HKSAR v. MA YIU CHUNG

HCMA990/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.990 OF 2003

(ON APPEAL FROM STS 4724 OF 2003)

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J U D G M E N T

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1. On 17 September 2003, the appellant was convicted after trial of an offence of careless driving and he was fined $2,000. He appealed against that conviction and appeared before me on 3 December.

2. At that hearing the appellant told me that he also sought leave to appeal against his sentence upon the footing that as there was in fact no accident (or collision between vehicles), the fine of $2,000 was excessive.

3. In the event I dismissed the appeal against conviction, gave the appellant leave to appeal against sentence and reduced the fine to one of $1,000. These are my reasons.

4. At trial the prosecution's case was simple, and it was this. The appellant was driving his goods van in the inside lane on the Shing Mun Tunnel Road, in the morning of 18 March 2003, followed by a police officer who was some 50-60 metres behind on his motorcycle. The police officer saw the appellant suddenly pull out into his offside lane very close to a taxi, forcing the taxi to swerve right to avoid a collision. The appellant's vehicle came within one metre of the taxi. Both vehicles were stopped and the appellant was told he would be summonsed for careless driving.

5. The only witness for the prosecution at trial was the police officer. The appellant gave evidence and his account of matters was disbelieved by the magistrate.

6. The written grounds of the appellant's appeal are as follows :

"... I felt that the sketch provided by the witness was drawn on the day following the incident. According to the distance between my vehicle and the taxi as depicted in his sketch, it was impossible not to see the taxi the moment just before I changed lane, since according to the sketch provided by the witness, my vehicle cut into the lane from the left hand side of the taxi. My question is, if a driver saw that there was traffic on his right side, would he still accelerate to cut into the lane? I believe that if this was true, it would be absolutely dangerous. That section of the Highway has a speed limit of 70 km. To avoid danger by stopping the vehicle, a driver would definitely brake abruptly so that the vehicle would come to a halt. Needless to say, whatever my intention was, I would not change lane under such circumstances. Also, there was a passenger inside the taxi. It should be the responsibility of the police officer to ask that passenger inside the taxi whether he/she would be a witness. This was unfair to the defendant! Since there was only one witness in this trial and the incident happened more than half a year ago, the police officer should have ample time. The statement of the police officer did not mention the fact that the taxi driver failed to sound the horn when performing the dangerous act. To analyze it under normal circumstances, the taxi driver should have certain action taken. In addition, the police officer was 50-60m behind the taxi and my vehicle, so I do not agree that I failed to pay attention to the traffic condition before changing lane as he had allegedly witnessed and that I am not guilty of the said offence."

7. What the magistrate has to say about the matter in his Statement of Findings is (inter alia) this :

" The police officer, whose evidence I accepted, said that he saw the defendant's goods van which was travelling in the inside lane suddenly cut into the adjacent lane on its right. A taxi in this lane was forced to brake abruptly and swerve right to avoid a collision. ...

The defendant gave evidence. He said that the taxi was at a safe distance behind when he changed lanes. He looked in his rear view mirror, indicated, and seeing that it was safe to do so changed lanes. He explained that he had changed lanes because of the presence of road works ahead.

I did not believe the defendant's evidence. It was plain that the taxi driver had to brake suddenly and swerve in order to avoid the defendant's van which, without warning, had crossed into his lane. I was satisfied that the defendant had driven carelessly."

8. Before me the appellant repeated what he had said in his grounds of appeal, all of which, he agreed, was before the magistrate at trial. For my part, I found myself unable to conclude that the magistrate had in any way fallen into error and that is why I dismissed the appeal.

9. As to sentence I was assisted by Mr Madigan and those instructing him as to what is the "usual" level of fine in a "non accident/non collision" case of careless driving and being thus assisted I reduced the fine to one of $1,000.