HKSAR v. YUEN CHUN WAH MARCUS

[English Translation — 英譯本]

HCMA 77/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 77 OF 2009

(ON APPEAL FROM TWS NO. 9199 OF 2008)

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REASONS FOR JUDGMENT

1. The appellant was convicted after trial by a magistrate on one count of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong, and was fined $2,300. He appealed against conviction.

2. After hearing, I allowed the appeal and ordered that the conviction be quashed and the fine set aside. My reasons are set out below.

Prosecution case

3. The prosecution case was that in the evening of the date of the offence, the appellant was driving a private car in Tung Chung. When he drove from the near lane of Yi Tung Road into the near lane of the roundabout at Tung Chung Interchange, he failed to stop or slow down his car before the give-way line at the junction; as a result, Sergeant 22882, who was driving a motorcycle along the near lane of that interchange, had to apply the brake, sound the horn and swerve to the right to avoid the appellant’s car. When the appellant’s car stopped, the front of the car was already in the near lane. In the sergeant’s estimate, the speed of the appellant’s car was approximately 50 km.p.h. The two vehicles did not collide, but the closest distance between the heads of the two vehicles was only about two metres.

4. The sergeant switched on the blue beacon and directed the appellant to drive his car to a safe area. Then he booked him on a charge of careless driving. Under caution, the appellant said to the police officer, “Ah Sir, but I could stop in time.”

5. At the time of the offence, the traffic at the scene was sparse, the weather dry and the lighting condition normal.

Defence case

6. The appellant testified that at the material time the sergeant was driving along the middle lane of the roundabout and it was only after he drove past the junction of Yi Tung Road (i.e. where the appellant was) and the interchange that the appellant drove into the near lane of the roundabout. Upon arrival at the give-way line preceding the near lane of the roundabout, the appellant did not stop his car but instead merely decelerated it to approximately 5 km.p.h. The appellant said that there was only one bus at that time and it was far away from him on the right hand side, and therefore he could safely enter the near lane. Then the sergeant looked back at the appellant and, with the left hand, signalled him to stop. The sergeant also switched on the blue beacon and directed the appellant to drive to lamppost 7464, where the appellant was booked on the charge.

Grounds of appeal

7. In essence, the grounds of appeal put forward by the appellant, who was not legally represented, were that the sergeant’s evidence was incredible, that the magistrate had not carefully and objectively considered the appellant’s evidence, and that the magistrate repeatedly interfered with the appellant’s cross-examination, as a result of which the appellant was denied a fair trial.

Discussion

8. I have had an opportunity to read the transcript of the trial proceedings. First of all, I do not accept the appellant’s contention that the magistrate repeatedly interfered with and interrupted his cross-examination. All the magistrate did was ask the appellant to clarify his questions and then break down his cross-examination into several questions so that the sergeant could respond to them. The seeking of clarification by the magistrate did not serve to deprive the appellant of a fair trial.

9. At trial, the appellant placed much emphasis on the argument that, on the prosecution case, the sergeant violated the traffic rules by driving in the near lane of the roundabout. The sergeant’s evidence was that he was at that time on routine patrol and not in the course of dealing with any emergency. He entered the roundabout from the downtown area of Tung Chung and was proceeding to North Lantau Highway. In other words, he entered the roundabout via an entrance which should be in the upper part of the sketch (page 22 of the appeal bundle) but which has not been shown there and, having entered the roundabout, he intended to leave the roundabout via the exit on the right.

10. The advice given by the Highway Code of England is that where a road user who, having entered a roundabout, intends to take an exit to the right or going full circle, he should keep to the right (i.e. the inner circle) on the roundabout until he has to change lanes to exit the roundabout; he should not drive all the way in the outer circle.

11. The wording used in relation to roundabouts in the Road Users’ Code of Hong Kong is different from that used in the English Highway Code, but the meaning is the same. Where there are two lanes in a roundabout, a driver who, having entered the roundabout, intends to turn right to exit the roundabout should proceed in the inner circle.

12. The Road Users’ Code is not a statute. However, as the Transport Department states in the preface to the Code:

A failure on the part of any road user to observe any rule or follow any advice in the Road Users’ Code is in itself not on offence, but any such failure may be taken into account in any proceedings (whether civil or criminal, and including proceedings for an offence under the Road Traffic Ordinance) when deciding if a road user was at fault or not and to what extent, and may also be relied on for negativing any liability under any of these proceedings.

13. In respect of the fact that the police officer drove in the near lane of the roundabout, the magistrate said (page 17 of the appeal bundle):

… The witness is a police officer, whose duty is to patrol, going to such places and taking such routes as his duty requires. To drive in the near lane is certainly not the most satisfactory or the safest, but it is not impossible. …

14. With respect, I do not agree. The fact that a police officer has the duty to patrol does not mean that he can disobey the Road Users’ Code. The sergeant was not executing any emergency duty which rendered it necessary for him to drive in violation of the Code. To drive in the near lane is not simply what the magistrate said: “certainly not the most satisfactory or the safest, but it is not impossible”. The magistrate simply did not consider the rules in the Road Users’ Code that govern roundabouts.

15. Although the rules relied on by the appellant were the rules in force in Nottingham, England, Hong Kong has its own Road Users’ Code and the magistrate should have taken it into consideration. It appears that when the magistrate assessed whether the appellant was driving carelessly, he did not take into account the violation of the rules by the sergeant who drove in the near lane of the roundabout. The conviction is unsafe.

16. In addition, the transcript shows that the sergeant was not a witness who gave objective evidence. I do appreciate that I did not have the opportunity to observe and listen to the witness who testified at trial, but I notice that even in the face of undeniable facts, the sergeant maintained his own views and took issue with what the appellant said. An obvious example was that the appellant pointed out to the police officer that according to the sketch drawn by the sergeant, lamppost FB7399 was situated to the left of Yi Tung Road, i.e. beyond the junction in question, and hence the sergeant’s evidence that he was close to lamppost FB7399 at the time of the offence did not make sense. Instead of taking the opportunity to clarify his evidence, the sergeant insisted that he was close to that lamppost.

17. In light of the evidence before the magistrate and the magistrate’s failure to have sufficient regard to the fact that the sergeant himself violated the rules, I held that the conviction was unsafe and allowed the appeal accordingly.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.