HKSAR v. TSANG CHAU HAR

HCMA 58/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 58 OF 2003

(ON APPEAL FROM STS 900270/2002)

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J U D G M E N T

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1. This Appellant appeals against conviction on a charge of "Careless Driving". No grounds other than the formal grounds were filed and on this appeal the Appellant appeared in person.

2. The facts, as found by the Magistrate, show that the Appellant was driving a KMB bus which was halted at the right-turn lane of the road junction; the right indicator of the bus was on. A motor cycle driven by PW1 was following a private car in a lane approaching the Appellant's bus from the right. The private car had driven past the bus. PW1 was about 20 meters away when the Appellant drove out of the right turn lane into the slip road and crossed the path of the motor cycle. The motor cyclist braked but was unable to stop in time and it collided with the left rear part of the bus. The Appellant told the police officer at the scene PW3 she had waited until the private car had gone past and seeing no other vehicle turned right. It was only in the course of turning that she saw the motor cycle. The officer found a 15m skid mark left by the motor cycle and testified that the road was a long straight one for a distance of 70 meters from the motor cycle's position up to the Shatin-bound road.

3. The Appellant was represented at trial and did not give evidence or call witnesses. The main defence contention was that the skid mark showed the motor cyclist must have been travelling at a higher speed than the 40 kilometres that PW1 said he was travelling at and could have been much higher than the speed limit of 50 kilometres. It was submitted that what the Appellant had told the police officer at the scene, showed that she had not been careless at all. The Court was asked by counsel to take account of the Appellant's clear 20-year driving record.

4. Today the Appellant reiterated her contention that the motor cyclist was doing a higher speed than he said in court, and was lying when he told the Court that he was doing 40 kilometres per hour. She pointed out that she had always given way to the private car. She said that as the motor cyclist was not within her view at the time when she started to turn, he must have been going so fast that he caught up with her. She referred to the Magistrate's saying that she should have seen the motor cycle, but said that before she had negotiated the right hand turn the motor cycle had not moved into the road. It was only when she moved into the road that the motor cycle moved into the straight part of the road. She said if he had not been not going so fast the motor cyclist could have slowed down but he was going too fast so collided with the bus.

5. She alleged that what the Magistrate said was unfounded. At this hearing she produced a sketch which had not been referred to the trial Court. That simply showed what was the contention in any event, that the bus was further across the road in her sketch than it was in the sketch drawn by PW1.

6. The Magistrate analysed the evidence carefully. She found PW1 and PW2 to be credible witnesses and accepted the police officer as an independent witness. Her central finding was that having considered the evidence, she found that it would be impossible for the Appellant not to have seen PW1's approach had she looked sufficiently or clearly to her left before she turned into the slip road. She explicitly rejected the submission by defence counsel that the motor cycle must have been travelling at a higher speed than claimed, pointing out that there was no expert evidence on this point and in any event, the case turned on its facts.

7. It is clear that the Appellant, perhaps disgruntled because of the blemish on her driving record, merely wished to re-visit all the matters already raised on her behalf by counsel at trial and considered by the Magistrate. No cogent grounds have been advanced to show that the Magistrate erred in convicting the Appellant. I am satisfied that she analysed the evidence clearly and made proper findings based on the evidence and on her view of the credibility of the witnesses.

8. This appeal is dismissed.