R. v. HO LAI CHUEN, CADIA

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 917 OF 1996

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J U D G M E N T

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1. The appellant was convicted of careless driving and now appeals against conviction.

2. The allegations against him were these. On 15th April of this year at 9:15 p.m., PW1 was driving in his car along Broom Road in Happy Valley. The appellant was driving his car up Green Lane towards the junction with Broom Road. According to PW1, the appellant suddenly emerged from Green Lane. He tried to brake and swerve to the right. However, he was not able to avoid a collision.

3. According to the appellant, who gave evidence at the trial, he did stop at the junction between Green Lane and Broom Road and he looked before he emerged. He said it was PW1 who was driving too fast that caused the collision. I note that Broom Road is a major road and Green Lane is a minor road cutting into Broom Road.

4. A number of grounds had been raised before me. One of the grounds was that PW1 could have driven on the other side or slightly to the other side of Broom Road rather than on the left. I think it is clear from the sketches and the photographs that that part of Broom Road was a dual carriageway with one lane up and another lane down the road. It is of course plain that at that hour of the night not too many cars would be travelling on the opposite lane. However, one simply cannot complain when PW1 was driving within his lane, whether it was to the left or otherwise. He was, I think, entitled and obliged by the law to drive within his own lane. One should not expect him to get to the other side even though there was little or no traffic over there.

5. Another ground was that both PW1 and his daughter, PW2, did mention in evidence that the appellant's car had stopped at the junction before emerging. I think that might well be the case. PW1 might have retracted a little in cross-examination by saying he was not sure of that. But I think the main point was whether the appellant, when he emerged again after he had stopped, had kept a proper lookout. Whether he had stopped or not was no longer the important issue. If he had not stopped, that is always clear evidence of negligence. But the point is even if he had stopped, he still had to keep a proper lookout before coming out. So, I do not think that would affect this case.

6. Another ground was that the learned Magistrate should have noticed the discrepancies between the two sketches, one drawn by PW1 and the another one drawn by the police officer. It appears that the two sketches might be slightly different. However, the sketch drawn by PW1 indicated or tried to indicate the position when the two cars collided. In the sketch drawn by the police, the police indicated what the position was before the collision because he drew a line showing the path of collision. When one looks at the officer's sketch more carefully, I do not think it could be described as a discrepancy. But in any event, looking at the sketch drawn by the police and ignoring the sketch drawn by PW1, it is quite clear that the position of PW1's car had crossed the centre line at an angle and that it was in the path of Green Lane. Taking into consideration the position of his car and the possible position of collision, I think it is quite consistent with his braking and swerving upon seeing someone coming out suddenly.

7. It may well be the case that PW1 was also careless. That I do not rule out as a possibility. However the case before the learned magistrate was whether the appellant was careless in the circumstances. Looking at the evidence, particularly the sketch drawn by the police officer, I think there was sufficient and amply evidence for the learned magistrate to come to the conclusion that the appellant was careless.

8. As I said, whether the other driver was also careless is another matter and the magistrate was not concerned with that unless that carelessness was the sole cause of the collision and that the appellant could not be blamed at all. In the circumstances of this case, one simply cannot say that the appellant was completely free from fault.

9. I do not think there is any good reason to interfere with the conviction and I would dismiss the appeal.