HKSAR v. UMRAN SHAHZAD

HCMA 477/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 477 OF 2009

(ON APPEAL FROM TWS 1195/2009)

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BETWEEN

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J U D G M E N T

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1.  The Appellant was on 25 May 2009 convicted of the offence of dangerous driving contrary to Section 37(1) Road Traffic Ordinance Cap. 374, Laws of Hong Kong by a Deputy Special Magistrate sitting at Kwun Tong Magistracy and was fined $3,000 and disqualified from holding or obtaining a driving licence for a period of six months. The Appellant now appeals against conviction.

2.  Three perfected grounds of appeal have been filed by counsel appearing on behalf of the Appellant and they are:-

(a)  The learned Deputy Magistrate erred in accepting PW1’s evidence beyond reasonable doubt.

(b)  The learned Deputy Magistrate erred in rejecting the defence evidence and/or failing to give it full weight and

(c)  The learned Deputy Magistrate erred in her utilization of the rule in Browne v Dunn.

3.  At the trial, no issue was taken as to the Appellant being the driver of FV 786 at the material time. The only witness for the prosecution was a police officer who told the court that at the material time he was driving his motor-cycle in the middle lane inside the Tsing Yi - Cheung Tsing Tunnel, Kowloon bound. The three lanes were divided by continuous double white lines. His evidence was that he observed the Appellant’s vehicle which was originally in the middle lane about 50 metres ahead of him doing about 70 km/h, crossing the double white lines and cutting into the first lane, overtaking a vehicle and then cutting back into the middle lane. From there the evidence of the officer was that the Appellant then cut into the right hand lane having again crossed the double white lines and overtook another vehicle, missing it by about one metre.

4.  Essentially, it was the Appellant’s case in the court below that at the material time he was obliged to cross the double-white lines as the vehicle in front of him in the third lane was stopping occasionally and at one point, stopped completely. Due to this, he had to apply his brakes and pullover to the left. After that, in order to “balance” his car he had to cut back into the right hand lane.

5.  As observed by the learned Deputy Special Magistrate in her statement of findings, it was never suggested to the officer in cross-examination that the Appellant had in fact been driving in the third lane initially rather than the middle lane as the officer had stated. Moreover, it was never challenged by the defence that the Appellant had cut into the first lane from the middle lane in order to overtake a vehicle, and then continue to cut from the middle lane to the third lane and in the course of doing so, missed another vehicle by about one metre.

6.  A defence witness was called who was a security guard of the tunnel company. He told the court that upon seeing the vehicles stopping at the tunnel exit, he talked to PW1 who had asked him about the availability of CCTV at the scene. In cross-examination of PW1, he denied that he had any conversation with this witness. The learned Magistrate dealt with this apparent discrepancy in her statement of findings by deciding correctly that whether or not there was any conversation between PW1 and the defence witness was immaterial as to what actually happened and did not affect the credibility of PW1 as to the manner of driving of the Appellant.

7.  The issue in this case was purely one of credibility of PW1 on the one hand and the Appellant on the other. The learned Magistrate found PW1 to be truthful whereas she described the Appellant’s version as “totally unreasonable”. She it was who heard and saw the witnesses give evidence and she was perfectly entitled to come to the conclusions that she did. Having resolved the issue of credibility in favour of PW1, there can be no question that the manner of the Appellant’s driving was dangerous.

8.  Grounds 1 and 2 of the perfected grounds of appeal essentially relate to the issue of credibility. They both fail. Accordingly, the appeal against conviction is dismissed.