R. v. MA TZE KIT, DICKY

1997, NO. MA 195

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This is an appeal from Magistrate Mr Fung who heard a case of careless driving. It is an unusual case because the lady who was knocked down, unfortunately died. I do not think it was as a result of the accident.

2. What had happened was that there were some vehicles parked outside a shop in Jaffee Road in Wanchai which was shown on a diagram. The shopkeeper who was inside the shop suddenly heard a noise and he looked outside and saw there was a woman behind a white van. The driver got out and went to see the lady and called the police. When the police came round, the appellant said he had hit the woman while reversing. He later gave evidence to deny this but it was quite clear that the magistrate was fully entitled to find that he had hit the woman when she was at the back of his van.

3. The magistrate then said that he called this "a verbal admission" and he appeared to equate it with a confession. Indeed, the questions that were put said these amounted to a confession. In my judgment, this was not a confession but was an admission that he had hit the woman.

4. This, however, was a case of careless driving and the civil doctrine or res ipsa loquitur, which means the facts speak for themselves, do not apply to criminal law. There must be evidence of negligence to show that the person was driving carelessly. There have been a number of cases, see, for example, R. v. Kit Wing Wo [1985] 1 HKC 204 and Rabjohns v. Burgar [1972] Crim. L.R.46 which Mr Cheung has kindly drawn to my attention where a person was driving his car on a dry road with good visibility left two skid marks and hit a wall and there the facts were so strong that the only inference was that he had been driving carelessly. Here, the facts were that the appellant had clearly hit the woman.

5. The magistrate appeared to think that as soon as it is proved that he hit the woman, that makes him guilty of careless driving. In my judgment, that was an error of law. There has to be evidence that he was careless. It may be, one does not know, that she had walked suddenly behind his van. Whether he had started reversing or not, he clearly told lies and was disbelieved, but that again does not entitle the magistrate to find him guilty.

6. As I said this was an unusual case. It is a great pity that the magistrate was not assisted by having the relevant authorities drawn to his attention. In my judgment, this appeal should be allowed.