HKSAR v. LAU SIU KEUNG

HCMA 60/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. hcma 60 OF 2005

(ON APPEAL FROM FLS 7095/2004)

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REASONS FOR JUDGMENT

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1.  On 31 March 2005 I dismissed this appeal against conviction and indicated I would hand down my reasons at a later date.  Those reasons now follow.

2.  This Appellant was convicted in the Magistracy of Careless Driving and fined HK$1,000.  He appeals against the conviction.

Prosecution evidence

3.  The Appellant was the driver of a KMB motorbus.  The prosecution case was that on the date in question he jumped the amber or red traffic lights, and collided with a vehicle driven by PW1, who had, at that time, driven through a green light.

4.  The Applicant was represented and the basis of the defence case was that he had not jumped the red light, but travelled in obedience to a green light which was showing at that time. 

PW1 and PW2

5.  PW1 was driving a private car.  PW2 was a passenger in the front seat.  Both PW1 and PW2 were police officers on their way to work, but were not yet on duty.  Their evidence was that they were driving along Dai Fat Street, a two-lane highway, on the innermost lane, travelling towards Ting Kok Road and they approached traffic lights which turned red.  PW1 stopped his vehicle in front of the red light and waited until the light turned green.  When the light changed, he moved off the white line slowly, at about 10 to 20 kilometres an hour.

6.  After moving out into the junction, PW1 saw a black shadow, and then noticed a KMB bus came out from his left-hand side and collided with his vehicle.  He considered the bus was travelling at a fast speed.  PW2’s account of the incident was similar.

The Defence’s evidence

7.  The Appellant elected to give evidence.  He was a KMB bus driver and had been working as such for seven years.  He had had his driving licence since 1991, and had a clear driving record.

8.  That morning, he was driving his bus to the Tai Mei Tuk Terminal in order to start work.  He had no passengers.  He was travelling along Dai Hung Street approaching the junction of Dai Fat and Dai Hung Street and when he was about five bus lengths away from the traffic lights, he saw the lights were red.

9.  He prepared to stop at the traffic lights but when he was about one bus length away, he saw the traffic lights turn from red to amber and then to green.  He accelerated and entered the junction in conformity with the traffic lights.  At that time, he was driving at about 25 to 30 kilometres an hour.  When he entered the junction, he collided with the left side of PW1’s car.

10.  The Admitted Facts showed that the lights at the time were working accurately and correctly.  There were 16 photographs showing the location of the collision.

11.  The Magistrate identified the sole issue as being which of the two drivers had gone through a green light.  According to the sequence of the traffic lights, each of Dai Hung Street and Dai Fat Street could not have shown a green light at the same time.

12.  The prosecution relied not only on the evidence of PW1 and PW2, but also on that of the investigating police officer, PW3, who first made enquiries of the Appellant.  His evidence was that at the time he spoke to the Appellant, the Appellant told him he was driving at a speed of about 40 kilometres an hour when he entered the junction and that when he passed the lights, the lights ahead of him were changing from amber to red.

13.  The Appellant denied ever telling the officer that.  He said he told the officer the light changed to green when he crossed the line into the junction.

14.  PW4, a police officer, who arrived at the scene after PW3, interviewed the Appellant.  He said the Appellant told him the lights had turned green and that he was driving at 30 to 40 kilometres per hour, when he entered the junction.

15.  The Appellant challenged the speed of 30 to 40 kilometres.  He said he told PW4 he was driving at 20 to 30 kilometres an hour.

16.  In the course of the trial, the Appellant’s legal representative asked the Magistrate to take PW1’s poor driving record into account in assessing propensity, he having been disqualified under the Road Traffic (Driving-Offence Points) Ordinance, Cap. 374, mainly for speeding offences.

17.  The Magistrate in her Statement of Findings, noted that request, but did not consider that because of PW1’s poor driving record he was more likely to have been the one driving carelessly, or to have jumped the red light.  She did take into account the Appellant’s clear driving record and gave the appropriate direction as to propensity and credibility.

18.  The perfected grounds of appeal were:

	(1)	the Magistrate erred in placing significant weight on an alleged admission, uncautioned, made by the Appellant to PW3;
	(2)	the Magistrate erred in using the alleged admission as evidence that the Appellant admitted jumping the red light and as evidence that the Appellant lied to PW4.
(3) &	(4)	the Magistrate failed to consider sufficiently evidence of damage and the position of the vehicles after the collision.
	(5)	the Magistrate erred in comparing the driving record of PW1 with that of the Appellant.
	(6)	the Magistrate failed to scrutinize the evidence of PW1 and PW2 carefully given that they were colleagues.
(7) &	(8)	the Magistrate failed to take into account minor matters of evidence.

Altogether it was suggested the conviction was unsafe and unsatisfactory.

19.  The court on appeal was assisted by the evidence of the witnesses having been transcribed.  It appears from that evidence that the Magistrate had had put before her the matters now raised in the perfected grounds of appeal.

20.  Essentially, the case turned on the credibility of the witnesses and I am satisfied from the Statement of Findings that the Magistrate paid attention to the relevant areas of dispute.  The Magistrate gave her reasons for accepting the prosecution evidence.

21.  She was aware that PW1 and PW2 were colleagues.  She was entitled to rely on the admission made by the Appellant to PW3.  She found, specifically, that the Appellant deliberately changed his initial version of what he told PW3 when he was interviewed by PW4 in order to absolve himself of any liability for the collision.

22.  There is nothing put before me on appeal to show the Magistrate was wrong, or that this court should interfere with the Magistrate’s findings.

23.  It appears that the Appellant merely wished to re-try the case, which had already been dealt by the Magistrate.  The appeal against conviction is dismissed.