HKSAR v. LAM CHOR HING

HCMA 759/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 759 OF 2008

(ON APPEAL FROM KCS 33963/2007)

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J U D G M E N T

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1.  The appellant was charged with one count of careless driving contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374, the Laws of Hong Kong.  After trial, he was convicted.  The appellant appeals against that conviction.

2.  This case is, as Mr Egan for the appellant, correctly pointed out a garden-variety careless driving case.  The prosecution case was that the appellant was driving his car and coming out of an unnamed road and he did not observe Mr Man (PW1) riding his motorcycle along the Chun Wah Road coming from his right.  He did not stop and allow PW1 to proceed down the road and went into the middle of the road, whereupon PW1 then hit or rammed into the appellant’s car.

3.  The defence, however, was that the appellant had pulled out from the unnamed road after having stopped at the junction and looked to his right and did not see anything coming, and he then proceeded to the middle of the road and just as he was at the double white line about ready to turn into the lane going in the opposite direction, PW1 rammed into his car.  The defence was that PW1 was obviously driving too fast and did not keep a proper lookout.

4.  PW1’s evidence was that he was on his way to work, he was an off-duty police officer.  He drove down that road nearly everyday.  He gave his description of the road which was an uphill slope.  At the time before the accident, he was going at a speed of about 40 to 45 km per hour.

5.  It is not disputed that, in fact, we can see from the photograph (Exhibit P2) that to the right of the unnamed road, road works was going on and there was an excavating machine in that area.  So in some way, the excavating machine would have blocked the vision of cars coming out of that unnamed road and of the drivers looking to their right.

6.  The evidence of PW1 was that as he was proceeding at 40 to 45 km per hour, he saw the road works, and he saw the excavator inside, he then slowed down to about 40 km per hour.  When he was about 4 to 5 private car length away from the unnamed road, he saw the appellant’s car was stationery.  Upon seeing that, PW1 then accelerated and proceeded forward, but when he came nearer to a distance of only 2 to 3 private car length away from the appellant’s car, the appellant pulled out at a speed “not too fast”.  PW1 said he could not brake in time and therefore collided into the appellant’s driver’s side on its right door.  It appeared that PW1 then suffered injury.  PW1 also drew a sketch as to the position where the appellant had stopped in the unnamed road and that was produced as Exhibit P4.  After the collision, PW1 said the appellant had told him that he did not see him coming.

7.  PW1 admitted in cross-examination that he had a previous conviction of careless driving in 2001.

8.  PW2 was the first police officer to arrive at the scene, and gave an account of what the appellant had told him.  The appellant said that he saw PW1’s motorcycle was going uphill when about half of his car had pulled out from the unnamed road, and he therefore stopped his car and PW1’s motorcycle rammed into it.  PW2 admitted that he did see PW1 when he was attached to the Sau Mau Ping Police Station, but he did not know PW1.  PW2 also said that PW1 told him that when he was going upward on Chun Wah Road, he did see the appellant’s car in front and he could not brake in time and there was a collision, and PW1 saw that the appellant stopped his car abruptly and that was why he was unable to brake in time.’

9.  PW3 was the officer of the Traffic Department who prepared the sketch and took photographs.

10.  After the Magistrate ruled that there was a prima facie case to answer, the appellant elected to give evidence.  The appellant is a Correctional Services Officer and has a clear record, has never had any traffic violation.  On that day, he had just driven his son to the vicinity of the accident , and he was driving the car and his wife was also in the car.  The appellant said that he waited in the small road for about 2 to 3 minutes, and after he had observed the road condition, he started driving by crossing the 1^st left lane to the 2^nd left lane to the right going downhill on Chun Wah Road.  When the appellant stopped the car, he had looked to the left and right and to the right again, and since he saw no car coming, he then pulled out of the unnamed road at a speed of 5 to 7 km per hour.  When his car was in the centre of the road, he found PW1’s motorcycle rushing towards him.  The appellant said that his visibility looking down Chun Wah Road was about 25 to 30 metres, he then marked on the sketch (Exhibit D2) the farthest point that he could see.

11.  The appellant, upon cross-examination, agreed that PW1 had priority to use the road, but it was limited to when the appellant was on the unnamed road.  As far as the appellant understood when he was already on Chun Wah Road, he would have priority and that PW1 had to slow down to give way to him.  The appellant said the road works did limit his vision to only 25 to 30 metres instead of 40 to 45 metres.  He confirmed that the excavator was about 2 to 3 metres away from him.  The Magistrate noted that when the appellant was asked what is the exact position where he stopped on the unnamed road, the appellant had refused to answer.  The appellant said as PW1 was a police officer, PW3 was biased in investigating the case and the allegation was that the police were biased in favour of PW1.

12.  The defence called an expert witness, Mr Lee (DW2), and I do not consider that he actually assisted much.  In fact, Mr Egan, who represents the appellant, agreed that DW2 should not have been called at all.  So that was the state of the evidence before the learned Magistrate, and basically as in most careless driving cases, the oral evidence is that of PW1 as against that of the appellant, together with the photographs and the sketches for the learned Magistrate to consider.

13.  Having considered the prosecution witnesses’ evidence, the learned Magistrate found that they were honest and reliable witnesses, and considered that there was no bias in the course of investigation.  The learned Magistrate also referred to the submission of defence counsel about the inconsistencies in PW1’s evidence, and that can be seen at paragraph 23 of the Statement of Findings.  The learned Magistrate dealt with that and did not consider that would affect the credibility of PW1.

14.  The learned Magistrate reminded herself of the clear record of the appellant as to both credibility and propensity.  However, the appellant’s claim of bias on the part of the police was unfounded.  The appellant’s evidence, as the learned Magistrate found, was consistent with that of what he said in his record of interview.  The learned Magistrate noted that the appellant had a duty when he was pulling out from a small road to be particularly cautious.  At the end of the day, the learned Magistrate found that the appellant did not check carefully the road condition and made a wrong judgment when he pulled out from the unnamed road into the path of PW1.  Therefore, she convicted the appellant of careless driving.

15.  The appellant on appeal represented by Mr Egan leading Ms Mak had submitted several grounds of appeal.  Basically, the complaints are:

(1) that the conviction was against the weight of the evidence;

(2) that the learned Magistrate had erred in law in that no reasonable tribunal could have convicted the appellant if she had directed herself properly;

(3) that there was material irregularly because the learned Magistrate had not taken the opportunity of apprising herself of the provision of the Road User’s Code; and

(4) that there was a further material irregularity in the course of the trial because of the failure of the investigating officer of prosecution to comply with the recommendations of the Provisional Legislative Council Panel on Security, in that the investigation of the case should be scrutinised by a more senior police officer, usually at the rank of Superintendent.

However, I say from the very start that this last ground, in my opinion, has no merit whatsoever.  It is clear as Ms Wong, for the respondent, said that the Department of Justice’s advice was sought.

16.  As far as the first ground is concerned, Mr Egan said that the learned Magistrate should have looked at the evidence, bearing in mind that the appellant had a clear record, and that PW1 had a prior conviction for careless driving.  Therefore, if the learned Magistrate had borne those particular facts in mind when accepting the evidence, then she could not have come to the conclusion that PW1 was telling the truth, because PW1 was inconsistent in his evidence.  PW1 said that he had collided with the appellant’s vehicle, not the other way around.  Mr Egan then pointed out that the damage as can be seen from the photograph on the appellant’s car thus showed that PW1 was travelling at a rather high speed, the learned Magistrate has not fully considered the implication of the clear record of the appellant when assessing the appellant’s evidence.  The learned Magistrate, therefore, had wrongly convicted the appellant.

17.  This court treating the appeal as a re-hearing, I have to look at the evidence again.  It is clear from PW1’s evidence that he was travelling up the road and was going at an acceptable speed.  When he was coming up the road, he noted that there was the unnamed road and also the excavation.  He said he slowed down, he noticed that the appellant’s car was stationery, and so he accelerated in order to clear the road for the appellant to come out of that road, but the appellant’s car then went into his path.  He did not say how fast the appellant’s car was, but he said it was not too fast, and he had no time to stop and therefore rammed into the appellant’s side door.

18.  The appellant’s version was that he was in the unnamed road.  He was aware of the excavation, he stopped at the junction, he looked down towards his right, he did not see any traffic coming, so he proceeded out of the junction slowly at a speed of 5 to 7 km an hour.  He did not see PW1 on his motorcycle until the front of his car had gone over the double white line, at that point of the impact.  So it is clear, therefore, that without even referring to the Road User’s Code, first of all, a car coming out of an unnamed road into a main road, it is the vehicle which is on the main road which has the right of way which the appellant had agreed.  The appellant said that it was only if he was in the unnamed road, but once his car had gone into the main road, then he has priority and PW1 has to stop to give way to him.

19.  I consider that the appellant has a wrong understanding of the Road User’s Code, because as the Road User’s Code says the traffic on the main road has the right of way, even though he may have come out of the unnamed road, he still does not have the right of way, he still has to give the right of way to traffic coming from his right.   It is clear to me from seeing the photograph, Exhibit P2, that as the appellant’s car was at the junction and stationery there, part of his vision may have been obstructed by the excavator in the road traffic work, so what will the driver need to do in the circumstances.  The driver would have to proceed very carefully because other cars may be coming, so he was entitled to leave that junction and come out slowly.  We can see that the road traffic works had blocked the inner lane of Chun Wah Road, the side of the road upon which PW1 was travelling, so it was incumbent upon the appellant when coming across the path of PW1, that before he proceeded into the path of PW1, he should have maintained a speed where he could clear that obstruction and still stop in time for traffic coming from his right in order for them to pass him before proceeding towards the doubt white line.  But instead, what happened was that the appellant obviously assuming that since he had cleared the junction of the unnamed road and his car was already on the first lane of the Chun Wah Road, he had the right of way, and that any car coming from his right had to give way to him.  Therefore, he did not look to see PW1’s motorcycle was coming, because he was assuming that any vehicle coming from his right would at that time have to give way to him, and that is why the accident occurred.

20.  It is clear that had the appellant slowly come out, passed the excavation, he would have been able to see PW1 coming up that road.  So, I do not agree that the Magistrate’s conviction was against the evidence.

21.  Ms Wong made several points in her written submission that it would not have been difficult to see PW1 was not a short person, he was 5 feet 9 inches tall, he was wearing a blue helmet, the weather was fine, there was no rain and according to the photograph, the weather was clear, and it was in the day time.  So there would have been no trouble for the appellant to have noticed PW1.  So I find no merit in ground 1.

22.  As for the fact that the learned Magistrate did not give sufficient consideration to the appellant’s clear record and PW1’s prior conviction, the learned Magistrate had already reiterated in her Statement of Findings those two matters and it was clear in her mind at the time when she made the analysis of the evidence.

23.  As for the second ground of appeal, Mr Egan submitted that the learned Magistrate erred in law because she did not properly direct herself that no reasonable tribunal of law and fact properly directing herself could have been satisfied upon the facts proven that the appellant was guilty as charged.

24.  So this is bound up with the first complaint, and I have already dealt with that, so I am not persuaded by the second ground either.

25.  As for the third ground, that there was material irregularity in that the learned Magistrate did not apprise herself of the Road User’s Code.  That is a misconception because it is not a material irregularity, the Road User’s Code, as Ms Wong pointed out, is for a driver to be cognizant of, and that in the case of driving offences, according to section 109(1) and (2) of the Road Traffic Ordinance, Cap. 374, either party may use it or rely upon it as tending to establish or negative any liability which is in question in those proceedings.  And in this case, neither party has relied upon it, so it was not incumbent upon the learned Magistrate in this case to actually refer to the Road User’s Code.  So I also dismiss this ground.

26.  Finally, the complaint by Mr Egan about the investigation not complying with the recommendation, I have already dealt with that.

27.  In all the circumstances, I find that there is no ground to disturb the conviction of the learned Magistrate, so the appeal is dismissed.