HKSAR v. YU YUK WING AVERY

HCMA 850/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 850 OF 2009

(ON APPEAL FROM KCS 5957/2009)

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BETWEEN

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J U D G M E N T

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1.  The Appellant was summonsed for Careless Driving, contrary to section 38(1), Road Traffic Ordinance, Cap. 374.

2.  The particulars of the summons alleged that at 7:20 p.m. on 1 September 2008, the Appellant at Hart Avenue junction with Chatham Road South, drove a private car Registration No. MN5583 on a road, carelessly. The Appellant pleaded not guilty and was convicted, after trial by Deputy Special Magistrate, Mr Lawrence Hui. He was ordered to pay a fine of $2,600. He appealed against conviction only.

3.  There was no dispute over the date, time, location, driver identity or the registration number of the car. The sole issue before the Magistrate was whether the Appellant’s driving manner was below that of a reasonable driver.

Prosecution Case

4.  PW1, Madam Sung Mei-lam, gave evidence that on 1 September 2008 at about 7:20 p.m., she and her husband alighted from a bus on Chatham Road South and walked along the pavement of Chatham Road South towards Hart Avenue and intended to cross Hart Avenue. When she arrived at the middle of Hart Avenue, a car dashed out and collided with her. PW1 described the speed of that car as “fast”, but she was not a driver herself and said that was all she could say. The car grazed PW1’s face, arm and leg, resulting in some redness and a headache. Subsequently, she was taken to hospital.

5.  Before crossing Hart Avenue, PW1 said she watched the traffic in both directions and she was sure that there was no vehicle travelling on Hart Avenue at the time, nor did she hear any car sounding its horn.

6.  She said that she had been talking with her husband when they were walking along, but at the junction of Hart Avenue and Chatham Road South, she was not talking to her husband as she was concentrating on crossing the road. Her husband was behind her. She was aware of the Appellant’s car only when it collided with her. She disagreed with suggestions by defence counsel that when crossing Hart Avenue, she was looking towards her left.

7.  She denied other suggestions that she was lying in order to make an insurance claim, although she acknowledged that she planned to sue the Appellant for compensation for her injuries.

8.  PW1 was cross-examined as to her injuries and what she had told the doctor at the hospital. There were some discrepancies between PW1’s evidence in court and the very brief medical chit that was put before the court as Exh. P4 at the request of defence counsel.

9.  PW2 was a police officer who attended the scene. Hart Avenue was a one-lane street and he agreed that if a car was travelling in the centre of Hart Avenue, the space between the car and the pavement would be about half a metre on either side.

Defence Case

10.  The defence alleged that PW1 had walked into the side of Appellant’s car as a result of stepping out from the pavement without paying attention. PW1 denied this.

11.  The Appellant elected to give evidence. He told the court he had been driving since 1984 and that he had no previous traffic convictions. He said he was driving on Chatham Road South at a speed of about 50 kilometres per hour. When he approached Hart Avenue, he reduced his speed to about 20 kilometres. At the time he was about to turn left into Hart Avenue he noticed nobody except a man, who was crossing Hart Avenue at the time. When asked whether he saw or noticed PW1 at that stage he answered “There was nobody there, but I believed that she was on the pavement.” Later, he said that it was “not clear” to him where PW1 was.

12.  The Appellant told the court that “it seemed” a woman collided with the left side of his car, causing his left side wing mirror to fold inwards. The Appellant said that the woman (PW1) showed pain in her expression after the collision.

13.  In cross-examination, the Appellant agreed that he did not notice whether someone was standing next to the man crossing Hart Avenue. However, he did notice there were other pedestrians on the pavement.

14.  Madam Poon, (DW2) the wife of the Appellant, gave evidence but she could not remember if anything happened after the Appellant turned into Hart Avenue. She could not say whether PW1 was looking towards Chatham Road South or Hart Avenue. When she was asked to mark a sketch to show the direction towards which PW1 was looking, Madam Poon drew an arrow on the opposite side of Hart Avenue, which contradicted the evidence of the Appellant. [Exhibit D1]

15.  Under cross-examination, DW2 initially said that no one was standing at the junction of Hart Avenue and Chatham Road South. Later, she changed her evidence to say that there was a woman (PW1) walking out and crossing the junction at the time.

16.  The Magistrate did not find that the Appellant was an honest and reliable witness; he considered that he was evasive in answering questions. It was his belief that the answers the Appellant gave about how his car came into contact with PW1 were illogical and contrary to common sense.

17.  DW2’s evidence was considered by him to be vague and selective. Furthermore, she had changed her evidence as to who was standing at the junction. There were discrepancies between what the Appellant and DW2 said in their evidence. The Magistrate, for these reasons, placed no reliance on PW2’s evidence.

18.  Subsequently, the Magistrate found that at the material time, when PW1 was crossing Hart Avenue, a collision occurred between the Appellant’s car and PW1 which had resulted in injuries to PW1. The Magistrate considered the only irresistible inference was that the Appellant has not been paying attention to the road conditions while turning in to Hart Avenue or to what PW1 was doing as a pedestrian.

Amended Perfected Grounds of Appeal

19.  The Appellant’s counsel contended:

(1)  The Magistrate failed to consider properly the fact that because of the narrow width of Hart Avenue and the width of the Appellant’s vehicle, it would have been impossible for the vehicle’s left rear view mirror to hit PW1 in the manner alleged, if she was in fact truly in the “middle” of the road as depicted on the sketch of the scene, Exhibit P3.

(2)  The Magistrate was said to have erred in failing to consider that for PW1 to be hit by the vehicle’s left rear view mirror, and because of the nature of the injuries she sustained, it was highly probable that being oblivious to her surroundings she had walked into the left side of the Appellant’s vehicle, which was already turning into Hart Avenue.

(3)  Alternatively, if the Magistrate had considered the issues raised in Grounds 1 and 2 he had erred in failing to disclose how the issues were resolved.

(4)  The Magistrate erred in failing to consider that the version of events given by PW1, raised a serious doubt as to the honesty and credibility of PW1.

(5)  The Magistrate was said to have erred in rejecting the evidence of the Appellant and his witness.

Grounds 1, 2 and 3

20.  Defence counsel submitted that PW1’s version of events was inherently improbable. If the collision had happened at the spot where she said that it did, i.e. in the middle of the road, then as Hart Avenue was narrow, one would expect the front of the vehicle to have hit her, possibly throwing her forward. If PW1’s version of events was believed, a large part of the Appellant’s vehicle would have been on the opposite (i.e. the right hand side) pavement of Hart Avenue. It was alleged that the Magistrate did not consider this aspect at all.

21.  There was no suggestion that any part of the Appellant’s vehicle was on the right side pavement of Hart Avenue, so for PW1 to be hit by the left side mirror and the left side of the vehicle PW1 must have been much closer to the left side pavement of Hart Avenue. For PW1 to be hit by the left mirror, there were two possibilities; either PW1 had dashed suddenly from the left side pavement onto the road, thus walking into the left side of the Appellant’s moving vehicle; or the Appellant had failed to pay attention to pedestrians crossing Hart Avenue.

22.  Counsel for the Appellant submitted that the circumstances, in particular the injuries of PW1, the width of Hart Avenue and the width of the Appellant’s vehicle, suggested strongly that PW1 had dashed into the path of the moving vehicle and that no driver, however careful, would have been able to avoid hitting her.

23.  The Magistrate also allegedly failed to take into account that PW1 had been talking to her husband shortly before the accident, and that her attention was distracted by considerations of the meal she was going to have. It was probable, in those circumstances, that PW1 failed to spot the turning vehicle and, absentmindedly, walked into the side of the vehicle.

24.  It was submitted that PW1’s evidence about the speed of the car being fast, did not sit well with pictures showing the damage to the Appellant’s car (i.e. the rear view mirror folding inwards).

Ground 4

25.  The Magistrate stated that he had considered the relevant inconsistencies and found them immaterial but counsel for the Appellant submitted that the Magistrate did not give reasons why he considered those inconsistencies immaterial and it was incumbent on him to do so.

26.  Ground 5 in effect was a summation of Grounds 1 to 4.

27.  Counsel for the Appellant relied on HKSAR v Li Chi Shing [2000] 4 HKC 168, in which the court had adopted the judgment of Chan CJHC (as he then was) in Zhuo Cui Hao v Ting Fung Yee [1999] 3 HKC 634:

“….., a professional judge is under a duty to analyse in his judgment the material points in the evidence of the case and give reasons as to why he has reached a particular conclusion or decision. …..”

28.  Inconsistencies in the evidence of PW1, the Appellant, and DW2, his wife, required the Magistrate to evaluate them, explaining why inconsistencies between the evidence Appellant and his wife were treated as material to their credibility, and why the inconsistencies between PW1’s evidence and the medical chit from the Accident and Emergency are immaterial to her credibility. Counsel for the Appellant contended that the Reasons for Verdict did not adequately explain the “differential treatment” accorded by the Magistrate to those inconsistencies.

29.  The Respondent submitted that at trial, the Appellant’s counsel, Mrs Panesar, who also appeared on this appeal, had canvassed fully the notion of the alleged physical impossibility that PW1 was standing on Hart Avenue as marked on the sketch, Exhibit P3.

30.  The Magistrate correctly noted PW1’s evidence as to her position on the road and the description by PW2 about the dimensions of the road. He dealt with those matters in paragraph 29 of his Statement of Findings and held that the inconsistencies were not material.

31.  The Magistrate found that when PW1 was crossing the road, a collision between the Appellant’s car and PW1 had occurred causing her injuries. He did not state specifically where PW1 was standing at the time of the impact. Her position might be a matter relevant to the credibility of PW1, but it was not essential for a finding of guilt in this case that a position be specified. Whether PW1 was closer to the near kerb or further away from it, the basis of the careless driving offence was that the Appellant had failed to pay attention to the road and to the road user.

32.  At trial the Magistrate was faced with conflicting accounts of the same incident and had to assess the credibility of PW1 and the Appellant, as well as resolve any significant inconsistencies or discrepancies. The matters raised on this appeal were all brought to the attention of the Magistrate and considered by him in his Statement of Findings.

33.  The discrepancies related to the position of PW1 at the time she was hit by the Appellant’s car and also to differences between the evidence given by PW1 about her injuries and what appeared on the medical chit issued by the Accident and Emergency Department on the admission of PW1.

34.  Particular emphasis was placed by counsel for the Appellant on PW1’s saying that she had reached the middle of the road when she was hit by the car. Counsel argued that if that were so PW1 would have been hit by the front of the car. A reading of the transcript makes it clear that PW1 was not using the word “middle” literally; she stated that she could not tell how many steps she had taken from the kerb. She meant she had left the pavement and had begun her crossing of Hart Avenue.

35.  The other discrepancy was the apparent differences between PW1’s description of her injuries and those recorded on the medical chit. On its face the chit suggested that PW1’s injuries were on the left of the body and not the right side as PW1 had said.

36.  There was no requirement that the prosecution had to prove injury as an element of the careless driving charge. The doctor who prepared the chit was not called as a witness and no fuller report was ever produced. The information in the medical chit was very brief and did not necessarily contradict the evidence given by PW1.

37.  Having heard the evidence, the Magistrate was satisfied that PW1 was a credible witness who had given accurate evidence about the collision. He was unimpressed by the evidence of the Appellant and ignored the unreliable evidence of PW2.

38.  The points made by Mrs Panesar at this appeal were all made before the Magistrate in great detail at trial and were considered by him.

39.  I am satisfied that Magistrate dealt with the evidence correctly, gave himself the appropriate directions and that his conclusion that the Appellant was driving carelessly was correct.

40.  Accordingly, this appeal against conviction is dismissed.