HKSAR v. TONG WANG PEI CHI PEGGY

HCMA 1277/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1277 OF 2001

(ON APPEAL FROM KTS 900636/2001)

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J U D G M E N T

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1. The Appellant was convicted of one charge of careless driving, contrary to Section 38(1) of the Road Traffic Ordinance, Cap. 374. The prosecution's case was quite simple, in that mainly the evidence came from PW1 who was the driver of the motorcycle and he says that at the material time, he was driving on the East Kowloon Corridor on the inner lane, and that the Defendant's car who was travelling on the outer lane of that same corridor cut in front of him in order to turn into the slip road which was further to the left.

2. The Defendant's case, however, was that at the material time she was travelling on the inner lane, and that she then made a turn into the slip road when the collision occurred between the Appellant's car and PW1's motorcycle.

3. The learned Magistrate in convicting the Appellant had made several findings of fact. First of all that he found that the point of collision between the motorbike and the Appellant's car was at the blind spot, that is, where the Appellant would not have been able to see the motorbike in her rear view mirror, and he made a finding of fact that if the Appellant had observed the necessary precautions as laid down in the Highway Code, then it would not have been careless driving. But there is one matter which concerned me in his Statement of Findings. It is that the learned Magistrate, whilst making findings of fact on most of the relevant points, failed to make a finding of fact as to whether at the crucial time just before the collision, the Defendant's car was in fact travelling on the outer lane of the East Kowloon Corridor or was she on the inner lane of the Corridor in front of the motorcycle?

4. This is a crucial fact which he had to find in this case because, as Mr Lee has submitted, if the Appellant's car was in the outer lane and cut into the inner lane on which the motorbike was travelling on, then there is no question about it that the learned Magistrate could have properly found that the Appellant was guilty of careless driving, because she had not kept a proper look out before turning into the lane in front of PW1's motorcycle.

5. But if the finding of fact was that the Appellant's car was travelling on the inner lane in front of the PW1's motorcycle then the matter would have been quite different, because then the onus, of course, would have been on the motorcycle driver to keep a safe distance from the Appellant's car and even if the Appellant's car had turned into the slip road without first switching on her indicator light, nevertheless the motorcycle driver would have been able to take the necessary avoiding action in time if he was keeping a proper distance.

6. So it is clear that this finding of fact was necessary and crucial to the ultimate conviction of the Appellant which the learned Magistrate failed to make. In his Statement of Findings the learned Magistrate addressed himself on this matter but came to the conclusion that it was not necessary for him to find as a fact, upon which lane the Appellant's car was travelling just prior to the collision.

7. So for the above reasons, I find, therefore, that the conviction is unsafe and unsatisfactory because there was no proper basis for the learned Magistrate's ultimate finding that the Appellant's manner of driving was careless. As far as the other grounds of appeal are concerned, one is whether the learned Magistrate should have invited submissions from both parties in relation to observance of the rules in the Highway Code about changing lanes. It would have been desirable if he did invite submissions but the fact that he did not would not have been fatal to the conviction had he made this crucial finding of fact that I have mentioned above. But his not having done so I am, therefore, allowing the appeal and the conviction is, therefore, quashed and the fine is also set aside.