HKSAR v. SUSAN-JANE NEAL

HCMA 1084/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1084 OF 2001

(ON APPEAL FROM SPS 3023-25 OF 2001)

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J U D G M E N T

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1. This is an appeal against conviction only. The appellant was convicted of a number of offences pursuant to various provisions of the Road Traffic Ordinance arising out of a minor collision between her vehicle and that driven by the 1st Prosecution Witness ("PW1") in the case against her.

2. She appeals against her convictions for an offence of careless driving contrary to section 38(1) of the Road Traffic Ordinance, Cap.374 and for an offence of failing to stop after an accident contrary to section 56(1)(b) and (5) of the Ordinance. She initially appealed against her further conviction for failing to report the accident contrary to section 56(2A) and (6) of the Ordinance, but her appeal in respect of that conviction was abandoned during the course of the hearing.

3. The facts of the case which were common ground before the magistrate were as follows:-

On the charged date the appellant and PW1 had been stationary in their vehicles at a red traffic light on Hirams Highway during the course of their respective journeys towards Kowloon. The vehicle of the appellant was in the near side lane. That of PW1 was next to the vehicle of the appellant and was in the outer traffic lane. There were only the two lanes at that part of the Highway where both vehicles had stopped. Both were at the front of their respective lanes. There was no traffic behind either vehicle.

4. In the direction in which they were travelling the two lane section of the Highway narrowed, on the other side of the traffic lights, to a single lane. That narrowing occurred by way of the near side lane, in which the appellant's vehicle was positioned, merging into the outside lane in which PW1's vehicle was travelling. That meant that when the traffic light turned green and the appellant and PW1 proceeded on their way their vehicles would have to merge into the same outer lane.

5. The only oral evidence as to what had happened at the scene came from PW1 and the appellant. PW1's evidence was to the effect that when the traffic light turned green he had accelerated away from the traffic lights more quickly than the appellant but that the appellant then tried to cut into his lane and hit his left wing mirror. He said both vehicles then stopped, but that the appellant then made a rude gesture at him and drove off. He saw that his wing mirror was scratched. He said he then followed the appellant's vehicle in his car and during the course of this telephoned the police and as a result of their advice then drove directly to Kowloon Bay police station and made a report.

6. The appellant's evidence at trial was that PW1's vehicle accelerated relatively slowly when the traffic light turned green and she, in her vehicle, pulled ahead of it and was able to merge into the outer lane in front of PW1's vehicle, while both were still within the area bounded by the intersection. She said that PW1's vehicle subsequently overtook her on her right side by driving in the lane for traffic travelling in the opposite direction but while both vehicles were still within the area of the intersection itself, which she referred to as the "yellow box" area of the intersection. She said that in the course of overtaking her PW1's vehicle struck her vehicle's right wing mirror with his vehicle's left wing mirror.

7. She said that she stopped for a few seconds after this contact between the two vehicles but after PW1 had shouted at her and shook his fist she then drove off as she did not regard the incident as an accident which the police would be interested in even though she was aware there had been contact between the two vehicles, and she was frightened of PW1. She said PW1 had followed her in his vehicle at high speed and very close behind her. She was scared. But she continued on with her journey and PW1, after about 15 minutes, stopped following her.

8. Mr Boyton for the appellant advances a number of grounds for the appeal against conviction in respect of the careless driving offence. In essence they can be reduced to complaints that the magistrate failed to consider the evidence properly by placing undue weight on the fact that the appellant's vehicle was less powerful than PW1's and by ignoring the evidence as to the physical damage occasioned to the front facing part of PW1's left hand wing mirror which Mr Boyton suggests was consistent with and supportive of the appellant's evidence.

9. Further, the appellant complains that the magistrate failed to take into account the previous bad driving record of PW1, his tailgating of the appellant when he followed her after the incident and his suggested admission of continuing to drive onwards without avoiding action after he realised that the appellant had pulled into his lane.

10. Finally, Mr Boyton complains that the magistrate was wrong in rejecting the appellant's version of PW1's vehicle overtaking her by travelling in the opposing traffic lane because of the implausibility and accepting thereby that PW1 was a credible witness. I will deal with each of those complained-of matters in turn.

The magistrate's consideration of the relative power of the vehicles of the appellant and PW1

11. In this regard the magistrate said, in her Statement of Findings:-

"PW1's vehicle had a horse power of 2,300 c.c. while the Appellant's vehicle was 1,300 c.c. Obviously, PW1's vehicle was more powerful in term of speed. PW1 was not required to change lane as he was in the right lane. It was (an) undisputed fact that the Defendant needed to get into PW1's lane."

12. By that section of her Statements of Findings, I accepted the magistrate was plainly taking into account that PW1's vehicle was inherently more powerful than that of the appellant. Obviously she regarded that as a factor which weighed against the appellant's version of events to the effect that she had pulled in front of the vehicle of PW1 after accelerating away from the traffic lights and had room to safely pull into the outside lane ahead of PW1's vehicle. But the magistrate in no way was suggesting that the relative power of the two vehicles was a determining factor. It was simply one factor that she took into account. If, anywhere in her reasons she had suggested that it must be that a small engined vehicle of necessity could not pull ahead of a larger engined vehicle in the course of travelling in traffic or pulling away from traffic lights then Mr Boyton would have a much stronger argument in regard to this matter.

13. But all the magistrate meant was that, generally, there is no mechanical reason why a larger engined car in the normal course of being driven in traffic, should proceed more slowly away from traffic lights. Obviously there are a very large number of matters which would on a number of occasions cause delay to even a large engined car responding to a green light promptly. There is nothing in the reasons given in the magistrate's Statement of Findings which would suggest she was unaware of this, and indeed it would be perhaps stating the obvious if she had said so in the course of her reasoning.

14. The question really is whether a magistrate is entitled to take into account the relative power of two vehicles involved in a collision as both accelerated away from the traffic lights and attempted to merge into one lane.

15. In my view it is a factor which a court is entitled to take into account, so long as there is nothing in the court's reasoning which suggests it is a determinative factor or which, perhaps as a corollary, suggests a failure to appreciate that a large range of matters other than relative vehicle power may also be relevant as to which vehicle arrived at a merging point ahead of the other. The magistrate, in the present case, considered the relative power of the two vehicles involved in the collision as only one factor she was entitled to take into account. There was nothing to suggest she gave it undue or conclusive weight. Her reasoning in this regard cannot be criticised.

The lack of reference by the magistrate in her findings as to the damage sustained by the vehicles

16. The evidence before the magistrate was that the left hand wing mirror of PW1's vehicle sustained a scratch to its forward facing side. Mr Boyton suggests that this was important evidence supporting the appellant's case. That is because the position of the scratch on PW1's vehicle's left hand mirror suggests his vehicle struck something ahead of it. That is, it supports the appellant's case that PW1's vehicle was trying to overtake hers at the time of the collision.

17. Mr Tso for the respondent says that as the two vehicles were beside each other at the time of impact and if the appellant had tried to pull into the lane of the PW1 from PW1's left then the damage to PW1's wing mirror is consistent with either witnesses' version of events and takes the case no further. For that reason , said Mr Tso, the magistrate was entitled to place no weight on the evidence of damage to PW1's wing mirror.

18. In Lam King-ming, Criminal Appeal 601 of 1979 O'Conner J said:-

"The reasons for verdict should in manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be deals with in such manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment as it must be related to the circumstances of the particular case. The magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at and furthermore will enable an appellate court performs its duty."

19. The only reference by the magistrate in the present case to the damage to the wing mirror of PW1's vehicle was to simply note that:

"The Appellant's vehicle hit his (near's) side mirror and his wing mirror bend backward(s). When he examined the mirror, it was left with some green paints."

20. I must say that it seems somewhat unsatisfactory that the learned magistrate did not further address this matter in her Statement of Findings even if only to say she put little weight upon the location of the damage to PW1's wing mirror. But in my view her failure to do so does not render the conviction for careless driving unsafe. That is because, it seems to me, Mr Tso's arguments in this regard must be right. The position of the damage to PW1's vehicle's left hand wing mirror in my judgment is both consistent with the appellant's vehicle having pulled into PW1's lane with its wing mirror slightly ahead of PW1's vehicle's wing mirror as well as with PW1's vehicle overtaking the appellant's vehicle.

21. For that reason the precise location of the scratch on PW1's vehicle's wing mirror could not really have supported the appellant's case as Mr Boyton suggests. That is particularly so bearing in mind that PW1's evidence, which the magistrate accepted, was to the effect that the cars were parallel or abreast when they collided, and then briefly after the collision he had continued onwards. Precisely which vehicle was moving faster than the other when the wing mirrors touched, thereby affecting the location of the damage to PW1's vehicle's wing mirror, seems somewhat arbitrary in those circumstances.

22. I do not think there is anything in this aspect of the grounds of appeal which renders the verdict unsafe.

The magistrate wrongly rejected the appellant's version of the collision as implausible

23. In her Statement of Findings the magistrate said this:-

"For PW1's to overtake the defendant, PW1 had to enter into the opposite carriageway which had traffic coming from Kowloon. I found it incredible. If the Appellant could successfully entered into PW1's lane that would mean PW1 was slower in speed and was fully aware of her action to come into his right lane. The question was why would PW1 then accelerate and take the risk to enter into the opposite carriageway to overtake the appellant? I found it unbelievable as it was extremely dangerously for PW1 to do that."

24. The magistrate's comments on the appellant's case in this regard should be placed in the context of the appellant's further evidence. That evidence was to the effect that PW1 had tried to overtake her whilst her vehicle was still within the "yellow box" area of the intersection itself. She said she had successfully pulled into the outside lane within the yellow box area, which was some distance before the merging point on the other side of the intersection, and that when she had performed this manoeuvre within the intersection, there had been about a car length between her vehicle and that of PW1. Following that, and still within the yellow box area of the intersection, PW1 apparently attempted to overtake her on her right hand side by transgressing into the oncoming traffic lane.

25. It seems to me the magistrate was entitled to reject the appellant's version of events in this regard as implausible. For it to have had any weight it required an acceptance that PW1 may have behaved in a wholly unnecessary and irrational way. No doubt on occasion drivers of motor vehicles are capable of and do drive in such an unfortunate manner. But I must say it seems to me that the manoeuvre that the appellant alleged PW1 performed in driving his vehicle to the right of and parallel to her vehicle so as to, in the middle of the intersection itself, travel onto the opposing traffic lane does seem wholly implausible.

26. This manoeuvre apparently took place as I say in a quite short distance and within the yellow box portion of the intersection which, on its other side, had a concrete lane divider. I most certainly cannot say the magistrate was wrong to regard the appellant's evidence in this regard as implausible. The magistrate, in weighing the evidence in this case, was entitled to put the implausibility of the appellant's version of events onto the scale as she did on her way to rejecting the appellant's evidence and accepting that of PW1.

27. So far as the evidence of PW1 is concerned Mr Boyton further criticises the magistrate for accepting him as a credible witness even though he had previously been disqualified from driving on two occasions during his 30 years driving career, in the space of 3 years, as a result of the accrual of speeding offences and had admittedly chased the appellant's vehicle after the accident before eventually driving to a police station to make a report.

28. So far as those aspects of the evidence are concerned the magistrate was entitled to place no weight upon them. They are relatively minor aspects of the case as a whole and the magistrate apparently viewed them as not of great weight or as not relevant to the events of the collision itself or in assessing the credibility of the appellant. No criticism can be made of her findings in that regard.

29. Equally the fact that the magistrate apparently placed no weight on that part of PW1's evidence where he said that he continued driving ahead when the appellant drove into his lane as it was impossible for him to stop and if he had tried to do so it would have made the situation worse was not surprising.

30. PW1 said this in cross-examination in an answer to a question of counsel. But he was not asked what he meant by that evidence. So no further explanation was given by him in that regard as to what he meant or as to why he thought attempting to stop may have worsened the situation.

31. Accordingly the magistrate was left to deal with that aspect of PW1's evidence as it stood. What the magistrate could not do was speculate as to why his evidence was in those terms. It certainly cannot be suggested now that PW1 deliberately drove into the appellant's car or was in some other way at fault in driving on briefly after the collision between the two vehicles. That, at this stage, is with respect an attempt to read far too much into a less than clear aspect of PW1's evidence which had no attempt made at clarification directed at it during the trial.

32. For these reasons the appeal against the appellant's conviction for careless driving is dismissed.

33. So far as the appellant's conviction for failing to stop after the accident is concerned no complaint is directed to the conviction even though the appellant did stop her vehicle for a brief period of time before driving off. That period of time was too short to have "provided a sufficient period to enable persons who had a right to do so and reasonable grounds for doing so, to require of her direct and personally the information they required" McDermott v D.P.P. (1977) RTR 474 and Lee v Knapp (1967) 2 Q.B. 442. Rather, Mr Boyton advances one sole ground of appeal. It is that the magistrate wrongly failed to consider the appellant's possible defence of duress in that the appellant's evidence was that PW1 had shaken his fist at her immediately after the collision and that after she drove off PW1 followed her at quite high speed.

34. It is fair to say that although Mr Boyton did not abandon this ground of appeal, he did not argue it before me, but relied simply on its particulars as appears in his written grounds of appeal. It can be dealt with shortly.

35. The magistrate rejected the appellant's evidence. She accepted the evidence of PW1. The facts she found therefore in no way raised the defence of duress so as to excuse the appellant driving off from the scene of the accident. Far from finding PW1 shook his fist at the appellant the magistrate in accepting the evidence of PW1 must have found the appellant raised her finger at PW1. PW1's subsequent pursuit of the appellant, which was common ground and which the appellant said terrified her, occurred after she had driven off from the scene and accordingly occurred after she had committed the offence.

36. There is no merit in the ground advanced against the appellant's conviction for failing to stop and her appeal in respect of that conviction is also dismissed.