HKSAR v. YU TUNG LUN

HCMA 203/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 203 OF 2005

(ON APPEAL FROM FLS 6877 OF 2004)

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J U D G M E N T

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1.  The Appellant was summonsed for Careless Driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374.  He pleaded not guilty and was represented at the trial.

2.  After trial, the Appellant was convicted and fined $2,500.00.  He now appeals against the conviction only.

3.  The grounds of appeal were the general ones that the verdict was against the weight of the evidence.  At trial, the prosecution called two witnesses, the driver of a taxi (PW1) and the police officer (PW2) who investigated the accident.

4.  The prosecution evidence showed that PW1, driving his taxi, was heading towards Lung Sum Avenue in Sheung Shui.  PW1 was driving on a straight section of the two lane road at a speed of 30 kph.  His was the only vehicle travelling on that section of the road.  Just before reaching a junction with an unnamed access road which led to a bus depot, PW1 noticed a bus was stopping in the opposite direction intending to turn right into the access road.  PW1 maintained his speed of about 30 kph and as he neared the junction, the bus suddenly started to move turning right into the access road.  This brought the bus right in front of the taxi.  PW1 braked immediately, but could not pull up in time in the short distance between the two vehicles and a collision occurred.  There was slight damage to the front of both vehicles and PW1 sustained minor injuries.  According to the police officer (PW2), who attended the scene, the Appellant told him, at the scene, that he wanted to make a right turn to the bus depot.  In the far distance, he had seen a taxi moving towards his direction, and when he was making a right turn, he had a collision with the taxi.  He said that he had pulled on the handbrake.  He did not say anything else to PW2.

5.  At trial, the Appellant elected not to give evidence or call any witnesses on his own behalf.  The court was informed that the Appellant had a clear criminal and clear traffic record.

6.  There were 12 photographs of the accident scene produced at trial.  The accident occurred at night when it was wet and raining.  Counsel for the Appellant at trial argued that PW1 should have taken evasive action more quickly and more effectively, but the Magistrate found that what PW1 had tried to do in the short time he had, i.e. to slam on the brake to avoid the bus was all he could be expected to do in the circumstances.  The Magistrate found that, despite counsel’s efforts in putting the Appellant’s case, there was nothing to challenge or contradict the testimony given by the taxi-driver.

7.  The Magistrate noted that the prosecution had to prove its case and he was satisfied on the evidence of PW1, it had done so.  He found that the accident had been caused by carelessness on the part of the Appellant, who had failed to pay due care and attention to the approaching taxi before starting to make his right turn.

8.  Today, the Appellant appeared in person.  He sought to produce seven photographs showing the accident at the scene.  These photographs were taken the day before yesterday by the Appellant.  Using the photographs, which were taken in daylight, the Appellant asked the court to note the route his bus took to go into the depot.  He disputed the accuracy of the sketch which had been produced by the police at the trial.  He claimed that the front of his bus would have been at a sharper angle than shown on the sketch.  He appeared to wish to give evidence on appeal that he should have given at trial, if he wished to give evidence at all.

9.  I accepted the photographs and the related submissions made by the Appellant de bene esse, that being the only basis on which I could take note of them.  The Appellant said that he had not told his counsel in detail of the matters relating to the accident that he put before the court today.  He simply asked his solicitor to handle the case because he was busy with his work.  He pointed out that there was a bus from his company ahead of him which had slowed, that he did not see the taxi and the collision was unexpected.  It was his view that the taxi-driver should have noticed his bus, but he admitted that he himself did not notice the taxi after a certain point.

10.  I can see nothing in the Magistrate’s approach to this case which showed either that he was wrong to convict, or that he reached his verdict against the weight of the evidence.  Giving full weight to what the Appellant said today and taking note of the photographs, there was nothing put before me which showed that I should interfere with the findings of the Magistrate.

11.  Accordingly, this appeal is dismissed.