HKSAR v. KWOK MING WAI

HCMA248/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.248 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of careless driving on 17th February 1998 by Mr Daniel Ho, sitting in Tuen Mun Magistracy. He was fined HK$4,000 and fined HK$2,000 costs and disqualified to 18 months.

2. There was another charge laid against him, which alleged that he failed to stop after an accident, but he was acquitted by the learned Magistrate of that charge.

3. The allegation of the careless driving is that on 29th December 1996, at about 3.40 p.m., on Tai Tong Road near Hop Yick Road, New Territories, he had driven a private car carelessly.

4. The facts of the case are that he was driving the private car and approaching a light control crossing for pedestrians on Tai Tong Road when he collided with an elderly pedestrian who subsequently died of his injury. It was established that at the time of the collision, the lights in favour of vehicles were green and the lights controlling the movement of pedestrians across the pedestrian crossing were red in colour. The evidence adduced by the prosecution also show that at the time the deceased was knocked down on the pedestrian crossing, there were two other pedestrians on the same crossing. Those two pedestrians were fortunate in that they managed to hasten their steps and got to a position where they avoided the collision with the Appellant's car.

5. The Appellant now appeals against conviction and his Counsel, Mr Yeung Shak-nung, has advanced four grounds, one of which he withdrew at the commencement of the appeal.

6. The first ground alleged that the learned Magistrate erred in estimating the speed that the Appellant was driving at the time of the accident. The fact of the matter is that the learned Magistrate never, in fact, estimated what speed the Appellant was driving at. The basis of the conviction is simply that the Appellant was driving at the speed which did not enable him to come to bring the car to a stop in case an emergency arose. If the emergency arose in circumstances which would not enable a cautious and prudent driver doing everything he possibly could, to avoid the accident, then of course the driver is not guilty of careless driving.

7. In the instant appeal, the Appellant alleged that when the deceased crossed the crossing, his view of the deceased was blocked by a public light bus which was travelling in the opposite direction. The Appellant gave evidence at the trial, but the learned Magistrate did not believe his evidence, especially insofar as it related to the presence of a public light bus in the opposite lane which blocked the Appellant's view of the deceased. The learned Magistrate also found as a fact that the deceased could not and did not cross the road from behind the said public light bus. The learned Magistrate mentioned the brake marks twice in his Statement of Findings, but he did not go on to say that because of the presence of the brake marks, his conclusion was that the Appellant was driving at a particular speed. He did mention, however, that the Appellant, at the scene of the accident, had told a police officer investigating the accident that he had been travelling at the speed of 60-70 kilometers per hour. But as I said earlier on, the basis of a conviction for careless driving is not that the Appellant was driving at a particular speed but that he was driving at an inappropriate speed. The learned Magistrate also found as a fact that it was not possible for the deceased to have crossed two lanes of traffic before emerging from behind the public light bus onto the lane where the Appellant was travelling. He also said that he did not believe the Appellant's evidence that at the relevant time the Appellant had reduced the speed of his vehicle. There were three eye-witnesses to the accident who gave evidence of how the accident occurred on the pedestrian crossing.

8. The second ground advanced by Mr Yueng related to the Magistrate's error in dealing with the varying speeds of the Appellant's car given by the different witnesses. The estimate of the Appellant's speed, as I have mentioned, was not the basis of the conviction for careless driving.

9. The last ground of the appeal is that the learned Magistrate did not take into consideration the fact that the Appellant had a previous good character, both in terms of criminal offences and in terms of traffic offences.

10. As Miss Ho, appearing for the prosecution, pointed out, the Magistrate was not unaware of that fact. The learned Magistrate in his Statement of Findings did mention the fact that the Appellant had no convictions for careless driving.

11. I do not think Mr Yeung, Counsel for the Appellant, was going as far as to suggest that the Berrada direction is necessary in a case involving careless driving.

12. Mr Yeung's complaint is really that the lights for vehicles were green at the time and the lights for pedestrians were red, and if the deceased chose to cross the road against the lights, then the accident was unavoidable even when his client was driving in a cautious and prudent manner. That is true insofar as it goes, but just because lights are in favour of a motorist, it does not mean that he has carte blanche to carry on driving without regard to the possibility of pedestrians emerging onto the road from the pavement. A cautious and prudent driver on the streets of Hong Kong is expected to slow down his vehicle when driving along a crowded road or street because he must expect that at any time a passer-by may attempt to cross the road, either at a crossing or anywhere along the road.

13. This collision occurred on a light controlled pedestrian crossing. In my judgment, the learned Magistrate was correct to say that because the Appellant was approaching this crossing, even though the lights were in his favour, he should have slowed down sufficiently to bring the car to a halt to avoid a collision with any passers-by who chose to cross against the light.

14. So for the reasons which I have mentioned, the appeal against conviction must be dismissed.