R. v. PANG CHIK PAK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1510 OF 1996

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J U D G M E N T

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1. The appellant was convicted of careless driving. This arose out of a traffic accident at the junction of Che Kung Miu Road and Chui Tin Street when two vehicles one driven by the appellant and the other by PW1 collided with each other. PW1 told the magistrate that he was travelling on Che Kung Miu Road and when he approached the junction with Chui Tin Street, he went through it because the light was in his favour. But he was hit by the vehicle of the appellant. PW2, the passenger by his side, told the magistrate that he saw the appellant's vehicle coming from the opposite direction and is swerved to turn right at the junction and hit their vehicle. The appellant gave evidence that he intended to turn right into Chui Tin Street from Che Kung Miu Road. He stopped at the junction for 20 seconds to wait for the light to turn green. When the light was in his favour, he turned and as he did do he was hit by the goods vehicle of PW1.

2. Thus it was a case of whose version as to the light being in his favour was true. This case turned very much on the credibility of the two drivers.

3. The appellant was injured after the accident and the investigating officer who interviewed him on 7 May 1996 immediately after the accident told the magistrate that the appellant could not speak at the time and he could only nod his head. Subsequently in the hospital, he told the officer that he could not remember who drove. On 17 May 1996, he made a further statement in which he said he waited at the junction for one minute. On 11 October 1996, he made a third statement in which he said he waited there for 20 seconds.

4. The magistrate in his findings said that he accepted the evidence of the prosecution witnesses but he rejected the appellant's evidence. His reasons for rejecting the appellant's evidence as he mentioned in his statement of findings are these :

"The Defendant was cross-examined in some detail about a previously inconsistent statement he gave shortly after the accident. It was revealed that on 7th May 1996, he told the police investigator that he did not remember who drove the vehicle and that he had waited for 1 minute, instead of 20 seconds as he contended in court; before turning right into the junction. ...

Having seen the Defendant in court and considered his evidence carefully, I was not impressed by him as a witness of truth. I found the veracity of his testimony substantially impaired by his previous inconsistent statement. ..."

5. It would appear that the magistrate relied to a large extent the inconsistencies to conclude that the appellant was not to be believed.

6. However, it should be noted that the magistrate was not entirely correct to say that the appellant's statement on 7 May 1995 was inconsistent with his evidence that he waited for 20 seconds because it is not disputed that on 7 May 1996 the appellant made no statement regarding the waiting time at the junction before he turned. The magistrate had not considered his statement on 11 October 1996 when he mentioned 20 seconds which was consistent with his evidence in court. Mr Macrae submitted the inaccuracy in considering the previous statements of the appellant did not support the magistrate's conclusion that the appellant's veracity in his testimony was substantially impaired. Ms Cheng for the prosecution accepted that the magistrate was wrong regarding the inconsistent statements.

7. The magistrate in his findings further said :

"... I also found his assertion that he was hit by the LGV while inside the junction inconsistent with the damage on the respective vehicles as shown in P3 : it was quite clear that the point of impact was the front part of the van and the driver's side of the LGV. Further the positions of the vehicles after the collision, as depicted in P1 and P2; were inconsistent with his account : if the LGV had been driven at a fast speed and hit the slow moving van, I would expect the latter be pushed further off from the position it was in after the collision. I found the positions shown on P1 and P2 were more consistent with the account given by the prosecution witnesses. ..."

8. Mr Macrae complained that the magistrate reached his conclusion that the accident did not happen as described by the appellant relying on his own knowledge of physical impacts between the two vehicles. There was no expert evidence on reconstruction of the likely cause of accident from the positions of the vehicles after the accident. He submitted that the magistrate was not entitled to reach the conclusion he reached by applying his own opinion of what could have happened during the impact. Ms Cheng accepted that the magistrate was wrong to reach that conclusion without expert assistance.

9. The magistrate's conclusion from the positions of the two vehicles depicted in the two photographs was more speculative than based on evidence. His error regarding the inconsistent statements and his speculation did influence him in rejecting the evidence of the appellant. It is not a case that without the inconsistent statements, the magistrate would have come to the same conclusion as he did because this is a case largely based on the credibility of prosecution witnesses and the appellant. The magistrate's conclusion on the veracity of the appellant's testimony could not be regarded as safe. It follows the conviction is not safe and satisfactory. The appeal is allowed and the conviction quashed. The fine is set aside.