HKSAR v. WONG TZE KONG

HCMA307/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.307 OF 2002

(ON APPEAL FROM WSS 17318 OF 2001)

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J U D G M E N T

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1. This is an appeal against conviction only.

2. The appellant, a professional driver, was convicted of an offence of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374.

3. The facts of the case, as found by the magistrate, were that the appellant, whilst driving a Kowloon Motor Bus on route 71 at Morrison Hill Road during morning peak hour traffic, intruded slightly and at slow speed into a parallel traffic lane on his right hand side and caused damage to the left hand rear wheel arch of PW1's stationary BMW motor car. PW1 at that time was an off-duty police inspector.

4. The appellant's grounds of appeal are generally that the conviction was against the weight of evidence. He advances also a more specific ground to the effect that the magistrate did not properly take into account the possibility of collusion between PW1 and traffic police who attended the scene of the accident, one of whom prepared a sketch of the scene and gave evidence against the appellant at the trial. Other specific complaints are also made by the appellant and I will deal with those in due course.

5. I will deal firstly with the general ground of appeal of the appellant i.e. that his conviction was against the weight of the evidence. The evidence in the case consisted primarily of that of PW1, the driver of the damaged BMW; PW2, a traffic officer who attended the scene and who subsequently drew a sketch in his notebook of the positions of the vehicles as they were when he saw them in their collision positions, and DW1, a passenger on the appellant's bus, who gave evidence as to the positions of the two vehicles after she alighted from the bus following their collision.

6. The appellant who was represented at the trial did not give evidence. His case was therefore based on the evidence of DW1 who said when she alighted from the bus, she saw that it was still wholly within its own lane.

7. The prosecution's case was based on the evidence of PW1, who said that when the collision occurred he was stationary in his BMW in a line of traffic and wholly within his own lane. The magistrate's findings in regard to PW1's evidence were as follow :

"PW1's account of events is logical and consistent with all the inherent probabilities. It was factual, balanced, common-sense reporting, unvarnished by any embellishment ..."

8. The evidence of PW1 was supported by PW2 who gave evidence that when he arrived at the scene the bus was intruding slightly into the lane occupied by PW1's BMW and had contact with the car with its right front bumper.

9. The evidence of PW1 and PW2 was supported further in the view of the magistrate by the photographs taken of the damage to the two vehicles. In that regard, as to what was shown by the photographs so far as the damage to the BMW was concerned, the magistrate said :

"... the damage in this case is consistent with a force being applied by the bus to the car and not vice versa. There is a dent, not a scratch or a scrape. If PW1 had driven across the corner of the bumper of the bus, it would not be the clearly defined damage that it is."

10. Accordingly, there were three sources of evidence supporting the prosecution's case that the appellant had carelessly allowed his vehicle to intrude into another lane thereby damaging PW1's stationary car.

11. What then of the appellant's own witness DW1 who had said the bus had remained in its own lane? The magistrate rejected her evidence. He said in giving reasons for doing so :

"I find DW1 to be a mistaken witness. I appreciate she says that she looked deliberately at the positions of the vehicles in the road after she got off the bus. One would have expected her to be more concerned about getting safely to the pavement than checking those positions; and it is difficult to know how she would have appreciated the significance of the exact positions of the vehicles in relation to the white line at the material time ... She can have had no more than a glance and the situation was such that one would need to look carefully to see where the white line was, because it would be covered, to some extent, by one or other of the vehicles."

12. The magistrate was entitled to place no weight on the evidence of DW1. He examined her evidence together with the evidence in the case as a whole as he was obliged to do and having done that gave a rational basis for his rejection of it. He accepted the evidence of PW1 and PW2. Again he gave reasons why he did so. He regarded the photographic evidence as supporting PW1's evidence and he drew certain conclusions from the photographs as to the BMW being stationary when it was struck by the appellant's Kowloon Motor Bus. The Statement of Findings of the magistrate clearly sets out the evidential basis of the appellant's conviction. It cannot be said that the magistrate's findings or the conviction were against the weight of the evidence once he had rejected, as he was entitled to do, the evidence of DW1. The general ground of appeal advanced by the appellant cannot succeed.

13. I now turn to the appellant's specific grounds of appeal. The first matter complained of is that the magistrate did not properly consider the possibility of collusion between PW1 and the traffic officers who attended the scene of the accident, one of whom was PW2.

14. The appellant argues in this regard that there was evidence in the prosecution case that PW1 had colluded with and was treated favourably by the traffic police, particularly PW2, who attended the scene, presumably because PW1 was a police inspector. This suggestion, as put forward by the appellant before me, arose out of evidence he said was given in the prosecution case that PW1 went away from the scene with other officers and had dealings with them in the absence of the appellant. It is fair to say, in this regard, the appellant initially suggested before me that in evidence, PW1 admitted he had spoken to PW2 in the absence of the appellant and that PW2 in his evidence had denied this. The appellant's argument was to the effect that this discrepancy in their evidence pointed strongly to something underhand in the nature of collusion between them.

15. It is plain, however, from the transcript of the evidence of PW1 and PW2 that there was no such discrepancy. PW1 agreed in cross-examination that he did get led away from the scene by other officers and was taken a little into a side street where he was given a breath test, and spoken to by those officers. He said he did not know whether PW2 was one of those officers or not.

16. PW2 in his evidence said simply that he did not have any dealings with PW1 at the scene, though he did see him leave the scene at one stage with another colleague. Accordingly, all that is shown by the transcript is that PW1 was separated from the appellant at one stage and was subjected to a breath test and other enquiries by police officers who attended in the scene.

17. Accordingly, there is no merit in this complaint of the appellant. And I might add that any practice that the police may have of separating drivers involved in traffic accidents and talking to them in each other's absence as apparently happened in this case, seems to me to be entirely reasonable in any event.

18. The appellant also argues that PW2's evidence to the effect that the sketch of the position of the vehicles which he drew at the scene, had been drawn by him later that day and after the vehicles had been moved, and so was unsigned by PW1 or the appellant, meant his evidence was unreliable. But I do not think that must be so. PW2 gave what appears on the face of his evidence to be a valid reason for departing from his usual procedure of drawing a sketch while the collided vehicles were still in position and having the drivers sign it at the scene. He said that his primary concern on this occasion was having the vehicles moved before traffic "paralysed Hong Kong Island". Given the nature and location of the intersection, that may have been a very sensible concern. At the end of the day, the question of whether PW2's admitted departure from his usual practice reduced his credibility was a matter for the trial magistrate.

19. The final significant complaint advanced by the appellant is to the effect that the support for the prosecution case, and PW1's evidence in particular, drawn by the magistrate from the photographs of the damage to the BMW was not reasonable because the damage to PW1's car as shown in the photographs could equally have been caused by that car pulling out into the path of the appellant's bus. Photographs can sometimes deceive, no doubt, but in the present case, the magistrate points out the damage to the rear fender of the BMW, as shown in the photographs, is in the form of a clearly delineated dent . It is true there is some scoring to the paint work but there is nothing in the photographed damage to the BMW (nor to the bus fender) which would suggest the BMW might have been moving at the point of impact across the front of the bus as effectively suggested to PW1 in cross-examination on behalf of the appellant.

20. Indeed, the magistrate was entitled to conclude from the nature of the damage to the BMW, as shown in the photographs, that the BMW was stationary at the point of impact. That is because if the BMW was moving at that time, then rather than there being a symmetrical impressed dent on its fender, there would have been something in the nature of a linear abrasion or horizontal scratch to its fender area. The magistrate was entitled to draw the conclusion he did from the nature of the photographed damaged to PW1's car.

21. Accordingly, there is nothing in this last complaint of the appellant and his appeal against conviction is dismissed.