R. v. TANG SEE KI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.519 of 1996

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J U D G M E N T

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1. The appellant was convicted of careless driving. He now appeals against conviction.

2. The facts are these. On 5th February 1995, at approximately 7:30 p.m., PW1 intended to cross Kam Tin Road. It was a dual carriageway with one lane on each side of the road. According to him, he looked to the right and saw no vehicle approaching. He said that it was a stretch of straight road, and he would see 60 metres away. He looked to the left and saw a bus coming on the other side of the road to a bus bay which was about 20 metres away. He then crossed to the other side in a quicken pace, which was described as something between walking and running. He admitted that he did not look to his right again before he started to cross. He said that when he was approximately one or two steps from the middle of the road, he heard the sounding of a horn, he looked to the right but it was to late. He was hit by the taxi which was driven by the appellant. As a result of the collision, he landed on the opposite side of the road. At the opposite lane, there was a disused zebra-crossing nearby on his side of the road. According to the evidence, the lighting of the road was adequate, the weather was fine, the road surface was dry and in good repair and the speed limit there was 50 kph.

3. The appellant gave evidence. He said he was travelling along Kam Tin Road at 50 kph. He saw the PW1 standing on the near side pavement but that was only about four metres away. He braked because he feared that PW1 might dash out and he also sounded his horn. According to him, it was only after or at about the same time when he sounded his horn that PW1 looked at him and started to cross. He hit PW1 when the latter was about three feet onto the road.

4. The learned Magistrate having heard the evidence, did not believe the appellant. He made a number of findings. I think one of the findings was that PW1 was hit when he was one or two feet from the middle of the road and not about three or four feet from the roadside. He also found that the appellant had not paid sufficient attention to the road condition. He should not have driven at 50 kph in the circumstances, and he found that the appellant was careless in his driving.

5. Counsel submitted that the learned Magistrate was wrong to say that the appellant should have seen the PW1 earlier and not about four metres away. He erred in failing to consider sufficiently the situation of the pavement because there was simply no evidence that the pavement was sufficiently lit and it would be difficult if the pavement was not lit for the appellant to see PW1 before the latter stepped onto the road. He said there were also trees on the pavement which might obstruct the view of the drivers. Counsel also criticized the learned Magistrate for holding that the appellant should not have driven at the top of the speed limit and was wrong to take into consideration a number of factors such as a nearby residential village, a cancelled zebra-crossing and the light.

6. In my view, the important point is : where was PW1 knocked down, where was the position of collision? If PW1 was knocked down somewhere near the middle of the road, it would have taken a little time for PW1 to cross the road to that point. This would mean that the appellant would have been in a position to notice the PW1 a long distance away. It is a straight stretch of road and there is no suggestion that as far as the road is concerned, it was not well lit. If the appellant could have seen the victim PW1 from a long distance away and not just a few metres away, then it was not the case that PW1 dashed across the road. It would be evidence going to show that the appellant had not been keeping a proper look out of the road a long distance away and in this connection would be careless.

7. The learned Magistrate did find, as a fact, that PW1 ended up after the collision on the other side of the lane. This is evidence which can lead to the conclusion that it was in fact nearer to the middle of the road that he was knocked down. It is also evidence, which if accepted by the learned Magistrate, went to show that in fact he was not just stepping out of the road as described by the appellant.

8. If a person is travelling in excess of a speed limit, that of course would be an offence and can also be evidence of carelessness. But it does not mean that a person can travel near but within the speed limit all the time irrespective of all traffic conditions. Whether he is still regarded as careless travelling at that speed has to depend on the circumstances of the case, the conditions of the road and other factors.

9. In my view, this is a case where the appellant should not have travelled at near 50 kph notwithstanding that he was within the speed limit. There is a nearby village and one would have expected that there would be pedestrians crossing the road. And what is more, there is a disused zebra-crossing. The fact that it is disused is neither here nor there. But the fact remains that when a driver drives along that stretch of the road, he would have seen that there was a zebra-crossing with the light disused and one would have expected that that would be an area where pedestrians are likely to cross. So when a driver approaches that location, he would be expected to slow down.

10. This in my view is exactly what the learned Magistrate was saying when he referred to these two and some other factors as supporting his conclusion that the appellant should not have travelled somewhere near 50 kph. Although he did not exceed this speed limit, in the circumstances of this case, the speed was clearly excessive. That is an indication that he was not exercising sufficient care and attention in the circumstances.

11. In the present case, PW1 was clearly also wrong. He had failed to look to his right again before he crossed. But the fact that he might have been negligent and contributed to his own predicament is one thing. The manner of the driving is clearly another. That was the issue before the learned Magistrate.

12. In the circumstances of this case, the evidence is such that it points to the conclusion that the appellant was careless in his driving. I think that the learned Magistrate was entitled to and was correct to come to that conclusion. The conviction is neither unsafe nor unsatisfactory. I would dismiss the appeal.