HKSAR v. WONG YUK SINK

HCMA788/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.788 OF 2006

(On Appeal From KCS 7488 OF 2006)

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J U D G M E N T

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1. The appellant was convicted after trial of careless driving, contrary to s. 38(1) Road Traffic Ordinance, Cap. 374.  He was fined $2,000.  He now appeals his conviction.

Prosecution case

2. The prosecution case was that the defendant carelessly ran into the rear of a motorcycle when negotiating a roundabout.  The driver of the motorcycle, PW1, gave evidence to the effect that he already noticed the appellant’s vehicle stationary on the second lane waiting to proceed into the roundabout when he himself approached the roundabout in question.  He said that when the road was clear he and the appellant both drove into the roundabout, and he was ahead.  When he was negotiating the roundabout he saw from his rear mirror that the appellant’s car was very close behind him.  He turned round and saw that the appellant at just 2 feet from him and then he was hit from behind by the appellant’s vehicle and knocked off his motorcycle.  He said that there was no green minibus before he entered the roundabout at all.

3. The appellant told a police officer who arrived at the scene that he only saw the motorcycle for the first time at the outer circle when the left bumper of his car collided with the right bodywork of the motorcycle.  He told a second officer who attended the scene that he drove along the outer circle near the right intending to leave at the next exit, heard a bang and saw the motorcycle.

4. The appellant gave evidence at the trial and said that when he entered into the roundabout there was a green minibus on his left.  The collision was caused by the motorcyclist squeezing between the green minibus and his vehicle.

Grounds of appeal

5. The grounds advanced by the appellant in his written submission dated 20 September 2006 are summarized as follows :

(1) the magistrate erred in forbidding the appellant to cross-examine PW1 on his witness statement, thus the magistrate did not take into account inconsistencies between PW1’s witness statement and his evidence and erred in finding that PW1 was an honest and credible witness;

(2) the magistrate failed to take into account that the damage to the appellant’s vehicle was inconsistent with the version of event put forward by PW1;

(3) the prosecution case, according to the brief facts, was that the appellant failed to pay proper attention to traffic on his left, cut left into the outer circle of the roundabout and collided with PW1’s motorcycle.  The magistrate, in finding that the appellant’s vehicle collided into the motorcycle from behind was oversimplifying the matter; and

(4) the magistrate erred in not allowing the appellant to ask PW3, a police officer, about the manner he handled this case.

Respondent’s reply

6. Counsel for the appellant submitted that it is clear from the photographs that the appellant was trying to drive from the inner to the outer circle and in so doing, he was not paying due care and attention, which caused the collision.  It is submitted the magistrate had assessed the evidence thoroughly and was entitled to reject the appellant’s evidence and relied on PW1’s.  There was ample evidence to convict.

My judgment

7. This is a simple case.  It was not disputed that there was a collision.  The position of the two vehicles involved is clearly marked in the sketch exhibited as well as could been seen from the photographs.  The issue is simply this : did the appellant fail to exercise degree of care expected of a prudent driver at the material time?

8. The appellant’s case is that before entering the roundabout he paid attention to traffic on his right.  After he entered the roundabout there was a green minibus travelling along on his left.  The motorcyclist suddenly squeezed between his vehicle and the minibus.  What the appellant tried to say was that no prudent driver could have avoided a collision under such circumstances.

9. That said, the presence of the green minibus is of significance, because if there was no minibus as alleged by the appellant, what the appellant said about PW1 trying to squeeze between him and the minibus could not have happened.  PW1 denied that there was any such green minibus.  There was no mention of this piece of significance evidence to the two police officers who arrived at the scene.  The appellant made first reference of such in a statement to the police some six days after the accident.

10. In judging matters pertaining to credibility the magistrate was in a far better position to make the assessment.  He saw and heard the witnesses.  The magistrate found PW1 to be a reliable and credible witness and accepted his evidence as to the circumstances in which the accident occurred.  He rejected the evidence of the appellant, in particular, about the presence of the minibus.  He found that to be a mere afterthought.  The magistrate was perfectly entitled to come to that view.

11. The appellant submitted in his written submission that the magistrate should have allowed him to cross-examine PW1 on his statement.  I have considered the alleged inconsistencies and found that they are not real inconsistencies which would affect the credibility of PW1 at all.  Had the appellant been allowed to cross-examine PW1 on those, the matter would not have been decided differently.  PW3 was the officer who arrived at the scene after the collision.  How this case was handled by PW3 had no bearing on the issue in this case at all, the issue being whether the appellant was careless.  The magistrate has a duty to ensure that witnesses are cross-examined only on issues of relevance.  There is no material irregularity in the trial.  Brief facts are only summaries compiled by the police.  They are not evidence.

12. The prosecution case against the appellant has always been that he failed to keep a proper lookout at the traffic condition to his left whilst in the roundabout, failed to heed the presence of the motorcycle until it was too late to stop.

13. There is nothing to suggest that the assessment of credibility by the magistrate was based on anything other than sound observation and reasoning.

14. I dismiss this appeal and affirm the conviction.