HKSAR v. CHAN CHIN

HCMA1091/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1091 OF 1998

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J U D G M E N T

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1. The Appellant was convicted by a Magistrate of careless driving. He now appeals against the conviction.

2. Before the Magistrate, PW1 testified that at 7:50 pm on 4 May 1998, he was driving private car registration number FK1685 along Clear Water Bay Road towards Sai Kung. He was driving at about 40 kilometres per hour. Close to Ta Ku Ling Sun Tsuen, a vehicle came out from a slip road on his right onto Clear Water Bay Road when he was only 10 odd metres away. To avoid a collision, he braked his car to a halt. Another car from behind crashed into the rear of his car, causing damage to the rear bumper, fender and boot lid of his car. The latter vehicle was a private car bearing registration number GA689 and PW1 identified the Appellant as its driver.

3. PW1 testified that there was a bend to the right before reaching the junction of the slip road with Clear Water Bay Road. This was not a sharp bend. However both the Appellant and PW2, the police officer who arrived at the scene to investigate the case, said that it was. The Magistrate did not make a finding on this discrepancy. After the bend, the road slopped downwards slightly. PW1 was in the fast lane (which is on the right hand side) of the two-lane carriageway and could not enter the slow lane on his left because there was traffic in it.

4. The Appellant in giving evidence told the Magistrate that he had almost 12 years of driving experience. On 4 May 1998, he was driving home in private car GA689, along Clear Water bay Road towards Sai Kung. His speed was about 40 kilometres per hour. He was familiar with the road because he drove along it three to four nights per week. He testified that he was behind PW1's vehicle in the fast lane but that car and his were far apart. He lost sight of PW1's car when it rounded the bend near Ta Ku Ling Sun Tsuen. As he rounded the bend, the Appellant saw that PW1's car was braking. He also saw a car coming out of the slip road onto Clear Water Bay Road. Those two vehicles were very close. His vehicle was then about five private car spaces from the junction with the slip road. The Appellant was concerned that those two vehicles might have an accident and so he slowed down his vehicle. PW1 braked and pulled slightly to the left to avoid hitting the emerging vehicle. The Appellant could not enter the left lane because of traffic in it. He tried his best to brake his vehicle but there was a slight bumping between the front bumper of his car and the rear bumper of PW1's car.

5. Under cross-examination, the Appellant said that when he negotiated the bend, he reduced his speed by two or three kilometres per hour. When he next saw PW1's vehicle, upon rounding the bend, there was a distance of four private car spaces between them. He testified that if he had reduced his speed more when negotiating the bend, it was possible there would have been no collision. He was not speeding.

6. The Magistrate referred to the case of R v Li Tat-Man HCMA 1518 of 1990 (18 December 1990, unreported), where the appellant who was convicted by a magistrate of careless driving appealed against conviction. The appellant there was a taxi driver driving along the Island Eastern Corridor travelling eastbound in the fast lane within speed limit. He could not stop the taxi in time and it collided with a stationary private car in the fast lane. The stationary car was in that position after it had braked hard and skidded trying to avoid a bus that had cut lanes, resulting in its front facing the wrong direction. The time of the accident was about 11:00 pm and the road surface was wet and slippery. The magistrate based his decision on two factors only: (1) that the appellant was driving at such speed that he would not be able to stop his vehicle in time to avoid a collision; and (2) that the private car was stationary at the time. Hooper J. held that it did not necessarily follow from either or both of those two factors alone or together that the appellant was guilty of careless driving. The judge referred to the case of Brown & Lynn, Pursuers v Western SMT Co Ltd [1945] S.C. 31, where an accident was caused because of an exceptionally abrupt stop by a vehicle in front. Two passages from the judgment of Lord Justice Clerk were quoted, and they are also relevant for the consideration of our present appeal:

"The following driver is, in my view, bound, so far as reasonably possible, to take up such a position, and to drive in such a fashion, as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated : but whether he has fulfilled this duty must in every case be a question of fact, just as it is a question of fact whether, on any emergency disclosing itself, the following driver acted with the alertness, skill and judgment reasonably to be expected in the circumstances."

"I am not prepared to hold that he has been proved to be in fault for failing to make better provision for a contingency so extreme. The rule of reasonable care and foresight cannot be elevated into a counsel of perfection which would require a following vehicle to give a leading vehicle so wide a berth that every possible risk, however, remote, would be amply covered."

7. Having referred to Li Tat-Man, the Magistrate was of the view that (1) there was no presumption of carelessness against a motorist who hit the rear of the vehicle in front; and (2) the fact that a driver had not kept his speed in proportion with the distance of his view and/or had collided with a stationery vehicle did not necessarily mean that he had driven carelessly. The reasons for his convicting the Appellant were as follows:

"A vehicle coming out of a slip road onto a major road causing a vehicle thereon to brake and stop was in my view a traffic exigency which could be reasonably anticipated. Moreover the appellant was very familiar with this road and knew or should have known of the existence of the slip road. I was satisfied that, when he rounded the bend prior to the junction with the slip road, the appellant should have reduced his speed by substantially more than 2 to 3 kilometres per hour so that he could have dealt successfully with the traffic exigency which did occur. His failure to do so was not the act of the reasonably prudent driver and amounted to driving without due care and attention, that is careless driving.

Furthermore I was also satisfied that his actions, in responding to what he saw ahead when rounding the bend, fell below the standards expected of the reasonably prudent driver. He feared a collision between the 2 vehicles ahead of him and he initially reacted by changing from the 3rd gear to the 2nd gear. That was how he braked his vehicle. I was satisfied that a reasonably prudent driver would have taken more urgent and decisive steps to deal with the traffic exigency ahead of him. This failure also amounted to careless driving."

8. Counsel for the Appellant submitted that :

(a) the Magistrate erred in finding that the Appellant's familiarity with the road placed upon him a duty of care different from that of a driver who was unfamiliar with the road;

(b) the Magistrate erred in finding that, in the circumstances of the instant case, a vehicle coming out of a slip road onto a major road causing a vehicle thereon to brake and stop was a traffic exigency which could reasonably be anticipated;

(c) the Magistrate erred in finding that the Appellant should have reduced his speed by substantially more than 2 to 3 kilometres per hour (before rounding the bend) so that he could have dealt successfully with the traffic exigency which did occur;

(d) the Magistrate erred in finding that the Appellant's failure to do so amounted to careless driving;

(e) the Magistrate erred in distinguishing the case of Li Tat-Man from the facts in the instant case;

(f) the Magistrate erred in finding that the Appellant "feared" a collision between the two vehicles in front of him; and

(g) the Magistrate erred in finding that the Appellant initially reacted (to the traffic emergency in front of him) only by changing from 3rd to 2nd gear or that the Appellant braked his vehicle only by changing down a gear.

9. Regarding (g) above, the Magistrate's finding was that the Appellant "feared a collision between the two vehicles ahead of him and he initially reacted by changing from the 3rd gear to the 2nd gear. That was how he braked his vehicle." Having checked the transcript, I am satisfied that it was open on the evidence for the Magistrate to reach this finding. Although the Appellant said on two occasions during his evidence that he did brake, he did say that he changed from 3rd to 2nd gear as soon as he saw the distance between the two vehicles was very close and that it was the first time he saw the emerging vehicle, and that it was a practice of his to brake his car by engaging the 2nd gear.

10. In the Magistrate's Statement of Findings, no where did he say that the Appellant's familiarity with the road placed upon him a duty of care exceeding that of a driver who was unfamiliar with the road. The Magistrate was considering all the circumstances of the case, including the Appellant's admitted experience in driving and his familiarity with the road, in reaching his decision. He was considering the case of a reasonably prudent driver with the experience and knowledge of the Appellant in order to assess whether on the facts that were hardly undisputed the Appellant was careless. I am not persuaded that that approach was wrong.

11. The accident took place in early May at about 7:50 pm. There was still some light. Traffic was quite busy on Clear Water Bay Road, as borne out by the evidence of PW1 and the Appellant that there were cars in the slow lane such that neither could get into it at the material time. When approaching the bend, the Appellant either knew that there was a slip road about five car lengths after he rounded the bend or he did not know. If he knew, the exigency of a car emerging out of the slip road should have been reasonably anticipated. In photograph C of Exhibit D1 before the Magistrate, there was a sign posted at some distance before the bend in Clear Water Bay Road showing a minor road joining it. It appears therefore that this sign would make it apparent to drivers driving along Clear Water Bay Road that after the bend there was a road joining it. Since there was no finding by the Magistrate about this sign, I do not think it proper for me to consider its existence and effect. If the Appellant did not know of the existence of the slip road, he should be careful and have slowed down his vehicle by more than two to three kilometres from the speed of around 40 kilometres per hour that he had been doing, because he said that the bend was sharp and he could not see what lay ahead beyond the bend. If on the other hand, he could see what lay after the bend, accepting the evidence that the bend was not too sharp, he could see the car on the slip road and PW1's car and should have slowed down on seeing what was happening. The Appellant's own evidence was that had he slowed his car more than two to three kilometres when approaching the bend, it was possible for him to have avoided the collision. Although I agree that it is not necessarily careless for a driver not to keep his speed in proportion with the distance of his view, turning the bend not knowing what was lying ahead was the situation in which the Appellant found himself.

12. The main attack on the Magistrate's decision is that he was wrong in his view that "A vehicle coming out of a slip road onto a major road causing a vehicle thereon to brake and stop was in my view a traffic exigency which could be reasonably anticipated." I examine this by dissecting the undisputed facts of this case into the following situations in order to see whether each should be a reasonably anticipated traffic exigency according to the standard of a reasonably prudent driver :

(a) a car waiting at the junction between the slip road and Clear Water Bay Road;

(b) a car coming out of the slip road;

(c) a car coming out of the slip road and stopping in the major road; and

(d) a car coming out of the slip road causing a vehicle in the major road to stop to avoid it.

13. I do not think that it can be reasonably or justifiably disputed that exigencies (a) and (b) could be reasonably anticipated. Exigency (c) is more difficult, because it would be difficult to anticipate that a car after coming out of the slip road would stop in the major road causing an obstruction to the traffic in the major road. However, the crux of the matter is whether exigency (d), as that was the fact in the present case, should have been reasonably anticipated. The Appellant was driving along Clear Water Bay Road and he had seen PW1's car in front of it, though at some distance away, before PW1's car disappeared after turning the bend. The traffic on Clear Water Bay Road was relatively busy. He did not know what was happening to that car after it had turned the bend. He was not able to see what was happening beyond the bend, which was going down slope. He slowed down his own car by about two to three kilometres per hour before turning the bend. After rounding the bend, his car was five car lengths to the junction of the slip road and the major road. He saw a car emerging from the slip road and PW1's car braking. He was concerned that there might be a collision between those two cars. He changed from 3rd to 2nd gear and braked. In all the circumstances of this case, I am of the view that exigency (d) could and should reasonably be anticipated by a reasonably prudent driver. Failure to anticipate that exigency amounts to carelessness.

14. I also agree with the Magistrate that the Appellant did not take sufficient action in view of his concern that there might be a collision between PW1's car in front and the car that had just emerged from the slip road. PW1 was able to brake and swerve slightly to the left to avoid hitting the emerging car. PW1's car had been travelling at about the same speed as the Appellant's car before turning the bend, and the emerging car simply drove slowly into his path when his car was about 10 odd metres to the junction between the slip road and Clear Water Bay Road. The irresistible inference is that the Appellant did not apply his brake soon enough or hard enough. There is no evidence to show that had he braked harder, his car might have skidded or might have caused danger. The changing of gear might have helped, but was not able to help sufficiently in the circumstances.

15. I am not unmindful of the part of the judgment at page 35 of Brown & Lynn to which I was referred by Mr Halley, namely,

"... the question whether the following driver has failed in his duty cannot depend upon whether the leading driver has fulfilled his."

I do not state as a matter of law or presumption that as the driver in front had avoided hitting the emerging car, the fact that the Appellant could not avoid hitting the car in front must amount to carelessness. What I am saying is that examining all the evidence of this case, I cannot find the Magistrate wrong in arriving at the conclusion that the Appellant did not take sufficient steps to avoid the collision and such amounted to carelessness in the circumstances of the present case.

16. The cases cited by Counsel for the Appellant all dealt with situations where the stopping of the vehicle in front was extremely abrupt or the presence of the stationery vehicle in front was beyond the reasonable anticipation of a reasonably prudent driver in the particular circumstances of those cases, which are quite unlike the situation of the instant case.

17. On both of the Magistrate's grounds for the conviction, I am in entire agreement. I would dismiss the appeal.