HKSAR v. LAW CHI KAN, ALAN

HCMA649/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

 (Appellate Jurisdiction)

MAGISTRACY APPEAL NO.649 OF 2006

(ON APPEAL FROM KCS 7301 OF 2006)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap.374 and was fined $2,000.  He now appeals against conviction.

2. A collision happened between the appellant’s private car and PW1’s taxi at the material time, at about 1 a.m. in the morning.  The appellant was negotiating a bend along Ferry Street which joined into Cherry Street and collided with PW1’s taxi which was on the first lane of Cherry Street.  PW1’s taxi was forced to veer across Cherry Street and collide with a private motor vehicle driven by PW2 proceeding along Cherry Street in the offside lane.

3. PW1 told the court that he was driving at about 30 kmph in the first lane when the collision occurred.  PW2, who witnessed the accident, said that the speed of PW1’s taxi ahead of him was roughly at the same speed of about 50 to 60 kmph.  He noticed the appellant’s car coming round the bend from Ferry Street into Cherry Street at a speed faster than that of PW1’s taxi and collide with the taxi.

4. The appellant elected not to give or call evidence.

Grounds of appeal

5. I shall summarise and renumber them as follows :

(1)	the magistrate failed to resolve discrepancies in the prosecution witnesses’ evidence;
(2)	the magistrate failed to make findings on facts and evaluated properly the evidence before him; and
(3)	the magistrate applied wrong standard of proof.

Respondent’s Reply

6. Counsel for the respondent submitted that :

(1)	The magistrate had resolved the discrepancies between PW1 and PW2’s evidence as to the speed of PW1.  He found, in his oral reasons, that PW1 was doing 50 to 60 kmph prior to the collision.
(2)	It was unnecessary for the magistrate to make specific findings of fact as to the speed of the appellant when negotiating the bend, having found that the appellant negotiated the bend “too quickly and collided with PW1’s taxi” (Appeal Bundle p.8, 3rd paragraph).  In any event, finding on actual speed is not necessary as this was not a case of speeding.
(3)	The magistrate has not misdirected himself on either the burden or standard of proof.  “Quite” satisfied means “wholly, entirely and to the fullest extent or degree”.

My judgment

7. It was not disputed that a collision happened between the taxi of PW1 and the appellant’s private car.  From the sketch drawn by PW3, the ending position of PW1’s taxi and PW2’s private car was still within the boundary of the double white line.  This lends support to the evidence of both PW1 and PW2 that the collision between PW1’s taxi and the appellant’s private car happened at the double white line.  PW1’s evidence was that the collision happened at the middle of the double white line (Appeal Bundle 34C).  PW2 did not state precisely where, but said that at the bend, the appellant’s vehicle turned towards the lane in Cherry Street, collided with the taxi and the taxi was pushed towards his lane (Appeal Bundle 36C).

8. Counsel for the appellant submitted that “it was the appellant’s case that PW1 overreacted in causing the accident” (Skeleton Submission paragraph 9).  First of all, the evidence in this case was all one way, namely, that the appellant was driving at a high speed when negotiating the bend and swerved towards the lane where PW1 was travelling causing a collision at the place where there was double white lines between the lane of PW1 and the lane of the appellant.

9. As far as I can see from the transcript of the trial proceedings, it was never suggested to PW1 that he overreacted in seeing the appellant’s vehicle negotiating the bend thus causing the accident.  PW1 was, however, cross-examined as to whether there was any need for him to follow a left sign by leaning onto his left (Appeal Bundle 31U), to which he answered that he had no intention at that time to turn either left or right (Appeal Bundle 32K).  In any event, it was never suggested to PW1 that it was he who swerved to the left straddling the double white lines which caused collision with the appellant’s vehicle.  I refer to the case of HKSAR v. Lo Chun Nam [2001] 4 HKCFAR 1, quoted by counsel for the appellant on another issue which says this :

“… Where it was intended to suggest that the witness was not speaking the truth on a particular point, it was the duty of counsel to make it plain to the witness that his evidence was not accepted and in what respects it was not accepted. …”

10. What was suggested to PW1, however, was that he “overreacted after the collision”, and “swerved all of a sudden to his right” (Appeal Bundle 34R), which is not quite the same as counsel for the appellant now submits as to what the defence case was at the trial below.  I wish only to echo what was said in Lo Chun Nam’s case :

“… but in a criminal trial it was better, and less likely to lead to confusion, to take the issue more obviously.  The confusion which occurred in this case might well have been avoided had a fuller cross-examination taken place …”

11. The prosecution case is that the speed of the appellant was inappropriate in negotiating the bend in the circumstances which caused him to swerve into the lane where PW1 was legitimately travelling on, causing the collision.  The evidence of PW1, that the appellant negotiated the bend at a high speed was supported by the evidence of PW2 and consistent with PW1’s own evidence that even after the collision the appellant did not slow down and only stopped about 30 metres away.

12. Counsel for the appellant, who also happened to represent him at the trial “did not do the most sensible thing our adversarial system calls for : to call his client into the witness box to rebut the prima facie case which undoubtedly existed.  Of course in some cases, the prosecution case alone may contain the seeds of their own destruction.  But common sense and experience tells one that those are extremely rare and the present case is certainly not one of those.”  (HKSAR v. Chan Hung Kwan, HCMA667/2006.)

13. Counsel for the appellant then complained that the magistrate had not taken into account discrepancies between PW1 and PW2’s evidence in particular, the speed of PW1 prior to the accident.  The magistrate was alive to the disparities as referred to in the defence final submission (Appeal Bundle 42C-H).  The fact that he did not refer to each and every one of them in his Statement of Findings does not mean that they were not considered.  He said this in his Statement of Findings :

“There were discrepancies between the prosecution witnesses as to the speed of the taxi driven by PW1 prior to the accident.  I took into account the discrepancies. …”

14. It is clear that the magistrate, as the sole finder of fact, was entitled to find that PW1 was doing 50 to 60 kmph as said by PW2.  He was entitled to accept part of PW1’s evidence yet rejecting part and come to the conclusion that any such inconsistencies were insignificant and cast no doubt on the credibility of PW1 and PW2.

15. It was further submitted that the magistrate failed to make specific findings as to the actual speed of the appellant, thus erred in concluding that he was driving carelessly on excessive speed.

16. The magistrate did not have to make specific findings as to the speed that the appellant was travelling at, given the state of the evidence as it stood, namely that the appellant was travelling at a higher speed than PW1 when he was negotiating the bend is prima facie evidence of carelessness.

17. I refer myself to the Chinese judgment in the case of香港特別行政區訴王錢，HCMA728/2001, Deputy Judge To said this in his judgment :

“	6.	……原審特委裁判官沒有定下什麼是安全速度，也沒有裁定上訴人的車速。他裁定的準則是以當時的情況，即上訴人駛入迴旋處時所駕駛的速度，足以令坐在車上的2位乘客拋離座位，他駕駛的速度在這環境下便不恰當，而這駕駛態度便是不小心。
		……
	10.	無論如何，本席認為控方未能舉證車速……並不重要。在一般的不小心駕駛檢控中，控方往往亦無法提供這些數值。重要的是原審特委裁判官信納受害人由於巴士入彎時的速度所產生的離心力才被拋離座位。上訴人駕駛巴士，他一定知道巴士上當時有乘客，而乘客們亦未必會緊握扶手。…...一名小心謹慎的駕駛者定會考慮上述的情況，而不會以超出安全的速度入彎。尤其是當他駛入迴旋處時，他是駛入一個360度的急彎，他應倍加謹慎，不可太快。
	11.	……他是信納受害人的證供，而推斷上訴人以不恰當的車速駛入迴旋處，而裁定他不小心駕駛。本席認為這推斷是唯一合理的推斷，而控方亦無須證明上訴人當時的車速。”

18. The complaint that the magistrate applied the wrong criminal standard of proof in his oral reasons by saying that he was “quite satisfied” that the appellant was driving carelessly was totally misconceived and unjustified.  The magistrate could not have meant anything otherwise than he was not left with the slightest doubt.  To rely on the Concise Oxford English-Chinese Dictionary to argue that the word “quite” qualifies the standard of proof to reduce it to less than sure is simply an affront to the wisdom of both this court and the magistrate.

19. There is nothing in this appeal.  Appeal is dismissed and I affirm the conviction.