HKSAR v. LO CHING KONG

HCMA921/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 921 OF 2001

(ON APPEAL FROM WSS 1062/2001)

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J U D G M E N T

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1. This is an appeal against the appellant's conviction for an offence of careless driving contrary to section 38(1) of the Road Traffic Ordinance Cap. 374.

2. The facts of the case as found by the learned magistrate were that the appellant was driving the last of a line of four vehicles in traffic which was proceeding east in the middle lane of the Eastern Corridor. Traffic ahead of the four vehicles slowed and PW1 in the first of the four vehicles braked, as did PW2 in the second vehicle and PW3 in the third vehicle. What the magistrate found then to have happened was that the appellant failed to brake in time to avoid running into the rear of PW3's vehicle ahead of him , pushing PW3's vehicle into that of PW2 which in turn then was pushed into the rear of PW1's vehicle. In other words a "chain collision" occurred which had originated with the appellant colliding with the back of PW3's vehicle.

3. The real issue in this case was as to whether the appellant had simply failed to drive carefully enough so as to avoid colliding with PW3's vehicle when it braked, or whether as the appellant had alleged in his evidence at trial, PW3's vehicle had cut into the space between the appellant and PW2's vehicle so as to allow the appellant insufficient time and space to brake.

4. PW3 in his evidence had said he had not cut into the appellant's lane immediately before the collision, but had been travelling behind PW2's car all along. In other words, he denied the allegation put to him that he had cut into the appellant's lane between the appellant's vehicle and that of PW2 at about the time the line of traffic started to brake. PW1 and PW2 were unable to give evidence as to what in detail had occurred behind them in this regard.

5. The issue then was one of simple credibility as between PW3 and the appellant. That is, the task of the magistrate was to resolve what version of events was or may have been reliable as far as the evidence of PW3 and the appellant was concerned.

6. The appellant's grounds of appeal assert that the magistrate erred in concluding that PW3's evidence as to how the collisions had occurred was reliable. The appellant says, firstly, the magistrate failed to properly consider the discrepancy which existed between the two sketches PW3 had drawn showing the position of the vehicles after the collision, and secondly, the magistrate was wrong in finding that the appellant's evidence as to how the collision between his and the PW3's vehicle had occurred was inconsistent with the damage occasioned to PW3's vehicle.

7. So far as the first complaint of the appellant is concerned, two sketches of the position of the vehicles after the collision were drawn by PW3. The first, Exhibit P6, showed all four vehicles in the middle lane in a straight line and equidistant from each other. The second, Exhibit P7, showed PW3's vehicle touching the rear of PW2's vehicle with its right front fender. PW3 was cross-examined on the discrepancy between the two sketches.

8. His evidence was apparently to the effect that he drew the second sketch, Exhibit P7, after the police had told him that it was important to show the position of his vehicle as it was, and that he accordingly drew Exhibit P7 to show the position of his vehicle immediately after the accident.

9. His explanation as to the difference between the two sketches he drew was therefore quite simple and straightforward. It was entirely up to the magistrate, as the tribunal of fact, as to whether or not to regard the inconsistency, having taken PW3's explanation for it into account, as something which was trivial and which did not reduce his credibility or as something which showed some unreliability in his evidence.

10. This particular alleged inconsistency in PW3's evidence formed part of the final submissions of defence counsel. It effectively was part of a large number of matters which was relied upon by the defence counsel at trial in attacking the credibility of PW3.

11. No doubt the learned magistrate had it in mind. She referred to Exhibit P7, that is the second sketch that PW3 drew, in her Statement of Findings together with the reasons PW3 gave as to why the second sketch differed from the first sketch he had drawn. She obviously did not feel that the inconsistency between the two sketches affected the credibility of PW3. She said she accepted him as a reliable witness. She did not give specific reasons for not regarding the differences between the two sketches as something which reduced PW3's credibility. She was not obliged to. There were a number of aspects of evidence which she referred to in concluding PW3 was a truthful and reliable witness. She dealt with those she found to be important. That was a proper approach. A Tribunal of fact is not, in giving reasons for its findings or decisions, obliged to deal with every factual issue which is raised before it. It is certainly sufficient if it states what it finds the fundamental issues to be, and why, and its reasons for its findings in respect of those fundamental issues are given.

12. In her reasons for her findings the learned magistrate apparently placed greater reliance upon the photographs taken at the scene rather than the later sketches made at the police station. She was entitled to do that. She dealt with the issues which were obviously those of importance in her mind. She regarded the photographs, no doubt, as more probative than the sketches. She was entitled to take that view. For those reasons there is nothing in the appellant's first complaint.

13. The 2nd matter advanced by the appellant was that the magistrate erred in finding that that the damage to PW3's and PW2's vehicles was inconsistent with the appellant's version of how the collisions between the vehicles came about.

14. Mr.Vaughan before me suggests that the magistrate relied too much upon the vehicle of PW3 being damaged on its right frontal area, as shown in the photographic Exhibits, and erred in accepting that as evidence consistent with PW3'' version of events to the effect that he had been travelling behind PW2's vehicle when PW2 braked and had himself then braked and swung towards the left of PW2's vehicle before being struck by the appellant and, as a result, being forced into PW2's vehicle. Mr Vaughan further argues that the magistrate erred in finding that the damage to PW3's vehicle was inconsistent with the appellant's version of events.

15. So far as the magistrate finding that the damage to PW3's vehicle was consistent with PW3's version of the events, in my judgment she was entitled to do so on the evidence before her. The damage to PW3's vehicle was to the right front side. That is entirely consistent with him having been in the same lane as PW2 and following behind him when he, PW3, braked and steered to the left to avoid PW2's vehicle as he said.

16. Further in my view the learned magistrate was entitled to find that the damage to PW3's vehicle was inconsistent with the appellant's version of events.

17. She found that that damage must have been incurred as PW3's vehicle was turning or pointing to the left of the middle lane all 4 vehicles were travelling in. That was inconsistent, in the magistrate's reasoning, with PW3's vehicle having just come into that same middle lane behind PW2's vehicle from the left hand lane.

18. The essence of Mr. Vaughan's argument in this regard is that the damage may not have been inconsistent with the appellant's version as to PW3 entering the lane from the left, for the simple reason that once into the middle lane behind PW2's vehicle PW3 may then have turned to the left when PW2 braked.

19. In fact that argument was advanced at trial before the learned magistrate when the then defence counsel had in his final submission said:-

"......but if in the course of events, as has been suggested by the defendant, if whilst cutting in PW3 realised that, 'Whoops, the cars in front have stopped. I've got insufficient space' and he tried to get back into his lane but it was too late. Then as he turned, the right side would impact the car in front, depending on what sort of manoeuvre he did."

20. So the learned magistrate was aware of this argument. It no doubt was one of the possibilities she took into account. But at the end of the day, in giving a number of reasons for accepting the evidence of PW3 she said, as one of those reasons:-

"..............If the cause of the accident as described by the appellant was to be believed, (then) the left front of PW3's vehicle would be damaged"

21. In my view, she was entitled to rely on the appellant's evidence and the submissions made on his behalf as fully encompassing the appellant's case in this regard. That case was effectively that PW3 had cut into the lane ahead of the appellant after PW2 had commenced to brake. That is because the appellant in his evidence had said he had seen PW2's brake lights go on and, at that time, PW3 had then at a high speed tried to cut into the space between the appellant and PW2's vehicle.

22. Accepting that as the appellant's case then the magistrate was entitled to conclude that if that was so then the left front side of PW3's vehicle would have been damaged, and not the right front side as is clearly shown in the photographs.

23. If there were to be any weight placed upon the argument of Mr Vaughan to the effect the PW3 may well have been trying to exit from the middle lane at the time of the accident, even though he had just pulled into that lane immediately prior to the accident, that would require the appellant to have performed a driving manoeuvre that, on the evidence before the magistrate, it was plain on the appellant's case there was simply no time to perform.

24. In my view, given the location and extent of the damage to PW3's vehicle, and further, taking into account the damage to the rear of PW2's vehicle which suggested the right front of PW3's vehicle struck PW2's vehicle rear in about its centre, or a little to the left, the vehicle of PW3 must have been wholly in the middle lane behind PW2's vehicle before it attempted to turn to the left. The magistrate was entitled to take the damage to PW3's vehicle as suggesting precisely that.

25. Finally in accepting the evidence of PW3 the learned magistrate said this:-

"........PW3 was the key witness in the said accident and he gave a straightforward and undramatic account of the accident that took place on 26/8/2000 at Island Eastern Corridor. There was a complete lack of embellishment or exaggeration in PW3's evidence. There was nothing inherently unlikely in PW3's evidence. PW3 replied sensibly and directly to the appellant's defence counsel and was not shaken under defence counsel's vigorous cross-examination. Having seen PW3, I am satisfied he was an honest witness and he had fairly, honestly and accurately relating events as they occurred. I believe him. I am satisfied I was right to do so."

26. The learned magistrate was in the best position to assess the credibility of the witnesses involved in this case . All her findings of fact were open to her on the evidence. Those findings cannot be said to be so wholly unsupported by the evidence as to be not available to her.

27. The appeal against conviction is accordingly dismissed.