 4403/2001)

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J U D G M E N T

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1. The Appellant was charged with one count of careless driving. He pleaded not guilty but was found guilty after trial. The Appellant today appeals against his conviction.

2. The facts of this case are quite simple. The first prosecution witness was at the material time, a learned driver, and she was driving the vehicle accompanied by a driving tutor who was called as the second prosecution witness.

3. At the relevant time, the car that PW1 was driving stopped at the junction of Long Ping Road, the time was about 4:05 pm. PW1 said that she had stopped there because she had to turn left. She stopped for about 5 seconds and then was about to pull out when she heard a collision sound from the rear part of the vehicle. And it was discovered subsequently that it was the Appellant who had driven into the back of her car.

4. PW2, was the driving tutor who was sitting beside the first prosecution witness, and his evidence was similarly that he instructed the first prosecution witness to stop the vehicle at the junction of Long Ping Road, because he saw a lorry turning right from Fok Hi Street. He said that he had not instructed the first prosecution witness to pull the vehicle out yet, when he felt the vehicle was hit from behind. He alighted from the vehicle and he discovered that the Appellant's vehicle had hit his vehicle from behind. It is admitted by both prosecution witnesses that they did not notice the Appellant's vehicle behind them until the collision.

5. Under cross-examination, it was put to PW2 that the first prosecution witness had stopped the vehicle completely then pulled out and stopped the vehicle again, and that was when the collision happened, it was refuted by the second prosecution witness. The second prosecution witness said the collision happened about 1 to 2 seconds after the vehicle had stopped.

6. The third prosecution witness was called who was the police officer and he produced four photographs of the vehicle and four photographs of the scene. He pointed out that there was no traffic sign requiring drivers to give way on the road at the scene of the accident and there was no double broken lines across the road.

7. The Appellant gave evidence. He said that basically on that day he did try to reach an agreement with the other party by offering to compensate them but as the amount that was asked for by the prosecution witnesses far exceeded what he was willing to give, no agreement was reached. The Appellant said that he agreed to compensate because he did not want trouble, so he agreed to compensate $4,000.00. The Appellant said that at the time of the accident, PW1 was a learner driver so he stopped at a distance of about 6-7 feet behind PW1, he did not expect PW1 to stop again after pulling out.

8. Those were the facts. The learned Magistrate after going through the evidence of the prosecution witnesses found that they were credible and reliable witnesses. On the other hand, he found that he did not believe the evidence of the Appellant and as for the fact that the Appellant's explanation that he offered compensation because he did not want trouble, the learned Magistrate found that to be unbelievable. But he stated clearly in a subsequent paragraph at page 17 of the certified translation that the burden of proof is always on the prosecution.

9. It is on the prosecution evidence that he found that the Appellant was, in the circumstances, driving carelessly at the time, because he believed that a careful and cautious driver upon realising that the driver in front of him is a learned driver should pay extra attention and would not allow his own vehicle to come too close to the preceding vehicle.

10. The learned Magistrate also said that even assuming that the evidence of the Appellant is believed and that he did see the PW1's vehicle pull out, he should still not assume that the vehicle would not stop, and therefore he should have kept a safe distance. At the end of the day, the learned Magistrate had made it clear that he did not believe the Appellant's evidence and that it was on the evidence of the prosecution witnesses that he convicted the Appellant.

11. The Appellant's appeal today was based on the ground that, first of all, that there was a lot of interruptions from the bench during the trial and also at the time when the Appellant made his final submissions. Today before me counsel for the Appellant, Mr Davie, abandoned the ground relating to the fact that the learned Magistrate constantly interrupted the cross-examination of the witnesses. Mr Davie based his first ground of appeal on the fact that in the Appellant's final submission, it is clear from the transcript, that the learned Magistrate had constantly interrupted the Appellant when he was making his submissions

12. It, is however, also clear that as the Appellant was unrepresented, it was the duty of the Magistrate to guide him when he was making his submissions to matters relevant to the case. Although it is true that the transcript shows that the Magistrate had constantly interrupted the Appellant in his final submissions, it is not without reason. This is different from cases where the Magistrate interferes excessively in the cross-examination or examination of witnesses during a trial as he cannot be seen to have "jumped into the arena". The Court of Appeal had made it clear that when there are constant interruptions from the bench during a trial, then the Defendant in that particular case may not have had a fair trial.

13. This had to be balanced with the duty of the Magistrate to see that there should not be irrelevant, inadmissible, repetitive, or unnecessarily prolix cross-examination. His duty to guide a defendant. When he is unrepresented in making his final submissions is all the more so necessary. After reading be transcript, I do find that the learned Magistrate was wrong in doing what he did, so I do not find any merit in the first ground of appeal.

14. In relation to the second ground of the appeal, the learned Magistrate had properly assessed the evidence of the prosecution witnesses at the time, and was entitled to come to the conclusion that he did.

15. On the facts of the case that was before him, he was entitled to draw the conclusion that the Appellant was careless in that he had run into the back of the prosecution witnesses' car after they had stopped for two seconds. This case is quite different from the case of Chu Tan, Magistrate Appeal No. 157 of 2001 where the Magistrate had found that although the Appellant was keeping a distance of some 11/2 car lengths away from the car in front vehicle travelling at 50 km per hour on the road that it was not a safe distance. In that case there was no actual evidence before the learned Magistrate as to what the safe distance was at the time on that road and at that speed.

16. In relation to the ground of the appeal relating to the compensation offered as an indication of guilt, I find no merit in that because the learned Magistrate had made it clear that as far the issue of compensation was concerned, it only affected his decision on the credibility of the Appellant. As for the discrepancies, the learned Magistrate made it clear that he did not consider the discrepancies to be important, particularly because the Appellant was referring to the discrepancies in the statements made by the first and second prosecution witnesses.

17. As Mr Chan had pointed out the main issue in this case was whether PW1 and PW2 had started moving their car after he had stopped and then suddenly stopped again which resulted in the Appellant crashing into the back of their car. There was no discrepancy in their evidence on this point.

18. It was not incumbent upon the Magistrate to deal with it in his statement of findings. In the circumstances of the case, I find that the conviction of the Appellant was safe and satisfactory, therefore, the appeal is dismissed.