THE QUEEN v. KWAN CHI WING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1172 of 1995

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J U D G M E N T

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1. This was an appeal against a conviction and sentence for careless driving. The sentence was a fine of $800 and the appellant was ordered to pay costs of $2,000. The simple facts were that Phillip Wong, a businessman, and at that time also a member of the Legislative Council, was driving his Mercedes private car DX 8582 uphill in Bisney Road towards its junction with Pokfulam Road. Ahead of him was a green public light bus Registration No.DK7974 driven by the appellant. Mr Wong alleged that at the junction the appellant's public light bus rolled backwards and bumped into his car with a loud bang causing damage. In his evidence, he said : "It was a very loud bang sound." Later on he said :

"The rear of green PLB hit my car. Damaged front and radiator of my car. I believe that cost of repairs was between $8,000 and $10,000."

The appellant did not stop his public light bus, but after a chase was intercepted by Mr Wong and the police were called. Later on in his evidence, Mr Wong said this :

"I took 2 photos to show the damage to my private car. P1. You can see the damage to front of radiator and to front of the car. I didn't take the photos myself. 'B' is what it had been after he hit the impact was transmitted into the inside and hit the radiator and fan. You can see the Omelco car badge centre is twisted."

2. I have examined the original photographs with the aid of a magnifying glass. I have asked prosecuting counsel, Mr Cheung, to do the same. Neither of us could see any sign of any damage on the car whatsoever which could be attributable to a collision as described by Mr Wong. Nowhere in his Statement of Findings and Reasons for Decision has the learned Magistrate made mention of these photographs. In his Reasons, however, he did say this :

"I was certain that PW1 was right when he said there was a collision between the 2 vehicles. I found nothing in the evidence of PW1 to cause me the slightest doubt about that. I could not imagine he would have pursued the appellant as he did and stopped him unless such a collision had occurred. I found nothing in the evidence to suggest there was any possibility that he had picked on the wrong PLB."

3. The difficulty now facing me, as the appellate court, is that there exist these photographs which, on their face at least, would give any court cause to doubt that the accident occurred as PW1, Mr Wong, described it. It may well be that there was a very slight touching of the two vehicles caused by the appellant's PLB running backwards into Mr Wong's car at the junction, but the case, as it was put by the prosecution, was that there was "a loud bang", and that damage in the region of $8,000 to $10,000 was caused as a result of the collision. The photographs did not substantiate that claim, they contradicted it. Without his consideration of the impact of these photographs on the evidence of Mr Wong, I could not accept the learned Magistrate's findings. I therefore had to allow the appeal.