HKSAR v. TSUI KAR KEUNG KENNY

HCMA355/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.355 OF 1999

(ON APPEAL FROM NKC843/1999)

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J U D G M E N T

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1. The appellant, Tsui Kar Keung, was convicted of one count of reckless driving, contrary to s.37(1) of the Road Traffic Ordinance. He now appeals against his conviction.

2. The incident giving rise to the charge occurred shortly after 8 a.m. on 1 September 1998 at Nanking Street near Chi Wo Street, Yaumatei, Kowloon. The appellant was driving a taxi at the time.

3. At the trial, the prosecution called three witnesses. PW1 was the police officer who attended the scene some two weeks after the event. His evidence did not assist the prosecution case. PW3 was the police officer who arrived at the scene immediately after the incident and his evidence, again, did not assist the prosecution case. The case against the appellant was entirely dependent upon the evidence of PW2 who was the driver of a private vehicle at the time. He told the court that shortly before the incident he was driving his employer's car following the appellant's taxi along Nathan Road southbound. The appellant suddenly made a left-turn into Cheung Lok Street. This abrupt action had caused PW2 to apply his brakes in order to avoid a collision. He then drove pass the road junction and turned left into Nanking Street to set down a passenger. At this juncture PW2 then noticed the appellant's taxi pulling abreast with his vehicle and the appellant was pointing his fingers at him in what appeared to him as scolding him. What subsequently transpired gave rise to the alleged act of reckless driving.

4. According to PW2, while in Nanking Street and before the junction of Chi Wo Street, the appellant had on two occasions braked his taxi abruptly in front of PW2's vehicle causing him, in turn, having to brake. On the second occasion, however, PW2 failed to apply his brakes in time and collided with the taxi.

5. The learned magistrate found that the appellant had driven his taxi in a reckless manner and found him guilty of the charge. The appellant did not give evidence at the trial nor did he call any defence witness.

6. There are two main grounds of appeal. First, the learned magistrate was criticised for not having resolved the discrepancies in PW2's evidence. Secondly, the appellant contended that given the distance of Nanking Street, the account of PW2 of the manner in which the appellant had driven the taxi was inherently improbable.

7. One of the major discrepancies, according to the appellant, was whether PW2's vehicle had come to a complete stop, which was the version referred to in his witness statement, or whether he had only decelerated without actually stopping. The learned magistrate did consider this apparent discrepancy and found that the apparent variations in PW2's evidence was not material to the prosecution's case.

8. There were other alleged inconsistencies in PW2's statement, for instance, the length of time which PW2 described the appellant to have been scolding him in Nanking Street, the positions of the vehicles after the collision and the relative distance of the vehicles at various stages of the incident. The learned magistrate concluded in paragraph 15 of the Statement of Findings that he was of the view PW2 was giving "honest evidence to the best of his recollection" of the incident. It was entirely within the learned magistrate's entitlement to make such findings.

9. The second ground of appeal centers around the appellant's contention that even if PW2's evidence was accepted in its entirety, the alleged reckless conduct of the appellant could not possibly have taken place within the short distance described by PW2. The learned magistrate dealt with this aspect of the evidence at page 12 of his Statement of Findings. He considered the inconsistency carefully and found that PW2 was giving very rough estimates of distance. He also attributed the discrepancies to the witness' misunderstanding of the questions he was being asked. He specifically discounted PW2's evidence on this part of his account, but however come to the conclusion that his reliability was not affected in any way. It was open to the learned magistrate to accept part or parts of a witness' evidence to which he considered to be accurate and to attach no weight to the parts which was less so after considering the relevant factors.

10. Although there was no specific reference, the learned magistrate must have applied the test on recklessness as stated in R. v. Lawrence [1982] AC 510 and found the appellant guilty of the charge. He had correctly applied the law to the evidence. His approach to the evidence before him at the trial could not be criticised in any way.

11. The conviction is neither unsafe nor unsatisfactory and the appeal against conviction is dismissed.