HKSAR v. CHU TAN

HCMA 157/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 157 OF 2001

(ON APPEAL FROM TWS 15240/2000)

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J U D G M E N T

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1. The Appellant was charged with one charge of careless driving in that, on 14 May 2000 10:20 pm at Tsing Kwai Highway (Lautau bound) near Chainage 10.8, he did drive a private car displaying registration mark GA8396 on a road carelessly. She was convicted after trial. The Appellant was represented by counsel at the trial but appeared in person at the hearing of this appeal against her conviction. The trial was conducted in Chinese but at the hearing of this appeal the Appellant applied for the hearing of the appeal to be in English and I granted her application.

2. The prosecution called three witnesses in total. PW1 gave evidence that he was driving his private car registration GB3151 at about 10:20 pm along the Tsing Kwai Highway (Lantau bound). At the time he was in the fast lane, that is, lane no. 3 and travelling at a speed of about 80 km/h. When he saw the traffic up ahead was congested, he then decided to switch lane and he turned into the second lane or the middle lane. On seeing that there were cars near to the entrance of the tunnel, he then slowed his car to about 60-70 km/h, when, suddenly, he said he heard a sound coming from the back of his car and felt his car had been hit from behind. After the collision his car travelled for another 10 car spaces before it finally came to a halt. PW1 alighted from his car and saw that behind him, in the middle lane, were two private cars which had stopped.

3. PW2 said that at the material time he was driving his private car JE2848 at a speed of about 50 km/h in the slow lane or the first lane. As he saw that there were many cars in the first lane he decided to turn into the second lane. After he turned into the second lane, he maintained his speed at 50 km/h when suddenly he saw that the car in front of him (PW1's car) braking, so he also applied his brakes. PW2 said that when his car came to a halt he was some 4 feet 3 inches from the back of the PW1's car. After he came to a halt suddenly he felt that something bump into the back of his car and he was pushed forward in his seat. His car was pushed forward by the car from behind and PW2's car then ran into the back of the PW1's car. He saw that the PW1's car was thereby pushed forward for a distance similar to the distance between two lamp poles. PW2 was unable to alight from his car as he suffered from injury to his back. In the cross-examination, PW2 said he was not sure that just prior to the accident whether PW1's car had come to a complete halt but he was sure that his own car had come to a complete halt before he was hit from behind.

4. PW3 is PC53387. He was the police officer who arrived on the scene shortly after the accident. He gave evidence that when he arrived at the scene he spoke to the Appellant, and the Appellant told him that just prior to the accident she was in the middle lane and was travelling at a speed of just over 10 km/h and that the closest distance between her car and the car in front of her was about 1 1/2 car spaces. When she saw the car in front of her braking she also applied her brakes but unfortunately was unable to stop the car in time.

5. At the close of the prosecution case, the learned magistrate ruled that the Appellant had a case to answer. The Appellant elected not to give evidence nor call any witnesses to testify on her behalf. The learned magistrate, in his Statement of Findings, said he believed the prosecution witnesses and he found that they were credible and honest. The learned magistrate accepted that at the time just prior to the accident PW1 was travelling in the middle lane with PW2 behind him and, he accepted PW2's evidence that it was as a result of the Appellant bumping into the back of PW2's car that PW2's car then bumped into the back of the PW1's car. The learned magistrate also accepted that the Appellant had told the PW3 that she was driving in the middle lane and that the closest distance between her car and the PW2's car was 1 1/2 cars space length away. He did not accept that the Appellant was travelling at a speed of just over 10 km/h because he reasoned that if the PW2 was travelling at 50 km/h then the Appellant could not have been travelling at such a slow speed.

6. In his conclusion, the learned magistrate found that for the Appellant to be travelling at 50 km/h or above and keeping a distance between her car and that of the PW2's car of just 1 1/2 car length, he found it was positive evidence of carelessness.

"時速約50公里或以上但與前車最接近距離祗有架半私家車位是不小心駕駛的實質證據 (positive evidence of carelessness)"

7. The learned magistrate then went on to say in his Statement of Findings this

"本席作出一個不可抗拒的推論，即是次意外在當時並無任何外在原因使到上訴人在謹慎駕駛及專注的情况下仍無可避免與第二證人之車輛發生碰撞，碰撞的唯一原因是上訴人並無與前車保持一個安全適當的距離。"

It was on that basis that the learned trial magistrate then convicted the Appellant. In the case of R. v. Kit Wing Wo [1985] 1 HKC at page 204, Penlington J held that in a criminal case, there must be some positive evidence of carelessness unless the evidence was so strong, that in the absence of any explanation from the defendant, he must have been negligent. In this case, the learned trial magistrate found that the fact that the Appellant was travelling at about 50 km/h or over and keeping only a distance of 11/2 cars length away from the car of PW2 as positive evidence of carelessness. That is not supported by the evidence. There was no evidence before the learned magistrate that travelling at 50 km/h on that road and keeping a distance of 11/2 car length in those conditions was careless. In fact according to PW2, just prior to the accident, he was travelling at 50 km/h and was maintaining a distance of about a half car length to one car length distance from the car of PW1. So, if the Appellant was indeed travelling at about 50 km/h or over and keeping a 11/2 car distance away from PW2's car she would appear to have been at a safer distance than PW2 had been from the PW1's car.

8. The learned magistrate then went on to conclude that the only irresistible inference to draw in these circumstances was that the Appellant was driving carelessly by not keeping a safe distance away from the car in front of her. On the evidence before the learned magistrate, there was no sufficient evidence to support this irresistible inference being drawn. The conviction is therefore unsafe and unsatisfactory. The appeal is allowed and the conviction is quashed and the fine is set aside.