HKSAR v. TANG WAI KIN

HCMA1080/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1080 OF 2008

(ON APPEAL FROM KCS 23295 OF 2008)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction after trial at Kowloon City Magistrates’ Court of an offence of careless driving.

2. The charge alleged that he had driven a taxi, bearing registration number JN3985, carelessly at 01:40 a.m. on 24 February 2008 in Lin Cheung Road.

3. The ground of appeal is that the magistrate failed properly to consider the appellant’s case, in that she rejected the appellant’s evidence for reasons that were ill-considered and/or illogical, and that therefore the conviction is unsafe and unsatisfactory.

4. The prosecution called two witnesses, PW1, the driver of taxi registration number KC3200 and his passenger, PW2.

5. The evidence of PW1 was that he was travelling along Lin Cheung Road northbound at around 01:40 a.m. at about 60 km per hour when he saw the appellant’s taxi travelling ahead of his vehicle in the lane immediately to his right, the outside lane of the road.  He noticed that there were road works in the lane on which the appellant was travelling.  He saw that the appellant had begun to slow his vehicle while he himself maintained his vehicle speed.  The appellant had turned on his indicator light indicating that he intended to cut into PW1’s lane.  Suddenly the appellant swerved his taxi to the left so that one-third of it had entered the lane on which PW1 was travelling.  PW1 had immediately swerved to the left to avoid him.  This had resulted in PW1’s taxi striking and mounting the kerb at its front tyre burst. 

6. PW2, the passenger in PW1’s taxi, essentially confirmed PW1’s evidence.  He said that two seconds after the appellant had turned on his indicator light he had cut into PW1’s lane so that a half of his vehicle had entered that lane. 

7. The appellant’s evidence confirmed that he was travelling in the outside lane and that there were road works ahead of him obstructing the lane.  He said that he slowed down and indicated that he intended to cut into the lane in which PW1 was travelling, but that he had not done so until PW1’s vehicle had passed.  He had not seen PW1’s vehicle mount the kerb or seen how its front left tyre had come to burst.  He had however seen it moving forward and then stopping.  He had stopped his own vehicle and gone over to PW1 who told him that his tyre had burst and that he should not leave the scene.  Because the appellant had a passenger in his vehicle and he believed that the burst tyre had nothing to do with him, he had boarded his vehicle and left.

8. This was a case that depended on the magistrate’s assessment of the credibility of the witnesses, including the appellant.  She accepted the evidence of the prosecution witnesses and rejected the evidence of the appellant as being “unreasonable”.  It is those reasons for rejecting the appellant’s evidence that the appellant now alleges were ill-considered and/or illogical.

9. The magistrate gave three reasons for rejecting the appellant’s evidence. 

10. I am satisfied that two of those reasons (the 2^nd and 3^rd) were fundamentally flawed.

11. In so far as one of those reasons is concerned, she said :

“I found that if Defendant had waited for PW1’s taxi to pass before he cut into PW1’s lane, he would have seen PW1’s vehicle go up on the curb or would be able to give more details as to how PW1’s tyre suddenly burst.”

12. I am satisfied that that does not necessarily follow.  If the appellant had been in the outside lane signalling that he intended to move into the lane to his left but waiting until PW1’s vehicle had passed him, his attention would have been focused on the traffic that might be coming up behind PW1’s vehicle, not on what had happened to PW1’s vehicle in the second or two after it had passed him.  PW1 had himself said that there was traffic behind him.

13. A further reason given by the magistrate for rejecting the appellant’s evidence was alleged inconsistency between the case put by the appellant to PW2 which he had repeated in his closing submissions and his evidence in court.  She said this :

“I also found that the case put by the Defendant was inconsistent with the version of facts he gave in evidence.  The Defendant had put to PW2 and reiterated in closing submissions that he had not cut into PW1’s lane.  However the Defendant gave evidence that he had cut into the lane after he waited for PW1’s taxi to pass.” 

14. I cannot find any justification for this finding of inconsistency.  Miss Chan, who appears for the respondent before me, concedes that there was no inconsistency. 

15. The appellant was not suggesting to PW2 that he had never moved into the lane to his left but simply that he had not yet done so at the time PW1’s taxi passed.  That is clearly what he meant when in his final submissions to the magistrate he said :

“… I did not cut lanes at the time.  I did not cut lanes and affected the other road users. …”

16. The appeal before this court is a rehearing on the papers.  This is a case that turns upon an assessment of the credibility of the witnesses.  Since this court has not had the opportunity, accorded to the magistrate, of seeing the witnesses, I have to consider whether I can safely assume that even though two of the three reasons given by the magistrate for disbelieving the appellant were flawed, the remaining reason advanced by her for rejecting the appellant’s evidence would on its own have inevitably and fairly led to her rejecting his evidence. 

17. I am unable to say that it would.

18. In saying that she found the evidence of the appellant unreasonable, she said this :

“I found that if the Defendant had cut into PW1’s lane by signalling his indicator light in advance and when PW1’s taxi was 5 – 6 vehicle lengths or 30 meters (as he put to PW1) behind the Defendant’s vehicle, there would be no cause for PW1 to hit the curb thereby causing PW1’s tyre to burst.”

19. This passage is rather difficult to understand because it was the evidence of the appellant that he had not cut into PW1’s lane.  If the point that the magistrate was trying to make was that unless the appellant had moved into PW1’s lane it is unlikely that PW1 would have steered his car in such a way so as to hit the kerb, then that is a legitimate point to make when considering the probabilities of the situation.  It goes too far, however, to say that that could have been no other cause for PW1 hitting the kerb.  It has to be borne in mind that the accident occurred not on a continuous stretch of two lane carriageway, but at a point where there was a divulgence between the two northbound lanes which continued on the flat and two northbound lanes which had opened up to the left and which rose up a slope onto a flyover.  PW1’s taxi hit the kerb which finally separated these two diverging northbound carriageways.  PW1 might, for instance, have feared that the appellant who was signalling that he was intending to move into the lane on which he, PW1, was travelling might do so before he, PW1, had passed and so in attempting to keep to the left of the lane in which he was travelling to take into account that possibility had over-estimated the width of the lane and had hit the kerb. 

20. In view of the two flawed reasons given by the magistrate for disbelieving the evidence of the appellant, I cannot be satisfied that if the magistrate had not taken them into account but had considered this possible alternative explanation for PW1 hitting the kerb, she would not have been left with a reasonable doubt as to his guilt, particularly in the light of PW1’s previous traffic convictions including careless and dangerous driving.

21. Without having seen the witnesses give evidence, I cannot myself conclude that I would not have been left with a reasonable doubt as to the guilt of the appellant.  I accordingly allow the appeal against conviction.

22. Costs of today’s hearing be to the appellant.