HKSAR v. LAW WAI LOK

HCMA 406/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 406 OF 1999

(On appeal from SPS 1267 of 1999)

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J U D G M E N T

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1. On the 17 March 1999 at San Po Kong Magistracy, the Appellant was convicted of an offence of Careless Driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374. Against that conviction, he appeals on the general ground that the conviction was against the weight of evidence or that there was no evidence or no sufficient evidence to found the said conviction.

2. The Appellant is in person before me today as he also was at trial.

3. The facts of the case as found by the learned magistrate were that the Appellant had, whilst leaving his roadside parking place, reversed his vehicle into the right rear door of a taxi which had pulled into a car park entrance behind the Appellant's vehicle for the purpose of dropping off a passenger.

4. The taxi at the time of the collision, as found by the magistrate, was partly on the road and partly in the car park driveway entrance at right angles to the rear of the Appellant's vehicle. Both vehicles were moving at the time of impact.

5. These facts in any event were not substantially in issue.

6. The taxi driver in his evidence had said he originally had been travelling along Ching Tak Street in the opposite side lane, but had turned into the car park entrance so that his passenger could alight. He said before making this turn into the car park entrance, he had checked to make sure the oncoming traffic lane was clear and had also seen that the Appellant's car, which was parked next to the car park entrance driveway, was stationary. He had then pulled into that driveway a few feet behind the Appellant's car and whilst doing so the collision had occurred.

7. In the Appellant's evidence at trial, he said he had looked into his rear view mirror and checked the right side of his vehicle before reversing whilst looking behind him over his left shoulder. He said at trial he had reversed slowly for some 5 to 10 seconds before the impact.

8. Before me today, he said that may have been a misstatement of the facts as he was unused to estimating time for the purposes of giving evidence. That may be so. I do not think it changes the outcome or the underlying issues.

9. The Appellant's case at trial was that the taxi had been in the process of making a turn from its original direction of travel into the car park entrance behind the Appellant's vehicle. The Appellant said both at trial and effectively also before me today that if the taxi driver was to perform that manoeuvre and wished to pull into the car park entrance, then the taxi driver should have kept a lookout for the Appellant's car.

10. In my view it does not matter whether a vehicle is driven so as to reverse or to go forward from a stationary position. In both cases, the driver of a stationary vehicle who wishes to proceed must check that his path is clear. He must check that it is clear in all directions from which other vehicles may reasonably come.

11. The Appellant in this case was aware that he was reversing back across the entrance to a driveway.

12. In my view the manoeuvre performed by the taxi driven by the first prosecution witness in coming into the car park entrance was not so unusual or outside what was to be reasonably anticipated in the circumstances of the roadway and traffic conditions of the time so as to excuse the Appellant from checking that vehicles coming from the opposite lane of Ching Tak Street were not turning into the driveway behind him.

13. This the Appellant did not do. The magistrate apparently accepted his evidence that he looked out the right side of his vehicle and then checked behind him in his rear view mirror before proceeding to reverse but found that he then reversed by looking over his left shoulder only.

14. That may be sufficient in many circumstances, but when reversing across a driveway entrance it is not enough. Traffic may turn into such a driveway from both directions of travel along a two lane street such as Ching Tak Street. Inconvenient though it may have been, the Appellant should have looked about him as he reversed to make sure no traffic was turning into the driveway from either direction of Ching Tak Street.

15. In his Statement of Findings the magistrate said:

"The appellant did not notice the taxi until after the impact and I had no doubt that, when reversing, he had failed to exercise due care in observing the traffic behind him. Before reversing he had looked to his right, and checked his rear view mirror. However, during the 5 to 10 seconds he was reversing before the impact, he turned his head to the left side and failed to notice the taxi behind him. I was satisfied beyond a reasonable doubt that the appellant had driven carelessly and convicted him accordingly."

16. Additionally in his Reasons for Verdict given at trial, the learned magistrate said this:

"The defendant was reversing his vehicle, and he is under an obligation throughout the reversing manoeuvre to check the state of traffic behind him. In this case he failed to do that, and his vehicle hit that vehicle, not the front part of that vehicle, I might add, but the rear right side door."

17. In my view the evidence at trial was sufficient so as to properly allow these findings of fact by the learned magistrate.

18. Accordingly there was nothing unsafe or unsatisfactory about the learned magistrate's verdict and the Appellant's appeal is dismissed.