HKSAR v. AURANGZEB

HCMA 93/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 93 OF 2010

(ON APPEAL FROM KCS 6678 OF 2009)

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

1.  The Appellant appeals against a conviction for careless driving.  Driving his van along the West Kowloon Highway on his way to the airport, he ran into a private car which the 1^st prosecution witness (“PW1”) had left stationary on that highway after getting off to call for a tow.  The basis on which the Magistrate convicted the Appellant is, as one sees from paragraph 21 of his Statement of Findings, that PW1 had, as he testified but the defence disputed, switched on the hazard lights of his car before leaving it, and:

“It follows that the Appellant was plainly not paying due care and attention during the course of his driving before hitting PW1’s car.  As a result, he failed to stop his van in time and bump into PW1’s car.  It was below the standard required of a reasonable and prudent driver.”

2.  Having said that, the Magistrate went on to indicate that he would have convicted even if the car’s hazard lights were not on.  This is what he said in paragraph 22 of his Statement of Findings:

“For avoidance of doubt, I would still have the same finding even if there were no hazard lights on, because there was actually sufficient light in the Highway in the evening on that day.  It was also the evidence of PW1 that he did put the headlights on as well.  Indeed, it was stated in paragraph 3 of the Admitted Facts, exhibited as “P7” that the weather condition was fine with clear sight”

3.  I do not regard this alternative basis for convicting either safe or satisfactory.  It accords no weight to the fact that hazard lights are not merely a source of illumination but provide a warning which is a much needed one when a vehicle is left stationary on a highway.

4.  What about the Magistrate acceptance of the PW1’s evidence that the car’s hazard lights had been switched on and his rejection of the Appellant’s evidence that the car was showing no hazard lights?

5.  The Magistrate appears from paragraph 20 of his Statement of Findings to attach weight to the fact that PW1 was well educated.  Why that was seen as adding to his credibility is not explained.  The Magistrate refers in the same paragraph to PW1’s demeanour.  He was entitled to have regard to that, but there are a number of matters which cause me some concern over whether the Magistrate had subjected PW1’s evidence to sufficiently close scrutiny.

6.  As to these matters, the first arises in connection with why PW1’s car had been left on the highway.  In paragraph 5 of his Statement of Findings, the Magistrate said that the car had “lost its power”.  In paragraph 8 of his Statement of Findings, the Magistrate said that PW1 had “tried but was unable to control his car”.  Strictly speaking, it does not matter why the car had to be left on the highway.  But the Magistrate’s apparent failure even to notice the conflict within PW1’s evidence as to that is the beginning of concern as to whether he relied too much on PW1’s demeanour. 

7.  That concern grows as one reads on.  PW1 did not tell the police in his statement to them that he had switched on the hazard lights of his car.  If the Magistrate had given careful consideration to that omission and believed PW1 nevertheless, it would be difficult to say that the Magistrate was not entitled to do that.  But the Magistrate does not appear to have given careful consideration to this important omission.  Indeed, the Magistrate’s approach was almost to make it a point in PW1’s favour, saying in paragraph 20 of his Statement of Findings that PW1 had “frankly accepted” in cross-examination that he had made no mention in his witness statement of having switched on his car’s hazard lights.  Admitting something that one might plausibly deny may be an indication of candour.  But PW1 could hardly deny the omission when confronted with the statement there for the trial court to see. 

8.  Perhaps the truth did indeed come from PW1 as the Magistrate found.  But I am, on the record before me, unable to regard that finding as safe or satisfactory. 

9.  In the result, the appeal is allowed to quash the conviction and set aside the fine.