HKSAR v. WU ANTHONY

HCMA782/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 782 OF 1998

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J U D G M E N T

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1. These are my reasons for allowing the Appellant's appeal against his conviction on one count of careless driving, contrary to s.38(1) of the Road Traffic Ordinance, Cap. 374.

2. After his trial before a Magistrate sitting in the Western Magistracy, the Appellant was found guilty and was convicted of driving a private car carelessly in Johnston Road outside No.113B. He was fined $1,000.

3. There were two prosecution witnesses at the trial and the Appellant elected to give evidence. No defence witness was called.

4. The events giving rise to the charge occurred on 7 January 1998 at about 5:20 p.m. The Appellant, a medical practitioner, was driving his car along the eastbound carriageway of Johnston Road when his car collided with the car driven by PW1. PW2 was a passenger inside PW1's car. There were two lanes for eastbound traffic on Johnston Road with Spring Garden Lane forming a T-junction, so that cars coming from Spring Garden Lane could turn either into the east or westbound carriageway of Johnston road. When turning into the eastbound carrigeway a car would have to cross two sets of tram lanes.

5. Shortly before the accident PW1 had just picked up his employer PW2 and was executing a turn into the eastbound carriageway of Johnston Road from Spring Garden Lane. PW1 stopped his car at the junction and when he saw that the road was clear, he executed his turn into Johnston Road. After he completed his turn he saw the Appellant's car coming towards his car from behind at high speed. He noticed the Appellant swerving and trying to cut into his lane. He stopped immediately and tried to avoid a collision but the offside rear bumper of the Appellant's car scratched the near side front bumper of his car. PW1 was asked to draw a sketch of the relative positions of the two vehicles and the sketch was produced as a prosecution exhibit at the trial.

6. The Appellant's account of the events were quite different. He told the Court that he was not responsible for the accident. At the material time he was driving along the right-hand eastbound lane of Johnston Road at about 30 mph when he saw PW1's coming out from Spring Garden Lane and it stopped on the tram line with the front of the car protruding into the lane on which he was travelling. He sounded his horn for fear that PW1's view would have been obstructed by the pedestrians and at the same time he swerved slightly to the left lane to avoid colliding with PW1's car. Having passed PW1's car, he swerved back onto the right lane and it was at this time when he felt that PW1's car had collided into his.

7. PW2 testified in Court that his driver had already completed his turn and that the Appellant's car was travelling alongside his when he hear the horn being sounded. At the trial PW2 was cross-examined by Mr Grounds at length on a passage in his witness statement to the police which was to the effect that he heard the horn being sounded as his driver was executing his turn. The object of question was to ascertain at what stage during PW1's turn into Johnston Road did PW2 hear the Appellant sounding his horn.

8. The manner in which the learned Magistrate dealt with the contents of PW2's witness statement had caused concern for Mr Grounds and it formed the first ground of his appeal. I would come back to this later in my judgment.

9. The Magistrate resolved the issue of credibility of the witnesses by making the following observations at paragraph 29 of her Statement of Findings :

" I carefully considered the evidence of PW1 and PW2 and found some discrepancies between them to be material and found that it would be unsafe to rely entirely on their evidence. ... I found therefore that I should disregard their evidence as to whether PW1 had turned without stopping at the double white lines. Further I disregard PW1's evidence that he had stopped upon seeing the Defendant try to overtake him."

Paragraphs 30, 34 and 35 of the Statement of Findings contain the passages that cause concern for Mr Grounds and which concern I fully understand and share. The passage reads :

"30. PW2 admitted in cross-examination that according to the statement he gave to the police the events that lead up to the collision were as follows, that PW1 had began to turn right onto the eastbound carriageway and that PW2 heard the sound of the Defendant's horn before PW1 had completed the manoeuvre.

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34. I accept PW2's admission (my underline) in cross examination from a statement made out of court that the Defendant sounded his horn as PW1 was turning unto [sic] the eastbound carriage way and that the collision took place as PW1 was already on the eastbound carriageway.

35. I found accordingly that when the Defendant sounded his horn, PW1's car was already in motion..."

10. I note from the transcript of proceedings that although PW2 admitted to having made the statement he was never asked to confirm in Court the truth or otherwise of those passages either by Mr Grounds or in re-examination by the court prosecutor. The sole purpose of confronting him with those passages in the statement is to attack the witness credibility. Where the evidence of a witness is challenged by a previous statement, the law is this : while the previous statement may be put to the witness to destroy his credit, the contents of the statement are not admissible of the truth of the facts stated therein. (R v. Golder 45 Cr App Rep 5)

11. The learned Magistrate in accepting PW2's "admissions" in the statement and acted upon it, must have overlooked the relevant principles of law as stated in the long line of cases of R v. White [1922] 17 Cr App Rep; R v. Birch [1924] 18 Cr App Rep 144; R v. Harris [1927] 20 Cr App Rep and R v. Golder (supra) and had clearly fallen into error. In my view this ground alone is sufficient to resolve this appeal in the Appellant's favour.

12. The appeal is allowed, the conviction is quashed and the sentence is set aside.