R. v. YIU KWOK FAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1268 of 1996

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J U D G M E N T

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1. The appellant was convicted of crossing a continuous white line with a broken line contrary to Regulation 11(1) of the Road Traffic (Control of Traffic) Regulations, Cap.374.

2. The case against him was based on the observation of a police officer sitting in a police vehicle travelling on the 3rd lane of the Kwun Tong By-pass, the 1st and 2nd lane of which led to Tsang Kwan O Road and the 3rd and 4th lane led to the Eastern Cross Harbour Tunnel. A continuous white line with a broken white line separated the lanes to these two different directions and this pair of lines commenced approximately opposite Kung Tong Police Station. The evidence of the police officer was he was following a white goods vehicle and the appellant cut in front of the goods vehicle. Traffic was congested on the third lane and at that time his vehicle reached the commencement of the white line.

3. The appellant said he did not cut across the continuous white line. He drove into the third lane 100 yards before the continuous white line with a broken white line commenced and when he did so six to seven vehicles were following him.

4. Thus the difference in distance between where the officer said the appellant had cut in and where the appellant said he cut in was small. Traffic was congested and vehicles were moving.

5. This was a question of fact and the prosecution evidence was very much dependent upon the accuracy of the police officer's observation.

6. The magistrate in accepting the accuracy of the police officer's observation said this in his findings :

"As a passenger on the left front passenger seat, PW1 had a clear sight of the commission of the said offence by the Appellant when PW1 was about 1 light goods vehicle's length behind the Appellant."

7. The magistrate also said :

"... Had the event occurred as described by the Appellant, I did not see any reason why PW1 selectively picked up and prosecuted the Appellant, in particular they did not know each other prior to this incident."

8. The magistrate believed the appellant because he saw no reason why PW1 would pick out the appellant. The magistrate had not considered the accuracy of PW1's observation having regard to the vehicles were moving and the traffic was congested at the time.

9. The Crown conceded that this conviction was unsafe and unsatisfactory.

10. The appeal is allowed and the fine set aside. Fine and costs paid to be refunded to the appellant.