MOK WAI LEUNG v. THE QUEEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 892 OF 1986

____________

BETWEEN

__________

JUDGMENT

__________

1. On the 7th of August this year at the North Kowloon Magistracy, the appellant Mr MOK Wai-leung was convicted of a charge of careless driving and was fined $1,000 and ordered to pay costs of $300. He appeals today against his conviction.

2. The facts reveal that on the 22nd November last year, at about 12:20 p.m., Mr CHEUNG Chi-kwong was crossing Gascoigne Road near Wylie Road from the south side to the north side by means of a pedestrian crossing when he was knocked down by a taxi that was driven by the appellant. It is agreed that the traffic lights at the junction of the two roads were out of order at the time and that traffic was being controlled by a police officer.

3. The evidence given by the victim was to the effect that the traffic in the westward bound direction had been stopped by the police officer. He said that there were vehicles in the first, third and fourth lanes, but none in the second lane although he saw a taxi in the distance. He proceeded to cross, the road at a normal pace, but when he reached the second lane which was a distance of about 3.4 metres from the pavement, he was knocked down by the taxi. After he was knocked down he became unconscious and was taken to the Queen Elizabeth Hospital.

4. PW2 was the police officer who was controlling the traffic. His evidence was to the effect that he did not see the accident take place and did not see Mr Cheung cross the road. He said that he had stopped the traffic on the westbound side and had turned to face traffic in Wylie Road on the southbound side, and was about to release the vehicles on Wylie Road southbound onto Gascoigne Road when he heard a screech of types on the westbound side of Gascoigne Road.

5. The appellant gave evidence which was summarised by the Magistrate in his findings as follows:

"...... that he drove from Chatham Road into the first lane of Gascoigne Road Westbound. There was a slower car in front of him in the first lane and he crossed into the second lane to overtake. As he crossed into the second lane he saw that the traffic lights ahead at the junction of Gascoigne Road and Wylie Road were not functioning and that traffic was being directed by a traffic policeman. His speed while overtaking the car in front was 30 k.p.h. and as he approached the traffic lights was 20 to 30 k.p.h. Throughout his approach to the traffic lights, the traffic policeman was facing him with his hands by his sides giving no directions. He assumed therefore that he was expected to carry on. Suddenly he saw a pedestrian rushing across the road about 10 to 15 feet away holding an open umbrella. He applied his brakes but was unable to stop in time to avoid hitting the pedestrian."

6. There was evidence given before the learned Magistrate with regard to the weather conditions at the time PW1, the victim said conditions were dry but PW2 said that just before he started to direct traffic, the weather was fine, but shortly before the accident there was a drizzle for a short moment, then the weather became fine again. The appellant's evidence was also to the effect that it was drizzling, and that he was using his windscreen wippers. He also gave evidence that the victim was carrying or holding an umbrella over his head at the time of the accident and that the umbrella was open after the accident occurred.

7. Seven grounds of appeal have been argued by Mr Ng in his able submission on behalf of the appellant. They can be summarised into three categories. Firstly, excessive speed, secondly, whether the appellant should have stopped, and thirdly, failure to keep a proper look-out. Part of the evidence adduced before the Magistrate was to the effect that there was a skid mark of 14 metres. Emphasis has been laid by Mr Ng in this respect on the grounds that the Magistrate did not take into account the fact that it was drizzling at the time and should not have found excessive speed under those conditions. Quite clearly the overall braking distance would be longer if the conditions were wet. However, upon the evidence adduced, although it appears to have been established that it was drizzling, there was no evidence as to whether the surface of the road was wet or dry.

8. The second matter which was averred to by Mr Ng was whether the appellant should have stopped under the conditions prevailing at the time. The appellant, says that the police officer albeit on traffic control duty, was for a period of 20 seconds or so merely standing with his hands by his side. He, therefore, assumed under those conditions that he was enabled to proceed without stopping.

9. The junction at Gascoigne Road is normally busy and in any event when one approaches a junction, one must take proper care to ensure that it is safe to proceed. The evidence is to the effect that the appellant saw the police officer on duty, and was well aware that the traffic lights were not working. Again it is evident that if the conditions of the road were dry, his speed having regard to the length of the skid mark was excessive in those circumstances.

10. The Magistrate did not place a great deal of reliance upon the evidence of the victim, but accepted the evidence of PW2. However, he did not find the appellant to be an honest and convicing witness.

11. In order to justify the conviction it was necessary for the Magistrate to take into account the whole of the circumstances of this case and not merely to isolate any one particular matter from another. In my judgment, the evidence clearly shows that PW2 had given directions by way of a hand signal to the traffic coming from the direction in which the appellant was travelling to stop. The appellant did not see that signal. Nevertheless, as I have said it was his duty to drive with care. In my view he was quite clearly not keeping a proper look-out and was driving at a speed which was too fast in the circumstances. Even if he did not see the victim until shortly before the accident took place, he should have anticipated that a pedestrian might dart out suddenly. I am quite satisfied that the Magistrate came to the right decision in convicting the appellant so that the appeal is dismissed.