THE QUEEN v. NG KIN-FAT

Road Traffic Ordinance, Cap. 220 - Dangerous driving - Complainant slowly drove downhill and spotted defendant coming up the slope towards him in the wrong lane and at 30 feet away - complainant quickly applied-brake to give ample room to defendant to veer to the correct lane - appeal against conviction for dangerous driving allowed and conviction for careless driving substituted therefor - order for disqualification and re-testing was set aside and a fine was imposed in lieu.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 80 of 1985

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BETWEEN

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JUDGMENT

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1. On 3/1/85 defendant appeared in person before a magistrate on a charge of dangerous driving contrary to section 11(1) of Road Traffic Ordinance, Cap. 220 and at the end of a trial was found guilty and convicted of that offence. He was disqualified from holding a driving licence for all classes of vehicle for 3 months and for an indefinite period thereafter until he had passed a driving test. He appealed against both conviction and sentence

2. N.L.R. Jones, the main prosecution witness, stated that on 24/7/84 at 4.35 p.m. he was driving along Mt. Kellet Road to the direction of Mathilda Hospital and, after having rounded a bend, was proceeding down a steep road at between 15 and 20 m.p.h. when he saw a private car coming straight towards him from a distance of 30 ft. away. Upon further noticing that that car was going up the slope at a speed lower than 25 m.p.h. and realizing that it was in the wrong lane, Mr. Jones braked to bring his vehicle to a halt while the other car swerved to the correct side at the left. According to Mr. Jones, he saw the driver of that car display an apologetic look but he nonetheless became angry and turned around to give chase after the offending care. He finally succeeded in stopping it and took down particulars of its driver from which he subsequently lodged a complaint on the incident with the police.

3. The defence was simply that defendant was on the right lane all the time and knew nothing of the alleged dangerous driving. It was also defendant's testimony that as he was driving on Peak Road, he was suddenly intercepted by Mr. Jones and, without a knowledge of English, showed his driving licence to his interceptor.

4. In his Statement of Findings the learned magistrate accepted Mr. Jones' evidence and rejected defendant's. He concluded his decision in these words "I found that the defendant drove private car BN 7704 on the wrong side of the road at a blind corner, and that he did it intentionally. I held that driving to be dangerous in manner and convicted him of the charge".

5. It seems strange that on the one hand the learned magistrate accepted the evidence that Mr. Jones first saw defendant come up the slope at 30 ft. away and on the other hand concluded that that spot was a blind corner. A sketch produced by a police officer for the prosecution does not appear to bear out that conclusion. It is also difficult for one to understand how the learned magistrate found that defendant intentionally drove on the wrong side of the road and convicted him of dangerous driving therefor. With great respect to the learned magistrate, I would say that defendant might have committed an error of judgment or without due care and attention, but, unless he was of unsound mind and there is no suggestion that it was so, can hardly be said to have put his life at risk by deliberately driving on the wrong side of the road.

6. There can be no dispute that Mr. Jones had to apply brake when he spotted defendant driving uphill in his direction, as a prudent driver would have done in that situation, to give ample room to defendant to veer his car to the correct lane. Neither is there any doubt that Mr. Jones was thereby put to some inconvenience and a little apprehension. But danger to him there was not.

7. The facts, as I found them, have led me to the conclusion that a case of dangerous driving has not been established, although there is ample evidence in support of careless driving. In the circumstances I apply the proviso of section 11(7) of Road Traffic Ordinance, Cap. 220 and allow the appeal to the extent of quashing the conviction for dangerous driving and substituting therefor a conviction for careless driving (section 14). I would add that the test as to what is careless driving is subjective and it may be said that:

"A person is guilty of careless driving once it is proved that he has departed from the standard required of a reasonable, prudent and competent driver. It matters not whether this was due to his negligence, incompetence, inexperience, recklessness or even his deliberate intent."

8. From the above finding counsel for both sides suggested that the magistrate's order on disqualification and re-testing were no longer justifiable. This order is consequently set aside. And since the notes of proceedings disclose that defendant only had one previous conviction for disobeying a traffic sign, I impose a fine of $400.00 on this offence of careless driving.

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