HKSAR v. CHOW MAN KAI

HCMA278/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.278 OF 2000

(On Appeal From WSS 21048 of 1999)

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J U D G M E N T

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1. The appellant was convicted on 22 February 2000 of one charge of careless driving. He was sentenced on the same day to payment of a fine of $1,200.

2. The evidence for the prosecution was that on 29 June 1999 at about 5:30 p.m., at Water Bay Road outside Wah Fu Restaurant, the appellant drove a double decker bus owned by the New World First Bus Company carelessly in that it came into collision with a vehicle passing the bus because the appellant pulled out from the busstop without due care, attention and consideration for others using the road. The magistrate, in his Statement of Findings, adopted the reasons given orally in court.

3. There are two main complaints raised by Mr Grounds, firstly, that the magistrate is inconsistent in his acceptance of the evidence given by PW1. In his oral findings, the magistrate said this :

"... I don't think PW1 was lying. There were certain aspects in his evidence that one could say were unsatisfactory. However, I think he was just a clumsy witness. He was trying his best to tell me what happened that particular afternoon. However, I do think that he did not know exactly what happened. He heard a sound, he got off his vehicle, and he saw the defendant's bus with the external rear view mirror damaged and he concluded that there must have been a collision involving the two vehicles."

Later in his reasons, he said :

"I accept that PW1 told me what actually happened that particular afternoon; in essence, that as he passed the defendant's bus the defendant swerved to the right and I conclude that as the defendant engaged in such a manoeuver he drove forward and into the rear part of PW1's vehicle. ..."

Mr Grounds argues that there is an inconsistency in this approach within the reason, and that the magistrate therefore has not properly evaluated the evidence.

4. The second of the two main point which he draws is that the magistrate drew inferences from the evidence of PW2, a police officer who attended at the scene, which was not warranted in all the circumstances. It is accepted that the rear view mirror on the bus was damaged. The police officer was asked about that in this exchange :

"Q. Now, officer, did you take a look at the bus?

A. Yes.

Q. Did you observe anything?

A. Yes.

Q. What did you see?

A. I saw that the right rear mirror of the bus, that is the mirror next to the driver's seat, was a bit pushed sideways and a bit near to the driver's seat."

From this last answer, which was not elaborated upon nor was the witness further questioned about it in cross-examination, the magistrate drew the conclusion that the mirror had been turned towards the driver's seat of the bus by an impact where the bus approached another vehicle from behind rather than the impact described by the appellant that the other vehicle came from behind the bus and struck the mirror as it passed.

5. Mr Grounds argues that from the construction and mounting of the mirror, as is evidenced by photographs D1 and D2, it is impossible to determine from the imprecise and vague evidence given by PW2 as to the true position of the mirror, or what caused it to be in the position as found by PW2. He further argues that there is no evidence to cover the period from 5:30 p.m. when the accident took place, and 5:47 p.m. when the police officer came on the scene and examined the mirror to prove that nobody had touched the mirror or moved it. The magistrate is silent upon these matters.

6. I am referred to the case of R. v. Mak Kwok Keung, HCMA956 of 1999 which adopted what was said by O'Connor J in R. v. Chong Kam Sau, HCMA859 of 1985, where O'Connor J said :

"... the reasons for verdict should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty."

7. Here I cannot be satisfied that the magistrate could have been sure to the required standard that the mirror was untouched, nor from the description given by the police officer as to the position of the mirror, could he be sure that the inference he drew as to the direction of travel of the vehicle striking the mirror was proved beyond reasonable doubt. Had the magistrate set out more fully in the manner of his approach and how he reached those conclusions, the situation would have been different.

8. In all the circumstances, I cannot be sure that the conviction is safe and satisfactory. The appeal will be allowed and the sentence set aside.