HKSAR v. BATTEN NANCY JULIA

HCMA 137/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 137 OF 2004

(ON APPEAL FROM TWS 10360/2003)

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J U D G M E N T

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1.  The Appellant was convicted in the Magistracy after trial, of one offence of Careless Driving and was fined $2,500.00.  She appeals against her conviction only.

Prosecution Case

2.  The Appellant was driving her private car towards Tuen Mun from Ting Hau.  She was in a hurry.  Her domestic helper (PW3) the main prosecution witness, did not get into the car immediately and an argument ensued between PW3 and the Appellant while they were travelling along Castle Peak Road to Tuen Mun. 

3.  PW3 was seated next to the Appellant in the car.  PW3 complained that the Appellant was shouting at her, so she asked her to stop the car to let her get off.  The Appellant ignored her request.  At that stage, PW3 unfastened her seatbelt, opened the door of the car and asked the Appellant to stop.  According to PW3, the Appellant took one glance, slowed down the car and told her to jump. 

4.  PW3 took out her mobile phone intending to seek help from the police with a 999 call.  At that time, according to her, the door was open.  She put the phone to her ear at which point the Appellant took both hands from the steering wheel and grabbed the phone from her with both hands.  In the struggle, PW3 lost her balance and fell out of the car.  She was injured and spent three days in hospital.  She said that during the whole course of the incident, she had opened the door for two to three minutes before falling out of the car.

5.  PW3 reported to the police the day after the incident.  She was said to have told the police officer (PW1) that the accident was the result of a dispute with her employer; that she unfastened her seatbelt, opened the door of the vehicle and jumped out.

6.  However it transpired that this conversation was not with PW1 directly, but between his superior officer and PW3.  Because he was not good at speaking English, PW1 had passed the phone to his superior; it was he who talked to PW3.  

The Defence Case

7.  The Appellant said she was driving her car from home to Tuen Mun.  An argument began because PW3 had not followed her instructions about getting into the car.  In the course of the argument PW3 asked her to stop the car, but she declined because at that stage Castle Peak Road was narrow with sharp bends and curves.  There was construction work going on; the surface of the road was bumpy; a minibus was tailgating her; she found it too dangerous to stop and allow PW3 to alight.

8.  Her evidence was that PW3 suddenly opened the door and despite the Appellant asking her to close it, said she was going to jump and asked the Appellant why she did not stop.

9.  The Appellant decided subsequently to find a place to stop safely.  She reduced her speed gradually from 40 to 50 kilometres per hour, to 10 to 15 kilometres per hour.

10.  At that point, PW3 took out a phone from her handbag and used it.  The Appellant was scared and slowed the car.  She snatched the phone away from PW3 and dropped it in the rear seat because she was worried it would divert PW3’s attention.

11.  Later, the Appellant found a lay-by intending to stop the car for PW3 to get off.  She put on the emergency lights.  The minibus which had been tailgating her, overtook and stopped in the lay-by.  The Appellant applied the brake but tar on the road amplified the bump.  At that point PW3 fell from the car.  The Appellant said that judging from PW3’s sitting position, she thought she was jumping out of the car.

12.  According to the Appellant, the time lapse from the opening of the door to the fall of PW3, was about 40 to 70 seconds.

13.  The Magistrate considered that the case was a simple one.  It was not disputed that an argument had occurred between the Appellant and PW3 inside the car; nor was it disputed that PW3 opened the door while the car was moving and fell out.  The difference between the evidence of the two parties, was how PW3 came to fall out of the car.

14.  The Magistrate after examining the evidence concluded that PW3 was an honest and credible witness and accepted her evidence.  She focused, rightly, on the important question which was whether the Appellant had driven with due care and attention. 

15.  The Magistrate rejected the Appellant’s evidence and found she was not a truthful witness.  She was unable to reconcile what the Appellant said in evidence with the inherent probabilities of the case. 

16.  She stated at paragraph 21:

“However, even if I completely accept the Appellant’s testimony, the driving manner still amounted to careless driving.  She drove the car with door opened for 40-70 seconds on a bumpy, narrow road with bends and curves.  She did not stop her car during this period of time.  She kept on arguing with PW3.  She snatched the phone from PW3 while she was driving.  She did not concentrate on the driving.  All these had reflected her driving manner was below the standard of a reasonable, competent and prudent driver.

17.  The Magistrate noted that there was no burden on the Appellant to prove anything at all.  She found the act of PW3 in opening the door and unfastening her seatbelt was unreasonable and that she was at fault also.  However, she found what PW3 had done did not diminish the responsibility of the Appellant from having to be a reasonable, prudent and competent driver.

18.  The Magistrate was satisfied that the prosecution had proved the case beyond reasonable doubt and convicted the Appellant. 

19.  The Magistrate expressly placed no weight on the statements made by PW3 to the police in her report the next day, because of possible confusion over the language used.

20.  The Appellant claimed that she had been denied a fair trial, in particular because of the report to the police having treated as hearsay.  In fact, the Magistrate dealt with that point by ignoring that evidence altogether.  The Appellant considered that the cause of the argument was relevant as it went to the credibility of PW3.  She complained that the Magistrate had not told her that what PW3 said to PW1’s superior officer was hearsay which was excluded, she was only told at the end of the trial.  I note that the Appellant was represented at trial, although she did represent herself on appeal.

21.  The Appellant submitted grounds of appeal which, summarised are as follows:

“	(1)	The prosecutor had failed to provide full disclosure of material evidence.  This related to the alleged admission by the helper to PW1 that she had released her safety belt and jumped out of the car voluntarily.
	(2)	The Magistrate had failed to have regard to the conflicts and inconsistencies in the evidence.
	(3)	The conviction was against the weight of evidence presented at the hearing, as certain evidence was improperly rejected.
	(4)	The Magistrate failed to have regard to the conflicts and inconsistencies in her rulings, observations and conclusions as presented in her reasons for verdict.
	(5)	The Magistrate erred in making a subjective assessment of witnesses’ veracity by judging their demeanor.
	(6)	The conviction was against the weight of evidence as certain audio-visual evidence was improperly rejected at the hearing.
	(7)	The Magistrate erred in ignoring conflicts and inconsistencies in the evidence about the points that were the cause of the argument between PW3 and the Appellant.
	(8)	The Magistrate erred in failing to consider the motivation for the inconsistencies in the PW3’s evidence.
	(9)	The Magistrate had insufficient regard for inconsistencies in PW3’s evidence.  The resulting opinion of guilty of careless driving appears to be a subjective opinion, rather than an objective one.
	(10)	The Magistrate erred in her subjective evaluation of how much PW3’s actions contributed to the accident.
	(11)	The Magistrate erred in her objective evaluation of how much the Appellant’s clear thinking responses prevented a far more serious accident.”

22.  I am satisfied having considered the facts of the case and the matters raised by the Appellant that the Magistrate properly dealt with the incident as a case of careless driving and confined her consideration to the issue of whether or not the Appellant in the circumstances had driven carelessly.  Matters such as the cause of the argument between PW3 and her employer were, for the purposes of the assessment, irrelevant and the Magistrate properly did not go into those matters.

23.  There is no question of the Magistrate unfairly or improperly rejecting evidence, nor was there any question of the Magistrate basing her assessment on demeanor alone as submitted by the Appellant.

24.  The Magistrate had to assess the evidence of PW3.  She did so and accepted what PW3 had said in relation to the careless driving.  She rejected the evidence of the Appellant as she was entitled to do.  Nor was the Magistrate under any obligation to admit evidence in the form of video-tape as suggested by the Appellant as it did not take the question of careless driving any further.

25.  I am satisfied with the Magistrate dealt with the case correctly and accordingly this appeal against conviction is dismissed.