HKSAR v. WONG YUEN YAM

1997, NO. MA 439

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This is an appeal against the decision of Miss Eda LO, Magistrate, to convict the appellant for the offence of careless driving.

2. The prosecution case was adduced by two women, PW1 and PW2, alleged victims of the appellant's conduct, and a police officer, PW3, to whom they telephoned their complaint. There was further formal evidence adduced by further prosecution witnesses.

3. The women said they were travelling together as passengers on a Citybus on route 170 from Wah Fu bound for Sha Tin on the day in question, namely 1 October 1996. Some time into the trip the bus approached a road junction which was manned by traffic lights, which were red.

4. The driver, apparently seeking to obey the lights, sought to stop the bus, but was travelling at such speed that he was forced to brake very suddenly. The force and suddenness caused both women, one of whom was holding a baby, to be thrown to the floor. All three received injuries. They arrived shortly afterwards at Sha Tin terminal.

5. There was a discrepancy as to just when this was, but the magistrate in her findings was satisfied that it was 11.30 am. No complaint was raised at the time because the women, both expatriates, anticipated a language difficulty but they resolved to file a complaint later, one having written down the registration number of the bus on a piece of paper. Later that evening she telephoned the Aberdeen Police Station and reported the incident.

6. Neither PW1 nor PW2 could remember in evidence what the registration number was and the piece of paper upon which it had apparently been written down was not brought to court. But PW3, who was the police officer who recorded the complaint, said he was told it was FS4861.

7. It was not in contention that FS4861 was driven on the route in question and the appellant was the driver of it. He arrived at Sha Tin at 11.30 am.

8. The appellant elected to give evidence in his defence. He confirmed that he drove his bus on the route and the time of arrival. He said he did not drive at an excessive speed because that would have been against the speed limit and contrary to law. He did not brake suddenly, no one fell on the floor, there was no untoward incident.

9. The learned magistrate accepted that the women gave a truthful and accurate account of what transpired that morning and, as a matter of fact and law, found that the driver of the bus they were travelling on did drive without due care and attention. Further, in reliance on the unchallenged evidence of the driver's roster and other of the bus company 's records for the day, that it was the defendant who was driving the bus in question.

10. Thus she found the defendant guilty as charged.

11. The defendant appeals that conviction. Representing himself, he has raised a number of grounds to his appeal. I do not propose to itemise them all, but will deal with those I find are particularly pertinent, as follows:

(1) if the result of the sudden and severe braking caused so many people to fall as was described by PW1 and 2, it is extraordinary that no complaint was made then and there by anyone at all, and that, even with a baby involved, nobody complained to the driver, whether PW1 or PW2 or any other passenger, upon alighting. Although PW1 and PW2 may have anticipated language problems, others of the passengers doubtless would not have;

(2) the witnesses could not identify the appellant as the driver;

(3) PW1 and PW2 both said, "The bus arrived at or about 12 noon" and then retracted. The magistrate accepted that their bus arrived at 11.30 am but there should have been uncertainty in her mind about this material point when there was not;

(4) PW1 said she identified the bus by copying down the registration number from inside the bus. But the registration number is not, in fact, recorded on the inside. Further, when asked to describe the bus, her description did not match that of the appellant's bus. Then she retracted into a "cannot remember" mode but the doubt was there and should have remained;

(5) PW1 and PW2 both said they boarded the bus at the given time which would have been some time after the appellant's bus arrived at their bus stop. This discrepancy was not dealt with by the magistrate and should have raised a doubt.

12. The cumulative features of these points made, he says, means that there ought to have been in the learned magistrate's mind a reasonable doubt and that he was unfairly convicted.

13. A magistrate or judge at first instance has the witnesses adducing evidence before him or her, and is the best judge of matters of fact where there are disputes as to what took place. Seldom will an appellate court disturb findings of fact unless there is a material discrepancy to which the trial judge or magistrate has not put his or her mind and resolved it.

14. This is a rather unusual case because of the delay in which the complaint was made. This has resulted in the prosecution having to bring together two different arms of evidence; namely, first, that evidence going to the incident itself which caused the injuries; secondly, the bus company records to identify the bus and its driver at the material time.

15. The learned magistrate did believe PW1 and PW2 as to their account of the accident. She was entitled to do so. There was after all no material challenge to what happened. However, a dispassionate read of the transcript of evidence would suggest that a number of people, some quite elderly, were hurled from their seats by the bus driver's sudden braking.

16. PW1 and PW2 were both hurt, one quite badly, and there was their baby who cried in pain and no doubt shock. It would seem others would have been hurt or at least shaken. Yet there was not one murmur of complaint recorded then or later when the bus reached the terminus.

17. The learned magistrate went on to accept a change of mind when PW1 and PW2 both put their time of arrival at around 12 noon back to 11.30 am. The evidence on this point was at best ambivalent, yet the finding was not. And this was crucial because the bus company records indicated 11.30 am as the appellant's arrival time.

18. The learned magistrate found PW1's memory on the description of the bus as not going to credibility; that she may well have forgotten. However she did not address her mind to the inaccurate description PW1 first put forward which could well have had an adverse impact on her credibility, and nor from where she said she had copied the registration number which, on the unchallenged defence case, could not have been true.

19. She made no finding to deal with the apparent discrepancy of the time PW1 and PW2 said they got on the bus and the appellant's likely time of arrival at their bus stop, which was some time earlier.

20. Finally, she made no finding of disbelieving the appellant when he said he did not drive in a manner as PW1 and PW2 said their bus was driven. What she did say was that she found that it was feasible he could have caused the incident without being aware of the passengers falling about as they did, but she made no finding of fact that he did. And the account given by PW1 and PW2 suggests to me it would be well nigh impossible for the driver responsible not to be alerted to something untoward having happened.

21. There were a number of individual items of evidence which the learned magistrate was perfectly entitled to accept as supporting the findings she came to. In particular, she paid careful heed to evidence of the routes and times of departure of other Citybuses, which she was satisfied were removed from the frame, leaving only the defendant's . But eliminating other suspects does not inevitably point to the guilt of whoever remains.

22. Having considered all that was before her and with the benefit of the appeal points put forward by the appellant, in what I must say was a thoroughly comprehensive and competent address, I cannot but be left with a nagging doubt that he might have been found guilty against the weight of evidence, rendering his conviction unsafe.

23. Accordingly, I allow the appeal and quash the conviction.