HKSAR v. KRUGER PAUL ANTHONY

HCMA 165/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 165 OF 2016

(ON APPEAL FROM TSUEN WAN MAGISTRACY

CASE NO. TWS 4830 OF 2015)

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J U D G M E N T

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BACKGROUND

1.  The appellant in this case, Mr KRUGER Paul Anthony, was convicted after trial of Careless Cycling, contrary to section 46(1) of the Road Traffic Ordinance Cap 374.  He appeals against his conviction.

2.  This case concerns an accident which took place on 11 October 2014 at 9:20 a.m.  While the appellant was riding a bicycle on Discovery Bay Road, Lantau Island, near Lamppost SP02, the appellant’s bicycle hit a lady crossing the road from the offside to the nearside of the direction the appellant was cycling.  It is the Prosecution case that the appellant was cycling carelessly at the time.

Preosecution case

3.  The appellant’s cautioned statement (P4, [p.27-41 of the Appeal Bundle), given voluntarily by the appellant, provides the only account of the accident.  The learned Magistrate succinctly summarized the contents of P4 in paragraph 11 of the Statement of Findings (p.9-10 of the Appeal Bundle):

“The Defendant described in his record of interview how the Accident occurred. He mentioned that at the material time he was cycling along Discovery Bay Road towards Discovery Bay Plaza at a speed of about 40 km/h. He was a lady on the pavement on the offside and she started to cross the road from the offside to the nearside. At that time, she was about 30m away from the Defendant. She was walking at a rapid pace, across the opposite lane and going into the Defendant’s lane. The Defendant sounded the bell and he braked his bike. It seemed that she did not hear the Defendant’s bell. When the Defendant was 15m from the lady, the Defendant sounded the bell again but the lady kept walking forward. The Defendant steered to the right to go past behind the lady. When he was about 4m away from the lady, she suddenly stopped walking and looked in the Defendant’s direction, and took one step backward with her left foot. Then the left shoulder of the lady collided with the left shoulder of the Defendant.”

4.  The Prosecution called only one witness, i.e. SPC 33673, he gave evidence that the width of the lane on which the appellant was cycling was measured at 4 m, the width of the same lane at the junction with Marina Drive was measured at 6 m and the width of Marina Drive at the junction was measured at 17 m.  The evidence of SPC 33673 was accepted by the learned Magistrate.

Defence case

5.  The appellant’s case was also contained in his cautioned statement, which was a mixed statement.

6.  The learned Magistrate summarized the evidence of the appellant in paragraphs 12 to 16 of the Statement of Findings:

“12. I have carefully considered the testimony of the Defendant which was focused on elaborating and clarifying matters contained in his record of interview. The Defendant elaborated that when the lady started to cross the road, she appeared to take no heed of an oncoming bus travelling in the opposite lane.

13. In addition, despite that the Defendant estimated in his record of interview that the distance between the lady and his bicycle when he first saw the lady was about 30 m, he marked on a copy of the sketch P1 (D1) to show the location of his bicycle when he first saw the lady and the trajectory of the lady crossing the road. The Defendant testified that he was not provided with measurement by the police when the record of interview was taken, and he said that the said distance was in fact less than 30 m.

14. Furthermore, the Defendant testified that the standard reaction time in the industry as a pilot was 2.5s because it was the time taken to recognize a problem, to process the problem options, and to take action.

15. The Defendant further elaborated that he could not brake suddenly because he would lose the ability to maneuver the bicycle and he would lose control and crash.

16. The Defendant concluded that the option he chose at the time was the only safe option.”

The learned magistrate’s reasons for conviction

7.  The learned Magistrate found that the appellant was 25 m (instead of 30 m) away from the lady when he first saw her.  The learned Magistrate explained his findings on this matter in paragraph 18 of the Statement of Findings (p.11-12 of the Appeal Bundle).  Mr Surman, counsel for the appellant, does not take issue with the above findings of the learned Magistrate. Mr Surman submits for the purposes of this appeal, the difference in distance is immaterial (paragraph 3 of the Skeleton Submissions of the appellant).

8.  The learned Magistrate did not accept that a reasonable response time for the appellant as a cyclist is 2.5 s as the appellant suggested.  The learned Magistrate referred to p.46 of the Road User’s Code (which applies also to cyclists) and found that the response time for the appellant should be 0.9 s.

9.  The learned Magistrate found that the appellant’s purported response time of 2.5 s was also inconsistent with the distance between the appellant and the lady when he first saw her, whether it was 25 m as found by the learned Magistrate or 30 m as the appellant said in his evidence.  The appellant said he did not ring the bell or decelerate until after the response time.  Given that he was travelling at 40 km/h, if the response time was 2.5 s, he would have covered a distance of 27.5 m before he could ring the bell or reacted to the situation.  In other words, on the appellant’s testimony, if the distance between the appellant and the lady when he first saw her was 25 m, the appellant would have already hit the lady before he could respond.  If the distance was 30 m, the appellant would not have had time to do anything before the collision.

10.  The learned Magistrate found that had the appellant tried to stop his bicycle when he first saw the lady (instead of or in addition to ringing the bell), he could have stopped his bicycle in time.  Given the response time of 0.9 s and given the braking distance for a vehicle travelling at 40 km/h is only 10 m in the Road Users’ Code, the appellant, like any ordinary cyclist, would require 10 m to stop the bicycle, which would still leave him with 20 m (or at least 15 m if the location of the bicycle as marked by the appellant in D1 were accepted) to brake his bicycle to a halt. 

11.  The learned Magistrate rejected the appellant’s evidence that he would lose control of his bicycle had he kept both hands on the handlebars to maintain control and used both brakes.  The learned Magistrate referred to P2 photos 1, 2 and 8 and made the observation that although the appellant was going downhill until the junction with Marina Drive, he would be going uphill again beyond the Marina Drive junction before he reached the location of the accident.  The learned Magistrate did not accept that an emergency stop described in p.30 of the Road Users’ Code could not be done.

12.  The learned Magistrate found that had the appellant paid due care and attention at the time of the accident, he would have tried to stop his bicycle and he would have successfully done so when he first noticed the lady.  Given that the lady even failed to heed the danger posed by the approaching bus in the opposite lane, the learned Magistrate found that the appellant should have noticed that there was a real risk that the lady would cross the lane in which the appellant was travelling.

13.  The learned Magistrate found that had the appellant paid due care and attention at the time of the accident, there was no question of the appellant having to make a decision whether he should steer his bicycle left or right. 

14.  For the appellant’s decision to steer right, the learned Magistrate said in paragraphs 24 to 26 of the Statements of Findings;

“24. In other words, had the Defendant paid due care and attention at the time of the Accident, the decision to steer his bicycle left or right would not arise. Having said that, there was no reason for the Defendant to steer right because at the location of the Accident, there was going to be a right turn. In the sketch of the Defendant’s record of interview P4, the Defendant was cycling in the middle of his lane prior to the Accident. Had the Defendant steered his bicycle he would have had a slightly longer distance to stop his bicycle. On the contrary, the route from the middle of the lane to the right of the lane was a relatively straight one, hence the distance for stopping the Defendant’s bicycle was shorter.

25. Furthermore, by choosing to steer his bicycle to the right, the Defendant was forced to past the lady closely behind her because steering too far to the right would endanger himself. In fact, the Defendant went so close behind the lady that the Defendant collided with the lady when she merely took a step back. In choosing to steer his bicycle to the right and go so close behind the lady, the Defendant failed to take into account the shock reactions of the lady when she realized the presence of the Defendant and his bicycle at the at the last minute. As unreasonable the lady’s reaction of taking a step back and facing the onrushing Defendant may be, it was not unforeseeable.

26. By reason of the above, I rejected the Defendant’s testimony that the option he chose at the time was the only safe option.  I found that he had to choose this option because he was not cycling with due care and attention and therefore could not stop his bicycle in time in the first place.”

15.  The learned magistrate found the prosecution had proved beyond reasonable doubt that the appellant failed to pay due care and attention whilst cycling and gave rise to the Accident.  He therefore convicted the appellant of careless cycling.

Grounds of appeal and the respondent’s repy to the grounds

16.  Mr Surman puts forward 7 grounds of appeal.

Ground1: the learned magistrate applied the wrong legal test

17.  Under this ground, the appellant complains that the learned Magistrate erred to direct himself at paragraph 3 of the Statement of Findings that:

“The only issue in this case is whether the option chosen by the Defendant at the time was the safest one, albeit it could not avoid the Accident.”

18.  The appellant submits that the correct legal test should be:

“whether the option chosen by the appellant falls below the standard of a reasonably prudent driver”,

Instead of:

“whether the appellant could have stopped the bicycle when he first saw the lady’.

19.  The appellant submits that the analysis made by the learned Magistrate shows that “the Learned Magistrate proceeded in error, namely on the basis that, had the appellant not been careless, he would have stopped the bicycle when he first saw the lady.” (Paragraph 13 of the Skeleton Submissions of the appellant)

The respondent’s reply to ground 1

20.  Mr Daryanani for the respondent submits that reading the Statement of Findings as a whole, it is clear that the issue the learned Magistrate was concerned with was how the collision with the lady should be avoided.

21.  The learned Magistrate had taken into account:-

(i) the speed of the bicycle;

(ii) the width of the road; and

(iii) the appellant knew the lady did not apparently notice the bus on the road and his bicycle, clearly the only safe option was for the appellant to use his emergency brake to stop his bicycle.

22.  The learned Magistrate, for the reasons given in paragraph 22 of the Statements of Findings, rejected the appellant’s explanation that he could not use the emergency brakes had he kept both hands on the handle bars to maintain control.  He found that had the appellant paid due care and attention at the time of the accident, he would have tried to stop his bicycle and he would have successfully done so.

Ground 2: The learned Magistrate erred in failing to consider whether there were other options available to the appellant and whether or not these were reasonable

23.  The appellant submits under this ground that a reasonably prudent cyclist upon seeing a pedestrian crossing the road is faced with at least 3 options:

(a) Brake immediately;

(b) steer to the left; or

(c) steer to the right.

24.  The appellant’s evidence that he could have flipped over the handle bars then possibly collided with the bus coming in the other lane was rejected by the learned Magistrate.  Without challenging the learned Magistrate’s finding that the appellant could have stopped, the appellant submits that it does not necessarily follow from the finding that the appellant could have stopped, by choosing to steer right to avoid collision the appellant had departed from the standard of a reasonable prudent driver.

25.  Option 2 is steer to the left and attempt to go in front of the lady.  The appellant summits that since at that time the lady was halfway through crossing the road and if she continued at that speed, the gap between the curb and the lady would get smaller as she crossed the road.  The appellant gave evidence that option 2 would leave him with “no margin of error” and as he was decelerating, they were “just coming to a collision point in the corner of that road”.  (Transcript evidence of the appellant [p.70 of the Appeal Bundle])

26.  The appellant took option 3, he steered to the right and attempted to go behind the lady.  The appellant submits that in the light of the above, in the circumstances option 3 was a better option in comparison with the other two.  Mr Surman argues that option 3 was not inherently unreasonable or unsafe although the appellant collided with the lady in the end.

27.  Mr Surman submits that with the benefit of hindsight, with ample time and absent the pressure of the instant need to make a decision, and with the ability to carefully examine each option, it could be said that the appellant could or should or might have taken into account various matters, he submits that the fact that there is some degree of risk in one option does not automatically render it unreasonable or unsafe, each of the 3 options in the present case entails a certain degree of risk. 

28.  Mr Surman submits that option 1 and option 2 were not risk-free either.  He argues that it may well be said that option 3 carries the lowest risk as it would enable the appellant to successfully avoid the collision but for the lady’s unexpected action; namely stepping backward into the appellant’s path. Mr Surman submits that the learned Magistrate failed to give sufficient consideration to other options available to the appellant and whether or not those options were reasonable.

The respondent’s reply to Ground 2

29.  Mr Daryanani submits that the learned Magistrate had given detailed reasons in paragraphs 15 to 24 of the Statement of Findings why he did not accept the appellant’s evidence that if he did an emergency brake, he would lose the ability to maneuver the bicycle and he would lose control and crash.

30.  Mr Daryanani further summits that there is no evidence that the brakes of the bicycle were not working.  In his evidence the appellant said the bicycle had had a full service and got new tyres and brakes the previous week.  Furthermore, in his record of interview, the appellant told the police that he was familiar with the road conditions at the location, the weather was good, the road was dry and the traffic was light. 

Ground 3: The learned Magistrate erred in concluding that the appellant was careless when there was no positive evidence of carelessness

31.  The appellant submits that for the offence of careless cycling, there must be positive evidence of carelessness.

32.  Mr Surman cites R v Kit Wing Wo [1985] 1 HKC 204, Penlington J (as he then was) said at pg 270 of the judgment that:

“In a criminal case, there must be some positive evidence of carelessness unless the evidence was so strong that, in the absence of any explanation from the defendant, he must have been negligent.”

33.  Mr Surman submits that not only that there is no direct evidence that the appellant was cycling carelessly, the circumstances of this case do not support an inference, let alone an irresistible one, that the appellant was cycling carelessly:-

“(a) There was no other evidence as to the appellant’s manner of cycling except for his own evidence. There was no dispute as to the appellant’s evidence about his speed or manner of cycling; the only dispute concerned the distance (25 or 30m), which is immaterial for the present purposes.

(b) The Magistrate’s rejection of the appellant’s evidence that he could not have stopped in time, was not, in itself, sufficient to establish carelessness.

(c) The fact that there was a collision does not lead to an irresistible inference that the appellant was cycling carelessly. In particular, there was no positive evidence that, in the circumstances, the appellant was careless by steering to the right to avoid collision.” (Paragraphs 29-30 of the Skeleton Submissions of the appellant)

The respondent’s Reply to Ground 3

34.  Mr Daryanani submits that on the facts of this case the only reasonable action on the part of the appellant was to apply the emergency brakes but he did not do so.  The appellant’s action of trying to ride behind the lady was clearly careless, as found by the learned Magistrate, the appellant, by riding behind the lady, failed to take into account the shock reactions of the lady when she noticed the presence of the appellant and his bicycle at the last minute.  Mr Daryanani submits that the appellant was clearly taking unnecessary risks which resulted in the accident.

Ground 4: The learned magistrate applied Res Ipsa Loquiter to a criminal case by requiring the appellant to prove the reasonableness of his actions rather than requiring the prosecution to prove carelessness

35.  Ground 4 is closely connected with Ground 3.  In short, Mr Surman complains that the learned Magistrate appeared to reverse the burden of proof by requiring the appellant to explain why he was not negligent and that the option he took was reasonable. 

The respondent’s Reply to Ground 4

36.  Mr Daryanani submits that the learned Magistrate had carefully analyzed the evidence and cycling manner of the appellant before he made his findings.

37.  The Magistrate did not apply the principle of Res Ipsa Loquiter.  The learned Magistrate stated clearly at paragraph 5 of the Statement of Findings:

“I have reminded myself that the principle of res ipsa loquiter does not apply to criminal cases.”

Ground 5: The learned Magistrate erred in finding that the lady’s reactions were foreseeable after having concluded they were unreasonable

38.  The learned Magistrate said at the end of paragraph 25 of the Statement of Findings (p.14 of the Appeal Bundle):

“...As unreasonable the lady’s reaction of taking a step back and facing the onrushing Defendant may be, it was not unforeseeable.”

39.  Mr Surman complains that it is difficult to see how the appellant could have foreseen conduct which was unreasonable.  The question is whether the appellant acted reasonably when basing his decision on the perfectly reasonable assumption that the lady, given her walking speed and lack of regard to the surrounding circumstances, would keep walking forward. Mr Surman submits the answer is clearly a “yes”.

The respondent’s Reply to Ground 5

40.  Mr Daryanani submits that what the learned Magistrate sated in paragraph 25 of the Statement of Findings is that when the lady saw the bicycle was so close to her she would have a shock reaction. How one would react to the situation depends on person to person.  The reaction of the lady in the present case, i.e. taking a step back, may be unreasonable but is foreseeable.

41.  Mr Daryanani further submits that the reaction of the lady may not be unreasonable, a study of the transcript of the appellant’s evidence shows that:

“Yes, well, as she turned, in order, obviously, as we — to keep balance, I would think, she’s turned and put her left foot back in the direction she had already walked and went like that, gave a bit of a squeal, a yelp, a — you know, in surprise.” (Pg 72 of the Appeal Bundle, Letter B-D)

Ground 6: The learned Magistrate failed to give reasonable weight to the appellant’s evidence regarding his ability to make an emergency stop

42.  Ground 6 is a factual ground.

The respondent’s Reply to Ground 6

43.  Mr Daryanani submits that paragraphs 15 to 24 of the Statement of Findings show that the learned Magistrate had clearly considered all relevant factors before he rejected the appellant’s explanation that he could not make an emergency stop.

Ground 7 : Lurking Doubt

44.  Mr Surman submits that in all the circumstances there must be a lurking doubt, which means a substantial remaining doubt about the safety of the conviction.

The respondent’s Reply to Ground 7

45.  Mr Daryanani submits that there is no lurking doubt as the learned Magistrate had clearly and properly considered the evidence.  The conviction was proper.

DISCUSSION

Ground 1: The learned Magistrate applied the wrong legal test

46.  The learned Magistrate said at paragraph 3 of the Statement of Findings:

“The Defendant’s cautioned statement P4 provides the only account of the course of the Accident. The only issue in this case is whether the option chosen by the Defendant at the time was the safest one, albeit it could not avoid the Accident.”

47.  The test for careless cycling, as corrected pointed out by Mr Surman, is the same as careless driving: whether the defendant exercised the degree of care and control that a reasonable, competent and prudent driver would exercise in the circumstances. (HKSAR v Lee Chi Yuen, unrep, HCMA 496/2005, 30 June 2015). Under the above test for careless cycling, it is quite possible for a defendant to have chosen an option that that was “not the safest one” yet to still have acted within the bounds of a reasonable, competent and prudent cyclist.  The problem with the issue framed by the learned Magistrate in paragraph 3 cited above is that the option taken by the appellant at the time had to be the safest, albeit it could not avoid the accident, failing that standard, the appellant would be found guilty of careless cycling.

48.  It is true that the appellant’s case at the trial was that the option he took at the time was the only safe option.  The learned magistrate was duty bound to consider the defence as run by the appellant, i.e. his decision to steer right and attempt to go behind the lady was the only safe option.  The learned considered the appellant’s case and gave reasons why he rejected the appellant’s explanation as to why he could not brake immediately with the aim of trying to stop the bicycle (Paragraphs 17-22 of the Statement of Findings, pg 11-13 of the Appeal Bundle).  The learned Magistrate said at paragraph 26:

“By reason of the above, I rejected the Defendant’s testimony that the option he chose at the time was the only safe option. I found that he had to choose this option because he was not cycling with due care and attention and therefore could not stop his bicycle in time in the first place.” (Emphasis provided)

49.  S46 of the Road Traffic Ordinance, Cap 374 provides that:

“(1) A person who uses or rides a bicycle, tricycle or multi-cycle on a road carelessly commits an offence and is liable to a fine of $500.

(2) A person uses or rides carelessly within the meaning of this section if on a road he uses or rides a bicycle, tricycle or multi-cycle without due care and attention or without reasonable consideration for other persons using the road.”

50.  In other words, the learned Magistrate, having rejected the appellant’s explanation that the option he took at the time was the safest option, went on to conclude that the appellant took the option to steer right and attempt to go behind the lady because he was cycling carelessly and therefore could not stop his bicycle in time in the first place.  

51.  In my judgment, the learned Magistrate erred to conclude the appellant was cycling carelessly after he rejected the appellant’s explanation that the option he took at the time was the safest option.  The learned Magistrate, having rejected the appellant’s explanation, should have considered whether the defendant had, at the time of the accident, exercised the degree of care and control that a reasonable, competent and prudent driver would exercise in the circumstances, that is to say, whether the option chosen by the appellant fell below the standard of a reasonably prudent driver.

52.  In my judgment, the learned Magistrate did err in law in misdirecting himself at the beginning, he also applied the wrong legal test for careless cycling in his analysis.

Ground 2: The learned Magistrate erred in failing to consider whether there were other options available to the appellant and whether or not these were reasonable

53.  I agree with the respondent’s submissions the learned Magistrate gave a very detailed explanation why he did not accept the appellant’s explanation that if he did an emergency brake he would lose the ability to maneuver the bicycle ad he would lose control and crash in paragraphs 15 to 24 of the Statement of Findings.  For completeness sake, paragraphs 15 to 24 are reproduced:

“15. The Defendant further elaborated that he could not brake suddenly because he would lose the ability to maneuver the bicycle and he would lose control and crash.

16. The Defendant concluded that the option he chose at the time was the only safe option.

17. I rejected the Defendant’s explanation that he could not stop his bicycle in time to avoid collision for the following reasons.

18. First, I did not accept that the distance between the lady and the Defendant’s bicycle when he first saw the lady was less than 30m, and I did not accept that D1 could show the location of the Defendant’s bicycle when he first saw the lady. The reason is that when the Defendant was asked to comment on his 30 m estimation during examination in chief, the Defendant was very confident about his estimation of speed and distance. His confidence was apparently based on the fact that he was a pilot with considerable experience and at the same time a keen amateur cyclist, cycling every day. On the sketch P1, the width of the Marine Drive junction is measured to be 8.5 cm. Using the scale on the sketch, this matches the measurement of 17 m obtained by SPC 33637. Apart from the markings made by the Defendant, D1 is a copy of P1 and therefore has the same scale, and the markings made by the Defendant on D1 mean that the Defendant was saying that he was about 25 m away from the lady when he first saw her. I did not accept that this was ‘a little less than 30m’ as the Defendant put it in his evidence. The difference is half the length of a double decker bus in the Road User’s Code. I did not believe the Defendant could have made such a mistake in his record of interview.

19. Second, I did not accept that a reasonable response time for the Defendant as a cyclist is 2.5 s as suggested by the Defendant. At p. 46 of the Road User’s Code (this part also applies to cyclists), the thinking distance for a vehicle travelling at 40 km/h is 10 m. As a vehicle travelling at 40 km/h travels 11.11 m in 1 s, the thinking distance corresponds to a response time of 0.9 s. While 2.5 s may well be a reasonable response time for the Defendant as a pilot, I did not see that the reasonable time for the Defendant should be any different from an ordinary cyclist, i.e. 0.9 s.

20. Furthermore, the Defendant’s purported response time of 2.5 s was also inconsistent with his testimony. As mentioned above, on D1, the Defendant stated that he was about 25 m away from the lady when he first saw her. The Defendant said that he did not ring the bell or decelerate until after the response time, so the Defendant was travelling at 40 km/h for 2.5 s (covering a distance of 27.5 m) before he could ring the bell or have any kind of response. In other words, on the Defendant’s testimony, the Defendant would have already hit the lady before he could respond (if the distance was 25 m) or the Defendant would not have had time to do anything before the collision (if the distance was 30 m).

21. Therefore, had the Defendant tried to stop his bicycle when he first saw the lady (instead of or in addition to ringing the bell), he could have stopped his bicycle in time. The Defendant would have used a response time of 0.9 s like any ordinary cyclist, covering a distance of 10 m, to stop the bicycle, and he would still have 20 m (or at least 15 m if the location of the Defendant’s bicycle in D1 were accepted) to brake his bicycle to a halt. There is no reason this could not be done given the braking distance for a vehicle travelling at 40 km/h is only 10 m in the Road User’s Code.

22. I did not accept that an emergency stop described in p.30 of the Road User’s Code could not be done. I also did not accept that the Defendant would lose control of his bicycle had he kept both hands on the handlebars to maintain control and used both brakes, particularly when it could be seen from the pictures P2 photos 1, 2 and 8 that, although the Defendant was going downhill until the junction with Marine Drive, he would be going uphill again beyond the Marine Drive junction before he reached the location of the Accident.

23. Finally, I found that had the Defendant paid due care and attention at the time of the accident, he would have tried to stop his bicycle (and successfully done so by reason of the above) when he first noticed the lady, because he should have noticed that there was a real risk that the lady would cross the lane in which the Defendant was travelling, because the lady even failed to heed the danger posed by the approaching bus in the opposite lane.

24. In other words, had the Defendant paid due care and attention at the time of the accident, the decision to steer his bicycle left or right would not arise. Having said that, there was no reason for the Defendant to steer right because at the location of the Accident, there was going to be a right turn. In the sketch in the Defendant’s record of interview P4, the Defendant was cycling in the middle of his lane prior to the Accident. Had the Defendant steered his bicycle to the left, he would have had a slightly longer distance to stop his bicycle. On the contrary, the route from the middle of the lane to the right of the lane was a relatively straight one, hence the distance for stopping the Defendant’s bicycle was shorter.

25. Furthermore, by choosing to steer his bicycle to the right, the Defendant was forced to go past the lady closely behind her because steering too far to the right would endanger himself.  In fact, the Defendant went so close behind the lady that the Defendant collided with the lady when she merely took a step back.  In choosing to steer his bicycle to the right and go so close behind the lady, the Defendant failed to take into the account the shock reactions of the lady when she realized the presence of the Defendant and his bicycle at the last minute.  As unreasonable the lady’s reaction of taking a step back and facing the onrushing Defendant may be, it was not unforeseeable.”

54.  In my judgment, the learned Magistrate’s findings that:

The distance between the appellant and the lady when he first saw her was about 25 m instead of “a little less than 30 m” as the appellant said in his evidence:-

(i) A reasonable response time for the appellant, given the speed of the bicycle, should be 0.9 s instead of 2.5 s as suggested by the appellant;

(ii) Had the appellant tried to stop his bicycle when he first saw the lady (instead of or in addition to ringing the bell), he could have stopped his bicycle in time.  The appellant would have used a response time of 0.9 s covering a distance of 10 m to stop the bicycle, and he would still have 20 m (or at least 15 m if the location of the appellant’s bicycle in D1 were accepted) to brake his bicycle to a halt. The Road User’s Code provides that for a vehicle travelling at 40 km/h is only 10 m, there is no reason why an emergency stop could not be done; and

(iii) Although the appellant was going downhill until the junction with the Marine Drive, he would be going uphill again beyond the Marine Drive junction before he reached the location of the Accident.  The learned Magistrate did not accept that the appellant would lose control of his bicycle had he kept both hands on the handlebars to maintain control and used both brakes as the bicycle was going uphill before it reached the location of the Accident

cannot be faulted.  The learned Magistrate analysed the evidence and explained his findings with convincing reasons.

55.  It is clear from paragraph 24 of the Statement of Findings that the learned Magistrate had considered whether there were other options available to the appellant and whether or not they were reasonable.  Mr Surman argues that by taking option 1, i.e. brake immediately, there was a real and significant risk the appellant’s bicycle could have flipped over and he could have collided with a bus.  The learned Magistrate rejected the appellant’s evidence for good reasons and I agree with learned Magistrate’s findings. 

56.  For option 2, i.e. steering to the left and attempt to go in front of the lady, Mr Surman submits that:-

“At that time the lady was halfway through crossing the road and if she continued at that speed, the gap between the curb and the lady would get smaller as she crossed the road. As the appellant described it, option 2 would have left him with ‘no margin of error’ and as he was decelerating, they were ‘just coming to a collision point right in the corner of that road”, Transcript evidence of the Defendant [p.70]’. Mr Surman agrees there was a real and significant risk the appellant may not have avoided colliding with the lady (Paragraph 23 of the Skeleton Submissions of the appellant).”

57.  As for option 3, the one chosen by the appellant, I agree with the learned Magistrate’s observations at paragraph 25 of the Statement of Findings.  Mr Surman takes issue with the reference made by the learned Magistrate that the lady’s reaction of taking a step back was not unforeseeable.  I shall deal with the issue of foreseeability in the later part of the judgment.  The learned Magistrate was right to say that by taking option 3, the appellant was forced to go past the lady behind her because steering too far to the right would endanger the appellant.  The learned Magistrate was right to say that the appellant went so close behind the lady that he collided with the lady when she merely took a step back.  In this regard, option 3, same as option 2, would have left the appellant with “no margin of error”.

58.  The learned Magistrate was of the view that by taking option 3, the appellant failed to take into account the shock reactions of the lady when she realized the presence of the appellant and his bicycle at the last minute.  In my judgment, option 3 was feasible if the lady did not notice the presence of the appellant and his bicycle and went on her way at the pace she was doing, the appellant would be able to go past the lady behind her without a collision.  If the lady realized the presence of the appellant and his bicycle, how she would react to the onrushing bicycle was anybody’s guess.  Surely the lady did not know whether the cyclist would brake the bicycle, steer right or steer left, the shock reactions of the lady, as right pointed out by Mr Daryanani depends on person to person.   The reaction of the lady might take one of at least three forms:

(i) she might remain standing still;

(ii) she might step back if she thought the cyclist would steer left and go in front of her; or

(iii) she might continue to move forward if she thought the cyclist would steer right and go behind her.

59.  In my judgment, the learned Magistrate had considered carefully whether option 2 and option 3 were available to the appellant and whether or not these options were reasonable.  What the learned Magistrate found at paragraph 23 was that had the Defendant paid due care and attention at the time of the accident, he would have tried to stop his bicycle and he would have successfully done so. The learned Magistrate was effectively saying a reasonably prudent cyclist would not steer his bicycle to the left or right in the circumstances.

60.  Ground 2 fails.

Ground 3: The learned Magistrate erred in concluding that the appellant was careless when there was no positive evidence of carelessness

61.  I agree with the learned Magistrate’s finding that the only reasonable action by the appellant was to apply the emergency brakes.  By reasons of the analysis in paragraph 21 of the Statement of Findings, the appellant would have successfully stopped his bicycle in time had he tried to stop his bicycle.

62.  I also agree with the learned Magistrate’s finding that the only reasonable action at the time was to apply the emergency brakes.  I do not agree with Mr Surman’s submissions that there were several reasonable options open to the appellant.  The other two options, i.e. steering left or right were laden with risks.  The appellant was in a situation where he should have stopped his bicycle and he would have successfully stopped his bicycle in time.  The appellant, instead of applying the brakes, chose to steer his bicycle to the right to go so close behind the lady. I agree with Mr Daryanani that the appellant was clearly taking unnecessary risks which resulted in the accident.

63.  Ground 3 fails.

Ground 4: The learned Magistrate applied Res Ipsa Loquitor to a criminal case by requiring the appellant to prove the reasonableness of his actions rather than requiring the prosecution to prove carelessness 

64.  Mr Surman candidly submits that Ground 4 is closely connected with Ground 3 and need not be dealt with separately.

65.  The learned Magistrate found that on the facts of this case, the only reasonable action on the part of the appellant was to apply the emergency brakes and had he done so, he would have successfully stopped his bicycle.  In other words, the decision to steer his bicycle left or right would not have arisen.  I do not think the learned magistrate had applied the principle of Res Ipsa Loquitor.  Quite apart from the fact that the learned magistrate stated clearly in paragraph 5 of the Statement of Findings (Pg 8 of the Appeal Bundle) that:

“I have reminded myself that the principle of res ipsa loquitor does not apply to criminal case.”

66.  In my judgment, the learned Magistrate had carefully analysed the evidence and the manner of cycling of the appellant, which is evident from paragraphs 7 to 26 of the Statement of Findings (Pg 9-14 of the Appeal Bundle).

67.  Ground 4 fails.

Ground 5: The learned Magistrate erred in finding that the lady’s reactions were foreseeable after having concluded that they were unreasonable

68.  I adopt the analysis I made in respect of Ground 2.  The criticism that it was unreasonable for the lady to step back was made with considerable benefit of hindsight.  The lady’s reaction to step back was made at the split of second, the lady’s reaction to step back only looks unreasonable because one matches it with the appellant’s decision to steer right to attempt to go past the lady behind her.  When the lady realized the presence of the appellant’s bicycle, surely she did not know how the appellant would react to the situation, i.e. whether the appellant would brake and stop the bicycle or steer left to go in front of the lady or to steer left to go past the lady.  Of course we now know that the appellant steered his bicycle to the right and the stepping back by the lady in that regard might seem unreasonable.  I do not think the lady would know at the time how the cyclist would react to the situation.  I do not think one should attribute a degree of unreasonableness to the reaction of the lady.  The reference made by the learned Magistrate that the lady’s reaction of taking a step back was not unforeseeable should be read in its proper context.  As I said, the reaction of the lady upon seeing the presence of the appellant’s bicycle might take one of several forms:

(i) she might remain standstill; or

(ii) she might move forward or step back to dodge the onrushing bicycle.

69.  What the learned Magistrate said in paragraph 25 of the Statement of Findings is that had the appellant taken into account the shock reactions of the lady when she suddenly realized the presence of the appellant and his bicycle, the appellant should have realized one of the possible reactions of the lady was to step back.

70.  I do not think that the learned Magistrate was applying a legal test of foreseeability when he observed that it was not unforeseeable that the lady would react by taking a step back.

71.  Ground 5 fails.

Ground 6: The learned Magistrate failed to give appropriate weight to the appellant’s evidence regarding his ability to make an emergency stop

72.  In my judgment, it cannot not be reasonably argued that the learned Magistrate had not analysed the appellant’s evidence regarding his ability to make an emergency stop.  The learned Magistrate examined with great care the evidence of the appellant in paragraphs 15 to 24 of the Statement of Findings and gave cogent and convincing reasons why he rejected the appellant’s explanation regarding his ability to make an emergency stop.  The learned Magistrate had the advantage of hearing and observing the evidence of the appellant.  As McWalters J (as McWalters JA then was) summarized the legal principles of an appeal under s. 113 of the Magistrates Ordinance in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383 at pg 403:-

“The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong.”

73.  In my judgment, it cannot reasonably be contended that the learned Magistrate’s finding in relation to the appellant’s evidence regarding his ability to make an emergency stop was wrong, let alone plainly wrong.

74.  Ground 6 fails.

Ground 7: Lurking Doubt

75.  In my judgment, the learned Magistrate did err in holding that the “only issue” in this case was whether the option taken by the appellant at the time was the safest one, albeit it could not avoid the accident.  The question for the learned Magistrate should be: was the appellant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?

76.  I heard counsel submissions on the effect of an error of law on an appeal by way of re-hearing.  I have considered the dictum of McWalters J (as he then was) in Ip Chin Kei.  Paragraph 39 to 42 of the judgment read:-

“Errors of Law

The appellate court applies the law as it is at the time of rehearing and if the law has changed then the appellate court applies the correct legal principles to the evidence before it. The fact that the law had changed does not automatically mean that the appeal must be allowed. Much depends upon the nature of the legal change and its impact upon the proceedings below. If the appellate court can make allowance for that error and still discharge the function of determining whether on the evidence adduced at trial the prosecution has proven the guilt of the defendant beyond reasonable doubt then it should do so. This was certainly the view if McMahon J in HKSAR v Sherlock (unrep., HCMA 73/2009, [2009] HKEC 1817), para 11:

‘I might add that it naturally must follow that because this appeal is in the nature of a re-hearing, any error of law by the Magistrate must also be a matter which can be re-addressed on the re-hearing. In other words rather than any error of law vitiating a conviction and requiring the conviction to be quashed, the appellate court for the purposes of re-hearing should apply the correct principles of law as part of the re-hearing process and assess the evidence on that basis.’

40. However this approach must now be reviewed in light of the judgment of the Court of Final Appeal in Raymond Chen v HKSAR (2010) 13 HKCFAR 728. In this case the Court of Final Appeal was answering two certified questions of law which are set out at p.732, para. 7 of the judgment of Litton NPJ:

(a) Is it appropriate for a trial court to launch an inquiry into whether or not an accused person had made an out-of — court statement to him?

(b) Whether the appeal judge was right in his view that there exists what he called ‘modern jurisprudence’ pursuant to which credibility can be dealt with on the transcript in the way he did?

41. In dealing with the first question Litton NPJ commented on a statement made by the appellate judge in rejecting submissions that there was an irregularity when the Magistrate enquired into the statement the defendant made to the police and that in his reasoning in convicting the defendant the Magistrate had reversed the burden of proof. The comment of the appellate judge in rejecting these submissions is quoted at para. 51 and was:

Suppose I was wrong in the judgments I have made so far, what would the result be?

To this Litton NPJ responded:

The answer surely is: The appeal must be allowed; the conviction quashed. The appellant’s main complaint, as identified by the Judge, was that the Magistrate had, in effect, reversed the burden of proof.... This would have been a material irregularity if established. So, if the judge was ‘wrong’ in rejecting the submissions then that ground of appeal succeeded. Full stop.

42. This passage from Litton NPJ’s judgment suggests that if the appellate court concludes that the Magistrate has misdirected himself on the law or applied the law erroneously and that what he has done constitutes a material irregularity then the appeal must be allowed. Such an approach would appear to be more appropriate to an appeal in the strict sense rather than an appeal by way of rehearing and whether every legal error constituting a material irregularity must result in the appeal being allowed and the conviction quashed is a matter that may have to be addressed by the Court of Final Appeal on another occasion.  My own view is that it should not and the appeal court should be slow to conclude that it cannot fulfill its statutory duty to rehear the case.”

77.  McWalters J’s reading of Litton NPJ’s judgment in Raymond Chen is that the judgment seems to suggest if the appellate court concludes that the magistrate has misdirected himself on the law or applies the law erroneously and that what he has done constitute a material irregularity then the appeal must be allowed.

78.  My own view is that, in Raymond Chen, before Litton NPJ dealt with the two certified questions of law, Litton NPJ had gone through the evidence of the case in details and the conduct of the proceedings in the court below.  Litton NPJ considered the inherent probabilities of the prosecution case and the defence case.  Litton NPJ said at paragraph 17 of the judgment that:

“Pausing here and viewing the two versions of event objectively, the defendant’s version was not inherently improbable.”

79.  As for the inherent probabilities of the prosecution case that the defendant used the barbell to hit the alleged victim, Litton NPJ said at paragraph 14 and 15:

“14 To have intentionally pushed it at someone standing on the side of the passageway so as to make impact on the forearm, would have required the 40-inch long barbell to be manoeuvred partially sideways, risking impact against the equipment on the other side.

15. Assuming an intention to hurt, to have chosen to use such a piece of equipment for that purpose is very odd: It left the assailant totally vulnerable to retaliation, with both hands holding that heavy and awkward piece of equipment.”

80.  Litton NPJ was also of the view that that the magistrate, in his conduct of the trial, gave the appearance of having in effect accepted the alleged victim’s version of events.  The defendant’s cross-examination of the alleged victim was repeatedly stopped or intervened by the magistrate.

81.  It was against the aforesaid background that Litton NPJ said:

“...if the judge was ‘wrong’ in rejecting the submissions then that ground of appeal succeeded. Full stop.”

82.  In my judgment, it was against the aforesaid inherent probabilities of the defence case, the inherent improbabilities of the prosecution case and the conduct of the trial that made Litton NPJ said what he said at paragraph 51 of the judgment in Raymond Chen.  The passage from Litton NPJ’s judgment does not suggest that if the appellate court concludes that the Magistrate has misdirected himself on the law or applied the law erroneously and that what he has done constitutes a material irregularity then the appeal must be allowed.  In my judgment, in the present case, there was little dispute as to what happened, the evidence as to how the accident happened all came from the appellant. There is no reason why the appellate court, having found that the learned Magistrate had misdirected him on the law, should not apply the correct principles of law as part of the rehearing process and assess the evidence.  In my judgment, the error by the learned Magistrate should not lead to the appeal being allowed and the conviction quashed.  As McWalters J (as he then was) said in Ip Chin Kei, the test in determining whether an error by the Magistrate should lead to an appeal being allowed and the conviction quashed is whether it is just for such an order to be made.  In the present case, the answer is clearly “No”, it is no just to allow the appeal because of the error made by the learned Magistrate.

83.  On the evidence adduced by the prosecution, the only reasonable action by the appellant in the circumstances was to apply the emergency brakes.  By steering the bicycle to the right, the appellant went so close behind the lady.  The appellant had clearly failed to take into account the shock reactions of the lady when she realized the presence of the appellant and his bicycle at the last moment.  I agree with the respondent’s submissions that the appellant was clearly taking unnecessary risks by steering his bicycle to the right.  In my judgment, the appellant was not exercising that decree of care and attention that a reasonable and prudent and prudent driver would exercise in the circumstances.  On a re-hearing, looking at the evidence adduced before the learned Magistrate I am satisfied that on the evidence the guilt of the appellant has been proven beyond reasonable doubt.

Disposal of the Appeal

84.  For the reasons given, I dismiss the appellant’s appeal against conviction.