HKSAR v. MA KIN KWAN

HCMA 1205/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1205 OF 2001

(ON APPEAL FROM TMS 7435/2001)

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J U D G M E N T

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1. This Appellant was convicted in the Magistracy of one count of Careless Driving, contrary to S.38(1) of the Road Traffic Ordinance, Cap.374. He now appeals against that conviction.

2. The prosecution case was that the Appellant had collided with, and run over a child on a bicycle when he was driving on an unnamed road in a village area. The child cyclist was allegedly hit by the Appellant's light goods vehicle and her bicycle had been dragged under the lorry until the driver was stopped. The Appellant's case was that he knew nothing about the incident until he was stopped. He had not seen the child or her companions, nor was he aware of any collision.

3. The main evidence came not from the injured child, who had no memory of what had happened, but from a friend who had been riding alongside her, as a pillion passenger on her sister's bicycle.

4. This witness, who was aged 7, said she saw the lorry dragging the victim. She told the Court that at the time of the collision the victim was looking at her and talking to her. The victim's uncle (PW3), who had taken the victim to play in the park, was sitting outside the Rural Committee Hall facing the park. He saw the lorry about 20 feet away, coming from behind him and noticed a red bicycle, which he recognised as the victim's, being dragged underneath the lorry, near its left rear wheel. At that stage, he looked further back along the road and saw the victim lying on the ground about 30 feet behind the lorry. He noticed she had marks on her right hand and leg. He confirmed the vehicle was not moving very fast.

5. A police officer (PW4), who arrived at the scene soon afterwards, noticed that the victim was crying and had wheel marks on her clothes and jeans. There was no reliable evidence about the precise spot where the accident occurred and the Magistrate ignored marks on the lorry and the road because he did not find their causes proved.

6. The first and major ground of the appeal was that the Magistrate erred in law by wrongly ruling that the Appellant's record of interview was "exculpatory and exhibited for reaction only". This note appeared in the transcript, at para. 4(3) of the Magistrate's Statement of Findings (B21B22), where he dealt with Admitted Facts.

7. In fact the Appellant's statement is more accurately described as a mixed statement. Such a statement is one containing "an admission of facts which is significant to any issue in the case, meaning those which are capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt" R v Garrod [1997] Crim. L.R. 445.

8. Both inculpatory and exculpatory parts of a mixed statement should be considered by a court, although the court can comment on the weight to be given to the exculpatory parts, especially in cases where the defendant does not give evidence.

9. In his statement the Appellant admitted he was driving and that the bicycle was removed from under his vehicle, but said he was driving slowly, making use of his mirrors and that he neither saw the child, nor noticed a collision.

10. Counsel for the Appellant submitted that the exculpatory parts of the Record of Interview were capable of amounting to evidence of the facts stated and should have been considered as part of the evidence in the case, not as evidence of reaction only. It was said the Magistrate had wrongly stated in his Statement of Findings that there had been "an absence of explanation from the appellant", and from that inferred that the Appellant had driven carelessly, without having considered properly all relevant admissible evidence.

11. The Magistrate's incorrect assessment of the statement as wholly exculpatory and his reference to it as being evidence of reaction only is a material irregularity, although it did not necessarily follow that such an irregularity meant, inevitably, that the verdict would be set aside. (HKSAR v Poon Hoi Wing & anor [2001] 1 HKC 363). Here it appears that the Magistrate did take into account the Appellant's exculpatory remarks about his driving speed and his being unaware of the collision as he incorporated them as part of his findings Para. 15(f) and (g) (B25).

12. Although the Magistrate wrongly designated the statement made by the Appellant as exculpatory only, I do not find that there was any detriment to the Appellant because the Magistrate effectively accepted what he had said in his statement as part of his findings. I do not consider this ground of appeal has any substance. Nor do I find that another ground, that the Magistrate reversed the burden of proof, was established.

13. A further ground does raise a question as to whether the Magistrate dealt correctly with the evidence of the main witness as he treated it in a rather confused manner. PW2 said in evidence in chief that she had seen the victim being dragged by the lorry, but also said she did not know what had happened after the crash. In cross-examination, she could not give details of the dragging, but said she told a police officer of this after the incident. The Magistrate noted that the police officer, PW5, said the child had not told him that, but had told him the lorry had run over the victim. The Magistrate went on to say at Para. 12A(i):

"I accepted this part of PW5's evidence (I reminded myself that PW5's evidence was not proof of the truth of this statement). I found after carefully considering PW2's evidence that I could not accept the accuracy of her evidence relating to the lorry running into PW1 but I could accept she saw an impact between the two. However, I found in relation to immediately after the collision, that PW2 was now recalling something had happened to PW1, but she could not now recall the exact details in the same manner as she had been able to do immediately after the accident. That was why she mentioned dragging but she could not give any details. I found she was having difficulty remembering what had actually happened due to the length of time since the incident and because of her young age. I found, however, she had told the police officer what she had seen at the time, and I found that what she had told him was the truth. I therefore found she had seen the lorry run over PW1. I also found that I accepted her evidence that immediately before the collision the three children had been riding on bicycles and PW2 had seen the victim turning towards her and talking to her." (emphasis added)

14. He went on to deal with conflicting evidence that PW2 had given about the stopping of the lorry and after considering it decided to ignore it. Overall he found PW2 was trying her best to tell the truth and that she was reliable about the facts in relation to the impact and he accepted those facts only.

15. The main witness was very young and understandably vague when asked to answer questions so long after the incident. Her account of events was confused and the Magistrate's evaluation of her evidence was rather muddled. Although in his findings the Magistrate warned himself expressly that the police officer's evidence was not proof of the truth of what the child had said to him about the incident, it appears from his reasons that he did take PW5's view into account when assessing the veracity of PW2's evidence. In doing so he was relying on a hearsay account rather than the evidence the child gave in court.

16. He was unable to accept the accuracy of the child's evidence in some respects and properly ignored those parts relating to the aftermath of the accident. However having said he could not be satisfied as to her accuracy in saying the Appellant's lorry had run into PW1, he was prepared to accept that she had seen "an impact" between the lorry and the bicycle, although that was not what PW2 said. Then having found what PW2 had said to PW5 on the day of the accident was true he was able to find that PW2 had seen the lorry "run over" PW1, although in court she could only say she saw the bicycle being dragged.

17. The child's evidence was unsatisfactory in another regard - it appears that immediately prior to the accident she was not looking at what was happening. It is difficult to see how the Magistrate could be satisfied PW2 had seen an impact, without relying on what she said to PW5.

18. For this reason I cannot be satisfied the conviction is safe and accordingly I allow the appeal against conviction and order the fine, if paid, be refunded.