HKSAR v. MUHAMMAD, INAAM

HCMA 346/2021

[2022] HKCFI 1502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 346 OF 2021

(ON APPEAL FROM TMS 500397 OF 2020)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted after trial before a Magistrate Miss Frances Leung on 18 June 2021 for the offence of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Chapter 374. He was ordered to pay a fine of $2,500. On 3 June 2021, the appellant appealed against his conviction.

2.  At the trial the prosecution called three witnesses in support of their case. One was the driver of a private car, PW1 and two police officers.

3.  The accident in this case occurred at the junction of Fung Cheung Road and Fung Kam Street in Yuen Long. Fung Cheung Road was a two-lane two-way road. The accident occurred in the yellow box junction between the appellant’s motorcycle and PW1’s private car.

4.  At the material time, PW1, Mr Heung was driving along Fung Cheung Road south bound whilst the appellant was driving a motorcycle in the opposite direction north bound along Fung Cheung Road. The appellant made a right turn towards Fung Kam Street. The car and motorcycle collided with each other. The private car collided on the left side of the motorcycle.

5.  The magistrate found that the applicant made the turn as he intended to go into Fung Kam Street. She addressed her mind to the fact that the issue was whether the appellant was driving carelessly. She accepted the appellant’s evidence that prior to the appellant making his right turn, he had seen from his right mirror that the traffic light was red for the private car driven by PW1, that the yellow box was empty and that on the other side of the yellow box along PW1’s side of the road there was traffic blockage. The appellant then went forward and made a right turn on this basis. That is that the red light was showing for PW1, there was traffic on the other side of the yellow box and PW1’s private car was in front and outside of the yellow box.

6.  The magistrate noted that PW1, may have been driving carelessly, however, it did not mean as PW1 was driving carelessly that the appellant was also not driving carelessly. She found that the appellant saw that PW1’s car was in front of the yellow box and was moving forward slightly. The magistrate found that the appellant should have anticipated that PW1 would drive forward into the yellow box and therefore the appellant was also careless in turning right in front of PW1 and going into the yellow box.

7.  The issue here is whether the prosecution has proved that the appellant’s driving manner was below that of a prudent, competent and reasonable driver, that is, whether he had given due care and reasonable consideration for other road users.

8.  It is correct the appellant was turning right in front of PW1 and into a smaller road, that of itself does not automatically mean the appellant must be at fault.

9.  In the circumstances of this case, the appellant had observed that the red stop light was showing in the direction of PW1. At the same time there was traffic on the other side of the yellow box. The appellant saw that PW1 was on his left side and was moving forward a little. The magistrate found the appellant should have anticipated PW1 moving forward into the yellow box and therefore found him guilty.

10.  On the facts as the magistrate found, it cannot be concluded that the appellant was not a reasonably prudent and careful driver. With respect the magistrate was incorrect in saying that the appellant should have anticipated that PW1 would have moved forward into the yellow box. The appellant observed that the red stop light was showing in PW1’s direction. There were vehicles blocking the traffic on the other side of the yellow box. In this situation PW1 should not have driven his car against the red light nor entered the yellow box junction until there was no traffic on the other side of the yellow box. It was therefore incorrect for the magistrate to hold that the appellant should have anticipated that PW1 would have driven into the yellow box. By making this assumption that would mean that the appellant should have anticipated that PW1 would have disobeyed the lights by jumping the red light and attempted to enter the yellow box when PW1 should not have done so.

11.  In the circumstances of the present case, the appellant’s conduct in turning right into the yellow box was not inconsistent with that of a reasonably prudent driver. There was insufficient evidence to prove that the appellant did not exercise all reasonable care and attention.

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