HKSAR v. KWAN Yiu-fan

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.325 OF 1997

(On appeal from WSS 16076 of 1996)

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JUDGMENT

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1. The Appellant, Mr KWAN Yiu-fan, was convicted after trial on a charge of careless driving. He now appeals against such conviction.

2. There was no dispute that the Appellant was the driver of the taxi, EY5293, and that at the time of the offence it collided with the first prosecution witness, Miss YAO, who was at that time visiting Hong Kong from America.

3. According to Miss YAO, at the time of the accident, she was crossing a steep section of the road consisting of two carriageways, as depicted in the photographs. She said she was crossing the road at a normal pace. She said she had almost completed crossing the road and when she was a few feet from the opposite pavement, she was struck by the appellant's taxi. She said she had looked to both sides before she started crossing the road and she saw no vehicle coming and then she started to cross the road.

4. There was another witness to the accident. She said she saw Miss YAO had taken a few steps in crossing the road before she was hit.

5. At the conclusion of the prosecution's case, the appellant elected not to give evidence and decided not to call any witnesses in his defence.

6. The learned Magistrate concluded that a prudent driver could have observed Miss YAO and could have reacted to it earlier. The learned Magistrate was of the view that the skid marks, the failure to swerve his vehicle away from Miss YAO and the failure to use the horn suggested that the appellant had not seen Miss YAO until it was too late, namely, immediately before the collision, when he could and should have noticed her presence earlier. The learned Magistrate therefore concluded that the Appellant's driving had fallen below a standard expected of a normal prudent driver.

7. In support of this application it was suggested that the Magistrate had not taken into consideration the difficult surrounding circumstances, such as the wet surface, the weather, the road was a steep downhill road, and the possibility of the presence of other road users.

8. I do not accept such an attack on the Magistrate at all, who had, in my view, clearly taken those matters into consideration. The fact that the surrounding circumstances were difficult, perhaps would suggest that a prudent driver would exercise more care. The facts remained, the appellant's vehicle collided with Miss YAO when she had almost completed crossing the road and that a prudent driver should and could have noticed her presence and therefore should have taken steps to avoid a collision earlier.

9. It is incorrect to say that the learned Magistrate had relied on the doctrine of res ipsa loquitur at all. From the way in which the learned Magistrate dealt with this matter, he was only drawing an inference from those undisputed facts, an inference, in my view, clearly was an irrestible one in the light of the circumstances of the case.

10. In the absence of any evidence or explanation from the defendant at the trial, in my view, that inference was inescapable. In my view the appellant, on the evidence, had been properly convicted and the learned Magistrate's reasons for convicting the Appellant cannot be faulted. There is nothing unsafe or unsatisfactory about the conviction. In the circumstances, the appeal is dismissed.