R. v. KAM SEI TIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 92 OF 1995

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J U D G M E N T

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1. On 6th January 1995 at San Po Kong Magistrates' Court, the Appellant was convicted, after pleading not guilty, of careless driving. He was fined $1,000.00. He now appeals against his conviction. He has argued this appeal with courtesy and moderation.

2. The facts were not substantially in dispute. The Appellant was driving a lorry along the Kwun Tong bypass. He had a heavy load. The road had 3 lanes, and he was in the middle lane. He was travelling along the road at about 60 k.p.h.. It is true that the driver of the vehicle in front of him thought that he was travelling at 70 - 80 k.p.h., but I am prepared to assume, for the purposes of this appeal, that the Appellant was travelling at no more than 60 k.p.h., which was his evidence to the magistrate. Be that as it may, the Appellant saw a car in front of him in the outside lane collide with a car in front of him in the middle lane. The two cars came to a halt. The Appellant braked to avoid them, but he was unable to do so, and he collided with the car which had been in front of him in the middle lane. Since these facts were not in dispute, I do not accept the Appellant's complaint that his trial was unfair on the ground that not all the relevant witnesses were called by the prosecution to give evidence.

3. It goes without saying that a driver should keep a sufficient distance between his own vehicle and vehicles in front of him. A sufficient distance is such distance as would enable him to come to a halt without colliding with the vehicle in front of him, even if the vehicle in front of him comes to an abrupt and unexpected halt. If the reason for the Appellant's lorry colliding with the car in front of him was because he had not kept a sufficient distance between his lorry and that car, his driving of his lorry was careless. Alternatively, it may be that the Appellant had kept a sufficient distance between his lorry and the car in front of him. If so, the reason for the Appellant's lorry colliding with the car in front of him was because he did not brake in time. If that was the reason for the collision, his driving of his lorry was again careless.

4. On the unchallenged facts, those are the only two reasons for the collision between the Appellant's lorry and the car in front of him. The magistrate's reasoning was that the Appellant must be regarded as having driven carelessly on whichever of those two scenarios was the correct one. In my view, the magistrate's reasoning cannot be faulted. The Appellant argues that the driver of the vehicle in front of him was at fault in driving too slowly. Had she not been driving so slowly, the collision between the car in the outside lane and her car might not have occured. Even if that argument is correct, it does not excuse the Appellant from either not keeping a sufficient distance from the car in front of him or not braking in time.

5. Accordingly, this appeal must be dismissed. I do not see why the Appellant, having lost the appeal, should not make a contribution towards the prosecution's costs of the appeal. In view of the fact that he is no longer in work, I propose to order him to pay a nominal sum of $250.00 towards the costs of the prosecution.