HKSAR v. LO IP LEUNG

HCMA 645/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 645 OF 1998

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J U D G M E N T

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1. On 26th June 1998 after trial, this appellant was convicted in the Western Magistracy of an offence of driving without due care and attention. He appeals against that conviction.

2. In general terms the incident which gave rise to the prosecution of the appellant can be briefly described as follows:-

3. On 20th October 1997 at 3.37 p.m. the appellant was driving out of the exit from his home of 3 years on the Red Hill Peninsula onto the main road, intending to turn right. Some 60 yards to his right as he emerged from his home is a 'blind corner'. Around that corner came a police officer on a motorcycle; he was responding to an emergency call and, in consequence, he had the siren on his motorcycle operating and a blue flight was flashing. What happened thereafter was witnessed by the appellant and by the police officer - and by nobody else.

4. Before the learned Magistrate, the police officer, the appellant and the security guard of the premises in which the appellant resided, gave evidence.

5. The police officer said, inter alia, that he came round the corner at a speed of about 40-45 kilometres per hour and that he did so at that speed because he was aware of the 'dangerous bend' (as he put it) and of the exit from the appellant's home. He went on to say that as he rounded the corner he saw the appellant's vehicle, which had stopped at the exit, protruding some two feet into the main road. He said that he was some 10 metres from the appellant's vehicle when he first noticed it, and that when he was about 5 metres away from it the appellant, who was looking in his direction, accelerated out into the main road and thus into his (the police officer's) path. The police officer added that when the appellant drove out into the main road he (the police officer) was only about a foot away and that he (the police officer) was obliged to swerve to avoid a collision.

6. The police officer under cross examination said, inter alia, that albeit that he was not in a hurry, he was seeking to attend to urgent business. He then agreed that he was 'in a rush to get to the scene' of an emergency. Later in cross-examination the police officer said that the appellant, having crossed the main road intending to turn right, stopped his car as the police officer passed him by. The police officer said that albeit he had to brake and to swerve his motorbike to avoid a collision with the appellant's vehicle, there were no tyre marks left on the road and there was no sound of braking.

7. The police officer then agreed that the first question which the appellant asked him (after he approached the appellant) was "why are you driving so fast?". The officer then said in evidence

"I of course explained to him why I drove so quickly...."

And he went on to say in evidence that he asked for the appellant's ID Card and for his address, before telling him that he would be summonsed for careless driving and before he (the police officer) drove off hurriedly to deal with the emergency.

8. In his evidence before the learned Magistrate the appellant said, in essence, that as he approached the main road, he looked into the mirror on the opposite side of the road and saw that it was safe to cross the main road and to turn right. As he got to the middle of the main road, he saw the police officer on his motorcycle coming round the bend to his (the appellant's) right side with his blue emergency light flashing. The appellant said that he carried on moving into the opposite lane and that as the police officer came alongside him from the opposite direction, he (the police officer) signalled him to stop his vehicle and he did so.

9. Cross-examined, the appellant said that when he first observed the police officer on his motorbike he was about 59 yards away and that he had subsequently measured that distance. He went on to say that the police officer was travelling fast.

10. The witness called by the appellant at his trial was a security guard at the gate or exit from the appellant's home. What this witness said, in essence, was that he saw the appellant drive up to the exit and leave. He said that thereafter he did not see any near collision between the appellant's vehicle and the police officer's motorcycle. Later, during his evidence, he said that if there had been a near collision as described by the police officer he would have seen it.

11. Before me Mr. Grounds of counsel has argued four grounds of appeal as follows:-

1. The learned Magistrate wrongly understood the essence of the appellant's case to be that the police officer had 'concocted or fabricated the case of near collision against the appellant,' and that he had failed to consider whether the police officer had been mistaken or had misunderstood the actions of the appellant which was, in truth, the appellant's case. Having misconstrued the case of the appellant the learned Magistrate then proceeded to misapply the burden of proof by at least implying in his 'findings' that as, in his view, the police officer was unlikely to concoct or fabricate a case against the appellant then the appellant must be guilty.

2. The learned Magistrate failed to consider in a proper manner, or at all, material and significant discrepancies and contradictions in the evidence of the police officer which, if properly considered would have shown his evidence to have been less than reliable in showing beyond a reasonable doubt that the appellant was driving without due care and attention.

3. The learned Magistrate erred in that he refused to consider statistics set out in the 'Highway Code' relating to 'safe speed' and 'stopping distances'.

and 4. The learned Magistrate failed to give proper consideration to the evidence of the security guard called as a witness by the appellant in that he simply concluded that that security guard was

(a) a reluctant witness and

(b) an unreliable witness.

without apparently understanding the purport of his evidence.

12. In his extempore reason for verdict - subsequently adopted as his 'statement of findings' the learned Magistrate commenced with a review of the 'defence case' and, in so doing made a factual error in respect of distance. The learned magistrate then proceeded to state, by way of surmise unsupported by the evidence, his view of what had happened during the incident. Inter alia he said, and I quote:-

"..."I do not think that (the police officer) was the type to concoct or fabricate a case against the defendant"...

..."I concluded... that (the police officer) was travelling at not too high a speed - 40-45 Kph - or less than that. His blue lights and siren were on. The defendant saw this and at the incohate stage he decided to give precedence to (the police officer). Due to the rather slow speed of (the police officer) the defendant lost patience and felt he could beat the approach of (the police officer). He then drove forward, as (the police officer) told me, causing a near collision"..."

13. The learned Magistrate, in his findings also dismissed the relevance of 'breaking and stopping distances' (which are appropriate to the speed of a vehicle and are not, as he suggested, limited to cases where one vehicle runs into the back of another) to cases of this nature and, in so doing, in my view failed to consider an important element of the appellant's case as regards the speed at which the police officer was travelling.

14. In this context what the learned Magistrate said was:- "I do not think that there was anything in defence counsel's references to thinking or breaking distances".

15. Having read with great care, several times, the reasons advanced by the learned Magistrate for his conviction of the appellant, I am left with the distinct feeling that he adopted the wrong approach. Whilst he said in his penultimate sentence that it was for the prosecution to prove the guilt of the appellant beyond a reasonable doubt, his reasons appear to be structured around his disbelief of what he understood (wrongly) the appellant's evidence or defence to be, and around his (the learned magistrate's) conjecture as to what in fact happened on the afternoon of 20 October 1997.

16. For all of these reasons I am unable to say that the conviction of the appellant was safe and satisfactory.

17. Accordingly this appeal must succeed. The conviction is quashed and the sentence set aside.