HKSAR v. MARK HENRY GODFREY

HCMA 9/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 9 OF 1999

(On appeal from SPS 11394 of 1998)

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J U D G M E N T

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1. The Appellant was convicted on 30 September 1998 after trial of an offence of careless driving at San Po Kong Magistracy.

2. The magistrate in his Statement of Findings found that the Appellant had been driving his vehicle in a northerly direction in Argyle Street, Kowloon in the kerbside lane (the 1st lane) of the three lanes on the northbound side of the Argyle Street carriageway outside the Hong Kong Eye Hospital when he had, without any indication, attempted to change lanes into the centre lane (the 2nd lane) where the PLB driven by PW1 was travelling so as to collide with that vehicle and force that vehicle out of the 2nd lane into the outside lane (the 3rd lane) of the carriageway where it in turn collided with a light goods vehicle.

3. The prosecution called one witness PW1 the driver of the PLB. The Appellant did not give evidence and called no witnesses.

4. Photographs of the damage to the Appellant's sports car, PW1's PLB and the light goods vehicle were produced by consent as Exhibit P4 and a sketch plan of the road and the 3 vehicles positions at the point of collision apparently drawn by a police officer on PW1's instructions was produced as Exhibit P2.

5. The fundamental issue in the trial was the reliability of PW1's evidence to the effect that the Appellant's car had come into his lane without warning and struck the front left hand side of his PLB.

6. The Appellant's general ground of appeal is that his conviction was against the weight of the evidence at trial. That general ground of appeal was effectively superseded by 3 additional grounds of appeal which are :-

7. Firstly, that the learned magistrates findings were not consistent with the evidence and that there was no sufficient evidence to support the conviction, given inconsistencies in PWl's evidence as to when he had first seen the Appellant's car.

8. Secondly, that the learned magistrate erred in basing his findings upon the photographs produced as Exhibit P4, without the assistance of expert evidence, and that in any event the magistrates findings in this regard could not be supported by those photographs, and

9. Thirdly, that the learned magistrate commented at the time of its production that the sketch, Exhibit P2, adopted by PW1 as describing the position of the 3 vehicles at impact contradicted other aspects of PW1's evidence, but that the learned magistrate did not deal with that contradiction in his Statement of Findings.

10. So far as the 1st ground of appeal is concerned, it is true that PW1 in his evidence in chief had asserted that he had first seen the Appellants red sports car travelling in the 1st lane when it was some 4 bus lengths behind him. But in cross examination he agreed he had specifically said in his police statement that he had not seen the car before the collision at which time, he said in evidence, it attempted to cut into his lane, colliding with him and forcing him in turn to collide with the light goods vehicle in Lane 3.

11. The learned magistrate dealt with this inconsistency in his Statement of Findings at page 26 of the bundle as follows :-

"PW1 testified in chief that he saw the defendant's car at 4 cars' length behind him when he passed the Tin Kwong Road junction. The second sight was when it sped up from behind and cut into his lane causing the collision. Solicitor for the defence, Mr. Midgley, cross-examined PW1 at length as to where the defendant's car was when PW1 first saw it. PW1 yielded that in his statement to the police dated the 25 June 1998 he stated that although he saw other cars on that lane, he had not seen the defendant's car before collision."

12. Later in arriving at his conclusions the learned magistrate said :-

"As regards the issue of when he first saw the defendant's car, my view was that he did not specifically see it before the collision. (But) After all, whether PW1 saw the defendant's car after he just passed Tin Kwong Road junction or only at the time of collision did not matter. The crux of the case was that the defendant cut into PW1's lane without a proper lookout of the traffic, thus causing a collision with his car."

13. In my view, the learned magistrates findings must not be taken out of context. An issue in the case had been whether PW1 had seen the Appellant's car when, as he said in chief, it was 4 bus lengths behind him or not.

14. It was regarding that issue that the inconsistency in his police statement had been put to him. That issue was referred to throughout the trial as the "first sight". It is clearly that issue the learned magistrate was addressing in that part of his findings I have just referred to.

15. The magistrate regarded as a separate matter the reliability of PW1's evidence as to the events surrounding the collision itself. In this regard, he found support for his conclusion in the damage to the vehicle shown in the photographs P4.

16. It is true in his Statement of Findings he dealt with that evidence and relied upon it in finding no merit in the Defence case put forward in cross-examination to the effect that the PLB had driven up to the Appellants car from behind at too fast a speed and collided both with it and the light goods vehicle in Lane 3.

17. But in his brief reasons given at the time of conviction the magistrate had said :-

"On all the evidence, including the testimony of PW1 and the photos, I am satisfied that when you cut into the second lane, you did that without proper lookout of the traffic."

18. It is obvious from all his reasons that the learned magistrate had these photographs and the points of damage they showed to the 3 vehicles in mind when assessing the reliability of PW1's evidence as to what happened at the time of collision itself.

19. The magistrate obviously concluded that PW1's evidence, supported by the photographs, was honest and reliable as to the events at that point of time even though he had been contradicted by his own statement to the police as to when he had first seen the Appellants car.

20. In my view, the learned magistrates findings in this regard are consistent with the evidence and supported by it.

21. Having accepted PW1's evidence as to the Appellants car cutting into the lane PW1's PLB was travelling in without warning or indication and colliding with his PLB, there was sufficient factual basis to found the conviction. That disposes of the 1st ground.

22. Inherent in the learned magistrates findings is his reliance upon the photographs Exhibit P4 both to conclude that the Defence case had no merits and to find support for the evidence of PW1. In my opinion he was entitled to so rely upon the photographs. They show the areas of damage sustained by the 3 vehicles as a result of the collisions. The magistrate was entitled to look at the location of damage on the vehicles to determine which parts of each vehicle had come into contact. That is all he did. He went no further. He did not trespass into realms requiring particular expertise.

23. Such objective evidence is often very probative and extremely helpful in resolving properly the issues arising out of traffic prosecutions. To require expert evidence, in addition to the photographs, in cases such as this so as to state that the vehicles collided at the points where they sustained damage is to require an expert to state the obvious. That task can be performed by a common sense appraisal of evidence such as the photographs in this case, Exhibit P4. I am satisfied the learned magistrate did use his common sense and there is no merit in the 2nd ground.

24. So far as the 3rd ground is concerned, the learned magistrate made the comment, as set out in the 3rd ground, upon the prosecutors tendering Exhibit P2, the sketch based upon the Defendant's statement to police as evidence. He said at page 13 of the bundle :-

"But isn't it a self-contradictory version? It suggests in this sketch that at the second sight of this private car, there was already the collision. First sight, it was about four PLB lengths from behind."

25. It is obvious the learned magistrate was asking a question of the prosecutor. He was not expressing a formed opinion.

26. He did not deal with Exhibit P2 as contradicting PW1's evidence in his Statement of Findings it is true. It may well have been once the balance of evidence was before him he did not regard it as contradictory. The evidence following this question asked by the magistrate does clarify on its face the meaning of Exhibit P2.

27. There appears to be nothing on the face of Exhibit P2 which does contradict PW1's evidence as it stood at the end of the day and in my view the magistrate was not required to deal with it specifically in his Statement of Findings.

28. There is nothing in the 3rd ground of appeal.

29. I am satisfied that there was sufficient evidence adduced before the learned magistrate to properly found the Appellant's conviction and the appeal is dismissed.