HKSAR v. DAOUD, WALID ABDELHAMID AHMED

HCMA 193/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 193OF 2015

(ON APPEAL FROM KCS 39622 OF 2014)

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JUDGMENT

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1.This is an appeal against conviction. The appellant faced one count of careless driving and one count of failing to stop after an accident at trial.

2.On 9 March 2015, the appellant was convicted after a 2-day trial before a deputy special magistrate[1] (the magistrate) for careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap374. He was fined $1,500. He was acquitted of the charge of failing to stop after an accident.

3.The appellant was found to have driven carelessly when intending to change lanes he did not pay due care and attention to the presence of another vehicle travelling in that lane. As a consequence the other vehicle travelling in that lane swerved to avoid the appellant’s vehicle but the appellant’s left wing mirror nevertheless still hit the other vehicle’s right wing mirror.

The facts

4.Two police officers, PC9166 (the passenger officer) and SPC48394 (the driving officer) were on board a police unmarked BMW vehicle (the police vehicle). They were on an operation to detect speeding vehicles. The police vehicle was fitted with a vehicle camera which recorded the course of the journey. It visually recorded the route of the police vehicle’s journey from the front of the vehicle and also showed the speed of its vehicle and other targeted vehicles (the video recording), prosecution exhibit P2.

5.At the material times they were following behind the appellant’s private car (the appellant’s vehicle) on Tsing Kwai Highway because they suspected that the appellant was speeding.

6.When both vehicles reached Ching Cheung Road near Nob Hill, the appellant suddenly changed lane from the left forth lane to the third lane, as a result, it’s left wing mirror (or left rear view mirror as referred to at the trial) collided with the right wing mirror of a black private car GS3387 (Tang’s vehicle) travelling on the third lane driven by Mr Tang Siu-hong (Tang). Tang swerved his vehicle to avoid the appellant’s vehicle however the collision caused the right wing mirror to fold up or flip inwards. Neither the appellant’s vehicle nor Tang’s vehicle stopped after the collision.

7.The police officers followed and eventually intercepted the appellant and his vehicle on Cornwall Street.

The defence case

8.The appellant was not legally represented at his trial. He elected not to give evidence and called no defence witnesses. The appellant had no previous traffic convictions. He did not challenge the accuracy or the admissibility or accuracy of the video recording. He did not dispute the fact that he changed lanes from the forth lane to the third lane and in so doing his left wing mirror clipped the right wing mirror of Tang’s vehicle in the third lane causing the wing mirror to fold up. He did not stop after the collision.

9.From the transcript of the trial it can be seen that the appellant made no closing submissions. Implicit from his case was that the prosecution had not proved he was driving carelessly. Before he changed lanes he had turned on his left indicator light then changed lanes and at the material time of doing so he was driving within the speed limit, at about 50 km per hour.

Findings by the magistrate

10.These were the magistrate findings at paragraph13 of the statement of findings.

“13. I find that at the material time, when the Defendant reached Ching Cheung Road near Lamp Post CF 0282, he steered the Defendant’s Vehicle from left 4^th lane to 3^rd lane at a speed above 70km/h. At that time, the Black Vehicle was travelling along the 3^rd lane at a speed between 60-70km/h. Mr Tang swerved to avoid the Defendant’s Vehicle, but the Defendant’s Vehicle still collided with the right rear view mirror of the Black Vehicle. In the Video Recording, the Black Vehicle appeared closely behind the left rear corner of the Defendant’s Vehicle immediately after the alleged collision. The only reasonable inference that I can draw upon these findings is the Defendant failed to maintain a safe distance between the Defendant’s Vehicle and the Black Vehicle when the Defendant changed lane and as a result the right rear view mirror of the Black Vehicle was hit by the Defendant’s Vehicle and was damaged.”

Issue

11.The issue at the trial as on this appeal is whether the prosecution had proved beyond all reasonable doubt that the appellant was driving without due care and attention.

12.Section 38(2) of the Road Traffic Ordinance Cap374 provides that :-

“A person drives carelessly within the meaning of this section if on a road he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road.”

Grounds of appeal

13.As was the position at trial, the appellant was not legally represented in this appeal. In his 17 page typed written submissions there were two main grounds of appeal. They were as follows:-

Ground 1 – “the two police officers provided statements with untruthful information that led to the misjudgement of the driving behaviour of the appellant”

14.After my clarification with the appellant as to his meaning in the first ground of appeal, I am given to understand that this ground concerns an explanation by the appellant as to why he changed lanes and drove in the manner he did and did not stop after the collision.

15.It was his case that he felt threatened and scared for his life as he did not know the unmarked vehicle chasing him was a police vehicle and he changed lane in a bid to escape them and driving off. He did not know the passengers were police officers and he believed them to be hooligans. In order to get to a place of safety away from them he headed towards the City University where he knew there would be security guards there to assist him.

16.In support of his case, he referred to the untruthfulness of the police officers evidence at trial that the siren and flashing red and blue light was on whilst chasing him. It was the appellant’s case that it was evident at least from the video recording that the siren could not be heard for the entire pursuit but was heard on and off. Implicit from his cross examination of the police officers is that as there was no flashing red and blue light. For those reasons he therefore did not know the unmarked car was a police vehicle.

17.From his cross-examination he had challenged the police officer’s a typical driving. Such as their driving along the hard shoulder on a one lane carriage way abreast of his car. From the video recording, the sound of a horn was heard continuously during this time which the appellant said was him directed at the police car and at the same time he was telling the unmarked car with a gesture that this was a one lane carriage way by putting one of his fingers in the air.

Discussion

18.The magistrate in fact did not rely on the evidence of the passenger officer as she found he did not have a clear recollection of the events[2]. She found the driving officer to be a credible and reliable witness.

19.The police officers evidence was not material in establishing the charge against the appellant. The magistrate arrived at her finding of the appellant’s guilt on the evidence of the key witness of the case Tang (the driver of the black vehicle) and on the video recording.

20.For the sake of clarity the magistrate acquitted the appellant on the failing to stop charge as she gave the benefit of the doubt to the appellant as she found that he might not have had the intention to escape from the scene as the siren was on and off during the pursuit and the sound of the microphone was not working properly.

21.It is to be noted there was no evidence of the appellant feeling threatened at trial. It was only after the magistrate delivered her verdict that the appellant informed her about his believing the police in the vehicle were hooligans. Despite this not being adduced into evidence and it being unnecessary to consider the point raised, the magistrate nevertheless gave consideration to this point in her statement of findings. At paragraph 12 of her statement of findings she said:-

“12. Other than the fact that the Defendant was followed by the Police Vehicle at the material time, no evidence suggests that the Defendant was facing any threat of death or serious injury or that the Police Vehicle was making such threats against the Defendant. I do not find that the Defendant was under duress or it was necessary for him to change lane without the need to pay due care and attention to other road users in order to avoid the Police Vehicle. Despite that it is possible for the Defendant to believe that he was chased by another vehicle for unknown reasons in this case, the Defendant still had a duty to pay due care and attention to other road users and not to collide with them when he changed lane.”

22.The magistrate properly dealt with this issue, even if the appellant believed he was threatened it did not absolve him from the duty to pay due care and attention to other road users particularly when changing lanes.

23.In the circumstances I find no merit in this ground of appeal.

Ground 2 – “The magistrate based her decision on admitting incorrect evidence by the driver of the black car Tang without further clarification.”

24.If my understanding of this ground is correct, it is that the magistrate erred in placing any weight on the evidence given by Tang as his evidence was incorrect and therefore he was not a reliable witness.

25.The appellant highlighted the errors in Tang’s evidence. He complained that the magistrate was wrong to rely on Tang’s evidence that :-

(1) the driving speed of the appellant was 70 km/h when he changed lanes, when the appellant’s speed was in fact about 50 km/h, as can be seen in the video recording,

(2) the right rear view mirror of Tang’s vehicle was damaged after the collision with the appellant’s car, however the photos produced at trial did not show any damage on the right rear view mirror,

(3) Tang’s vehicle’s left rear light was damaged by a truck travelling on the inside lane when Tang swerved to avoid the appellant’s vehicle when no such damage was caused by the truck,

(4) the appellant’s vehicle’s left indicator light was not on (blinking) when the video showed that the indicator light was on before changing lane,

(5) Tang was driving in the third lane when in fact he was driving in the second lane and

(6) Tang had changed lanes into the third lane from the second lane almost at the same time as the appellant changed lanes.

Discussion

(1) Speed of appellant’s vehicle

26.The video recording in the police vehicle showed that the police vehicle was travelling at about 50 Km/h. It was the appellant’scase that as the police vehicle was following very close to the rear of the appellant’s vehicle, the appellant’s vehicle was travelling at about the same speed of 50 km/h as the police vehicle and not travelling at 70 km/h as the magistrate found. It is apparent that the magistrate relied on Tang’s evidence to make this finding.

27.I accept that the magistrate was mistaken to find that the appellant was travelling at 70 km/h when he changed lanes as the video recording shows a slower speed of about 50 km/h. Further Tang’s evidence that the appellant was driving at 70 km/h was an estimate only. Despite, the fact that the appellant was not driving at 70 km/h but at about 50 km/h on the facts of this case nothing turns on it.

(2) Damage to the right wing mirror of black vehicle

28.Tang’s evidence was that the glass on the right wing mirror was cracked, however the photographs he was shown in court did not show any damage. The photos are not close up photos of the mirror. The fact that there was no damage seen from the photos is not evidence that there was no damage. Even if there was no damage, it is irrelevant to the question in issue. Damage is not a prerequisite to a conviction of careless driving.

29.What is significant on the facts of this case, is that upon the appellant changing lanes, the appellant admitted that his left wing mirror hit Tang’s vehicle’s right wing mirror causing it to flip inwards.

(3) Damage to the left rear light of Tang’s vehicle

30.There was unchallenged evidence that the rear left tail light of the Tang’s vehicle was broken and it was not broken before Tang started his journey on that day. The prosecution case was that as a result of Tang swerving his vehicle to avoid the appellant’s vehicle the rear of his vehicle hit a truck on the lane he swerved and skidded into.

31.Tang’s evidence on this point was clear, he did not know how his left rear light was damaged. He was told by the police that when he swerved to avoid the appellant’s vehicle the rear end of his vehicle was hit by a medium goods vehicle which damaged his light. As can be seen on the transcript[3]the magistrate had correctly pointed out this was hearsay and she would not rely upon it. Nothing turns on this point.

(4) Indicator light of the appellant’s car

32.Tang’s evidence was that the appellant did not turn on the indicator light when he changed lanes, however the video showed otherwise. The magistrate accepted that Tang was wrong in that regard but found that he did not intend to lie or give an inaccurate account of the key issues[4].

33.The magistrate was correct to state that whether the appellant had turned on the indicator was not the key issue. Although the appellant had indicated that he was intending to change lanes into the third lane, turning on the indicator light does not give him the right to change lanes without paying due care and attention to other vehicles around him and to vehicles travelling in that lane and maintaining a safe distance when doing so. Importantly indicating does not absolve the appellant from committing the offence of careless driving. The indicator is used for showing to the other drivers in the vicinity that it is the driver’s intention to change direction.

(5 & 6) Tang travelling in the second lane and then changing lanes to the third lane

34.I turn to deal with these two points together. Tang’sevidence was that he was travelling in the third lane all along immediately prior to the appellant changing lanes. It was his evidence when the appellant drove his vehicle into his lane he swerved to the left side to avoid the appellant’s vehicle and skidded. As can be seen from the video recording it was wet and raining at the time.

35.The appellant’s case is that Tang was travelling in the second lane and changed lanes into the third lane and therefore they were both changing lane at the same time into the middle lane.

36.It is significant to note that this was not put to Tang at the trial. In fact the appellant did not contest any part of Tang’sevidence at trial as he did not even cross-examine Tang. He was asked by the magistrate if there was anything he disagreed with Tang’s evidence and the appellant’s answer was no[5]. The exchange between the magistrate and the appellant was as follows:-

“COURT…..so I’d like to know whether your examination on this witness is going to last for more than five minutes or ...

DEFENDANT: I actually have ...

COURT: ... it would be ...

DEFENDANT: ... no question.

COURT: You have no questions for this witness? Anything you want to ask this witness about what happened on the material time -- at the material time?

DEFENDANT: No.

COURT: And anything you disagreed with this witness evidence?

DEFENDANT: No.

COURT: No questions to ask.”

37.The appellant did not give evidence at the trial, there was no evidence before the court of Tang driving in the second lane immediately before the collision. The appellant sought to rely on his statement he made to the police after his arrest that that is what he told the police. His statement was not part of the evidence before the magistrate. Once again, this was mentioned by the appellant to the magistrate after she had delivered her verdict convicting the appellant.

38.The fact that Tang was driving in the second lane and not the third lane was never suggested or put to Tang at the trial. There was no evidence that Tang was changing lanes from the second to the third lane and thus was not a factor for the magistrate to consider.

39.Even if, which was not the evidence, at trial and which the magistrate did not find, Tang was in the second lane and was changing lane at the same time, on the facts of this case nothing turns on it as the appellant would still have to pay due care and attention before he changed lanes.

40.Tang’s evidence was considered as a whole, the magistrate found him to be a credible witness. She found Tang was travelling in the third lane when the appellant changed lanes from the forth lane into the third lane. I have reviewed the evidence in the transcript, the magistrate was not plainly wrong to accept Tang’sevidence and was entitled to do so.

Conclusion

The Video recording

41.The video recording captured the majority of the appellant’sdriving manner at the material time, however the actual collision of the appellant’s vehicle and Tang’s vehicle could not be seen. It depicted that the appellant was travelling in the forth lane and changed lanes into the third lane, just as he changed lanes Tang’s vehicle appeared in the video, the right wing mirror of Tang’s vehicle was flipped inwards. Thereafter Tang’s vehicle was following behind the appellant’s vehicle. There was unchallenged evidence that the left wing mirror of the appellant’s car collided with the Tang’s car’s right wing mirror upon the appellant changing lanes.

42.On the facts of this case, with the benefit of the video recording which captured the appellant’s driving manner, the elements of careless driving are clearly satisfied. The appellant was not exercising the degree of care and attention that a reasonable, competent and prudent driver would have exercised in the circumstances when he changed lanes. If the appellant had exercised due care and attention before he changed lanes, he should have looked, seen and noticed the presence of Tang’svehicle travelling in the third lane.

43.I am satisfied that the magistrate fairly and properly considered the facts and was fully justified in reaching her conclusion that the appellant had committed this offence.

44.For the foregoing reasons the appellant’s appeal against conviction is dismissed.