THE QUEEN v. LAU SIU-SHUNG

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL.APPEAL No. 780 OF 1988

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J U D G M E N T

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1. The Appellant was convicted after trial on a charge of careless driving. The evidence for the prosecution was given by a traffic police constable who was on duty at about 8.50 a.m. on the 6th of August 1987.

2. He was riding along the nearside lane of Marsh Road where there was an outer lane carrying traffic in the same directional. At the time has said that there was no vehicle in front of him in his lane but that there was a goods vehicle being driven by the Appellant travelling in the outer lane some 15 feet ahead of him. He estimated the speed of the goods vehicle at 35 kilometres per hour and his own speed at 40.

3. The lane in which the Appellant's vehicle was travelling was one descending from a flyover. The officer said he saw the left indicator come on whereupon the goods vehicle immediately swerved left and cut into his lane. As a result, he was forced to brake abruptly and stop in the middle of the road. The goods vehicle did not stop but continued on its way. The effect of his evidence was that had he not stopped there would have been a collision between himself and the Appellant.

4. He was able to stop the Appellant's vehicle and tell the Appellant that he was to be summoned for careless driving and he said that the Appellant replied: "Ah Sir, I did not see you. When I saw no vehicle I started to cut".

5. The Appellant himself gave evidence and said that he was travelling in the outer lane descending from the flyover at a speed of 35 40 kilometers per hour. He said that he looked at his rear vision mirror and turned on his left indicator and cut into the inner lane very slowly. He said that before crossing the lanes, he had seen a taxi following him in his lane and a private car in front of him in the same lane.

6. He said that he proceeded on to the traffic lights where he was eventually stopped by the police officer to whom he said: "Ah Sir, that's  the matter?" He said the police officer made no mention of any offence but merely asked to inspect his licence. He said that when he was cutting into the inner lane, he could see the road conditions clearly and that there seemed to be a motor cycle far away in the near side lane about 20 metres from him and that was why he the thought it was Safe to cut into the lane.

7. In cross-examination, he was asked whether after he cut into the lane, he heard any braking sound and he said: "Yes, I did. It seemed to be a scretins sound. When he was asked what he thought of the screeching sound, he said: "It should be coming from tyres." The next question was: "From vehicle braking abruptly?" and he replied: "It should be."

8. The solicitor who appeared for him at the trial submitted to the magistrate that the motor cyclist' s evidence should not have been accepted because it would have been impossible for him to stop if he was only 15 feet behind the goods vehicle, that he would have needed another 30 feet to come to a halt.

9. The learned magistrate at the time in dealign with this submission made the point that the speeds and distances given in evidence were merely estimates He then went on to say:

"given that there was such a little dispute from the facts, I find without any reasonable doubt that the Defendant did cut into the near side lane caused PW1 to brake and take evasive action and that is careless driving."

10. On this appeal, Miss Woo who appears for the Appellant today submits some eight grounds of appeal. The grounds can be summarised by saying that they attack the learned magistrate's findings of fact.

11. The facts in this case are really simple. There was no dispute that the Appellant had cut into the police officer's lane and no dispute that on his doing so a vehicle somewhere nearby suddenly braked, braked so suddenly as to cause a screeching sound.

12. The learned magistrate was entitled to come to the conclusion as he did that there was such a correspondence between the evidence of the police officer on the one hand and that of the Appellant on the other that the police officer's version was undoubtedly correct.

13. Before me Miss Woo has repeated the submission made by the Appellant's solicitor on trial but with greater detail on the question of braking speeds and distances. There was no evidence as to this matter before the learned magistrate and the material which Miss Woo has sought to put before me relates to motor cars not to motor cycles.

14. The learned magistrate was entitled to take the common sense view of the evidence which he did and that enabled him to conclude that the Appellant did cut in the way which the police officer alleged and to conclude from that that the Appellant undertook the manoeuvre without properly ensuring that it was safe for him to do so.

15. That finding is unchallengeable and notwithstanding the well drafted grounds of appeal which have been submitted and the earnestness with which Miss Woo has pursued them before me today, I am of the view that there is no merit in the appeal and that it must be dismissed.