HKSAR v. SHEN NONG

HCMA998/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.998 OF 2003

(ON APPEAL FROM WSS 10051 OF 2003)

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J U D G M E N T

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1. The appellant in this case was charged with one count of careless driving. He was convicted after trial and was fined $1,500. He sought to appeal against the conviction. Having heard his submissions and read the relevant papers, I had already dismissed the appeal. I now state the reasons.

2. The particulars of the summons stated that on 8 May 2003 at 10:30 p.m. at Magazine Gap Road near May Road the appellant did drive a private car displaying registration mark KL7669 on a road carelessly.

3. At the trial, the prosecution had called three witnesses. PW1 was the driver of the other vehicle which had collided with the vehicle driven by the appellant. Basically PW1 said that he was driving behind the appellant's vehicle along Magazine Gap Road in a downhill direction. When the appellant drove past the junction of May Road, he had suddenly stopped his car. PW1 had to slow down and stop his car behind at a distance of about one car's length. According to PW1, the appellant then started to reverse, and despite his warning horn, the appellant's car still collided into his stationary vehicle and thereby causing damage. PW1 also gave evidence on what happened afterwards. He said that the appellant had agreed to pay him compensation. However, when he called the appellant the next day to discuss the matter, the appellant had retracted on the offer.

4. The learned Magistrate noted that PW2's evidence was basically the same as PW1's. PW3 was the police officer giving uncontested evidence regarding the location and he had also produced a sketch.

5. As to the appellant, he had chosen to given evidence. He admitted to be the driver of the car in front. He said he did stop his car after passing the road junction because he saw an object coming in his direction. He said he wanted to reverse his car in order to see what the object was. But when he was about to reverse his car, PW1's vehicle had rammed into the back of his car. The appellant agreed that he had initially agreed to pay compensation but that was because one of his passengers was a pregnant woman, so he wanted to leave the scene as soon as possible. He said that the amount he was prepared to pay was only HK$1,000. However, when PW1 called him the next day, he was asking for $7,000, so he refused to pay.

6. In the Statement of Findings, the learned magistrate had analysed the evidence carefully and he concluded that PW1 and PW2 had given honest and straightforward evidence of what had occurred regarding the incident. The magistrate said the following regarding the defendant's evidence :

" The defendant sought to have the court believe that notwithstanding the fact that it was PW1 who collided into his vehicle, he (the defendant) was prepared to pay PW1 for the damage that was occasioned. I found that the reasons the defendant gave for this extraordinarily charitable gesture as outlined in the summary of his evidence above were unsatisfactory and not credible.

I did not find the defendant to be a witness of truth and I had no hesitation in rejecting his evidence where it conflicted with that of the prosecution."

7. In conclusion, the learned magistrate stated that :

" The evidence of PW1 and PW2 which I accepted clearly showed that the defendant had not paid any or sufficient attention to the road conditions behind him before he reversed. As a result he collided with PW1's vehicle which was stationary and in close proximity behind him at the time. The defendant was wholly responsible for the collision and drove without due care and attention."

8. The learned magistrate found that all the essential elements of the summons were made out beyond reasonable doubt and so he convicted the appellant accordingly.

9. Today, before this court, the appellant sought to argue that the learned magistrate had failed to consider the inherent illogicality of PW1's evidence. He said that at the time he was in a downhill position, if he were to reverse, he would have to go uphill; he would need at least 10 seconds to cover the one-car distance in order to hit the front of PW1's car. The appellant said that he had no hearing problem, his window was down and that he had not been drinking. If there was indeed the sounding of horn warning him, he would have heard it. To say he had ignored the warning in the circumstances would be irrational and illogical. The appellant said that he had more than 20 years of driving experience. He had driven in New York, and he had also driven in Hong Kong for about a year. He argued that it was not the case that he had missed the road junction of May Road. That was made up by PW1. He said that he did not even know where May Road was. The appellant said that PW1's description of the event was unbelievable and the magistrate should not have believed him. He submitted that, from his point of view, the decision to convict was not fair and it was based on facts that were not true.

10. As I had explained to the appellant, the nature of this appeal hearing was not to retry the matter. The learned magistrate had heard and seen the witnesses, and he had come to a finding of fact after considering the evidence. Even if the appellant appears to this court to be honest but I have not heard and seen the other side. I cannot make an ex parte assessment and replace the magistrate's finding with it. I have no right to do so unless the decision is clearly not supported by evidence or is irrational.

11. Having heard the appellant, I cannot say that what the prosecution witnesses had said could not have happened. And whether it had indeed happened would depend on the credibility of witnesses, which is a matter within the jurisdiction of the trial magistrate. Once the learned magistrate chose to believe PW1, the conviction would be inevitable.

12. I cannot find anything wrong in the learned magistrate's reasoning and he had applied the law correctly. There is no ground to overturn the conviction. The appeal must be dismissed.