R. v. TEED SISKO SUSAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 13 OF 1995

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J U D G M E N T

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1. The appellant was found guilty after trial on a charge of careless driving and now appeals against that conviction.

2. The evidence was that PW1 was driving her private car along Hiram's Highway at a speed of about 45 k.p.h. As she approached Nam Wai Chuen, she saw several vehicles stopped in front of her at a distance of about 30 meters, she slowed her car and stopped seven or eight feet behind the rear vehicle and two or three seconds later, a car driven by the appellant collided with the rear of PW1's car.

3. The accident occurred on a downhill slope which is arrived at by coming over a crest and the speed limit on the highway is 50 k.p.h. It was the appellant's evidence that she was travelling at 45 to 50 k.p.h., within the lawful speed limit and that upon coming over the crest, she saw the vehicle stopping in front of her, applied her brake, skided and was unable, in the circumstances, to prevent a collision. There was evidence from a police officer that he had attended to a vehicle which had broken down on the highway but that he had not put up a warning sign at the top of the crest to alert oncoming traffic.

4. The magistrate acknowledged that the doctrine of res ipsa loquitur did not apply but went on to draw the irresistible influence that the appellant had been driving carelessly. He seems to have based that the decision on a finding that the appellant was travelling at a speed greater than that to which she claimed in her evidence. He said that if she had failed to stop her car at 45 to 50 k.p.h. for 26 to 30 meters, it was clear she was not driving properly.

5. There was no evidence at the trial as to the speed of the appellant's car other than the evidence given by the appellant. There was skid marks on the road but no evidence was given, from the Crown, to show that the skid mark would support the finding that the appellant was travelling faster than the legal speed limit. Mr Ma who appears for the appellant has referred to the Road Users Code and from the figures given there, there would seem to be support for appellant's evidence that she was travelling at 45 to 50 k.p.h. There was no doubt that she was put into a difficult emergency situation when coming over the crest and being confronted unexpectedly by traffic stopped on the road ahead.

6. Given that the magistrate was, in my view, not entitled on the evidence to come to the view that the appellant was driving faster than the speed which she claimed, I consider that there is a lurking doubt case as to whether, given the circumstances, the appellant was in fact driving carelessly. I therefore allow the appeal and quash the conviction.