HKSAR v. MAK KA YEE

HCMA587/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.587 OF 1999

(ON APPEAL FROM SPS 15798/1998)

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J U D G M E N T

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1. The appellant was convicted after trial on 14 May 1999 of one count of careless driving. The facts were these.

2. On 26 August 1998 at 11:20 pm, the appellant was approaching the intersection of Choi Hung Road East with Tseuk Luk Street and was travelling west. At the traffic lights in Tseuk Luk Street were two taxis that were stationary. The appellant continued across the intersection of Tseuk Luk Street and the taxis commenced to cross Choi Hung Road. Collision took place with the bus driven by the appellant striking both taxis. The drivers of the taxis gave evidence that they stopped at the intersection because the light was red preventing them from crossing Choi Hung Road East. They both testified that when the light turned green, they both proceeded. It is clear that if the light were green in favour of the two taxis crossing Choi Hung Road, it must have been red for the Choi Hung Road traffic lights which controlled the movement of the appellant.

3. The matter is complicated by the evidence of the passenger in one of the taxis involved in the accidence, PW3. He gave various versions. He said, on one occasion, he did not know what happened. In cross-examination, he agreed that when he gave a statement to the police after the accidence, he told them that he did not pay attention to the traffic lights on his side. It was suggested to him in cross-examination that the taxi started to move when the light turned amber, and his answer was "you may say so". In re-examination, he said the light turned amber and the taxi moved.

4. PW5 works at the Transport Department. He gave evidence concerning the management of traffic lights at Choi Hung Road. His evidence was when the light on Tseuk Luk Street going straight to Tai Shing Street was amber, the light controlling Choi Hung Road Southbound in the direction of Mongkok will be red.

5. Mr Watson raises two grounds of appeal. Firstly, the magistrate erred in rejecting the evidence of PW3 as unreliable and that the magistrate should have accepted his evidence that the traffic light was amber when PW1 and PW2 moved their vehicles across Choi Hung Road. Secondly, when the learned magistrate took the evidence of PW5, he wrongly assumed when PW5 was questioned about the lights, the question was wrongly asked as to the status of the lights on Choi Hung Road when the light at Tseuk Luk Street was amber. The question should really have been what is the status of the light at Choi Hung Street if the light at Tseuk Luk Street is red and amber. The answer on the argument of Mr Watson being that if only amber is showing at Tseuk Luk Street, then the light is passing from green for Tseuk Luk Street traffic to amber before proceeding to red. So, if a single amber light is showing at Tseuk Luk Street, the traffic light at Choi Hung Road would be red which was what the magistrate found. However, if the light was transferring from red to red and amber at Tseuk Luk Street, Mr Watson argues that it would then be amber at Choi Hung Road and that the bus, if committed to the intersection, would be permitted to cross upon that amber light.

6. The magistrate, in his Statement of Findings, found that the two drivers of the taxis were capable of belief. He said :-

"I considered the evidence of the Prosecution witnesses carefully. I found both PW1 and PW2 to be truthful and reliable witnesses, their evidence were consistent. I accepted their evidence as the truth of what occurred."

This means two things. Firstly, the magistrate accepted their evidence that the light at Tseuk Luk Street was transiting from red through amber to green. Therefore, the status of the light, when it was amber to the taxis, must have been red and amber. That means if the taxis departed the intersection early, then the light at Choi Hung Road could still have been amber. The second matter of importance is the evidence of PW3, and this must settle the issue on the appeal.

7. The learned magistrate dealt in two places with the evidence of PW3. In his oral findings at the end of the case, he said :-

"Now, in respect of the evidence of PW3, I do not think that his evidence is of any assistance. He gave a different version about the indication of the light when the taxi proceeded after it stopped at Tseuk Luk Street, and when he first gave the statement to the police about the incident, after the accident, he said he did not pay attention to the lights on his side.

Now, considering his evidence carefully, I find that even if he is honest, he is unreliable and in the circumstances, the evidence of the prosecution relies on the rest of the witnesses, more especially PW1 and PW2."

In his written findings, given later anticipation of appeal, he said :-

"I have considered the evidence of PW3, he gave different and contradictory versions of the colour of the traffic light in his evidence and his statement to the police. He was in the taxi when accident occurred but he said he did not know what happened, he did not even hear any sound, I found his evidence incredible, even if he was honest, his evidence was unreliable."

8. The learned magistrate quite clearly dismissed from his mind any use of the evidence of PW3 saying as he did : "I do not think his evidence is of any assistance". That left him with accepting as truth the evidence of PW1 and PW2, both of whom said the street light at Tseuk Luk Street was green when they started off.

9. That being so, the traffic light at Choi Hung Road must have been red. This appeal must be dismissed.