HKSAR v. RICHARD MARK SCOTFORD

HCMA638/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 638 OF 2006

(ON APPEAL FROM KCS 1489 OF 2006)

_________________

_________________

_________________

JUDGMENT

________________

1. This is an appeal against conviction for careless driving.  The case arose out of contact between two motor vehicles in a supermarket car-park at Silverstrand on 31 August of last year.  The prosecution's witness was entering the car-park and was faced with a downward slope and his case was that the appellant reversed his large off-road vehicle back up looking to go into a space and drove into him.  The case for the defendant at trial was that the other car moved forward into him. 

2. The speed which the prosecution witness said the reversing vehicle was doing was 15 to 20 kilometres per hour.  The appellant contended below and before me today that his speed was something like 5 kilometres per hour.  The magistrate made a finding that the prosecution's witness's vehicle was stationary and that the defendant had reversed into him and was so guilty of careless driving.

3. As regards the speed, the magistrate said that even if the speed was 5 kilometres, as contended for by the appellant, the fact remained that he still reversed and collided with a stationary vehicle.  The magistrate pointed out in his statement of findings that in cross-examination, the defendant confirmed that he did not see the prosecution witness's car until after the impact had happened and it was in his evidence-in-chief that he admitted that behind him, as he was reversing, was a brick wall which he could not see beyond out towards the main road.

4. Today Mr Scotford has appeared in person and argued very fluently that I should quash his conviction and/or reduce his sentence, although he has not, in fact, appealed against sentence.  Never mind that for a moment. 

5. He has made three basic points.  The first one was that the prosecution witness's actions contributed to the accident and he says there was, amongst other things, a mirror which the other driver could look in which would have shown the off-road vehicle reversing and that he went forward and he was not paying attention and the like. 

6. One of the problems that laymen have understanding in prosecutions for careless driving is that the court is bound to focus on the driving of the defendant before it at trial and answer the question the law demands of it:  have the prosecution proved that that the driving fell below the required standard?  Even if the accident which gave rise to the prosecution revealed that the other driver was at fault as well, that provides no defence and, in fact, Mr Scotford very disarmingly before me today says, in his argument, "I have never disputed the fact that my actions were a contributing factor."  I think I wrote down your words there, Mr Scotford, and you nod at me and agree now.  So the criticisms that you can make of PW1 do not, in fact, provide you with a defence.  So I even it I say to you, "All right.  I will go with you.  All those points you made against him, you have established them; you have made them," it does not provide you with a defence if, in fact, you too were driving carelessly.

7. The second point you made was that the physical damage to the motor vehicles did not support the reversing speed being 15 to 20 kilometres an hour and, may I say, you have argued that with some skill and you have demonstrated to me by looking at the photographs that there was an extension on your exhaust pipe which would doubtless have been dislodged or come loose or would have shown visible damage in the photographs if the impact had been at the speed of 15 to 20 kilometres an hour. 

8. But again, the problem is, even though you might establish that before me, it does not matter whether it was 15 or 5 kilometres an hour if in fact it was careless to drive back and hit something that you should have seen.  So the second ground, I am afraid, does not avail you.

9. The third ground you argue is basically that this should not have been a matter for prosecution:  it should have been settled between insurance companies;  it was a trivial matter and that it was only brought about by the other driver's insistence that you sign an acknowledgment of being responsible for all of the damage, even though it was trivial, and you say it simply should not have got to court. 

10. All the courts can do in these circumstances is adjudicate on what the parties bring before them.  The court does not instigate prosecutions like this.  We have an accusatorial system and if you end up being accused what the magistrate has to do, and what I do here on appeal, is decide whether the prosecution has proved that you were guilty of the careless driving.  On the evidence before me, I regret to say despite your very good arguments, they have achieved that.

11. This was an unfortunate accident; it was a trivial matter; it may have been a shame that it came to court, but once it got here, all the courts can do is what they have done.  When it comes to sentence, the fact is the $1,000 fine for careless driving these days, as the magistrate said, is cheap.  It is substantially less than the going rate.  The going rate is at least $2,000, so he saw the force of some of what you were saying and accordingly, deliberately imposed a modest fine upon you and I cannot say that that is wrong or interfere with that.  He did give you a discount. 

12. The order I have to make on the material before me is that your appeal is dismissed.