HKSAR v. CHEUNG YUK HA

HCMA 192/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. HCMA 192 OF 2002

(ON APPEAL FROM STS 900422/2001)

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J U D G M E N T

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1. On 25 January 2002 the Appellant was convicted of an offence of careless driving and she was fined $1500 by a deputy special Magistrate in Shatin.

2. The Appellant appeals against her conviction and, at the outset of this judgement, I might say that she (appearing before me in person), had either been advised by a lawyer as to her approach to this appeal or if otherwise, she should herself consider pursuing a career as a lawyer. Her arguments before me were refreshingly concise and entirely to the point.

3. The Appellant was, at the date of the accident which gave rise to her conviction, a lady bus driver. On 4 June last year at about 7 pm she drove her bus into an area designated as a 'bus stop' to allow some of her passengers to alight and to allow other passengers to board her vehicle.

4. Having done that, she drove her bus out into the highway and, either whilst doing so or shortly thereafter, the front offside of her bus came into contact with the rear nearside of a taxi.

5. Before the deputy special Magistrate the driver of the taxi apparently gave evidence to the effect that the Appellant drove her bus out into the highway being oblivious as to his presence. The appellant (and a witness called on her behalf) gave evidence to the effect that as she drove her bus into the highway the taxi driver came up from behind at speed and, the road not being designed or capable of accommodating two vehicles travelling in the same direction, the taxi driver then endeavoured to cut in in front of the bus from its offside and, in doing so, struck the front offside of the bus.

6. During the course of the trial some photographs and no fewer than 4 sketch plans were adduced into evidence. Each of the sketches was, (perhaps not surprisingly), different in relation to the width of the road and the precise location of the collisim between the vehicles.

7. In her reasons for verdict the learned deputy special Magistrate said, inter alia, the following:-

"The Appellant was a bus driver. About 6:55 p.m. on 4-6-2001 she was driving a KMB Bus at Kwong Fuk Road towards the direction of Po Heung Street. There was a bus bay before the traffic lights.

The Applicant drove the Bus into bus bay to alight passengers. After alighted passenger, the Applicant drove the Bus out of the bus bay and stopped before the stop double white line at the red light.

When the traffic lights turned into green, the Applicant started the Bus at about 5 - 10 Km per hour. When the Bus just passed the pedestrian crossing after the traffic lights, the Applicant looked at the right rear mirror of the Bus and she saw a taxi was in behind and was coming up fast. The Taxi cut to the right of the Bus and cut in front of the Bus from its left side. At that time, the Applicant heard the sound of collision. She immediately stopped the Bus. The Taxi stopped in front of the Bus.....

At the time of the accident, there was a colleague of the Applicant on board the Bus. She was sitting on the front [row] of the Bus facing the windscreen.....

[Her evidence was that] at about 6:55 p.m. on 4-6-2001, she was on board the bus being driven by the appellant.

Having stopped at the bus stop ..... at Kwong Fu Road, the Bus pull out from the bus bay and stopped at the middle of the lane in front of the traffic lights. When in green light, the Bus started and went for a short distance, she saw the Taxi coming very fast from behind. When the Taxi was almost passed the Bus, she heard a sound of collision. The taxi overtook the Bus on its right and cut to the left of the Bus and stopped in front of the Bus."

8. The Magistrate went on to say this:-

"[The taxi driver] was the most important witness who gave a clear and precise account of the accident. He was cross-examined at length. He stated firmly to his evidence of the examination- in- chief. I found him to be an honest reliable witness. I believed him and I accepted his evidence.

On P.1, the photographs, which showing the positions of the bus bay, the traffic lights and the pedestrian crossing at Kwong Fuk Road. Kwong Fuk Road is a two ways traffic road with one lane on each direction. The carriage ways were divided by a continuous double white line.

According to the evidence of the Appellant, she stopped the Bus at the middle of the lane before the traffic lights. When the traffic light changed to green, she started off and when the Bus was just at the pedestrian crossing, she was over took by the Taxi at her right side. In case if the Applicant was telling the true that the Taxi over taking the Bus at that position, I found the Taxi had to pass the double white line and went into the other side of the traffic. It had to pass the traffic lights and the pedestrian crossing on the opposite traffic before it could has sufficient space to cut in front of the Bus. Otherwise, the Taxi will crash on the traffic lights that are stand on the middle of the road.

However, on the evidence of the Applicant and the sketch submitted by the Applicant, there was no evidence showing the Taxi went into the other side of the road. When it over took the Bus unless the right body of the Taxi came into contact with the left body of the Bus. On examination of the damage of the two vehicles, no such damage was found.

I also considered and concluded that D2 was not an independent witness. She was the close friend and close colleague of the Applicant. On the evidence of D2, she was sitting on the 1st roll of the Bus and facing the windscreen of the Bus, I do not accepted that she could see the Taxi coming fast from behind and overtook the Bus at the time of accident. But her evidence was nearly the same as the Applicant's. I found the Applicant and D2 were not honest witnesses, I do not accept their evidence."

9. With the greatest respect to the learned deputy special Magistrate I simply do not follow what she is saying in her penultimate paragraph unless she is suggesting (which was not the evidence before her) that the taxi might have overtaken the bus on the nearside and nor can I understand her expressed view that the taxi driver was the most important witness in the case..

10. Before me the Appellant complains that the Magistrate, in her reasons, failed to take into account the fact that she had an unblemished driving record, whilst the taxi driver had previously been convicted of careless driving. There is, with respect, nothing in that.

11. She also complains - and in this (in my view) her complaint has real substance - that the Magistrate failed to deal with the vital inconsistencies in the various sketch plans, which call completely into question the accuracy (or otherwise) of the evidence of the taxi driver and, indeed, the evidence of the appellant herself.

12. Finally the Appellant takes issue with the Magistrate's finding that her witness was a close friend of hers as well as being a colleague, and apparently drawing an inference from that, that the two of them must have got their heads together to give a purposefully false account of what had happened. The Appellant says that she and her witness, whilst being colleagues, were not close friends, and that there was absolutely no evidence at trial to suggest otherwise.

13. In the light of everything that I was told - and everything that I read - during the course of this appeal I was quite unable to conclude that the appellant's conviction was safe and unsatisfactory. If I was to say that I had a 'lurking doubt' about the matter that would be an understatement.

14. Accordingly this appeal must succeed. The Appellant's conviction is set aside and her fine is quashed.