R. v. LAU PAT YAU

IN THE HIGH COURT

1994, No. 115

Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. This is an appeal against conviction for careless driving contrary to Section 38(1) of the Road Traffic Ordinance by Mr. C.H. Leung in the Western Magistracy on 29 December 1993. Upon conviction the appellant Lau Pat-yau was fined $1,200.

2. The facts found by the Magistrate were essentially these:

(1) At about 8 a.m. on 25 May 1993 the appellant was driving a medium goods vehicle. (2) He had just come out of a roundabout and had entered the west-bound carriageway of Mui Wo Pier Road Lantau when the accident happened.

(3) The rear nearside wheel of his goods vehicle came into contact with a metal cart which was stationary at the kerb.

(4) The cart was left there by a worker who was cleaning the road. Both the cart and the worker were well visible to drivers coming out of the roundabout and entering the west-bound carriageway of Mui Wo Pier Road. (5) The impact of the rear wheel on the cart caused the cart to be crushed against the railing and in the process the worker was slightly injured by the handle of the cart.

3. At the trial the appellant did not give evidence. They were however adduced as part of the prosecution case two written statements made by the appellant to the police and these were exhibited as P2(a) and P3(a). In these statements the appellant gave an account to the police as to what happened that morning. The statements were partly exculpatory in that the appellant blamed the occurrence of the accident on a cyclist who he said was riding along the central white line towards him; he was following a van and when going past the metal cart he saw the bicycle coming towards him and to avoid the bicycle he had to swerve to his left. This however did not constitute evidence as such at the trial because the appellant gave no evidence and gave no account to the Magistrate as to what happened. The statements also constituted admissions and as such were plainly admissible as evidence because they were statements against interest; and in so far as the appellant admitted, for example, that his goods vehicle did collide with the cart on the nearside and, to that extent, he was responsible for the accident, it was a confession which was properly admitted in evidence as evidence against the appellant. But that was the only effect of exhibits P2(a) and P3(a). An extra-judicial statement giving an account of an event which constituted the res gestae of the case can never be evidence of the res gestae. This is elementary law. It matters not whether the statement was put in by the prosecution or the defence.

4. The question for the Magistrate quite simply was whether, upon all the admissible evidence before him, it was proved beyond a reasonable doubt that the appellant had driven carelessly and therefore had committed the offence under section 38(1) of the Road Traffic Ordinance as charged. The Magistrate's findings were quite clear. He said this:

"In rounding the left hand bend, the Appellant was driving in disregard of the presence of PW1 and her cart and failed to keep a proper lookout of PW1 and her metal cart, causing the nearside rear wheel of his goods vehicle to collide with the metal cart which accordingly hit the metal railings and PW1."

5. It seems to me that, upon the totality of the evidence, these were findings the Magistrate was perfectly entitled to make.

6. There has been put before me a total of seven grounds of appeal, each of which essentially is based upon this premise: that there was evidence before the Magistrate upon which he could have made the finding that there was a bicycle travelling along the central dividing line of Mui Wo Pier Road and that the presence of this bicycle could have explained why the vehicle came into contact with the metal cart.

7. I do not propose to repeat all the grounds of appeal, but to provide a flavour of what has been put before me I quote ground 1 which states: "(1) The learned Magistrate failed to make a proper finding as to whether there was a bicycle travelling along the dividing line towards the appellant and whether it was only some 8 feet from the appellant when he first saw it. The learned Magistrate only indicated his suspicion of such." Plainly, upon the evidence before the Magistrate, he could not have made a finding there was a bicycle because there was no evidence adduced before him to establish that fact. It was therefore quite unnecessary for the Magistrate to speculate as to what might have been the position if there had been such a bicycle. The other grounds of appeal are predicated upon the same hypothesis. For instance, it is alleged in ground 5 that the Magistrate erroneously failed to take into account the scale shown in the sketch map because if he had done so he might have concluded that the gap was so narrow between the offside of the appellant's vehicle and the dividing line where the bicycle might have been that this would have justified the appellant swerving in and causing the rear near-side of his vehicle to collide with the cart. This of course is predicated upon the presence of a bicycle. The appellant never gave evidence. The injured worker PW1 never testified as to the presence of a bicycle: she was depositing rubbish from a bin when she was hit, and saw nothing. There was no material upon which the court could have come to the conclusion, even on a balance of probabilities, in favour of the appellant that the presence of the bicycle might have been either wholly or partially responsible for the accident.

8. It seems to me upon all the facts, such as they were, the conclusion that the appellant had not paid sufficient regard to the presence of PW1 and the metal cart was perfectly justified and this appeal must be dismissed.