HKSAR v. BUTT TZE LEUNG

HCMA184/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 184 OF 1999

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J U D G M E N T

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1. The Appellant was convicted of careless driving after trial on 27th January 1999 and was fined a sum of $750.

2. The offence arose out of a minor collision that occurred on the downward track of Garden Road to the north of the intersection of Lower Albert Road and Garden Road. The Appellant was turning right out of the slip road coming from St. John's Building and the vehicle into which his car came into collision had turned left with the traffic lights from Lower Albert Road. It is a curious intersection where, when the lights are green, two streams of traffic, one from the east and one from the west, each turn north into the downward track of Garden Road.

3. The versions given by each of the two drivers were totally different. The Magistrate in considering the evidence in coming to his conclusion said in the last paragraph of his Findings :

" Having considered all the evidence I was satisfied so that I was sure that the accident happened in the manner described by PW1 and I was satisfied beyond reasonable doubt therefore that the defendant had failed to exercise the degree of skill and prudence expected of a competent motorist."

4. The Appellant argues, referring me to the case of McCrone v. Riding [1938] 1 All ER 157, that skill and competence are not matters which are to be taken into consideration when assessing the degree of care and prudence taken by a driver in the course of his driving.

5. Whilst it may well be that the learned Magistrate meant to refer to the care and prudence expected of a motorist, he did not say so. The Appellant is entitled to point to the use of the word "skill" and to argue that the test adopted by the Magistrate was not the one which he should have adopted in all the circumstances.

6. That being so, there is a possibility that the learned Magistrate did take into consideration matters which he was not entitled to do so in respect of this case, and the appeal will be allowed and the sentence set aside.