THE QUEEN v. CHOI WAI HUNG

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL No. 98 OF 1991

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BETWEEN

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JUDGMENT

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1. The appellant was convicted after trial in the Magistrates Court on a charge of careless driving. The particulars of the charge alleged that the offence was committed on 28th April 1990 at Tak Fung Street near Shung King Street.

2. The principal prosecution witness said that at 8.15 a.m. that day, he was driving his private car along Tak Fung Street towards its junction with Shung King Street intending to turn left into Shunt King Street. Tak Fung Street was then a one way thoroughfare with a centre line. Each side of the centre line was wide enough to accommodate two vehicles travelling abreast. Although the road markings made Tak Fung Street appear superficially to be a two-lane carriageway, it effectively catered for four lanes of traffic.

3. The witness said that he drove on the innermost of the four lanes. As he approached Shung King Street, he signalled his intention to turn into Shung King Street. He saw no traffic in his rear vision mirror, but as he was negotiating the turn the appellant's vehicle suddenly overtook him and collided with him. The witness's vehicle was damaged on the front off side and the appellant's on the near-side area. The witness said that he was still in his "own lane" after the collision, and that 10% to 20% of his vehicle had turned into Shung King Street.

4. The appellant's evidence was that he drove in the same direction along Talc Fung Street, also with the intention of turning into Shung King Street. He saw the other driver's car stopped at the junction and it was still stationary as he passed on its off side. He stopped at the junction, indicated his intention of turning into Shung King Street looked at the traffic in Shung King Street, and was then struck by the other car.

5. The sketch drawn by one of the police officers, who attended the scene, showed arrow markings on Tax Fung Street, indicating straight ahead traffic flow on the approaches to the Shung King Street junction.

6. In paragraphs 9, 13, 14, 17 and 18 of his Statement of Findings, the learner magistrate said this :

On the basis that the appellant had contravened the road marking and/or overtook at a road junction in contravention of the Road Users Code, the learned magistrate convicted him of careless driving.

7. Mr. Adams, in support of the appellant's appeal against conviction, submits that the magistrate's finding of guilt was based on flawed reasoning. According to the Road Traffic (Traffic Control) Regulations, the straight ahead arrow road markings in Tak Fung Street did not prohibit left hand turns from Tak Fung Street to Shung King Street. The notation below figure no. 509 in Schedule 2 of those regulations says that the purpose of such arrow is to indicate appropriate traffic lanes. It makes it clear that in order to prohibit deviation from the indication, the marking must be accompanied by prescribed transverse lines at the entrance to the junction. There were no transverse lines at this junction.

8. I, therefore, agree with Mr. Adams' submission on this point that the magistrate misdirected himself in holding that turning left into Shung King Street contravened the Regulations.

9. As to the magistrate's s reliance on the Road Users Code, it seems that he interpreted failure to observe the advice of the coda as presumptive evidence of careless driving. S.109 of the Road Traffic ordinance empowers a magistrate to take judicial notice of the provisions of the Code, but it also makes it clear that a failure to observe the advice given in the code is a factor that to be considered when determining liability in any civil or criminal proceedings. It was a factor to be considered but it was not conclusive evidence of careless driving.

10. On the evidence, this accident occurred either because the principal witness, having stopped at or near the junction, drove off again without ensuring that it was safe to do so, or the appellant made a turn across the near side lane without ensuring that it was safe to do so. The learned magistrate did not accept the appellant's version that he had stopped at the junction. Rejection of the appellant's evidence on that point did not, however, necessarily involve a finding that the appellant was careless in negotiating the manoeuvre.

11. It was necessary for the magistrate to come to a firm conclusion beyond a reasonable doubt that it was the second of the two alternatives, namely that the appellant mace a turn across the near side lane without ensuring that it was safe to do so in order for him to reach a verdict of guilty of careless driving.

12. By a misdirection as to the law, he failed to consider whether that second of the two alternatives had been proved beyond reasonable doubt. As he did not make such a finding the conviction is unsatisfactory and must be quashed. The appeal, therefore, is allowed.