R. v. HUI KIN FAI, RICKY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 134 OF 1997

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J U D G M E N T

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1. This is an appeal against conviction by the appellant who was convicted on 11^th December 1996. The incident arose out of a traffic accident which occurred in Castle Peak Road on 16^th July 1996. It was as often happens to the traffic in Hong Kong, a chain collision, where a vehicle failed to stop and ran into the back of several cars at a traffic light, each one then running forward to strike the car in front. The appellant was the last car in line and there is little dispute that he was the one who set off the chain reaction.

2. The case for the appellant was that just prior to the traffic lights while travelling in a line of traffic, he struck a pool of water and his vision was shortly but completely obscured by water thrown to his windscreen from a pool on the road and that he was unsighted from the vehicles that had stopped in front of him and that, in the circumstance, he was driving carefully with diligence and was not guilty of the offence.

3. The magistrate believed three witnesses for the prosecution who said no pool of water existed on that carriageway although accepting the evidence of a police officer that in the fourth lane of the carriageway which commenced just before the point of accident, a pool of water did lie along the central divider.

4. The police witness PW4 testified that as soon as he questioned the appellant after the accident, the appellant told him that he had run over a pool of water some 30 meters before the scene of the accident and the result was water splashes on his windscreen caused him to lose control. In his findings, at para.10, the magistrate finds that the defendant did not agree with this statement by the officer saying instead that he was having headache and chest pain. It may be that this view taken of the evidence by the magistrate of the denial by the appellant affected the view that he took of the credit of the appellant. Unfortunately, this view is not borne out by an inspection of the transcript. The appellant when referring to headache and chest pains, refers to his condition as a result of the accident and not to his statement to the police officer that he had lost control due to his vision being obscured by the water.

5. It is possible that this misconception of the evidence may have affected the manner in which the magistrate viewed the credibility of the appellant and therefore the view that he took of his evidence. That being so, I must allow the appeal and the sentence is set aside.