HKSAR v. TONG WAI CHING

HCMA 75/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 75 OF 2002

(ON APPEAL FROM WSS 11730/2001)

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J U D G M E N T

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1. The Appellant was convicted after trial of one charge of careless driving contrary to section 38, sub-section 1 of the Road Traffic Ordinance, Cap. 384. The Appellant appeals against his conviction.

2. At trial, it was not disputed that the first prosecution witness had an accident while driving along the Island Eastern Corridor, when his vehicle ran into an embankment, took 180 degrees spin and came to a halt on the first lane or, sometimes referred to as the fast lane. The vehicle stopped in the first lane facing west towards the oncoming traffic.

3. After the accident, PW1 and his three passengers alighted from the car. PW1 telephoned his friend, PW4, and he arrived shortly after in a taxi. Some time later, it was not disputed that the Appellant driving his motor cycle, east bound, approached the vicinity of the scene and an impact occurred between the Appellant's motor cycle and PW2. The Appellant's motor cycle, after the collision, skidded and stopped eventually at some distance away in the left most lane or the slow lane. It was also not disputed that at the material time, the traffic was light and the street lights were on and it was drizzling.

4. The learned Magistrate, having considered the evidence of all the prosecution witnesses and the defence witness, concluded that the Appellant had driven carelessly and that he had been driving at a fast speed. The learned Magistrate, therefore, convicted the Appellant of the charge.

5. In his well prepared and able arguments, counsel for the Appellant, Mr Pannu, pointed out that the learned Magistrate in coming to her conclusion had failed to properly assess the evidence of the various witnesses, and had failed, at the end of the day, to properly resolve the important discrepancies in their evidence.

6. Mr Pannu pointed out that the learned Magistrate was wrong to conclude that the Appellant had knocked down PW2 on the fast lane or the first right lane. The learned Magistrate, in her Statement of Findings, found as a fact that PW2 was standing in the right lane or fast lane about 20 feet from the embankment and that the Appellant's motor cycle was coming at a high speed towards PW2 on the fast lane. PW1 said he did not see the accident nor how PW2 was hit. PW3, although he said in chief that he saw the Appellant hit PW2 in the fast lane, agreed that in his statement to the police, he told the police that he did not see the accident. As for PW2, PW2 said in evidence that he was confused about his position prior to the impact, he gave different versions of where he was hit when he gave evidence in court and when he gave his statement to the police.

7. Upon reading his evidence, I am left with the impression that PW2 was totally confused as to where exactly he was, at the time when he was hit. And the learned Magistrate, in her Statement of Findings, had failed to explain why she found that PW2 had said that he was standing in the fast lane or the right lane, and that he saw the Appellant coming at a high speed along the fast lane. It is clear from page 78 of the transcript that PW2 agreed that he did not know which lane the Appellant was on when he was driving towards him.

8. PW4 had drawn a sketch which was exhibited as Exhibit P2. In that sketch, he indicated the point of impact between the Appellant's motor cycle and PW2 as being on the double white line between the fast lane and the second lane. PW4 confirmed that he saw PW2 in the second lane near the double white line. PW4 in court said that he saw the Appellant's motor cycle coming in the fast lane, but he agreed that in his statement to the police he had said that he had seen the Appellant's motor cycle coming in the second lane.

9. So the learned Magistrate was in error when she concluded at page 32 of her Statement of Findings that:

" PW1, 2, 3 and 4 corroborated each other ..... They saw the Appellant's motor cycle coming towards them at a high speed in the fast lane, ....."

There was no such corroboration.

10. There was also no evidence to support the learned Magistrate's conclusion that the Appellant was driving as a high speed. As Mr Pannu pointed out PW1 did not say anything about the speed of Appellant's motor cycle, PW3 did not notice the speed, PW2 merely said the Appellant was driving fast and PW4 said he did not know the speed of the Appellant's vehicle, although he did see the Appellant rushing towards them.

11. It is also of great importance that the learned Magistrate had failed when assessing the evidence to remind herself that the Appellant had a clear record. This is important, particularly in view of the evidence in the present case, as credibility of the witnesses were of utmost importance. The Appellant had given evidence that in that early morning, he was driving to work and his place of work was in Chai Wan, and therefore he would not be driving in the fast lane because the fast lane could only lead to the Eastern Harbour Tunnel and he would not be able to cross the double white line into the middle of the highway in order to get to Chai Wan.

12. Whilst it is true that the learned Magistrate does not have to, in all cases involving good character, specifically mention that she has considered it, a lot depends on the particular circumstances of the case. In this case, it is important in assessing the culpability of the Appellant as it depended on the view the Magistrate took of the credibility of the witnesses.

13. Finally, Mr Pannu also pointed out that the learned Magistrate had descended into the arena by the quantity and quality of the Magistrate's interventions. Mr Pannu had pointed out 167 interventions during this trial which lasted two half days. It was pointed out by counsel for the Respondent, it is not the quantity of the interventions but the quality of the interventions that are important. Whilst that is true, it is also obvious from the learned Magistrate's interventions particularly at page 92 of the transcript, when PW2 was giving evidence, the Magistrate appeared to be leading PW2 to say that he was standing in the first lane, that is the fast lane and not in the second lane as he had stated to the police in his statement.

14. Whilst it is true that the learned Magistrate had a duty to clarify matters, it is extremely important that in doing so, she does not lead the witness to say something which is favourable to one party or the other, and justice cannot be seen to be done if the learned Magistrate is seen to have descended into the arena and favoured one party over the other in the course of the trial.

15. In this case, had the learned Magistrate at the end of the day properly assessed the discrepancies of the witnesses and the contradictions in the prosecution witness's evidence, and still come to the conclusion that the Appellant's guilt has been proved, then this court would not have interfered with the conviction despite the many interventions. Although this court would still have been critical of the many interventions by the Magistrate.

16. Unfortunately, due to the failure by the learned Magistrate to resolve the discrepancies together with the many interventions of the learned Magistrate, this court is left with the conclusion that the conviction is unsafe and unsatisfactory. To put it succinctly, the evidence before the learned Magistrate did not support the learned Magistrate's ultimate finding that all the prosecution witnesses, i.e. PW1, 2, 3 and 4:

" Confirmed to that they were all standing in the fast lane and the Appellant's motor cycle was coming towards them at a high speed on the fast lane and knocked down PW2 on the fast lane ...."

17. I am therefore allowing the appeal on the grounds that the conviction is unsafe and unsatisfactory .