HKSAR v. WONG KIN WAH

HCMA 490/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. hcma 490 OF 2005

(ON APPEAL FROM KCS 14724/2004)

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J U D G M E N T

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1.  On 30 April this year, the Appellant was found guilty by Mr McNair at Kowloon City, on a summons alleging that he had driven carelessly.  He was fined $2,500.  He now appeals against that finding of guilt. 

2.  The allegation was that at just before 4 am on 22 August 2004, the Appellant who was driving a taxi (registration LN 8150) on the West Kowloon Highway Slip Road in the direction of Lai Po Road had driven it so erratically that he managed to collide with a lamp-post at the side of the road.  As a result of the force of that collision, the Appellant’s vehicle straddled across the carriageway.  At this time, another taxi driven by PW1 was following, according to PW1, 6 taxi lengths behind the Appellant’s vehicle.  In view of this unexpected course of events and the fact that the Appellant’s vehicle was now straddling across the carriageway, PW1 had insufficient time and space to drive around it or to fully brake in time, with the result that there was a second collision, on this occasion between the Appellant’s vehicle and PW1’s vehicle. 

3.  The prosecution’s case was that this series of events was brought about by the Appellant’s erratic course of driving.  PW1 had said that he was zigzagging shortly before he collided with the lamp-post and that in driving in such a way he had not driven up to the standard of a reasonable, competent and prudent motorist, with the consequence that he had committed the offence with which he had been summonsed. 

4.  The learned Magistrate had evidence from PW1 as well as from police officers who had attended the scene.  He also had available to him a series of very helpful photographs showing the aftermath of the collision as well as a sketch which indicated the layout of the road at the point where these two collisions had occurred.

5.  In his Statement of Findings, the Magistrate has helpfully set out of the nature of the factual dispute and the course of the trial in which the Appellant also gave evidence.  Paragraphs 7 and 8 set out his essential findings of fact and it is helpful to recite these here:-

“	7.	PW1 was driving his taxi on the road about “6 taxi lengths” behind the defendant’s.  He saw no traffic ahead of the defendant’s cab.  He was travelling about 50 kph.  For no reason apparent to PW1, as the defendant’s taxi approached the post, it drove in a “zig-zag” manner and collided with the lamppost base.  The defendant’s cab came to an immediate stop and lay straddled across the road; there was insufficient space for PW1 to drive around it and he was unable to brake fully in time.  His cab crashed into the defendant’s, ending up in the respective positions as seen in P1 (1-6).  The defendant’s cab position relative to the post can be seen in P1-(7&8).  The damage to the front of the defendant’s vehicle is seen at P2-(6, 7 & 8) and to the back (caused by PW1’s impact) at P2-(11).  The relatively minor damage to PW1’s vehicle is seen at P2-(18).  The relative positions of the vehicles immediately after the impact is depicted by sketch P3.
	8.	There was a very slight gradient between some newly-paved road and an older patch in the approach to the post.  This re-surfaced area was described by PW1 as a “slightly rough” patch.  I found that this rough patch had no bearing on the driving of the defendant.”

6.  The Appellant’s evidence before the Magistrate, and he has said very much the same thing to me on appeal, was that each of the prosecution witnesses had not told the truth and that they had done so in order to have him wrongly convicted.  His evidence before the Magistrate, which he has summarized at paragraph 4 of the Statement of Findings, was that he had been driving carefully at the time.  He then made the very serious allegation that PW1 had driven his cab up to the rear of the Appellant’s and had been using the front of his vehicle to repeatedly ram the rear-end of the Appellant’s taxi which caused him to lose control and to crash. 

7.  The Appellant told the Magistrate that at the time PW1 had a passenger and that he had been distracted by her.  Had he not been distracted he would have observed that the Appellant was slowing down as he approached the lamp-post. 

8.  This was a classic case of who the Magistrate believed.  He quite correctly reminded himself of the Appellant’s good character and the effect that this would have had in terms of his credibility as a witness and of his lack of propensity to commit the offence with which he was charged.  In this latter respect perhaps, propensity might have less of an impact in a careless driving case where even people of the best possible character do from time to time drive carelessly.  And so, if anything, the direction that the learned Magistrate gave himself was too generous to the Appellant having regard to the nature of the case.

9.  It is prefectly clear to me that the Magistrate had regard to everything that he ought to have had regard to in deciding who was telling the truth and who was not telling the truth and he did not leave out of account any matter which he should have taken into account.

10.  Having regard to the nature of the defence which involved the suggestion that the prosecution witness had repeatedly run into the back of the Appellant’s taxi, the learned Magistrate rightly, in my judgment, referred to the slight damage caused to the rear of the Appellant’s taxi.  Had his version been correct one would have expected that damage to have been far more severe.

11.  Insofar as the learned Magistrate held that PW1 had given the truthful and accurate account of what had happened and that the Appellant had not, this was a conclusion which he was fully entitled to come to.

12.  The manner of the Appellant’s driving as found by the Magistrate, which was that he had inexplicably zigzagged along the road shortly before he collided with the lamp-post, in the absence of any sensible explanation, clearly amounted to careless driving.  The Magistrate was correct in coming to that conclusion and accordingly, this appeal must stand dismissed.