LAU LUNG KO v. HKSAR

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1034/97

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REASONS FOR JUDGMENT

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1. The appellant was convicted after trial before a magistrate of the following offences:-

(1) careless driving;

(2) driving a medium goods vehicle in the offside lane of a 3-lane carriageway;

(3) failing to stop after an accident in which damage had occurred and

(4) failing to report an accident in which damage had occurred.

He was fined and now appeals against his convictions.

2. At the outset of the hearing of the appeal, Counsel for the Government made a concession in respect of the second summons on the ground that there was no evidence or proof that the stretch of Tuen Mun Road as particularized in the summons is an expressway within the definition of law. Accordingly, the appeal in respect of that summons was allowed; the conviction quashed and the fine of $500 set aside.

3. The prosecution case was that at about 2:10 p.m. on 3 April 1997, the appellant was driving a medium goods vehicle, registration number DS4630, with a 40 feet long container on an unidentified trailer along Tuen Mun Road from Tuen Mun towards Kowloon. The road was a 3-lane dual carriageway. On approaching a location near Siu Lam, the appellant was moving in the offside lane and overtook a private car, registration number GN4854, which was travelling in the middle lane. As the appellant's vehicle was moving ahead of the private car for a short distance, it swerved left into the middle lane cutting the path of the private car. Whilst swerving left into the middle lane, the appellant applied the brake. The driver of the private car immediately braked but owing to insufficient distance in between, the front part of the private car rammed into the nearside rear part of the appellant's trailer. The front part of the private car was damaged.

4. The appellant drove away in the direction of Kowloon after the accident and failed to report to the police. He was subsequently traced by the police. He denied to have been involved in the collision but admitted that he was the driver of the goods vehicle, registration number DS4630, and drove past the location of the accident at about 1410 hours on 3 April 1997.

5. The main prosecution witness was the driver of the private car. He told the court how the accident happened and how he took down the registration number of the goods vehicle. Under cross examination, he agreed that in his first statement to the police he gave the time of the accident as 1310 hours. But in the second statement which he gave to the police some days later the time was stated to be 1410 hours. He explained that this was because he had been reminded by his girlfriend, who was a passenger in his car at the time, that the accident happened at 1410 hours and not 1310 hours. Counsel for the appellant submits that the time given by the driver of the private car in court and that is 1410 hours was hearsay and inadmissible because he only learned it from his girlfriend. This matter was dealt with by the magistrate in paragraph 21 of her statement of findings at p. 145 of the transcript. The appellant also admitted in the notice requiring identification of driver, which was produced and marked as exhibit P5, that he was the driver of motor vehicle DS4630 at 1410 hours at Tuen Mun Road near Siu Lam, Kowloon bound. Suffice to say that there is ample and clear evidence to prove that the time of the accident was 1410 hours and these grounds fail.

6. Counsel for the appellant also complains that the magistrate failed to consider adequately the inconsistencies and illogicality of the prosecution evidence and that she also failed to give adequate consideration to the defence case in its entirety nor did she properly and adequately assess the credibility of the appellant. Having considered the evidence and the submissions of counsel, I am satisfied that the magistrate had considered all the matters complained of and she considered them carefully, fairly, properly and adequately. There is no merit in any of the grounds advanced.

7. The appeal is dismissed.