R. v. LUK KING YIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.41 OF 1997

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J U D G M E N T

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1. The appellant was convicted on 2^nd December 1996 after trial of careless driving.

2. The case for the prosecution was that on 7^th August 1996 at Texaco Road Flyover near Yeung Uk Road, Tsuen Wan, the first witness for the prosecution ("PW1") was driving her car towards Kowloon at the speed of 40 to 50 kph. There was a dual carriageway with a lane on each side. It was her evidence that she saw coming towards her over the flyover a taxi on the wrong side of the road. He continued on the wrong side and notwithstanding swerving by the taxi and by her, a headon collision occurred.

3. The second witness for the prosecution ("PW2") was a driver of a lorry who was in an elevated position and able to see the whole scene. He said in his evidence that he saw the vehicle driven by PW1, he saw the taxi approach in her lane and saw the accident occur. He was travelling behind the taxi.

4. Mr Wong offers a number of grounds of appeal. Firstly that there was a sketch map produced by the police officer which indicates a great deal of the debris from the collision was in the Shatin lane which Mr Wong points out is consistent with the evidence of the appellant that he was in his lane, i.e. that is the Shatin lane, and that PW1 was on the wrong side of the road. Whilst Mr Wong addressed the magistrate in respect of this debris, no questions were asked either in chief or in cross-examination of the debris. No expert testimony was called as to the manner in which debris would be scattered from such an accident and it is clear from an examination of the sketch that it covers a very wide area.

5. The second ground of appeal is that there is inconsistency the evidence between of PW2 and PW3 as to whether the taxi reversed after the accident, whether the car driven by PW1 reversed after the accident and whether or not the lorry driver told the police at the scene that he smelt alcohol on the breath of the appellant.

6. The magistrate appears to have misconstrued the evidence because she said at p.44 that she accepted the explanation of PW2 as to why he did not tell the police officer at the scene or in his statement that the appellant smelt of alcohol. In fact the witness testified that he did tell the police at the scene, but his evidence was not supported by the evidence of PW3, although the allegation was never expressly put to PW3 which perhaps would have made the evidence clearer.

7. The next ground of appeal deals with brake marks. There is nothing in the evidence to support that ground.

8. The last ground is that the magistrate failed sufficiently or at all to consider the evidence from the appellant and the witness who was travelling in his car.

9. The magistrate had before her all the matters which are complained of by Mr Wong. The issue which the magistrate had to decide was whether or not the vehicle driven by the appellant was on the wrong side of the road at the time of the accident and that that was the cause of the accident. If she found that to be so so that she was sure, then it is necessarily followed the driver must be guilty of careless driving. The issues concerning the reversal of the vehicles and the sobriety or otherwise of the appellant were clearly before the magistrate and were considered by her as she deals with them in her reasons. Mr Wong complained that the reasons should be fuller and she should have amplified her reasons for accepting PW2 as a credible witness but I do not agree. The magistrate indicated in her findings that she considered the credibility of the witness, bearing in mind those matters upon which he had been cross-examined and nonetheless found him to be a witness of truth.

10. The magistrate also deals with the evidence of the appellant and DW2. She cites two contradictions which she found in the evidence of the appellant. Mr Wong argued that they are not significant contradictions but they do exist on the face of the evidence and the magistrate was entitled to rely upon them. She also found the appellant evasive. She did not believe the evidence of the DW2 having considered that he was too confused at the time of the accident to know what had happened, but later was able to say that the vehicle was on its correct side of the road at the time of the accident. It was open to the magistrate to decide whom to believe or not to believe and having seen and heard the DW2, she did not find him to be a witness upon whom she could rely. This is not incumbent upon her to say whether because of a lie or a lack of credit. She sets out his evidence so she fully considered it and she was unable to rely upon it.

11. The only other matter to deal with is that of the debris. Mr Wong having raised that with her although it was not specifically referred to in the reasons given by the magistrate, must have been in her contemplation.

12. I cannot place myself in the position of the magistrate but from an examination of the transcripts and her reasons and with the help of Mr Wong, I have fully considered all that occurred in the court below and cannot say that this conviction is unsafe or unsatisfactory. The appeal against conviction is dismissed.