THE QUEEN v. FAN TSUN FAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 308 OF 1990

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BETWEEN

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JUDGMENT

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Fuad, V.-P.:

1. The appellant, Fan Tsun Fai, was convicted by Mr. Daniel Ho, a special magistrate, on 26th February this year of careless driving contrary to section 38 (1) of the Road Traffic Ordinance and fined $800. He was unrepresented before the magistrate but is now represented by Mr. Duncan Percy.

2. The special magistrate obviously heard the case with great care and recorded a detailed and cogent Statement of Findings. He summarised the evidence of the complainant, if I may so call him, a Mr. Mok, as being: that on the day in question in the afternoon he was driving a goods van from a car park in Kam Cheung Square, Yuen Long. He came out of the car park and was going to turn into Sai Yu Street where he paused and looked both ways to check to see that no vehicle was coming in either direction along Sai Yu Street. After he had driven about 10 to 15 metres on Sai Yu Street he noticed a public light bus (driven as it turned out by the appellant) coming in the opposite direction and straying over to his side of the road only about 20 feet away.  It was then overtaking a stationary goods vehicle on the other side of the road. Mr. Mok said that he braked at once. He did not swerve to the left because there were a number of vehicles parked along the side of the road. His evidence continued that after the appellant had overtaken the stationary goods vehicle he swerved his light bus back to his original lane, but by then it was too late and the right front off-side corner of his vehicle came into contact with the right off-side corner of Mr. Mok's van. The police were informed and a sketch map was drawn in very rough form which was re-drawn in improved form by the time the matter carne to Court. The sketch map in effect forms the foundation for the appeal.

3. Mr. Percy sought to produce a number of photographs of the road and road junctions at the place where the accident took place and submitted that the magistrate's findings of fact and his reasons for decision were thrown in doubt in the light of what was depicted on those photographs and that the photographs, rendered the sketch map unreliable. The verdict was therefore unsafe and unsatisfactory.

4. I looked at the photographs to make sure that by declining to take them into account as fresh evidence on this appeal, no injustice was being done to the appellant. No sufficient grounds were shown why this evidence should now be admitted but I have to say that I do not see, even after having had the benefit of Mr. Percy's arguments, now anything that is shown in the photographs can affect the magistrate's decision or the result of this appeal.

5. The main burden of Mr. Percy's contention is that the evidence of Mr. Mok as to the place of the collision (his evidence having been accepted by the magistrate) is not consistent with the place marked on the sketch map drawn by police officer who came to the scene. The cross marked on the sketch map could not, he suggests, be the true place of impact if the evidence the magistrate accepted from Mr. Mok were the truth. Thus there was a glaring inconsistency which the magistrate did not resolve.

6. The magistrate heard the two main witnesses before him, the issues of fact were simple and he believed Mr. Mok and disbelieved the appellant who had given evidence that he had not moved over into Mr. Mok's lane when he had driven past the stationary vehicle on his left and that the whole accident was really the fault of Mr. Mok. The magistrate was entitled to reach his conclusions and I do not think that too much should be made of the position marked on the map by Mr. Mok in the light of the fact that it was a very rough sketch indeed, not in any way drawn to scale.

7. In my view the special magistrate's findings cannot be assailed and therefore the appeal must be dismissed.