HKSAR v. HO CHI FAI

[English Translation – 英譯本]
HCMA 1101/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1101 OF 2008

(ON APPEAL FROM TMS 5096 OF 2008)

-------------------

------------------------

_____________________

Reasons for Judgment

_____________________

1. The appellant was convicted after trial by a special magistrate on one count of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong, and was fined $2,500. He appealed against conviction.

2. After hearing, I allowed the appeal, quashed the conviction and set aside the fine. The appellant was awarded costs of the appeal, to be taxed if not agreed.  I now set out my reasons for allowing the appeal.

Prosecution case

3. Put simply, the prosecution case was that, in proceeding from a minor road (On Shun Street) to a major road (On Ning Road), the appellant drove carelessly and hit a private car driven by PW1 on the major road.

4. The undisputed facts showed that at the material time PW1 was driving along On Ning Road.  Seeing that a big tourist coach was blocking his way, PW1 overtook the coach at a speed of 40-odd km per hour, during which the greater part of the body of his car crossed the double white lines on the road and entered the opposite lane.  At the same time, the appellant drove out from On Shun Street and was about to turn right into On Ning Road.

5. The prosecution case was that PW1 had driven back into his lane on On Ning Road but the appellant’s car emerged from the minor road and hit PW1’s car.

Defence case

6. The appellant neither gave evidence nor called any witness.  From the cross-examination of PW1, the defence case appeared to be that PW1 crossed the double white lines in contravention of the law and overtook the tourist coach at a high speed, and then collided with the appellant’s car when he (PW1) was about to return to his lane; and that the appellant did not drive carelessly.

Grounds of appeal

7. Mr. Lee, Counsel for the appellant, put forward three grounds of appeal against conviction.  I believe that I only have to deal with the first two grounds:

“Ground of appeal (1)

The special magistrate erred in law in that he incorrectly interpreted the provisions regarding double white lines under regulation 11(3)(b) of the Road Traffic (Traffic Control) Regulations, Cap. 374G of the Laws of Hong Kong.  As a result of his erroneous interpretation of the law, the special magistrate wrongly held that PW1 had priority in using the major road.  The special magistrate’s error in dealing with and analyzing PW1’s evidence had a direct bearing on the soundness of his acceptance of PW1’s evidence and resulted in his making a wrong judgment.

Ground of appeal (2)

(A) The special magistrate erred in law in misconstruing the legal implications of the provision under Figure no. 508 ‘Transverse Marking – Give Way Lines’ in the Road Traffic (Traffic Control) Regulations, Cap. 374G of the Laws of Hong Kong, and in elevating that provision to one imposing an absolute legal duty.  As a result of this erroneous understanding of the law, he wrongly formed the view that the appellant, who was proceeding from a minor road to a major road, could not in any circumstance interfere with any vehicle travelling along the major road.  As a consequence, the special magistrate wrongly held that the appellant’s driving manner constituted careless driving.

(B) In addition, the special magistrate overlooked the unique road conditions in the present case and erroneously applied a driving standard which was subjective and overly stringent.  The way in which he approached and evaluated the evidence is questionable and unfair.”

8. In respect of the double white lines, the special magistrate did not find it improper for PW1 to overtake the tourist coach by crossing the double white lines.  The special magistrate had this to say (page 15 of the appeal bundle):

“… Notwithstanding that PW1 has previously been convicted of crossing double white lines and ordered to pay fixed penalties therefor, and that at the material time he crossed the double white lines in order to overtake the tourist coach, I see nothing improper with PW1’s driving manner at the material time.  In respect of double white lines, regulation 11(3)(b) of the Road Traffic (Traffic Control) Regulations provides that a driver may permit his vehicle to be over or across those lines in order to avoid colliding with any vehicle, object, obstruction, animal or person.  At the material time no vehicle was approaching [PW1] in the opposite lane.  In my view, as a user of the major road, PW1 enjoyed priority in using that road, and in the given circumstances he could cross the double white lines and make use of the opposite lane or a part thereof in order to overtake the tourist coach and then proceed forward.”

9. PW1’s evidence was that he had no idea at all why the tourist coach stopped in front of him.  Nor did he know whether the driver was in the coach.  He merely wanted to overtake the coach, and hence he drove into the opposite lane at 40 km per hour and returned to the original lane after the overtaking.  In fact, the witness initially did not agree that there were double white lines and only later did he agree.  The fact that he went back on his word indicates that either he was lying or he simply did not heed the markings on the road surface before he crossed the lines.

10. I agree with Mr. Lee’s submission that, as far as the provisions regarding double white lines are concerned, to avoid colliding with any vehicle means that in an emergency, a vehicle is allowed to be over or across double white lines in order to avoid colliding with another vehicle; and that to adopt any other interpretation would mean that any driver who, out of impatience, overtook another vehicle (e.g. when a public light bus stopped in order to pick up and set down passengers, or the vehicle in front was proceeding slowly) by going over or crossing double white lines could be said to be avoiding a collision with another vehicle and hence did not violate the law.

11. Whether PW1 crossed the double white lines unlawfully, and at what speed, in what manner and by what way he did so, were relevant to the issue of whether the appellant was driving carelessly.

12. With respect, I do not agree with the special magistrate’s view that PW1 could cross the double white lines by reason of his priority in using the major road.  Whether it was reasonable in the circumstances for the witness to cross the double white lines has nothing to do with whether he had priority in using the road.

13. I am even more concerned about ground of appeal (2).

14. In his Statement of Findings, the special magistrate made the following remarks when he cited the relevant regulations (page 14 of the appeal bundle):

“Both the traffic sign shown in Figure no. 102 and the ‘Transverse Markings – Give Way Lines’ shown in Figure no. 508 in the Road Traffic (Traffic Control) Regulations stipulate that no vehicle shall proceed past the transverse lines into a major road in such a manner or at such a time as is likely to cause danger to the driver of any other vehicle on the major road or as to necessitate the driver of any such other vehicle to change its speed or course in order to avoid an accident with the first vehicle.”

15. However, in his oral judgment, the special magistrate expressed his understanding of the marking shown in Figure no. 508 as follows (page 35    P to S of the appeal bundle):

“In my view, although at that time he was overtaking, he still had priority in using On Ning Road.  On the contrary, the defendant, who emerged from a minor road, did not have priority in using On Ning Road.  Figure no. 508 under the Road Traffic (Traffic Control) Regulations clearly indicates that where there are double transverse broken lines on the road surface, a driver who is going out from a minor road into a major road cannot, under any circumstance, cause any interference to any vehicle on the major road when he proceeds past the double transverse broken lines, and of course ‘any vehicle’ includes a vehicle which is overtaking.  When he emerges from the minor road, he should never cause any danger to any vehicle on the major road or necessitate any driver to change the speed or course of his vehicle.”  [emphasis added]

16. I agree with Mr. Lee’s submission that in his oral judgment the special magistrate erroneously elevated the provision regarding give way lines to an absolute legal duty — he took the view that the appellant, who was proceeding from a minor road to a major road, could not under any circumstance cause any interference to any vehicle travelling on the major road, whereas the provision on “Transverse Marking ― Give Way Lines” merely requires that “no vehicle shall proceed … into the major road in such a manner … as is likely to cause danger to the driver of any other vehicle on the major road …”.

17. It therefore appears that the special magistrate failed to consider, in light of the unique traffic condition which the appellant confronted, whether the appellant proceeded past the give way lines at the junction of On Shun Street and On Ning Road in such a manner as was likely to cause danger to PW1’s vehicle.

18. It cannot be gainsaid that the special magistrate might still have convicted the appellant of careless driving even if he had not misconstrued (or did not appear to have misconstrued) the relevant regulations.  However, as the special magistrate had indeed misconstrued or did appear to have misconstrued the relevant regulations, he failed to thoroughly consider whether the prosecution succeeded in proving that the appellant had driven carelessly.  For this reason, the conviction is unsafe.  I allow the appeal, quash the conviction and set aside the fine.