HKSAR v. YU SHEK PING

HCMA 1155/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1155 OF 2001

(ON APPEAL FROM WSS 9641/2001)

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J U D G M E N T

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1. On 12 October 2001 the appellant was convicted, after trial, of an offence of 'careless driving' at Western Magistrates Court and he was fined $2,000. He appeals against that conviction.

2. At trial in the magistrates court the appellant was represented by Mr Wong Po Wing of counsel, who also appeared on the appeal before me.

3. Before going any further I feel that I should state here, in view of certain of Mr Wong's arguments on appeal, that Section 38 of the Road Traffic Ordinance states as follows:

" (1) a person who drives a motor vehicle on a road carelessly commits an offence...

(2) A person drives carelessly... if on a road he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road."

4. In short, what led to the prosecution of this appellant (who was at the time driving his taxi in the general direction of Aberdeen along Repulse Bay Road) was that, having been hailed by a pedestrian on the other side of the road in front of, what was formerly, the Repulse Bay Hotel he elected to do a 'U' turn to pick up that fare. Whilst he was in the course of doing that, there was a collision between the appellant's taxi and a private car which was travelling in the general direction of Stanley.

5. Was the appellant driving carelessly as that offence is defined? That was a question for the magistrate on the evidence presented to him.

6. Having heard the evidence the magistrate was plainly satisfied that he was, and what he said in his reasons for coming to that view was this:

" At about 7.35 pm on 17 January this year PW1 was driving what might be described as a high-performance motor car, eastbound, along Repulse Bay Road. There was a constant flow of traffic in his direction of travel. There came a point when the vehicle ahead of him turned left from Repulse Bay Road into South Bay Road.

The junction itself can be seen on photograph F but from the direction opposite to PW1's direction of travel. PW1 came to a halt to allow that vehicle to complete its left turn manoeuvre.

That factor has significance for two reasons. Firstly once the vehicle ahead of PW1 had completed its left turn, the road ahead of PW1 would have been open and free of traffic. He would therefore have been able to accelerate away, unimpeded by traffic ahead of him.

It is significant, so far as the defendant is concerned, that he, travelling in the opposite direction, would have perceived at that time, a gap in the traffic which would have enabled him to complete the U turn to pick up the passenger he had seen on the opposite side of the road.

I can imagine myself in his position. He is driving his taxi, he is looking for a fare, he sees one on the opposite carriageway. At the same time almost he sees that there is an apparent gap in traffic so without giving it very much more thought he intends - negotiates his vehicle, intending to enter the opposite lane and pick up the passenger.

Although I have described PW1 as accelerating away, he was accelerating from a standing position and there is no evidence to suggest that he was travelling at an excessive speed, certainly not the 120 to 150 kilometres per hour given by the defendant in his evidence. Travelling at that speed and braking, which is his evidence, would invariably have left some indication on the surface of the road and there was none.

It was put to PW1 that his vision of the road ahead was obscured by a bend which has been reproduced by the defendant in the sketch that he has put up to court today. That sketch is a gross and obvious distortion. And I might say the same about photograph E in the defendant's bundle if it is intended to show that PW1 had a restricted vision as he approached the point depicted by photograph E.

I believe PW1 entirely when he says that if he were in the right-hand driver's seat of a motor car, on the nearside carriageway, the apparent bend shown by E would not have obstructed a clear view up to the bus stop outside Repulse Bay Hotel. The fact that he did not show the left-hand bend on his sketch is simply an indication that it was not a significant factor in this matter.

I am left in no doubt that the defendant, in his anxiety to pick up a passenger, saw that was apparently a gap in the traffic, made no proper assessment of traffic coming in his direction in the opposite carriageway, proceeded to attempt his U turn and in doing so effectively got in the way of PW1.

It is an indication of the defendant's lack of credibility that in is first sketch to the police (Ex D3) he shows that PW1 was halfway into his, that is the westbound carriageway at the time of the impact when that is not and never was the case.

Driving of the standard demonstrated by this defendant falls below that expected of the ordinary, reasonable, competent motorist and he is convicted."

7. Mr Wong's perfected grounds of appeal are these:

" (1) The learned magistrate erred in failing to state the basis upon which the defendant was convicted of the offence of careless driving.

(2) Alternatively, if the learned magistrate convicted the defendant on the basis that he had made a U-turn in Repulse Bay Road without proper assessment of traffic coming from the opposite carriageway and got into the way of PW1, the learned magistrate failed to find what steps the defendant had taken or not taken, or under what circumstances, before he made a U-turn, which made him careless within the meaning of the law.

(3) The learned magistrate erred in failing to have sufficient regard or at all to the defendant's case and his explanation adduced as evidence at the trial before convicting him.

(4) The learned magistrate's finding that the defendant made use of a gap in traffic in making a U-turn was not supported by any evidence in the case. Moreover the said scenario was never put or suggested to the Appellant nor was the same canvassed at the trial.

(5) The learned magistrate failed to find for the existence of a road bend in Repulse Bay Road before PW1 (in his car) would see the location where the defendant was making a U-turn; alternatively if the learned magistrate had made a finding that there was no road bend which restricted the view of Pw1, such finding was against the clear evidence of the photographs which were produced at the trial by the defence.

(6) The learned magistrate erred in failing to resolve the conflict of evidence and make a finding as to whether the collision was caused by PW1's vehicle colliding with a stationary vehicle, namely the defendant's vehicle.

(7) The learned magistrate erred in failing resolve the conflict of evidence and to find, if he were to conclude that the defendant's taxi was not stationary at the time of collision, at what speed it was travelling when it was making a U-turn.

(8) The learned magistrate erred in failing to make a finding as to what was the position of the defendant's taxi in relation to the centre white line when PW1's car collided with it.

(9) The learned magistrate erred in failing to make a finding as to the speed at which PW1's car was travelling before the collision occurred; alternatively the learned magistrate erred in holding, in circumstances where there was no evidence to such effect, that if PW1 has been travelling at 120-150 km/hr and braked, his car must have left brake mark on the road surface.

(10) The learned magistrate erred in failing to address his mind to the evidence of (a) the extent and the location of damage to both cars, (b) the position of the defendant's taxi after the collision, and (c) the injuries caused to the defendant and none to PW1, which supported the defence case that the damage to the cars and the defendant's personal injuries were caused by PW1's car being driven at high speed by PW1 before it collided with the defendant's stationary taxi.

and (11) The learned magistrate erred in holding that here was no evidence to suggest that PW1 was travelling at an excessive speed, when clear evidence concerning the extent and location of damages to both cars, the position of the defendant's taxi after the collision and the injuries caused to the defendant showed that PW1's car was in fact travelling at high speed before the collision."

8. There is in my view, and with respect, nothing at all in any of those grounds of appeal. Indeed they have, if I may say so, a distinct air of unreality about them given what the learned magistrate concluded and the reasons which he expressed for his conclusions.

9. Mr Wong has sought before me, in effect, to reargue issues of fact which were issues entirely within the magistrate's province. It is not my function to 'retry the case' or to 'second guess' the magistrate on the facts. My function is simply to consider and to decide "whether there has been in the magistrates court an error which it makes it just that the appeal should be allowed and the conviction set aside" (per Huggins NPJ in Ching Kwok Yiu and HKSAR [2000] HKCFA R 387).

10. In the light of all that Mr Wong has said to me I considered that matter and I concluded there was no such error. Accordingly I dismissed this appeal.