R. v. CHEUNG SHUK CHING

1996, NO. MA 1221

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This appeal is against a conviction dated 13 September 1996 for careless driving. The prosecution's allegations were that on 11 December 1995, a teacher from a school off Braemar Hill Road was proceeding down the slip road to Braemar Hill Road at about five minutes past four in the afternoon, a time when students were leaving the school. She reached the junction of that road with Braemar Hill Road and put on her left indicator, turning so her vehicle was at an angle to Braemar Hill Road.

2. She pulled the front of her vehicle into the edge of Braemar Hill Road to see past a bus that was parked to her right, partly on the roadway and partly on the pavement. It was her evidence that the car driven by the appellant came downhill on Braemar Hill Road partly on the central dividing line at a high speed. The car swerved back into its own lane, she said, and hit the front corner of her vehicle.

3. It seems undoubted that the witness was stationary for a very short period of time before the accident occurred. The witness said there were no students on the roadway but a second witness, one of the students of the school, said that children were crossing the road to catch the bus and go to a shop.

4. That student said that the appellant's driving was at a speed higher than a bus would proceed past a school and when asked the question, "The defendant's speed was not high", answered, "You can put it that way".

5. The learned magistrate accepted the evidence of PW1, the driver of the other vehicle and that of PW2. He found that the appellant was travelling at a high speed which can only mean a high speed for the circumstances prevailing at that particular place and that particular time, and that she came into collision with a stationery vehicle driven by PW1. From those two facts found proved to the required standard, he was prepared to draw the inference that the appellant was careless.

6. Mr Vaughan firstly argues that the magistrate failed to properly direct himself on evidence crucial to the case for the defence, namely that the period which the witness was stationary prior to impact was only one or two seconds, not giving, therefore, the appellant time to see the vehicle and avoid a collision.

7. This argument I do not find attractive. In circumstances where a motorist is coming downhill past vehicles parked partially on the road and partially on the footpath, when children are emerging from a school and are generally active in the area, ought to drive in such a manner and at such a speed so that if a car or any other object or person leaves the edge of the road, they have sufficient time and opportunity to take such evasive action as a normal and prudent driver would take in those circumstances. The period of time before which the collision occurred is equally consistent with the speed of the appellant as with the arrival on the scene of PW1.

8. The second complaint is the magistrate misdirected himself that the appellant was driving at a high speed. As I have said, high speed must necessarily mean a high speed in the circumstances which prevailed at that place at that time.

9. He had the evidence of PW1 which he accepted, he was entitled to do so. She placed the speed of the vehicle at 40-45 kilometres per hour in circumstances of passing a school as I have described. That, in my view, is sufficient evidence, if accepted as the magistrate did, to define the speed as high in the circumstances.

10. Thirdly, it is complained that the magistrate misdirected himself on the standard of care required in convicting the appellant simply on the basis the appellant could not avoid hitting PW1's vehicle. Mr Vaughan tells me that that means that the magistrate applied the incorrect standard, having found that she was driving her vehicle at a high speed and hit a stationary vehicle, that he could infer carelessness from those two circumstances. I do not agree. Carelessness is an open inference from those circumstances.

11. I am not in a position to retry this case. I must accept the findings of the learned magistrate unless it can be shown that he has erred, has been derelict in his duty or in some way has misconstrued the evidence or the law. I cannot find that he has and the appeal against conviction is dismissed.

I/we certify that to the best of my/our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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Date: 26 February, 1997