HKSAR v. SO WEI JIA

HCMA555/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.555 OF 2004

(On Appeal From KCS 1950 Of 2004)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of 'Careless Driving', contrary to sections 38(1) of the Road Traffic Ordinance, Cap. 347. He now appeals against the conviction.

2. The prosecution's case was most skillfully summarized by the Magistrate. It would be best to reproduce it :

"PW1 ...... is a taxi driver. He said he drove his taxi along Essex Crescent on the date and at the time in question. PW1 intended to turn from one part of Essex Crescent to another part of Essex Crescent. The manoeuvre is best understood by reference to the sketch plan produced as Exhibit P1. Essex Crescent is a crescent shaped road on the east side of Waterloo Road in Kowloon Tong. The south side of the crescent joins another road also known as Essex Crescent which runs in a westerly direction ..... PW1 drove along Essex Crescent in a south-easterly direction and intended to turn right and proceed westerly along another part of Essex Crescent. At the time ..... the junction was very congested.

PW1 stopped his vehicle at the junction and saw there was a gap in the traffic coming along the one way road from his left. He said he was just about to pull out when suddenly a vehicle appeared in front of him and came into contact with the front of his vehicle. It was not disputed that that vehicle JY8473 was driven by the defendant. PW1 said he was stationary when JY8473came into contact with his vehicle.

The incident was witnessed by PW2, a driving instructor. He was giving driving tuition at the time. He has been a driving instructor for 33 years.

PW2 said he was proceeding along Essex Crescent when he noticed the defendant's vehicle parked on the left-hand side of the road. He said his student drove past the defendant's vehicle for one vehicle's length when the defendant's vehicle suddenly came along the nearside of PW2's vehicle and pulled out in front of it. PW2's car was forced to brake to avoid a collision. He said that the defendant's vehicle suddenly stopped and he was aware of the contact between that vehicle and the taxi driven by PW1. He said PW1's vehicle had been stationary prior to the accident."

3. As regards the appellant, his account at trial was that :

"..... [he] had parked his vehicle on the nearside of Essex Crescent to drop his daughter off at school. He said he drove out from the side of the road safely and pulled to the centre of the road and stopped because of traffic congestion. Whilst he was stationary PW1's vehicle drove into the side of his vehicle. He said he had not pulled out from the side of the road in the manner described by PW2."

4. In the end, the Magistrate accepted the prosecution's evidence and rejected the appellant's. In so doing, the Magistrate made specific mention of the fact that PW2 was an independent witness and that his and PW1's evidence was entirely coincidental. Equally importantly, the Magistrate pointed out that quite apart from the collision, PW2's version of the appellant's driving itself would support the charge of 'Careless Driving'. The Magistrate directed himself properly on the incidence of proof as well as the burden of proof.

5. Today, before me, the appellant has done nothing more than regurgitate what he told the Magistrate, and the only ground of appeal that he has filed is the general ground that he is "not guilty of the offence". Clearly, he thought this appeal would be a re-trial. But re-trying the case is not my function. My function is to see whether the Magistrate had erred in fact and in law, and my conclusion is that he had not. In fact, I find the verdict impeccable, and the evidence overwhelming. The appeal is completely unmeritorious. It is dismissed.