THE QUEEN v. WONG NAI LEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 95 OF 1996

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J U D G M E N T

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1. This was an appeal against a conviction for careless driving. The Appellant is a bus driver for Kowloon Motor Bus Company. He was driving his bus in the Shing Mun Tunnel Road in the direction of Tsuen Wan at about 5:30 p.m. on 7th June 1995. He was following a container truck, behind him was a heavy goods vehicle. As they approached the entrance of the Shing Mun Tunnel, the vehicle in front of the Appellant's bus stopped and then a collision occurred between the container truck, the bus and the heavy goods vehicle following the bus. It was alleged against the Appellant that he had failed to stop in time and that he had run into the back of the container truck. It was the Appellant's case that he had braked in time, but had been struck from behind by the heavy goods vehicle which had in turn knocked him into the container truck.

2. There was some evidence about what the Appellant had said to a Traffic Supervisor after the accident but confusion surrounding that meant that the evidence carried little weight.

3. The learned Magistrate in her findings said this :-

" I rejected the appellant's evidence that his bus was pushed forward by PW1's truck to hit PW2's trailer. I found his evidence unconvincing. The appellant was driving a double-decker bus which was carrying about a hundred passenger. Thus, it would have required great force from PW1's truck to hit the appellant's bus to be able to push the bus forward to hit PW2's trailer. The damages to the appellant bus and PW1's truck, as shown in the photographs, P1e and P1f, were not severe and thus was inconsistent with the appellant's version."

4. With great respect to the learned Magistrate, I do not agree. The vehicle following the Appellant's bus, one can tell from the photographs, was a heavy goods vehicle. Such a vehicle would be quite capable of knocking a bus forward sufficiently so that it would strike the vehicle in front of it. By that stage, with the braking distances being cut down, these vehicles would all be very close to each other. As well as which it seemed to me that the damage which was caused to the rear of the bus is consistent with the vehicle having struck the bus quite a substantial blow.

5. The learned Magistrate also said this :-

"The appellant stated that he was driving at a speed of 40 kph and keeping a distance of about 15 metres from the preceding trailer. However, according to the Stopping Distances as contained in page 41 of the Road Users Code, the shortest stopping distance of a vehicle doing 40 kph was 20 metres. Therefore, I found that the appellant had failed to keep a safe distance from PW2's trailer and thus was unable to stop his bus in time and ran into the latter."

Once again, the learned Magistrate, in my view, is adopting an attitude to the evidence which is inappropriate. When dealing with traffic accidents and when asking witnesses to assess speeds and distances, one has always got to allow for a margin for error. When a driver says he was 15 metres behind the vehicle in front, that could mean 15, 10 or 20 metres, making an allowance of approximately 5 metres for what is a very rough assessment. It was not, in my view, reasonable for the Magistrate to come to the conclusions based on the assessment of speeds and distances given by the Appellant.

6. In all the circumstances, therefore, I felt that this conviction was unsafe and I allowed the appeal.