R. v. KEUNG KIN CHUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 492 OF 1995

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J U D G M E N T

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1. The Appellant was convicted of careless driving and was fined.

2. The prosecution evidence against the Appellant was from a police officer on motor cycle patrol. He was from the Enforcement Unit of Shatin Police Station. His evidence was that he saw the Appellant driving his car coming down from Ma On Shan slip road to its junction with route T6, going in the direction of Taipo. The officer was on the outer lane of T6. The Appellant's car with the right indicators on, cut into the near side lane causing a goods vehicle there to break. He then cut into the outer lane. The officer said when the Appellant's car cut in front of him, it was about 1 to 1.5 meters from him and he had to brake and to swerve to avoid a collision, so much so that he almost mounted the pavement. It is of interest to note that in his evidence, the officer mentioned twice that he had almost mounted the payment. It would appear that he was emphasing this point. He then chased after the Appellant and stopped him telling him he would be summonsed for careless driving. The driver of the goods vehicle had not been located.

3. The appellant's evidence was when he went into T6, he had his indicators on and there was sufficient distance between him and the goods vehicle for him to cut in. The goods vehicle did not have to brake. When he cut into the outer lane, there was no traffic on his right. He was later stopped by the officer who told him he would be summonsed for careless driving because he cut in too close.

4. The learned magistrate accepted the evidence of the officer and convicted the Appellant accordingly.

5. At the appeal, the Appellant submitted that the learned magistrate was misled by the sketch as to the distance between him and the officer when he cut in at the junction. He said he disputed the sketch at the trial. He sought to produce a government survey map of the junction. Mr. Cheung for the Crown objected on the ground that the government survey map was available at the trial and the Appellant had indicated that he understood the sketch. However, Mr. Cheung agreed that the sketch did not indicate if there was a pavement on the outer lane in T6 and accepted the government survey map would clarify this aspect. In fact, the Appellant at the trial had indicated to the learned magistrate that the sketch was incorrect and asked for time to put in the plan of T6 but this was rejected. In the circumstances the Appellant was allowed to put before the court the government survey plan together with some photographs of that stretch of the road. These, it is accepted by all parties, do not show the existence of a pavement.

6. The officer being attached to the Enforcement and Control Section of Shatin Police Station should be familiar with that stretch of T6. He was in the best position to describe that section of the road. When he described himself almost mounted the pavement where there was in fact no pavement, he was either lying or exaggerating, to impress upon the learned magistrate the danger he was put into by the Appellant's driving. This casts doubt on the officer's evidence as to distance the Appellant was alleged to have cut in front of him. The evidence on which the learned magistrate relied to convict was unreliable. In a one to one situation like the present one, where the guilt or innocence of a person so much depends on the sole evidence of a police officer, the credibility of the officer is of vital importance. If there is doubt as to his credibility, the conviction is not safe. In the circumstances, the conviction is unsafe and unsatisfactory. The appeal against conviction is allowed. The conviction is quashed and the sentence set aside. Fine and costs paid shall be refunded to the Appellant.