HKSAR v. WONG WING KEUNG

HCMA58/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.58 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of careless driving in North Kowloon Magistracy and was fined $1,500 and $500 costs. He now appeals against conviction.

2. The facts of the case are that on 28th June 1997 at Argyle Street junction with Tung Choi Street the Appellant did drive a private car on the road carelessly. The evidence was that PW1, an 83 year old man, was crossing Argyle Street at a light controlled crossing for pedestrians when he was knocked down by the private car driven by the Appellant. The evidence given by PW1 was not entirely consistent, but regard must be had to the fact that he was 83 years old and must have suffered some trauma as a result of the accident.

3. The appeal has been properly brought and Counsel has made a number of complaints against the conviction. The first ground is that the trial magistrate erred in ruling that there was a case for the Appellant to answer. This is based on the fact that when the victim, PW1, gave evidence, he had given at least two different versions of what exactly happened prior to his being knocked down by the car. At one stage he had said that when he stepped onto the crossing, the light for pedestrians was flashing and then in cross-examination, he agreed that even before he stepped onto the crossing, the light was flashing. He then changed his evidence, in the course of his being cross-examined, to say that it was only when he was on the crossing itself that the light for pedestrians began to flash. He also said that there were no vehicles stopped at the crossing when he crossed the road. However, he had said in the statement given to the Police that cars were stopped in the first three lanes when he was crossing the road, and also in the statement he had said that when he was on the second lane, the light for pedestrians changed to red and therefore the light for cars would have turned to green. Because cars which were stationed at the first two lanes just in front of the crossing began to move, the victim then crossed the road hurriedly which resulted in the accident. The victim denied at one stage that any vehicle passed behind him while at another stage of his evidence said that a taxi drove pass him behind his back as he was crossing the road.

4. Insofar as the first ground is concerned, in my judgment, despite the inconsistencies in the evidence, the learned Magistrate was entitled to find that there was a case to answer on the basis not that a jury would convict, but simply on the basis that a jury might convict on that evidence.

5. The second ground is that the learned trial Magistrate wrongly stepped into the arena of the prosecution in conducting another cross-examination of the Appellant after the prosecution had concluded her cross-examination of the Appellant. Apparently 35 questions had been asked of the Appellant by the prosecutor, and after that was completed, the Court, of its own volition asked no less than 34 questions. Mr C.S. Fu, appearing for the Appellant, complains that that amounts to the Court descending into the arena and removing its mantle as an impartial observer. Mr Edmund Lee, appearing for the Respondent, has submitted that the 34 questions which were asked were in fact short, non-aggressive questions which were intended to clarify ambiguities in the evidence of the Appellant.

6. One of the cases relied upon by Mr Fu was R. v. Or Chung Yan [1975] HKLR 243. One of the things which was held by the Court of Appeal in that case was that for an appellant to succeed on the ground that the trial judge had unduly interrupted his evidence to the extent that it was impossible for the defendant to present his case fairly, it is necessary for an appellant to show that the judge gave an indication of bias against him. It was said in that case that judicial zeal for uncovering of the truth must stop short of any practice which, in the eyes of a detached beholder, might seem to destroy the valuable distinction between inquisitorial and accusatorial procedures. In R. v. Lau Hing On (unreported) CA 378 of 1986, much the same point is made by the Court of Appeal. In R. v. Yeung Mau Lam, Criminal Appeal 550 of 1989, the Court of Appeal held that from the authorities, the following five propositions are apposite to that Court's consideration :

(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury; the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena;

(5) The ultimate question for the consideration of an appellate court is whether the judge's conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

7. In that particular case, the trial judge had asked the appellant and two of his defence witnesses a great number of questions which the appellant contended show bias on the judge's part and also prevented the appellant from presenting his case in a fair manner. The Court of Appeal said in relation to the questions asked of the appellant :

" As can be seen from the foregoing, the judge asked the applicant a large number of questions. They were, it is conceded, not asked in an aggressive manner. They were, in very large part, attempts to clarify matters which, on the face of the transcript, appear to have been purposely left obscure by the applicant. We are satisfied that there was nothing in the questioning of the applicant by the judge which either indicated bias or prevented the applicant from giving evidence in his own way, nor do we think that he interfered with the applicant in placing his defence before the court...."

In the event, the Court of Appeal in that case held that the trial judge had overstepped the borderline of propriety in his questioning of a defence witness, but, nevertheless, the Court dismissed the appeal on the basis that there had been no miscarriage of justice.

8. In the present case, in my judgment, the questions which were asked of the Appellant were not so numerous as to show that the Magistrate had descended into the arena and certainly did not have the effect of preventing the Appellant from giving his evidence in the way that he chose.

9. Ground three relied upon by Mr Fu was that the trial Magistrate wrongly concluded that the Appellant should have seen PW1 "if he were a very cautious, reasonable and prudent driver under the circumstances of the case". As Mr Lee for the Respondent has pointed out, the words "a very cautious driver" were used by the Magistrate only once, and that was when he was giving oral reasons when delivering his verdict. But in his Statement of Findings, he made it quite clear that the criterion that he was adopting was "a cautious and prudent driver" and his conclusion was that the Appellant had not been a cautious and prudent driver.

10. Ground four advanced by Mr Fu is the overall ground that the conviction is unsafe or unsatisfactory. In dealing with that matter, one has to consider the very wide definition of "careless driving" contained in the Road Traffic Ordinance, Cap.374 and that is "a person drives carelessly if he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road". In this particular case, Mr Fu has complained that the finding by the Magistrate that three cars were stopped just in front of the crossing at the time of the accident was not in fact the evidence of the victim because the victim in his evidence denied that there were any car stopped at the crossing, but in his statement to the police, the victim had mentioned that there were cars stationed in front of the crossing. Nevertheless, this was a matter which was admitted to by the Appellant that when he, the Appellant, was approaching the crossing, there were three cars stopped in front of the crossing. The light for vehicles would appear to have been green in favour of the Appellant when he was approaching the crossing; this, of course, is not carte blanche for any driver to proceed irrespective of what was already on the road and irrespective of what might emerge onto the road from the pavement. We are only all too aware of the real possibility, on the streets of Hong Kong, of a pedestrian dashing out from behind a bus or from behind a parked lorry, or indeed from the pavement. Where a pedestrian dashes out under such circumstances, making it impossible for any cautious and prudent driver to be able to avoid a collision, the driver is of course not guilty of careless driving. In this particular case, the accident had occurred on a light controlled crossing for pedestrians; there were three cars already stopped in front of the crossing when the Appellant was approaching the crossing; even though he claims that he did not see the victim on the crossing as he was approaching, in my judgment, if he had exercised sufficient care and attention, and had been reasonably prudent and cautious, he should have been able to see the victim on the crossing. At any rate, when the victim at some stage emerged from between the stationary vehicles, in my judgment, the Appellant should have been on the alert sufficiently to bring his car to a halt to avoid a collision.

11. As I said, this accident was unfortunate but one has to have regard to the fact that the victim, being aged 83 at the time of the accident, could not have been dashing across the road with such speed and agility that it was impossible for a cautious and prudent driver to avoid the collision. The fact that the collision occurred shows that the Appellant was not driving on the road with sufficient care and attention. Therefore, in my judgment, the conviction cannot be said to be unsafe and unsatisfactory and therefore the appeal against conviction has to be dismissed.