HKSAR v. LEUNG YAU CHOI

1998, No. MA 1210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1210 OF 1998

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J U D G M E N T

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1. On 17th November 1998 this Appellant was convicted by J.T. Glass, Esquire in the North Kowloon Magistracy of careless driving. He appeals against conviction.

2. The charge arose out of an accident which occurred in Mongkok Road at about 7:55 a.m. on 27th January 1998. A taxi driven by the Appellant in an easterly direction struck an old lady as she was crossing the road.

3. This old lady gave evidence for the prosecution. But the Magistrate found her evidence unreliable.

4. Two other witnesses gave evidence for the prosecution. Both were police constables who attended the scene after the accident. The Magistrate found both of them honest and reliable.

5. One of them, PW2, said that he saw the victim lying in the third lane of the easterly carriageway of Mongkok Road about 20 metres from Tung Choi Street, and that he saw the Appellant's taxi in the fourth lane of the same carriageway. He gave evidence of what the Appellant told him. This was, as the Magistrate sets out in his Statement of Findings, as follows:

"He was travelling on the third carriageway and when he reached the junction of Tung Choi Street, he saw the victim on his right who was crossing the road from right to left (in front of him). He braked immediately but the front left of his taxi hit the victim. He then stopped his taxi on the 4th lane."

6. The other constable, PW3, told the Magistrate the weather was fine and the road was dry.

7. As for the Appellant's version of how the accident happened, the Magistrate's Statement of Findings deals with it like this:

"The Defendant told the Court that on that morning he drove his taxi along Mongkok Road towards Sai Yee Street (past the junction in question) and whilst he did so the traffic light was green in his favour. There was a taxi in front which he was following. They were both travelling in the 3rd lane from the left. As they approached the junction the front taxi cut into the 4th lane and the Defendant then suddenly saw a lady crossing the road from the 4th lane to the 3rd lane. He was travelling at between 40 to 50 kmph at the time. He saw the lady less than one second after the front taxi had changed lanes. He said the front taxi blocked his view of the lady whilst it was in the 3rd lane and also blocked his view when it cut into the 4th lane, but it did not block his view when it was on the 4th lane. He then hit the lady on the 3rd lane. He wanted to brake but the lady was about two feet in front of him. In cross examination the Defendant told the Court that he was travelling about three feet behind the taxi in front. He also said that he did not see the colour of the traffic lights until he was about two vehicle lengths from them.

He also said in cross examination that the version written in his voluntary caution statement taken by the police immediately after the accident on 27th January 1998 was incorrect and that the police officer must have misunderstood what he had said. In that statement the Defendant apparently told the police officer that there was a taxi travelling on the right side of him and when it decelerated he overtook it and then he (the Defendant) saw a pedestrian standing in the 3rd lane. The Defendant disagreed that this was what had happened maintaining that he had followed the taxi in front and had not overtaken it."

8. Apart from his speed, the Appellant's evidence was rejected by the Magistrate.

9. After a lengthy analysis of the evidence, the Magistrate said the following:

"24. I found from the evidence that the accident must have happened either on or immediately past the end of the pedestrian crossing as the victim would have been thrown some distance forward by the impact and she was close enough to the edge of the crossing after the accident to draw an irresistible inference that this was where the impact had taken place. In addition this tied in with PW2's evidence of the location of the victim.

25. I therefore found that the Defendant approached the pedestrian crossing in a manner that he could not clearly observe what was happening in front, in circumstances when he should have known from his taxi and ordinary driving experience that pedestrians were likely to cross. In addition he did so at a speed that he could not stop if there was a hazard in this path. Such driving was clearly dangerous and I found that this driving fell well below that of a reasonably prudent driver. The Defendant in my view had a duty to make sure he was in a position to know exactly what was happening at the pedestrian crossing before crossing it and he failed to keep a proper lookout in this respect. In addition his speed was too fast at the time he crossed into the pedestrian crossing under those circumstances.

26. Even on the Defendant's own version of the events, which I rejected, he had been following another taxi at 3 feet distance at the stated speed. This was clearly dangerous under normal circumstances, and even more so if he was approaching a pedestrian crossing. Therefore even on the Defendant's own version of the events his driving fell well below the standard of care demanded of a reasonable prudent driver.

27. I reminded myself that the burden of proof was with the Prosecution to prove the summons beyond reasonable doubt. However after having given myself the "Barrada" Direction above and after having reminded myself of the burden of proof, I found that I was satisfied that the Prosecution had proved the summons beyond reasonable doubt and I convicted the Defendant."

10. Only one ground of appeal is of law. It is Ground 4 which reads:

"There is no rule of law that the Appellant must also slow down to a speed that would ensure him to avoid any risk of a pedestrian running into his path."

The answer to that is simply that the Magistrate did not proceed on any such view of the law. The Magistrate simply found on the facts that the Appellant had driven carelessly.

11. The remaining grounds of appeal all go to the facts. I have carefully considered them and the arguments in support of them. At the end of the day, I do not feel able to disturb the Magistrate's view of the facts and his conclusion that the Appellant drove carelessly.

12. The appeal is dismissed.