THE QUEEN v. CHUI KIN-HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 987 OF 1988

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REASONS FOR JUDGMENT

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1. This case came before me on an appeal from the Magistrates Court in respect of a conviction of careless driving. The information alleged that on the 4th January 1987 at Portland Street and Yu Chau Street, the appellant drove a medium goods vehicle displaying the registration mark DL2608 on a road carelessly. Having heard the arguments I allowed the appeal and indicated that I would give detailed reasons for my decision later. I now do so.

2. The information arose out of an accident whereby there were multiple collisions between the vehicle driven by the appellant and a taxi The only eye witness called by the prosecution was the first prosecution witness who was the driver of the taxi and therefore a person who had an interest in the matter. The respective versions of the taxi driver and the appellant were quite different. There was independent evidence from a police offices who arrived at the scene later on who prepared a sketch which was admitted into evidence as Exh. P2

3. The taxi driver's evidence was short and I will set it out in full a

"At about 10.45 a.m. 4.1.87, I was driving a taxi CE6148 along Prince Edward Road after having picked up a female passenger at the Prince Edward M.T.R. Station I then turned into" Portland Street towards the north, There were 3 lanes and I was in the middle lane. Portland Street is a one way road. The destination of my passenger was Nam Shan Chuen.

When I was about to reach the junction with Yu Chan Street, a medium goods vehicle on my right triad to overtake my taxi,

In so doing, it bumped into she right rear light of :my taxi. I slowed down and braked to a stop. However, the goods vehicle continued to overtake my taxi and then turned left into Yu Chan Street.

As it turned left, it collided with the right front of my vehicles. As a result, the right front mudguard of my taxi came off.

It continued to move forward and only stopped after having travelled for about vehicles length. It stopped in Yu Chan Street........

I was injured as a result. My head was Knocked onto the steering wheel when it hit the front mudguard of my taxi.

Later, the driver of the goods vehicle also alighted. I can.............

The taxi had stopped in Portland Steet.

I informed the console to report to the police. About 15 minutes later, police arrived. Ambulance also came and I was taken to Kwong Wah Hospital. The 2 vehicles remained in their respective positions until the time police arrived.

Cross examination

Q: Which part of your head was injured?

A: On my forehead near the left. Also my neck suffered a whiplash.

Q: All along you are telling lies.

A: I am telling the truth.

Q: Put: You were rushing up from behind me from the extreme left lane.

A: Disagree.

Q: Were there brake marks on the ground?

A: No

Q: Did you brake on seeing my vehicle overtaking your taxi

A: No.

Q: Put you overtook my vehicle from my left. I did not overtake you.

A: Disagree.

No re-examination.

Court: When did you first see the goods vehicle?

A: It was in my right. I first noticed it when it almost hit the rear of my taxi.

4. The police officer PC 11711 who was the only other witness called by the prosecution. gave evidence of arriving at the scene about 11:10 a.m. He testified:

"The taxi was near the junction of Portland Street find Yu Chan Street. It was in Portland Street. The goods vehicle was on the right hand side of the taxi slighting slanting towards Yu Chan Street:

I examined the taxi and found there were damages to the right rear and the right front. The rear right mudguard and the rear right corner was scratched and dented. The right front mudguard was scratched and dented.

As for the goods vehicle the foot hold next to the driver seat was scratched and had some red paint on it. Also, there were scratched marks and red paint on both the left front wheel and left rear wheel.

The taxi driver was already sent to the hospital by the time I arrived. I saw the driver of the goods vehicle

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I had taken measurements of the positions of the 2 vehicles I made a sketch which was signed by the defendant.

I now produce the sketch. Exh. P2 it is not a scaled sketch

The weather was drizzling and the road surface was a bit wet.

By the time 1 arrived at the scone, I found brake marks at the rear of the goods vehicle. I had measured it and its length was 6.4 metres.

Cross-examination

Q: Can you point out accurately as to what damage was done to the taxi?

A; The right front mudguard and also the rear right corner.

Q: Was the front right mudguard dented or just scratched?

A: It was scratched and dented.

No re-examination."

The appellant cave his version as follows :

"On the date and time in question, I was driving medium goods vehicle DL 2608 from Prince Edward Road into Portland Street. I was travelling on the middle lane.

I saw that there was a small sized dump truck on my left ahead in a horizontal position occupying slightly less than 1½ lanes. It was unloading I saw that theme were enough space, so I swerved to the right to avoid touching the truck.

Before I passed it, a taxi drove from my left behind me to the right and tried to go through the space between my vehicle and the truck.

I continued to move because there were still enough space. There was a slight bend in the road leading to Yu Chan Street.

The taxi drove from the right hand side trying to overtake the front of my vehicle. It bumped into the left front wheel of my vehicle.

Before that I had already braked to slow down.

Then I tried my best to swerve to the right hand side and also applied the brakes.

Immediately after it bumped into the front wheel of may vehicle the body of the taxi got contact with the body on my vehicle and then it bumped off. At that time the reams of my vehicle wavered.

My vehicle is a 24 ton 24 feet long with 10 wheels cement truck.

The small sized dump true is about is feet long.

Cross examination

Q: De you know the registration number of the dump truck?

A: It had already left when I alighted

Q: Put: Your manner of driving at the material time and material date was careless.

A: Disagree

Q: Put: The accident occurred in the manner described by PW1.

A: Disagree.

Court: When you first saw the dump truck, how far were you from it?

A: 50-60 feet.

Court: When did you first saw the taxi?

A: The moment I swerved my my steering wheel in order to avoid the dump truck I saw the taxi

Court: Can you explain as to why PW2 saw red paint and scratch marks on both your left front and rear Wheels?

A: The taxi bumped into my fron wheel. After the bump, the taxi's body got in touch with my vehicle and because of the slippery surface, the tail of my vehicle wavered.

Court: Now many cities did the the taxi come into contact with your vehicle?

A: I'm not certain, because it happened very quickly."

5. On the appellant closing his case the Magistrate immediately convicted him in her Statement of Findings she says.

"Having seen and heard both prosecution witnesses and observed their demeanour when giving evidence in the witness box, I find them to be honest and truthful witnesses ant 1 relied on their evidence. Although PW1 said that the Defendant's vehicle had stopped after having moved forward for some 2 vehicles lengths before it stopped after the second impact and it seemed from exhibit P2 that the distance between the two vehicles after they stopped was quite close, this could be explained by the fact that the taxi must have travelled for some distance too after PW1 had applied his brakes after the first impact before the taxi would come to a full stop. I do not find this to be a material discrepancy which affected PW1's truthfulness as a witness. The brake marks found by PW2 behind the Defendants vehicle showed that the Defendant was travelling at considerable speed at the time of the said accident given the size of his vehicle

Having seen and heard the Defendant when, he gave evidence in court and observed his demeanour, he did not impress me as a honest and reliable witness. I therefore reject his evidence where it is at variance with the Prosecution's case."

That was the basis of her decision.

6. Mr Allan who appears for the appellant relies on two grounds of appeal, (1) That the Magistrate failed to consider properly or at all certain factors which he particularises and therefore in considering her verdict she ought to have considered the fact that PW1's evidence was unclear and inconsistent on a number of issues; and (2) in all the circumstances the verdict is unsafe and unsatisfactory.

7. He pointed out that the skid marks shown on the sketch produced by the independent witness were in the outside lane thus indicating that at the time of the collisions, the appellant's vehicle did not enroach into the innerlane where the taxi, driver said he was driving. He points out that the skid marks were 6.4 marks long, which, bearing in mind the drizzly wet and slippery conditions and the size and weight of the cement vehicle; indicates, when compared with the stopping distances shown in the Road Users Code at p.41, that the lorry could not have been "travelling at considerable speed" as the Magistrate said.

8. Mr Allan describes the taxi driver's evidence as very unclear. He queries whether it suggests that the appellant's vehicle was trying to get into the innerlane and suggests that the skid mark suggested that the appellant continued on in the outerlane.

9. Mr Allan also argues that there in a material discrepancy between where PW1 says the vehicles were positioned after the accident and the position of the vehicles as drawn in the police sketch plan of the incident.

10. The sketch plan shows the vehicles as extremely close a matter of feet away. Although the Magistrate attempted to explain away this discrepancy, Mr Allan submits, in effect, that it does not g o far enough to remove doubts.

11. PW1 had said that after the collision the goods vehicle continued to move forward and only stopped after having travelled for about two vehicles' length, it stopped in Yu Chau Street. That, says Mr Allan, is not consistent with the position of the vehicles in the sketch and the measurements indicating the peed of the appellant's vehicle.

12. This was an important piece of evidence which affected the credibility of PW1

13. Miss Chan for the prosecution supports the conviction pointing out that, the appellant had earlier claimed in his evidence to be driving on the middle lane which she says indicates that the appellant could not have been travelling all the time in the outer lane. She also argues that the sketch is inconsistent with the appellant's version of the events when he tried to swerve to the right and applied his brakes. She argues that the Magistrate in the Court below, having seen the witness, was in the best position to assess the evidence. She also argues that the Magistrate has explained away the discrepancy of the position of the vehicles sufficiently.

14. Having examined the transcript and read through the reasons for the magistrate's decision, I am left with a feeling that not sufficient attention had been paid to detail and that the taxi driver's evidence was unclear.

15. Furthermore 1 cannot help noticing that the appellant was asked no searching questions in cross-examination and yet the Magistrate felt able to say:

"Having seen and heard the defendant when he gave this evidence in Court and observed his demeanour, he did not impress me as an honest and truthful witness."

16. Although it would have been possible for her to reject the appellant's evidence where it was at variance with the prosecution case, if that was the same as the prosecution evidence, it is difficult to see how she could have reached this decision on such unclear evidence.

17. I find it very difficult to see how the Magistrate could find PW1 reliable as a witness having regard to the way his evidence has been recorded on the record.

18. Whilst I recognise that the Magistrate is always in the best. Position to assess the credibility of witnesses, an examination of the record and of the reasons for verdict, has raised in my mind a doubt as to the correctness of the conviction in this case. In all the circumstances, I felt that the conviction as unsafe and unsatisfactory and I allowed the appeal and set aside the conviction.