HKSAR v. WOO, MAN YIP JUSTIN

HCMA 332/2018

[2020] HKCFI 383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 332 OF 2018

(ON APPEAL FROM EASTERN MAGISTRACY

CASE NO ESS 2985 OF 2018)

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J U D G M E N T

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1.  The appellant was convicted after trial before a magistrate of careless driving. He appealed against conviction.

2.  Both here and below, he was unrepresented and acted for himself.

GROUNDS OF APPEAL

3.  In a document headed “Grounds of Appeal”, the appellant has listed four grounds, they are:

“(1) The Magistrate erred by changing the prosecution’s case from ‘the defendant disobeyed the “Give Way” sign and swerved rightward’ to the defendant ‘changed his lane without due care and attention.’ The Magistrate did not find the prosecution had proven its allegations in its Brief Facts of Case but convicted the Appellant based on what the Magistrate determined to be his new ‘prosecution’s case’ (the prosecution did not change its case nor did it make any submissions);

(2)  The Magistrate erred by not giving due consideration to a sketch which was drawn to scale by the police, the Appellant’s measurements as shown in photographs which were admitted as evidence, and estimates of distances and speeds: -

(a)  The Magistrate insisted without evidence that the sketch which was drawn by the police was not to scale even though it was marked with a scale which was also supported by the photographs admitted as evidence;

(b)  The Magistrate refused to consider measurements of the scene in photographs which were submitted by the Appellant and admitted as evidence by consent; and

(c)  By not giving due consideration to estimates of distances and speeds:

(i)  The Magistrate erred in finding the Appellant travelled at a higher speed than PW1 as the CCTV footage showed the Appellant was travelling at 10 km/h whereas PW1 stated his speed was 25 km/h; and

(ii)  The Magistrate erred in finding PW1 an honest and reliable witness and accepting what he said as fact even though PW1’s testimony was clearly contradicted by the CCTV footage, photograph evidence and the police sketch;

(3)  The Magistrate failed to consider the material discrepancies and contradictions in PW1’s testimony; and

(4)  The Magistrate erred in stating the Appellant submitted that PW1 should have braked. The transcript shows the Appellant did not state this. The evidence showed PW1’s vehicle was stationary and then accelerated very quickly to a speed of 25 km/h in a matter of a few seconds into a right turn. The Appellant could not reasonably be expected to anticipate PW1 would accelerate very quickly into a corner.”

RELEVANT PARTS OF THE MAGISTRATE’S ANALYSIS AND FINDINGS APPURTENANT TO THE APPEAL

4.  The parts of the Statement of Findings appurtenant to the appeal are in paras 6-20, herein reproduced below:

“6.  It can be seen from the photographs and CCTV footage, the road that Mr. Lo travelled on was the right lane of Wang On Street which became the right lane of south bound Oil Street after a right turn, and the centre line of the road was continuous from Wang On Street to south bound Oil Street. Mr. Lo did not change lane before the accident and he maintained his speed.

7.  The road that Defendant travelled on was the single lane of south bound Oil Street which became the left lane of south bound Oil Street after the right lane of Wang On Street became the right lane of south bound Oil Street. The centre line on Wang On Road extended to Oil Street and became the centre line of south bound Oil Street. Defendant had the accident after it passed the give-way line on the single lane of south bound Oil Street while cutting into the right lane of south bound after the junction, his vehicle was sitting on top of the centre line of south bound Oil Street after the accident.

8.  Defendant argued that he did not disobey the give-way sign on Oil Street. According to Mr. Lo, he did not see clearly how Defendant travelled on Oil Street when passing the give-way line, he could only say that he saw defendant overtake a stationary car at the give-way line.

9.  There is no evidence as to how long that car had been stationary at the give-way line. I find it hard to say that there was anything wrong in overtaking the stationary car by Defendant or that Defendant did anything wrong when overtaking that stationary car. It follows that I do not find that Defendant disobeyed the give-way sign.

10 Defendant submitted, from the CCTV footage, he did not travel fast. Although I cannot know how fast the Defendant was travelling from the CCTV footage, I agree that he did not seem to be travelling at a particularly high speed. The evidence remains only that Defendant travelled at a higher speed than Mr. Lo.

11.  There was a vehicle in front of Mr. Lo’s vehicle on Wang On Street, there was a gap between the vehicles when they made the right turn.

12.  Defendant submitted that Mr. Lo’s vehicle left a gap in the traffic and therefore it was reasonable for him to advance. There was also time for Mr. Lo to react and he should have braked to avoid the collision.

13.  The photographs show the position of Defendant’s vehicle. After the collision, it can be seen that Defendant’s vehicle was travelling between the left and right lane on Oil Street and sitting on the centre line. Defendant at the time of collision was clearly changing lane from left to right whereas Mr. Lo was just travelling on the same lane as he travelled before making the right turn.

14.  Defendant was the one who was changing lane or travelling between two lanes. He had the duty to ensure that, when he changed lane or travelled between two lanes, he did it a safe manner.

15.  I do not see any reason why Mr. Lo must brake to let Defendant change lane. The fact that Mr. Lo had to brake to avoid collision is already an indication that Defendant did not travel in a safe manner. Defendant was not travelling well ahead of Mr. Lo and the gap that Defendant said was clearly not big enough for Defendant to advance in the way he did. It can be seen that when the accident took place, the front part of the two vehicles were more or less in line, Defendant was not able to get into the aforesaid gap at all.

16.  The fact that there was a vehicle parked at the ‘Keep Clear’ sign, thereby making it necessary for Defendant to change lane, does not assist him because it remains the duty of Defendant to change lane in a safe manner.

17.  Further, if Mr. Lo could, as the Defendant suggested, brake to avoid the accident, Defendant would also be in a position to brake or drive at a slower speed to avoid the accident. When Mr. Lo was just travelling on the same lane as before and Defendant was changing lane, I do not see why it had to be Mr. Lo who had to brake.

18.  The evidence of Mr. Lo is consistent with the photographs and CCTV footage. His evidence is clear and straight forward and unshaken during cross-examination. I find him to be an honest and reliable witness and accept what he said as fact.

19.  I find that Defendant collided with Mr. Lo’s vehicle while changing lane when Mr. Lo was making a right turn along the same lane as before. The only irresistible inference is that Defendant did not have due care and attention in so doing. His driving manner fell below the standard of a reasonable and prudent driver.

20.  I find that prosecution has proved beyond reasonable doubt the summons and I find Defendant guilty of careless driving.”

SUMMARY OF THE APPELLANT’S SUBMISSIONS

On Ground 1

5.  The appellant submitted that the prosecution’s main allegations contained in the brief facts were (a) the appellant disobeyed the “Give Way” traffic sign and the road marking and (b) swerved his vehicle rightward from the 1^st lane to the 2^nd lane, resulting in the collision of the appellant’s vehicle with PW1’s vehicle. However, so the appellant submitted, when the magistrate came to convict him, after the magistrate had found that the appellant had not disobeyed the give-way sign, he nonetheless convicted the appellant on the basis that the latter collided with PW1’s vehicle while changing lane without due care and attention. Relying on the Oxford Dictionary of English, the appellant argued that the word “swerve” meant more than a change of direction, it meant a change of direction abruptly.

6.  Hence, so the argument ran, the magistrate had changed the prosecution case of his own volition when convicting the appellant i.e. from “swerving from 1^st lane to 2^nd lane” to “changing lane”. In this endeavour, the appellant relied on the case of HKSAR v Hau Tung Ying (2011) 14 HKCFAR 453 at paras 46-47, which are reproduced hereinbelow:

“46. This is not a case where the prosecution sought to retract its election: the trial judge took it upon himself not to adopt the case as understood and presented by the prosecution. Could he lawfully do that? From a review of the authorities cited by counsel, I am satisfied that in appropriate cases, the judge does have the power to consider the case or direct the jury on the case on a basis different from that presented by the prosecution, provided that this is open on the indictment and the evidence and the parties are given an opportunity to address the judge before he takes that course. This may occur where there is for instance a mistake or omission on the part of the prosecution or for some reason, it has decided to conduct the prosecution in a way with which the judge does not agree. Such situation must be rare and exceptional. In the cases cited, the conviction in question was quashed mainly on the ground that the defence had not been given the chance to address the court on the new basis and had thereby suffered a disadvantage or prejudice.

47. In R v Lunn [1985] Crim LR 797, the accused was charged with assault occasioning actual bodily harm by knocking over two persons with his car. The prosecution case was that he did it deliberately and intentionally, but the judge directed the jury also on recklessness. The Court of Criminal Appeal in allowing the appeal also said:

‘It was axiomatic that, if a judge thought that prosecuting counsel had made an omission in his address to the jury, he should draw the attention of both counsel to that omission and indicate how he proposed to sum up, so that they would have an opportunity to address him, and if necessary to apply to call further evidence. (p.797)’ ”

7.  The appellant argued that he was disadvantaged and prejudiced by the magistrate (a) changing the prosecution case from “swerved his vehicle rightward” to “changed his lane”; (b) not giving him instructions that he was to address the magistrate on the new basis of prosecution; and (c) not giving him the opportunity to call further evidence.

8.  The appellant alleged that during the trial he referred repeatedly to his vehicle moving without any abrupt or sudden change of direction as that was his understanding of the prosecution case (my emphases).

On Ground 2

9.  The appellant submitted that the Brief Facts averred to the fact that the sketch exhibit P4 was a sketch to scale and that on the sketch itself it was actually printed that it had a scale of 1:200 followed by a description that 1 cm represented 2 metres.

10.  The appellant’s complaint is that the magistrate without justification refused to accept that the sketch was to the scale specified on the sketch itself.

11.  As a supplement, the appellant submitted that the magistrate erred in refusing to consider the measurement shown in the photographs taken by the appellant (exhibit P6).

12.  By not accepting the sketch was to scale and therefore failing to combine the distances as shown on the sketch with the relevant time lapse on the CCTV footage (exhibit P3), so the appellant argued, the magistrate erred in finding the appellant travelled at a higher speed than PW1’s stated speed of 25 km/h. The appellant argued that by his calculation, he was travelling at approx. 10 km/h.

13.  The appellant also submitted that the evidence of PW1 as regards estimates of distance was unreliable in light of CCTV footage, photograph evidence and the sketch.

On Ground 3

14.  The appellant submitted that there are a number of discrepancies in PW1’s testimony which throw doubts on his credibility/reliability; that PW1 was confused as to the layout of the vicinity and he contradicted himself on the degree of force with which the two vehicles came into collision.  The appellant therefore submitted that the magistrate erred in finding PW1’s evidence “is clear and straight forward and unshaken during cross-examination” and in finding PW1 “to be an honest and reliable witness” and in accepting “what he said as fact”.

15.  The appellant submitted the credibility of PW1’s testimony was important because he was convicted not just on the CCTV footage; the appellant reasoned that if PW1’s testimony was irrelevant, the magistrate would not have referred to it in the Statement of Findings.

On Ground 4

16.  The appellant submitted that the only reference to his having said anything about PW1 braking was at Appeal Bundle 74F in the context of 74D-I, a part of half-time submissions, which is reproduced below:

“DEFENDANT: Yes. The only other thing is that he claims that my vehicle was moving faster than his vehicle and he claims that he was moving at 25 kilometres per hour. I guess, again, pursuant to the CCTV video, he claims he saw me, I guess, at 16:01:53 and the collision happened at 16:01:56 so he saw me for three seconds and yet he was unable to brake or stop. (my emphasis)

COURT: I’m sorry, you didn’t ask the question. You didn’t ask whether he was able to stop or brake. You actually didn’t ask him about any kind of reaction that he should or should not have taken.

DEFENDANT: I guess – well, he saw my vehicle for three seconds.”

17.  As a supplement, the appellant submitted that the magistrate erred in stating in para 6 of the Statement of Findings that PW1 “maintained his speed” when PW1 must have accelerated quickly from 0 to 25 km/h in under 6 seconds into a right turn.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS

On Ground 1

18.  The respondent submitted that only part of the prosecution case namely, “disobedience of the give-way sign”, was not proved and the charge (sic) did not depend on it.

19.  The respondent next submitted that the prosecution did not change its case.

20.  In any event, the respondent relied on para 51 of HKSAR v Hau Tung Ying (2014) 14 HKCFAR 453 (where the CFA referred without criticism to a case where the prosecution could prove the same offence on a somewhat different factual basis) in submitting that the facts as found by the magistrate were essentially the same as alleged by the prosecution and that there was no prejudice suffered by the appellant. Para 51 is reproduced below:

“51. In R v Japes [1994] Crim LR 605, a police officer was charged with stealing a chain from a suspect. The judge in summing up raised with the jury a different basis from that opened by the prosecution of the offence arising from the accused’s own evidence. The appeal was dismissed. Wright J said:

‘A judge is not bound by the way in which in which the Crown opens the case. If in the light of the evidence as it develops it becomes apparent that the same offence was or may have been committed on a somewhat different factual basis, it cannot be right to say that the judge is debarred from leaving that basis for the jury to consider, even though it may not be the primary basis put forward by the prosecution, so long as it is plain that the defendant is not disadvantaged or prejudiced by the judge so doing.’ ”

21.  The respondent further submitted that the magistrate’s finding that the appellant changed lane was not inconsistent with what is in the Brief Facts, namely, that the appellant “swerve[d] his vehicle rightward from the 1^st left lane to the 2^nd left lane of southbound Oil Street”; that the magistrate did not have to use the same word.

On Ground 2

22.  The respondent submitted that the sketch exhibit P4 did not have a scale and that it simply assisted the magistrate in respect of the layout of the accident area. Besides, so the respondent argued, the magistrate did tell the appellant that the sketch was not to scale (Appeal Bundle 75A-C).

23.  As regards the photos taken by the appellant (exhibit P6), the respondent submitted that although they were admitted into evidence by admitted facts, the tape measurements shown in 4 of the photos were hard to read and without more, it is unclear what the purpose of the measurements was. The respondent added that the magistrate also explained to the appellant (at the time of half-time submissions) it was unclear what the measurement tape was trying to show; the magistrate had also told the appellant that the latter had to supplement the information on the photos with more information by some means (see Appeal Bundle 75C-V). Yet, the respondent emphasized, the appellant chose not to do so.

24.  As regards the speed at which the appellant was driving, the respondent submitted that the appellant at no time put to PW1 (who said the appellant was driving faster than his speed of 25 km/h) that he, the appellant, was driving at 10 km/h.

25.  The respondent submitted that there was no evidence to show that the appellant was driving at 10 km/h; in any event, it is difficult to ascertain the speeds of both vehicles from the CCTV; however, according to the testimony of PW1, the appellant was driving faster than PW1 (Appeal Bundle 57Q-58B).

26.  The respondent submitted that PW1 had said in evidence that when he negotiated the right turn, he was maintaining the same speed (Appeal Bundle 55I-J); this echoed with the CCTV footage which showed that PW1 turned right in a smooth and continuous manner. The respondent argued that in such circumstances it was for the appellant to find a safe opening to change lanes rather than trying to cut lanes in a careless manner resulting in the accident.

27.  The respondent further submitted that the admitted facts did not say the sketch was to scale. Moreover, the respondent submitted that “sketch” as defined in the New Oxford Dictionary of English means a rough or unfinished drawing or painting, often made to assist in making a more finished picture.

On Ground 3

28.  The respondent submitted that none of the discrepancies in PW1’s evidence as mentioned by the appellant is material and that the evidence was in line with the CCTV evidence.

On Ground 4

29.  The respondent submitted that PW1 said he approached the junction turning right with no change in speed and that this is clearly supported by the CCTV footage; that according to the CCTV footage, PW1 had not accelerated very quickly from 0 to 25 km/h in a matter of a few seconds.

THE COURT’S CONSIDERATIONS

On Ground 1

30.  In order to understand the prosecution’s allegations more fully, one has to refer to more lines of para 1 of the Brief Facts than the parties have been doing thus far. Para 1 starts like this:

“At around 1602 hours on 2017-09-21, PW1 was driving a government vehicle AM2677 along the 2^nd left lane of eastbound Wang On Road whilst the defendant was driving a private car NC295 along southbound Oil Street. Upon reaching the junction of Oil Street, PW1 turned his vehicle rightward into the 2^nd left lane of southbound Oil Street. Upon reaching the junction of eastbound Wang On Road where ‘Give Way’ traffic sign was erected with road marking was clearly painted on the road surface to govern the defendant’s traffic direction, however, the defendant, failing to observe his offside where PW1’s vehicle was approaching from eastbound Wang On Road, disobeyed the ‘Give Way’ traffic sign and the road marking, continued to drive his vehicle forward and swerve his vehicle rightward from the 1^st left lane to the second left lane of southbound Oil Street. As a result, the offside body of the defendant collided with the nearside front of PW1’s vehicle. Both vehicles were damaged at the point of impact ……” (my emphases)

31.  The first thing that one would be able to note from the two sets of underlined passages above relating to the respective actions of PW1 and the defendant/appellant is that, the first passage refers to PW1 turning right (in fact a right-angle turn according to the CCTV footage exhibit P3 and the sketch exhibit P4) whereas the second passage refers to, not a turning (because it clearly was not) but a swerving right (for want of a better word) for the purpose of changing lanes. Here swerving (especially when contrasted with the word “turned” earlier used to describe PW1’s action) must be taken to mean a measured rotation of the steering wheel leading to a change in direction short of actual turning the vehicle left or right. I do not think there is necessarily an element of abruptness/suddenness when the word “swerved” is used here as was submitted by the appellant.

32.  Indeed, when one examines the questions asked of PW1 under cross-examination, and the half-time submissions and final submissions made by the appellant, one discovers that not once was there a reference to abruptness/suddenness or anything like it. On the contrary, on the transcript, there were instances where “swerving” was used by the appellant merely to contrast it with driving in a straight line (see Appeal Bundle 45J-Q, 47A-C).

33.  Seen in this light, one may even be forgiven for supposing that the whole matter about abruptness/suddenness is not much more than an afterthought by use of a definition of the word “swerve” in a dictionary.

34.  Incidentally, at the beginning of the appeal hearing, I copied to the parties a copy of the google search of the meaning of “swerve”. I pointed out to them that although the word could mean changing direction abruptly or suddenly, it could also mean changing direction per se.

35.  Without seeing any references to abruptness/suddenness in the transcript, I do believe that all parties concerned at trial were proceeding on the understanding that “swerve” simply meant changing direction.

36.  I am acutely aware that the Brief Facts spoke of the appellant swerving his vehicle rightward from the 1^st left lane to the 2^nd left lane of southbound Oil Street, whereas the magistrate in convicting the appellant said he found the appellant was changing lane. When one looks at the CCTV footage, given the angle at which the video was taken, and the shortness of time when part of the appellant’s vehicle was actually on the 2^nd left lane, it is difficult to see whether the appellant’s vehicle was changing direction, however slightly, moments before the impact. However, given that at the time of impact, less than half (width-wise) of the appellant’s vehicle was on the 2^nd left lane (see exhibit P2 photos at Appeal Bundle 17) and it was the case of the appellant himself that he intended eventually to travel on the 2^nd left lane (Appeal Bundle 45O-T), one can safely draw the inference that he must have been swerving, even if only slightly and steadily, towards the right so that his vehicle would eventually travel well inside the 2^nd left lane. And so his action in changing lane (as found by the magistrate and not really in dispute) in the context of the surrounding circumstances must have implied his swerving, even if slightly and steadily, from the 1^st left lane to the 2^nd left lane of southbound Oil Street.

37.  There is therefore no change in the prosecution case.

38.  As regards the first part of the prosecution case, viz that the appellant disobeyed the give-way sign, the magistrate agreed that it was not proven. However, that is not determinative of whether the summons had been made out.

39.  Ground 1 fails.

On Ground 2

40.  Having looked at the evidence and the Brief Facts, I agree with the appellant’s submission that the sketch exhibit P4 was drawn to scale. In that regard and with respect to the magistrate, I find that the magistrate had erred in not accepting such at the time of the trial.

41.  In respect of the appellant’s photos exhibit P6, on the other hand, on seeing the photos myself, I can find nothing wrong in the magistrate refusing to take into consideration any purported measurements as depicted on the face of the photos given the limited information that they could convey.

42.  Now, if the magistrate had accepted that the sketch was to scale, then working from the scaled sketch and the CCTV footage (with time stamp), he would have worked out that the speed at which the appellant was travelling was not much more than 10 km/h. This when contrasted with the speed that PW1 claimed (in estimation) that he himself was travelling, namely 25 km/h, would have meant that the appellant was slower than PW1. The foregoing was essentially the argument put forward by the appellant in this appeal.

43.  However, this argument suffers in two respects. First, the 25 km/h that PW1 said he himself was travelling at was no more than an estimation only. Anyone who has had some experience with judicial proceedings can vouch to the fact that it’s not unknown that many witnesses, even truthful ones, are particularly bad with time, speed and/or distance estimates. Secondly, when one examines carefully the CCTV footage exhibit P3, even taking into account the fact that for the majority of time the two vehicles were travelling at right angles to each other, one can see they were travelling at about the same speed with the appellant a trifle speedier (but certainly far from the case that PW1 was travelling at about 2.5 times the speed of the appellant).

44.  So, whatever view the magistrate might have had on PW1’s estimation of his own speed of 25 km/h, in my capacity as the appellate judge, I can and do firmly reject that estimate (after having had the benefit of viewing the CCTV footage).

45.  In fact, in para 10 of the Statement of Findings, the magistrate had expressly found that the appellant did not seem to be travelling at a particularly high speed (though one which was higher than PW1’s) – I respectfully agree with magistrate’s finding in this regard.

46.  Ground 2 partially succeeds but on its own does not assist the appellant in this appeal.

On Ground 3

47.  PW1 was the only witness called during the trial; it would clearly be right for the magistrate to refer to and analyze his evidence, whatever contribution that evidence might have factored into the verdict.

48.  Having had the benefit of reading the entire transcript of PW1’s evidence, I can agree that he is not the best of witnesses that one may encounter in judicial proceedings. However, the apparent discrepancies that the appellant has been able to identify are not such as could affect the verdict for the reason that the CCTV footage alone would have been sufficient to found a conviction of careless driving – the appellant clearly cut across into the lane on which PW1 was travelling at a steady speed.

49.  Ground 3 fails.

On Ground 4

50.  Although the appellant had used the word “brake” only once, he had been intimating that PW1 had the duty to stop and should have done so (see Appeal Bundle 48J-P, 49A-C, 49N-Q, 50F-I). The magistrate therefore did not err.

51.  As said before, the speed of 25 km/h was merely an estimation which, having seen the CCTV footage, I have no difficulty in rejecting.  The magistrate’s finding that PW1 has maintained his speed while negotiating the turn was clearly supported by the CCTV footage.

52.  Ground 4 fails.

CONCLUSION

53.  The conviction is neither unsafe nor unsatisfactory and the appeal is dismissed. Moreover, I confirm the conviction.