R. v. LEUNG PAK HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.735 OF 1996

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J U D G M E N T

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1. This is an appeal against conviction for careless driving. The offence is said to have taken place on 23rd November 1995 between the complainant's taxi and a goods vehicle driven by the appellant. The appellant appeared before the magistrate on 20th May 1996, pleaded not guilty and was convicted.

2. The prosecution evidence came solely from a taxi driver. He said that he was travelling along Sau Ming Road at about 20 kph and that there were at that stage three vehicles parked on the left side of the road including the appellant's. The evidence was that when the taxi was only about 10 feet away, the van suddenly pulled out as if to make a U-turn, and although the taxi swerved to the right, he was unable to avoid the collision with the van which at the point of collision was almost at a right angle to the taxi. In consequence, the left front headlight, left front indicator and left front mud-guard of the taxi were damaged. The right front door of the van was damaged.

3. The appellant gave evidence. I have to say that it is far from clear from the record what he was saying. His evidence was that he was driving his vehicle along Sau Mau Ping Road. He passed a number of heavy goods vehicles parked on the left and he then saw two children crossing the road at the pedestrian crossing ahead. Suddenly, he said "a taxi hit the front door of my van. After the collision, the taxi went on for about 2 car lengths and stopped in the middle of the road with its front pointing to the right." In cross-examination, he said the taxi had overtaken him and hit him from the right. As I say, it is far from clear what that meant, nor is that meaning any more clear from the reading of the magistrate's Statement of Findings in which there was repeated the evidence.

4. The magistrate based his conviction of the appellant on the damage to two vehicles which he said supported the complainant's account :

"Judging from the 3 photographs, Ex P1A-C, I found that the damage shown tallied with the testimony of PW1. That being the case, I accept PW1's evidence and found as of fact that when he was driving his taxi in Sau Mau Ping Road, the Appellant's light goods vehicle suddenly pulled out from the left. ..... I rejected the testimony of the Appellant because his version did not tally with the damage to the two vehicles."

The three photographs to which the magistrate referred were photographs of the taxi. I have seen the photographs of the taxi, but I have also seen the photograph of the van door which is in the file but it is not clear whether the magistrate saw that photograph. It is quite true that the photographs are not inconsistent with the taxi driver's account. But the appellant has today produced a sketch which he says he showed the magistrate. It demonstrates how he said the accident occurred, namely that the taxi driver was overtaking him but pulled in far too soon because of oncoming traffic. I cannot conclude that the damage to the two vehicles is necessarily inconsistent with that version and it is not clear from the record of findings why the magistrate came to conclusion he did in this particular regard.

5. It might be said that this is of secondary importance, given the magistrate's comment at the end of his Statement of Findings that he fully accepted the testimony of the taxi driver. Had that comment stood alone, there would be no bar to this conviction standing. But the magistrate has specifically earlier in his Statement of Findings stated that the reason he accepted the taxi driver's evidence and rejected the appellant's was that the damage was consistent with one and not the other.

6. There is a further matter which is not entirely satisfactory and it is this, that in the Statement of Findings the magistrate has said :

"The Appellant did not challenge the evidence of PW1 as to his (the Appellant's) having parked his goods vehicle on the left of the road and pulling out from the left."

That is a little puzzling, because although there was no express challenge in cross-examination - and it is to be remembered the appellant was unrepresented - it seems to me clear from the evidence which the appellant gave, that he was denying the taxi driver's assertion that he had pulled out from the ranks of the parked vans. The taxi driver had said that the appellant's vehicle was the front vehicle of the three goods vehicles parked on the left of the road. In his evidence, the appellant said that he was driving along Sau Ming Road and saw vehicles parked on the left, that it was wide enough for him to pass these vehicles and that shortly after he passed them, the accident with the taxi occurred. The magistrate recounted that evidence in his Statement of Findings, namely the evidence of the appellant that he drove passed the goods vehicle. But it is difficult to know what the magistrate meant when he said that the taxi driver's evidence about the appellant pulling out was not challenged and what bearing that had on his determination in this case. The point cannot be ignored because the allegation of pulling out from the parked space was central to the prosecution case.

7. With some hesitation, I confess, I feel in the circumstances that this appellant's appeal should be allowed. Accordingly, the conviction is quashed, and the penalty is set aside.