HKSAR v. LEE CHI YUEN

HCMA 496/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 496 OF 2005

(ON APPEAL FROM KCS 12001 OF 2004)

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J U D G M E N T

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1.  The Appellant, Mr Lee, was found guilty by Mr McNair at Kowloon City on the 9 May this year of an offence of Careless Driving and fined $2,000.00.  He now appeals against that finding.  Mr Ma, who appears for him, takes two points.  Firstly, that the learned Magistrate misdirected himself on the test to be applied in careless driving cases when he said in his Statement of Findings that:

“I found that the defendant had driven in the manner that was a marked departure from that of a reasonable, competent and prudent motorist.”

2.  I find this submission a very difficult one to follow when one has regard to the analysis in the current edition of Hong Kong Archbold which summarises the meaning of driving “without due care and attention” as understood in Section 38(2) of the Road Traffic Ordinance, Cap. 374.  The Appellant was summonsed under Section 38(1), but the same considerations apply to this as well.  The text says:

“The standard of due care and attention is an objective one, fixed and impersonal, governed by the essential needs of the public, fixed in relation to the safety of other users of the highway: McCone v Riding 1938 1 All ER 157 and Taylor v Rogers 1960 CLR 270.  Whether a person was driving carelessly raises only a question of fact.  If the Defendant was not exercising the degree of care and attention that a reasonable, competent and prudent driver would exercise in the circumstances, he should be convicted.  If the circumstances show that his conduct was not inconsistent with that of a reasonable prudent driver, he should be acquitted …”

3.  This passage having correctly reproduced the test for careless driving, I am satisfied that the Magistrate had directed himself correctly, having regard to the words that he adopted on what needed to be shown by the prosecution before the summons could be proved.  This ground of appeal must therefore fail.

4.  The second ground complains about the Magistrate’s factual analysis.  In order to test the correctness of this ground, it is necessary to consider what the Magistrate said about the facts. I can do no better than reproduce here his findings on the facts:

“4. At about 4.30 pm., on the 20^th of June 2004 PW1 was driving his van KK927 along Kwong Wa Street, on the one-way, north-east bound lane (Ex. P1 pertains).  As he approached the junction with Yim Po Fong Street the controlling traffic lite went to red and PW1 stopped.  To his left was a lay-by, also depicted in P1.

5. The defendant’s vehicle HC3138 was stationary in the lay-by to PW1’s left.  The defendant, without any indication, moved his vehicle from the lay-by into the driving lane and stopped at a position at an angle to, and about 1 to 2 feet from, PW1’s. At this stage, both vehicles were stopped at the red lite; PW1’s was in the driving lane proper and the defendant angled out from the lay-by.

6. The weather was fine, the road dry and visibility was good.  The traffic lite went to red.  The defendant accelerated in an attempt to enter the driving lane in front of PW1; it was an attempt to cut into the lane and jump the queue lined up at the traffic lite.  The defendant’s vehicle collided with that of PW1.  They both stopped.  Police arrived.  Photos (Ex. P2&P3) were taken before the vehicles were moved from the impact position.

7. I considered all the relevant, admissible and probative evidence.  The defendant had clearly tried to bully his way into the traffic lane by driving in this manner.  He did so without any warning or turn indicator.  He tried to force his way from a lay-by into the road being used by PW1 who had the right of way.  I found that the defendant had driven in a manner that was a marked departure from that of a reasonable competent and prudent motorist.  I found the case had been proven beyond a reasonable doubt and convicted the defendant.”

5.  The ground of appeal in this regard is as follows:

“2. The learned Magistrate found that : ‘The defendant accelerated in an attempt to enter the driving lane in front of PW1; it was an attempt to cut into the lane and jump the queue lined up at the traffic lite.’  In reaching such conclusion, the learned Magistrate failed to consider the following facts:

(a) When the traffic light was still in red and PW1’s vehicle was stationary, the Appellant had already pulled out his vehicle into the driving lane of PW1; and

(b) The Appellant did steer his vehicle to the left trying to avoid the approach of PW1’s vehicle before the collision.”

6.  When one considers all of the evidence in this case and it is a case in which the Appellant, as he was perfectly entitled to, elected not to give evidence so that there was nothing from him to contradict, explain or undermine the evidence of PW1 and PW2 [PW2’s vehicle was immediately behind that of PW1], the learned Magistrate was absolutely correct to have concluded as he did that this really was a case of the Appellant trying “to bully” his way into PW1’s lane (a very apt expression in the circumstances), a lane which PW1 already had possession of and in doing so caused, what was fortunately, a minor collision.  This was a classic case of careless driving.  The Magistrate was right and this appeal must therefore stand dismissed.