HKSAR v. SIDNEY CHEUNG

1997, NO. MA 696

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

MAGISTRACY CRIMINAL APPEAL

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction on 2nd June, 1997 by Magistrate Mr. Eddie Yip Esq. of one count of careless driving of his motor vehicle FR9934 on 7th November, 1996 at about 7:45 p.m. outside House No. 88 in Second Street. The appellant was further charged with the offences of failing to stop after an accident and failing to report a motor vehicle incident. The Learned Magistrate acquitted the appellant in respect of these 2 charges.

2. The prosecution called 4 witnesses. PW3 (PC 22048) gave evidence in relation to her interview with the appellant 4 days after the incident. The appellant indicated that he had no knowledge of such incident. PW4 (PC 14927) produced a sketch of the locus that he drew. The sketch depicted road works on Second Street. PW4 estimated that about 3.2 meters were left for vehicular traffic.

3. The victim (PW1) is an old lady aged 75. She was pulling a cart along Second Street which she maintained was flat. She had a stack of cardboard on her cart. She said she was still walking when a private car hit her.

4. PW2 is the proprietor of a tyre company at n. 88A Second Street. He was standing in front of his shop and the collision took place on his left. In response to questions from the Bench, he said the contact between the private car and the cart took place about 2 - 3 feet away from him. The lightings in the vicinity were good. He further described Second Street as a road sloping downwards from his left. He recalled in vivid terms how the incident took place. The victim stopped. The private car continued to travel. The left of the car became entangled with the cardboard. The car then pulled the cart along and the victim fell injuring her leg. PW2 said he shouted. The driver of the private car stopped but then proceeded further to the junction between Second Street and West Side Street. He accepted that there was a "Give Way" sign at that injunction and drivers had to stop before turning left.

5. Mr. Ma, Counsel for the Appellant, submitted that the Learned Magistrate should not have relied on the evidence of PW2 in preference to the evidence of PW1. Given the fact that he acquitted the appellant on the failure to stop and failure to report charges, he must have found PW2 to be an unreliable witness. He should therefore accept the evidence of PW1 that she was still on the move at the time of the incident and should therefore find that she caused her own injuries.

6. I do not accept these submissions on behalf of the appellant. Mr. Pang for the prosecution rightly pointed out that the Learned Magistrate had very carefully assessed the issue of credibility. His preference for the evidence of PW2 is reinforced by the photographs produced at the trial which clearly indicate a sloping Second Street. The acquittal of the appellant on the 2 failure charges is explicable on the weight place by the Learned Magistrate on the Give Way sign at the junction of the 2 roads. The transcript of the evidence of PW2 on this issue shows a clear and precise recollection of the point of impact leading to the injuries.

7. For these reasons I dismiss the appellant's appeal.