HKSAR v. YUE KWOK YIN EDMOND

[English Translation - 英譯本]

HCMA 115/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 115 OF 2006

(ON APPEAL FROM KTS 900009 OF 2005)

---------------------------

---------------------------

-----------------------

J U D G M E N T

-----------------------

1. The Appellant was summonsed for, and convicted after trial of, one charge of “failing to stop after an accident whereby personal injury is caused”.  He now appeals against conviction.

Prosecution’s case

2. The prosecution called one witness to give evidence.  He alleged that, at the material time, while he was coming out from the exit of the Kowloon Tong MTR Station, he saw a reversing private car knocking down a lady who had stepped out from the pavement in order to cross the road.  Instead of stopping at once, the private car moved forward.  Later on, when it stopped as its way was blocked by another vehicle, the witness approached the car, tapped on the driver’s door and told the Appellant that his car had knocked someone down.  Then the lady also came forward, telling the Appellant that she was knocked down by him.  He asked her whether she was injured and whether the accident had to be reported to the police.  She said, “The accident has to be reported to the police”.  The prosecution witness told the Appellant that he would do so and asked him to move his vehicle to the roadside and stop there to wait for the arrival of the police.  However, the Appellant moved his private car forward slowly and then drove away from the scene immediately.

Defence evidence

3. The Appellant elected not to give evidence, nor did he call any witness.      

Grounds of appeal

4. The grounds of appeal can be summarized as follows:

(1)       The Magistrate misconstrued the meaning of “stop”.  At the material time, the appellant had indeed stopped his car.  The person concerned had sufficient time to require him to provide the particulars.  However, no one made such requirement.  He did not have to take the initiative to provide particulars, and it was not a contravention of section 56(1)(a) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong, to drive away from the scene.

(2)       The Magistrate failed to sufficiently consider the reasons for driving away from the scene, as stated in P3, the Appellant’s cautioned statement.  On the contrary, reliance was wrongly placed on evidence irrelevant to the charge, including the fact that after the victim and the witness had said that a report had to be made to the police, the Appellant left the scene without waiting for the arrival of the police.

The respondent’s reply

5. Counsel for the respondent submitted that the decided cases defined “stop” to mean not only stopping the car but also providing particulars to the person concerned.  The Magistrate correctly cited the case of Lee v. Knapp that the period for which the Appellant had stayed at the scene was not a reasonable one which enabled the person concerned to require of him the particulars.  The respondent submitted that the Magistrate was entitled to reject the reasons given by the Appellant in his cautioned statement for leaving the scene and to consider the circumstances under which the Appellant left the scene.  Counsel for the respondent went on to say that the issue of whether the victim intended to require of the Appellant the particulars should not be confused with whether she actually did so.

Judgment

6. Section 56(1)(a) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong, provides that:

Where, owing to the presence of a vehicle on a road, an accident occurs whereby-

(a) personal injury is caused to a person other than the driver of that vehicle; …

the driver of that vehicle shall stop.

Section 56(2) provides that:

In the case of any such accident, the driver of the vehicle shall, if required, give to any police officer or to any person having reasonable grounds for so requiring the following particulars-

(a)  his name and address;

(b)  the name and address of the owner of the vehicle; and

(c)  the registration or identification mark or number of the vehicle.                         

7. As Counsel for the Appellant correctly pointed out, the Appellant was not summonsed for section 56(2).  This section is directed at the case in which an accident has occurred and a person having reasonable grounds for requiring the driver of particulars has so required, but the driver refuses to provide particulars.  If the person having reasonable grounds for requiring the driver of particulars has never so required, section 56(2) will not apply.  Counsel for the Appellant submitted that according to the case of Lee v. Knapp [1963] 3 AER 961, “stop” meant stopping the car for such a period of time as was sufficient in the circumstances to enable the victim to require the driver to provide the particulars required by the legislation.  In the present case, Counsel for the Appellant pointed out that the Appellant had indeed stopped his car and had conversations with the female victim and the prosecution witness.  This period of time was long enough to provide the victim with an opportunity to require the driver to provide the requisite particulars.  However, neither she nor the prosecution witness made such a requirement.  Therefore, Counsel for the Appellant submitted that the Appellant had no obligation to take the initiative to provide his personal particulars and contact phone number, and that he was perfectly entitled to drive away from the scene.

8. According to Lee v. Knapp [1966] 3 All E.R. 961; [1967] 2 Q.B. 442:

… in section 77(1) of the Road Traffic Act, 1960, … the phrase ‘the driver of the motor vehicle shall stop’ is properly to be construed as meaning that the driver of the motor vehicle shall stop it and remain where he has stopped it for such a period of time as in the prevailing circumstances, having regard in particular to the character of the road or place in which the accident happened, will provide a sufficient period to enable persons who have a right so to do, and reasonable ground for so doing, to require of him direct and personally the information which may be required under the section. 

9. The facts of the case HKSAR v. Wong Yin Chak, HCMA 296/2006 were similar to those of the present case.  The magistrate in that case found that the appellant had a conversation with the other driver after the traffic accident and they agreed to meet at a nearby hotel to discuss compensation.  However, the first witness did not jot down the personal particulars of the appellant, who did not turn up as agreed to discuss compensation.  Therefore, the first witness made a report to the police.

10. The magistrate had this to say in his Statement of Findings:

Although the appellant had stopped at the time of the accident, and I am satisfied [he had]engaged in conversation with PW1 about the accident, he did not stop for such time as necessary in the prevailing circumstances,having regard to the character of the road or place in which accident happened, would provide a sufficient period to enable PW1 to require information about personal particulars of the appellant.  PW1 says, and I accept that he did not do this as arrangements were made between the parties to meet at the Harbour Crystal Plaza for such purpose…

11. Deputy Judge Tong, as he then was, pointed out that:

I agree with the prosecution that the requirement to stop included the requirement to provide the personal particulars.  Here, PW1 did not immediate get the personal particulars of the appellant because they had agreed to meet at the hotel.  The appellant did not turn up as agreed, hence he failed to provide the necessary information of personal particulars.

12. It can therefore be seen that “stop” includes providing particulars.  In HKSAR v. Chan Kin, HCMA 377/2006, I also stated clearly that:

The magistrate was also of the view that ‘stop’ does not merely mean stopping in the technical sense.  Upon stopping, both drivers must exchange their particulars.  The party who fails to do so or provides insufficient particulars still ‘fails to stop after a traffic accident’ even if his vehicle did stop.  These principles have been clearly explained in the cases cited just now, for example, Wong Yin Chak and Lee v. Knapp.

13. Whether the person concerned has required the Appellant to provide his particulars, or even whether the person concerned has had the opportunity to make the requirement but has not done so, is not a decisive factor.  Furthermore, the actual length of time involved may not conclusively indicates the stopping time, which is sometimes the result of the interplay of the aforesaid factors.  Therefore, an important consideration is the circumstances under which the Appellant left the scene.  In Wong Yin Chak cited above, the magistrate accepted that the appellant had stopped and discussed with the other party.  The facts also indicated that the first witness had sufficient time to ask for particulars.  However, in Deputy Judge Tong’s view, the decisive factor was that, although the witness had sufficient time to require the appellant to provide his particulars, he neither jotted it down nor obtained it because he had been misled into believing that the appellant would attend the discussion as agreed.  Therefore, far from being unimportant, the circumstances under which the appellant left the scene were a key factor to be considered.

14. In the present case, the evidence accepted by the Magistrate is that the prosecution witness had clearly told the Appellant that he would make a report to the police and had asked him to move his car to the roadside to wait for the arrival of the police.  Counsel for the Appellant pointed out that the Magistrate had not properly or sufficiently considered the contents of P3, the Appellant’s cautioned statement, in particular the part which stated that he did not believe that his car had knocked someone down and he felt that he might have been beset and extorted, as a result of which the Magistrate erred in finding that the Appellant left the scene because he knew that the injured lady would make a report to the police.  With respect, Counsel for the Appellant has in my view completely neglected the fact that the prosecution exhibit P3 was a mixed statement.  The Magistrate was perfectly entitled to disregard the exculpatory part which had not been tested by cross-examination and to give full weight to the inculpatory part, that is, the Appellant sneaked away from the scene knowing that the lady’s left leg was injured, that she and the prosecution witness had said that “a report is needed to be made to the police”, and that he was asked to move his car forward to wait for the arrival of the police.  It is obvious that the prosecution witness and the injured lady did not require of the Appellant his personal particulars and contact details because they expected the Appellant to follow their instruction and stop by the roadside to wait for the police to deal with the matter.  The position was the same as that of the first prosecution witness in Wong Yin Chak, who did not obtain the appellant’s particulars solely because the appellant had agreed to go to the hotel to discuss compensation.

15. The Magistrate was not in error.  Counsel for the Appellant misconstrued the relevant law both at trial and on appeal.  The grounds of appeal not being valid, I dismiss the appeal and affirm the Appellant’s conviction.