HKSAR v. HUI SHUI YEE, SHERRY

[English Translation — 英譯本]
HCMA 499/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 499 OF 2009

(ON APPEAL FROM ESS 46210 OF 2008)

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REASONS FOR JUDGMENT

1. The Appellant was convicted after trial by a Deputy Special Magistrate of an offence of Careless Driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374 Laws of Hong Kong and was fined $2,000. She appealed against her conviction.

2. After hearing, I dismissed her appeal. My reasons are set out below.

Prosecution case

3. Put simply, the prosecution case was that on the day of the offence, typhoon signal no. 8 was issued and it was raining. At 11:50 a.m., the sole prosecution witness (a taxi driver) was driving a taxi along Johnston Road, Wanchai at the speed of 20 to 30 km.p.h., while the appellant was driving her private car, following behind the taxi. At the material time, there were vehicles parked on the left side of Johnston Road. The prosecution witness said he saw that at about a distance of two vehicles’ length ahead, an old lady was about to walk out from between two parked vehicles, and so he reduced his speed to 10 km.p.h.. Suddenly, the left side of the front of the appellant’s private car hit the right side of the rear of the prosecution witness’s taxi. The impact of the collision pushed the taxi forward for 2 to 3 metres. Both vehicles suffered minor damage.

Defence case

4. The appellant elected not to give evidence and not to call any witness. From the cross-examination of the witness conducted by the defence counsel Mr. Ngai, the defence case appeared to be that the taxi was moving on the left side of the road. At the time of the offence, it swerved to the right to avoid vehicles parked on the left, but then suddenly swerved to the left and stopped. As a result, the left side of the appellant’s private car hit the rear of the prosecution witness’s taxi.

Grounds of appeal

5. Mr. Ngai put forward several grounds of appeal to support his contention that the conviction was unsafe. In summary, Mr. Ngai argued that the findings of fact made by the magistrate were not consistent with the evidential and factual basis, that the magistrate erroneously applied the legal doctrine of res ipsa loquitur, and that the inference that the appellant was driving carelessly at the material time was not the only reasonable inference.

Discussion

6. A magistracy appeal is conducted by way of rehearing on the evidence before the trial magistrate supplemented by such fresh evidence as the appellate court may admit: see Chou Shih Bin v. HKSAR, FACC 11/2004. I am of the view that where the facts are concerned, the appellate court should recognise that the trial magistrate had the benefit of hearing and seeing the witness give evidence, whereas the appellate court can only rely on transcripts. Whether a certain witness is credible or reliable is entirely a question for the trial magistrate to decide. However, if the findings of facts made by the trial magistrate are unreasonable, illogical, contain inherent improbabilities; or if the trial magistrate, in dealing with the evidence, made mistakes when he referred to important matters, omitted or failed to consider and analyse important matters, then the conviction will be unsafe.

7. Both the written submissions and oral submissions of Mr. Ngai referred to the prosecution witness’s allegation that the taxi was pushed forward 2 to 3 metres by the impact of the collision. I do not have the transcript of the evidence of that witness. Mr. Ngai pointed out to me that as far as he could remember, when the prosecution witness was giving evidence, no one asked him under what circumstances his taxi was pushed forward for 2 to 3 metres. At the material time, the prosecution witness reduced his speed to 10 km.p.h. but did not stop completely. When the taxi was hit and pushed forward by the appellant’s private car, was the foot of the prosecution witness on the accelerator or the foot brake, or neither of them? In this case, there is no information about this aspect. If the taxi driver had already stepped on the brake, but the appellant’s private car still pushed the taxi forward for 2 to 3 metres, as a matter of common sense, the speed of the appellant’s car should be quite high. However, the damage suffered by the two vehicles was minor and the road surface at that time was wet and slippery. The facts which I took into consideration were those most favourable to the appellant: i.e. the appellant’s private car did hit the taxi, but there is no evidence that the speed of the appellant’s car at that time was excessive or beyond the statutory limit.

8. As for the legal doctrine of res ipsa loquitur, the magistrate clearly stated in his Statement of Findings that this legal doctrine was not applicable to this case.  After going over all the appeal documents, I do not agree with the appellant’s submission that the magistrate erroneously applied the legal doctrine of res ipsa loquitur.

9. In his oral judgment, the magistrate said (A to C and I to K on page 29 of the appeal bundle):

“I have also considered this point, i.e. the prosecution witness said that he was pushed forward for 2 to 3 metres by the impact of the collision.  I think that since the car of the prosecution witness was pushed forward for 2 to 3 metres, it shows that the defendant did not brake at that time.  She, without braking her car, hit the car of the prosecution witness, and her car should be travelling fast at that time.  I can also see that under these circumstances the defendant was following close behind the car in front and that she did not pay attention to the prosecution witness; as a result the incident happened.

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I am of the view that the defendant was driving carelessly because at the material time she did not pay attention to the car in front, and I see that all the evidence points to the fact that the defendant was driving fast.  I also see that the defendant’s car was following close behind the car in front.  These led to this incident.  After considering all the evidence, I find that the defendant was careless in that she drove without due care and attention and she caused interference to the taxi driver.  The evidence given by the prosecution witness is direct evidence, on the basis of which I find that the defendant was careless.”

10. The magistrate had this to say in paragraph 32 of his Statement of Findings (page 12 of the appeal bundle):

“I have regard to the fact that the appellant at the material time ‘did not or was unable to brake her car to a stop’, so that after the accident the taxi of the prosecution witness was pushed forward for 2 to 3 metres.  This shows that at the material time the appellant was driving too fast and too close behind the car in front. I find that the appellant did not pay attention to the fact that the taxi of the prosecution witness was in front of her and that is the cause of this incident.”

11. Mr. Ngai complained that there were discrepancies in the magistrate’s oral judgment and his written Statement of Findings in that the reason given in his oral judgment was that the appellant did not brake, but the reason he gave in writing was that the appellant did not or was unable to brake her car to a stop – although on both occasions the appellant was found to be  driving too fast.

12. It appears that the magistrate did rely on the allegation made by the prosecution witness, i.e. the taxi driver that the taxi was pushed forward for 2 to 3 metres by the impact of the collision to reach the conclusion that the driving speed of the appellant at the material time was too fast.  Although the evidence showed that after the prosecution witness’s taxi was hit, it did in fact move forward 2 to 3 metres, it is not clear in the prosecution case why the taxi moved forward.  I have said that I would hear this appeal from the angle most beneficial to the appellant.  As far as the evidence of this case is concerned, there was no evidence which showed that the driving speed of the appellant at the material time was excessive.

13. In paragraph 32 of the Statement of Findings, the magistrate used quotation marks and stated ‘did not or was unable to brake her car to a stop’.  I really do not understand what he meant – I do not know whose statement the magistrate quoted.

14. In this case, the appellant exercised her right and elected not to give evidence.  The only thing which the magistrate could consider was the evidence given by the sole prosecution witness.  As mentioned above, there are areas in the magistrate’s Statement of Findings on which he had not expressed clearly.  However, since this is a rehearing, I can, on the basis of the facts and the evidence, assess whether the magistrate had properly made his findings.

15. According to the evidence of the prosecution witness, when he looked at the rear view mirror, he did not see the appellant’s car.  As a matter of fact, the left side of the front of the appellant’s private car hit the right side of the rear of the taxi.  The section of the road where the incident happened was a straight one.  At the material time, typhoon signal no. 8 was issued and it was raining, but there was no evidence that the rain was falling so heavily that people’s view was blurred.  The prosecution witness could still see an old lady standing between 2 vehicles.

16. The prosecution witness did not see the appellant’s car in his rear view mirror; the reason might be that the appellant’s position was at the “blind spot” of the prosecution witness.  The undisputed facts showed that the appellant was following behind the taxi of the prosecution witness and subsequently hit the taxi.

17. A vehicle being hit by a vehicle following behind it is a traffic accident that frequently occurs, but it does not automatically follow that the driver of the following vehicle is careless.  All the circumstances must be looked into.

18. In Brown v. Western SMT Co. Ltd (1945) SC 31 Lord Justice Clerk (Lord Cooper) made the following remarks concerning a following driver’s duty:

“We are urged in the course of debate to substitute our own definition of the limits of a following driver’s duty, and even to prescribe the proper interval at which successive vehicles should keep station when travelling in a city street.  I am not prepared to do so.  The distance which should separate two vehicles travelling one behind the other must depend upon many variable factors – their speed, the nature of the locality, the other traffic present or to be expected, the opportunity available to the following driver of commanding a view ahead of the leading vehicle, the distance within which the following vehicle can be pulled up, and many other things.  The following driver is, in my view, bound, so far as reasonably possible, to take up such a position and to drive in such a fashion, as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated: but whether he has fulfilled this duty must in every case be a question of fact, just as it is a question of fact whether, on any emergency disclosing itself, the following driver acted with the alertness, skill and judgment reasonably to be expected in the circumstances.”

In brief, Lord Cooper pointed out that the distance which a following driver should keep between his vehicle and the vehicle in front of him is dependent on the speed of the vehicles, road condition and the surrounding circumstances.  The following driver is bound, so far as reasonably possible, to drive in such a manner as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated by him.

19. The facts of this case were that the section of the road where the accident happened was a straight road.  The time was almost noon.  Typhoon signal no. 8 was issued.  It was raining but not raining so heavily that people’s view became blurred.  The road surface was wet and slippery.  The speed of the taxi was quite slow – about 20 to 30 km.p.h.  The appellant’s car was following behind the taxi.  The taxi driver saw a person standing between two parked vehicles.  Thinking that the person was about to cross the road, he reduced the speed to 10 km.p.h.  There was no evidence which showed at what speed and in what manner the appellant was driving at that time, but when the taxi slowed down, the appellant’s private car undeniably hit the rear of the taxi.

20. A following driver is bound, so far as reasonably possible, to drive in such a manner as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated by him, including the exigency that the vehicle in front of him might slow down or stop because some pedestrians cross the road in violation of traffic signs.

21. Wanchai is a busy and bustling district, with lots of pedestrians.  Even though typhoon signal no. 8 was issued, it would not be a quiet and tranquil place.  There would still be pedestrians on the roads.  The possibility that the vehicle in front might slow down in order to avoid hitting a pedestrian should be reasonably anticipated by the appellant when she was following behind a vehicle.  Furthermore, the prosecution witness was driving a taxi.  The appellant, being the following driver, should additionally anticipate that the taxi driver might suddenly slow down or stop the taxi to pick up a passenger.

22. Judging from all the evidence of this case, the only reasonable inference that can be drawn from the fact that the appellant’s car, being the following vehicle, hit the prosecution witness’s taxi, is that the appellant failed to keep a safe distance between her car and the taxi in front of her, or she did not pay attention to the traffic condition.  That is the reason why she failed to stop in time and hit the taxi when the taxi driver slowed down the taxi to avoid hitting the pedestrian.

23. At the material time the appellant failed to drive, so far as reasonably possible, in such a manner as would enable her to deal successfully with a traffic exigency reasonably to be anticipated by her.  The prosecution has proved beyond any reasonable doubt that the appellant was driving carelessly.

24. For the above reasons, I dismiss the appeal and confirm the conviction.

Miss Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the HKSAR.

Mr. Lawrence Ngai, instructed by S.K. Wong & Co., for the Appellant.