HKSAR v. YOSHIDA KOICHIRO HKSAR v. YOSHIDA KOICHIRO

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.53 OF 1997

(On Appeal from FLS 7411 of 1996)

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JUDGMENT

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1. The Appellant, Mr Koichiro, was convicted after trial on a charge of careless driving. He appeals against the conviction.

2. The factual background of the case was very simple. At the material time the Appellant was travelling in his private car along the Tolo Highway towards Kowloon on the fast lane. On reaching somewhere between Hong Lok Yuen and Tai Po Market the Appellant's car collided with another private car, a Mercedes Benz of registration number GC4840, which was immediately in front of the Appellant's car, and shortly thereafter the vehicle behind the Appellant's car also ran into the Appellant's car. There was a chain collision involving the three private cars in question.

3. It was not disputed that the first vehicle, that was the Mercedes Benz GC4840, had to stop suddenly because the driver suddenly noticed something sprang off from the left front wheel of a container or a large truck which was then travelling in the middle lane, to the left of the Appellant's and the other vehicles.

4. As far as the driver of this Mercedes Benz GC4840 was concerned, he said he heard a loud bang and then after he stopped his vehicle at a distance of about three metres from the object which sprang off from this large lorry or the container truck, the chain collision occurred. The driver of this Mercedes Benz GC4840, originally said that he braked to slow down gradually. He denied when it was put to him that he braked abruptly. He said, to justify his conclusion that he did not brake abruptly, that there was no brake mark left but he did agree, when being further cross-examined, that, to use his words, "It was not the normal braking."

5. The driver of the vehicle behind that of the Appellant said that before he collided with the Appellant's car there was some smoke from a lorry and his view or way was blocked by that smoke. Although the learned Magistrate seemed to attach no weight whatsoever to the evidence of this third driver, when the Applicant himself gave evidence he also said that there was smoke appearing from the other vehicle in the middle lane, and that there was a big sound coming out from that container truck.

6. He said he was shocked and he said he kept on watching the front, he then braked and started to decelerate. Nevertheless, he collided with the car in front and that's how he explained the occurrence of the accident. And, of course, soon thereafter the vehicle behind also ran into his. He said the vehicle in front stopped suddenly.

7. In convicting the Applicant the learned Magistrate relied on the statement given by the Appellant to the police. That was given by him quite a few days after the occurrence of the accident. In that statement the Appellant appeared to have said words to the effect that just before the collision occurred and when he was following the vehicle in front of him, he was keeping a distance of about six metres when he was then travelling at a speed of about 40 kilometres an hour.

8. In his evidence, his account of the distance between his car and that of the Mercedes in front of him substantially differed from that of his statement. In his evidence, he sought to give an explanation as to such discrepancies. In the course of the trial each of the witnesses, including the Applicant, gave evidence on what they perceived to be the speed of the vehicle, the distance between various objects and the time it took for various matters to occur. Speaking for myself, I find it difficult to rely on evidence of witnesses on matters of such kind when they were all travelling at a very high speed on the fast lane of a highway and then something unexpected happened.

9. It will be, in my view, dangerous to rely on the estimations of the distance or even speed, whether they are given in an interview or even in court under oath. My observation on this clearly applied to the statement that the Appellant gave after a Notice of Intention to Prosecute had been served on him. What could not be in dispute was that the first vehicle, that was the Mercedes GC4840, had to brake suddenly when something flew out from the wheel of another heavy lorry in the middle lane. Something clearly unforeseen and unexpected.

10. When that happened, I am slightly sceptical about the evidence of the driver of this Mercedes Benz, that he only braked gradually and not abruptly. I should think when one was travelling at a high speed in a highway with a speed limit of 100 kilometre an hour and when suddenly something flew onto one's way, the natural and instinct reaction would be to brake as quickly as possible or abruptly.

11. Whilst it cannot be disputed that when one is travelling on a highway, or indeed on any road, one should keep a safe distance from the vehicle in front so that one can stop in time in case of an emergency, but it doesn't mean that whenever there is a collision with a vehicle in front there must be a want of care on the part of the driver in the following car.

12. In this particular case there was something flying out from another vehicle travelling in the middle lane and it came onto the path of the fast lane, accompanied by a loud sound and some smoke which could have, on the evidence, blocked the way or the view of the driver on the fast lane. In such circumstances I am of the view that even a prudent driver of the vehicle behind who has kept a safe distance may not have been able to stop in time to avoid a collision with the vehicle in front.

13. Insofar as this appeal is concerned, although other grounds were raised pertaining to the admissibility of the statement that was given by the Appellant when he had not been cautioned, after he had been served with a Notice of Intention to Prosecute, whether such a statement ought to be admitted and whether full weight should be attached to such a statement, I do not find it necessary to deal with those aspects in the light of my decision on the actual merit of the cause of the accident.

14. At the end of the day I am left with a lurking doubt about the correctness of convicting the Appellant on the charge of careless driving. That being the case, the appeal must be granted. The conviction is therefore quashed and the sentence set aside.

(Discussion re costs)

15. In the light of the contents and the admissions made by the Appellant himself and the circumstances in which the accident occurred, I think he had brought suspicious upon himself and he was, in fact, rightly prosecuted. The application for costs is refused. I do not consider this is an appropriate case to grant costs in favour of the Appellant.