XTRNX HKSAR v. WONG YICK MAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 375 OF 1999

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JUDGMENT

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1. The Appellant was convicted by a special magistrate after trial of careless driving. The prosecution case is that at about noon on 30.9.98, PW1 alighted from a public light bus and walked across Shek Wai Kok Road. There were two lanes in Shek Wai Kok Road and the public light bus was parked in a bay by the first lane. As PW1 reached the middle of the second lane (fast lane), he saw the appellant's tax about 3 taxi lengths from him travelling at about 30 to 50 kmph. He turned round and ran towards the first lane. At the same time, the appellant also swerved from the fast lane to the first lane in an attempt to avoid PW1. The appellant slowed down and braked but nevertheless, hit PW1. PW2 was a passenger in the back seat of the appellant's taxi. He corroborated PW1's evidence in greater detail as to speed and distance. However, he said that PW1 was not walking at a normal pace as he was crossing the road, but was walking hastily. The appellant did not give evidence.

2. The special magistrate found that PW1 was not walking fast. She drew the inference that had the appellant exercised due care and attention he would have observed PW1 and avoided the accident. The special magistrate was of the opinion that a reasonably careful driver should immediately stop his car on seeing a person, particularly an elderly one, walking across the road instead of changing lane trying to avoid him.

3. In my opinion, the usual practice upon seeing a pedestrian in one's path is to stop rather than to swerve because swerving would necessitate shoulder checking and taking one's eye off the pedestrian and the traffic condition in front. However, it is not an unchangeable rule. It all depends on the circumstances. If attempting to stop is to result in a sure hit, there is no reason why the driver should not swerve.

4. There is no evidence how far the appellant's taxi was when PW1 began to cross the road. If PW1 walked into the path of the taxi at such a short distance which makes it impossible for the taxi to stop without hitting him, I do not think the appellant should be blamed for swerving. The only evidence from PW1 was that when he was in the second lane, the appellant's taxi was just three taxi lengths from him. There taxi lengths for a taxi travelling at 50 kmph is a very short distance. If, as PW2 said, PW1 was walking hastily across the road, the irresistible inference on the other hand is that he had not check the traffic and walked into the appellant's path without leaving the appellant enough time to stop. According to PW2, the appellant did slow down, brake and swerve and that had PW1 not turned back, the appellant would have successfully avoided the accident.

5. With respect to the special magistrate, it is not an invariable rule that a driver must stop when someone crossed the road. She also failed to resolve the inconsistency between PW1's and PW2's evidence as to whether PW1 was walking hastily. She failed to have regard to PW1's evidence that when he was in the second lane, the appellant's taxi was just three taxi lengths from him. Had she directed her mind to that evidence, she could not have drawn the inference that that the appellant had enough time to observe the presence of PW1 on the road. For the above reasons, I consider the conviction is unsafe and unsatisfactory. I therefore allow the appeal, set aside the conviction and order that the fine and costs paid be refunded to the appellant. The appellant shall have costs of the appeal and the costs below, to be taxed if not agreed.