[English Translation — 英譯本]
HCMA 650/2015





(ON APPEAL FROM ESS 26615/2015)


HKSAR Respondent


Before: Hon Barnes J in Court

Dates of Hearing and Judgment: 2 February 2016
Date of Reasons for Judgment: 16 February 2016


1. The appellant was charged with one charge of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap 374 of Laws of Hong Kong. The appellant pleaded not guilty and was convicted after trial in the Kwun Tong Magistrates’ Courtby Deputy Special Magistrate Mr Andrew Hung (referred to as “the magistrate” below) and fined $800. The appellant appealed againstthe conviction.

2. After hearing, I allowed the appeal, quashed the conviction and set aside the sentence. I now give my reasons.

Facts of the case

3. Ms Catherine Ko, SADPP (Acting) on behalf of the respondent recounted the cases of both sides in her written submissions, whichI adopt as follows:

Prosecution case

2. At the trial, the prosecution called two witnesses, including the first witness Mr Shum Lap Hung (transliteration) who is a Citybusdriver (PW1) and the second witness PC18433 (PW2).

3. At 11:49 pm on the day in question, PW1 was driving a bus HU6517 of route number 5B, with twenty to thirty passengers on board,heading west on the nearside first lane of Hennessy Road at about 35 kph. On reaching the junction of Hennessy Road and JohnstonRoad and having passed half of the junction with Johnston Road, some noise suddenly came from the nearside rear of the bus. PW1 immediatelytook a look at the nearside rear-view mirror and saw a black private car, ie the private car CJ3 (“the car”) that the appellantwas driving at that time, on the nearside first lane of Hennessy [Road] with the front towards the west and that the offside frontof the car had collided with the nearside rear of PW1’s bus. So PW1 stopped at a distance of about the length of two buses away,ie 22 metres, which was where the bus-stop was.

4. PW1 said he had seen the car twice. The first time was when it was travelling on Johnston Road towards Hennessy Road; and the secondtime was when he saw it in the rear-view mirror after hearing the noise.

5. PW1 got off to check and saw scrape marks on the nearside bodywork by the rear of the Citybus bus and the offside front cornerof the car had also been scraped. So PW1 made a report to the police.

6. PW1 did not agree that his speed at the material time had far exceeded 35 kph.

Defence Case

7. The appellant did not testify in court nor did she call any witness, but her statement made under caution was produced to the court(P5) in accordance with the admitted facts. The appellant said in her cautioned statement that she had 30 years’ experience indriving vehicles of classes 1-2. At the material time, when she drove and reached the “Give way” lines on Johnston Road, shestopped for about ten seconds. She looked over to the right and could see very far away, seeing there was no vehicle on all threelanes of Hennessy Road, she then moved straight forward on the nearside first lane of Hennessy Road, passed Anton Street, and suddenlyfound that on the offside (ie nearside second lane) a bus was cutting in and forcing its way in and rubbed against the offside frontof her car. She immediately braked to a halt, and the bus pulled up at somewhere right in front of her. She got off and found thatthe offside bodywork of her car, near the right side of the headlight, had been scraped, and on the nearside bodywork of the bus,there were scraped marks in the middle part and also near the rear by the tyres. She said that the bus had been running very fastbut did not know its actual speed. She herself was moving out slowly from Johnston Road to Hennessy Road but took no notice of thespeed.

Admitted facts

8. Pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221 of Laws of Hong Kong, the prosecution and the defence admitted the following:

(a) At the time and on the date specified in the charge, there was a collision between the private car displaying registration numberCJ3 driven by the appellant and the Citybus bus displaying registration number HU6217 driven by PW1; and there is no dispute as tothe identity of the appellant.

(b) Two police officers have respectively made investigation at the location of the accident and also drawn sketches indicating therelative positions of various objects on the road at the location of the accident (P1 and P2 respectively).

(c) The appellant and PW1 have respectively provided twelve and six photographs depicting the location of the accident and the environment(P3(1) to (12) and P4(1) to (6) respectively).

(d) The statement taken from the appellant under [caution] by the police was given voluntarily and produced to the court as P5.

(e) On the day in question, the weather was fine, the road surface was dry with sufficient lighting in the street, the vision wasclear and the traffic was in normal condition. The speed limit on the road was 50 kph.

(f) The appellant has no record of criminal conviction or conviction of traffic offence.”

Grounds of appeal

4. Mr Foster Yim of counsel, representing the appellant, initially put forward nine grounds of appeal altogether, alleging that theconviction was unsafe and unsatisfactory, and subsequently withdrew his allegation that the magistrate had been “unfair”.

5. In my view, in this appeal I am only required to deal with one of the grounds: ground (7) — the magistrate was wrong in refusingthe appellant’s explanation.

My consideration

6. There was no independent witness in the present case, and only those two persons knew what had happened. The incident happenedat 11:49 pm and the speed limit of the road was 50 kph. With regard to the traffic at that time, if a driver intended to exceedthe speed limit, he could do so under suchobjective circumstances. PW1, ie the bus driver, and the appellant were both involvedin the matter. They were both interested parties as regards who had or had not driven carelessly. Neither of them was “an independentwitness”. They both might try to minimize their involvement in the matter.

7. The burden of proof lay on the prosecution. If what the defence said was or might be true, that means the prosecution failed toprove beyond reasonable doubt that the appellant had driven carelessly. [1]

8. The magistrate indicated that he did not believe the exculpatory explanation given by PW1 [sic] under caution and two of the reasonsgiven were:

“56. Of course, I do note that the defendant has alleged that the bus had been running in very high speed, but I find this allegationextremely unreasonable because it is clear from PW1’s testimony that there were twenty to thirty passengers on board the bus. Thecourt finds: the fact that there were twenty to thirty passengers on board simply made it impossible for PW1 to drive at excessive speed even ifhe wanted to because of his scruple of being complained by passengers. In addition, the court note that defence counsel has never suggested to PW1 that there were not twenty to thirty passengers on boardthe bus; in other words, defence counsel has never challenged PW1’s version of having twenty to thirty passengers on board thebus.

57. I have also noted that on page 5 of the cautioned statement, at QA11, it was asked, ‘The bus was fast, and what was the speedas you can guess?’ The defendant in response said, ‘The feeling was that it was very fast but I do not know the actual speed.’ In other words, even though the defendant alleged that PW1 had been speeding, in fact, from her testimony, there was no basis forspeed and the speed just could not be described at all.” [emphasis added]

9. I find the reasons that the magistrate has relied on all incorrect. Why did the presence of twenty odd passengers on board leadto the conclusion of “simply making it impossible for PW1 to drive at excessive speed”? Whether a driver is or will be drivingat excessive speed is up to the driver. The number of passengers does not inevitably “make it impossible” for the driver to exceed the speed limit.

10. The magistrate also said “[impossible] for PW1 to drive at excessive speed even if he wanted to because of his scruple of beingcomplained by passengers”. In the present case, there is no evidence showing that PW1 had scruple of being complained by the passengers. Moreover, if this argument of the magistrate were correct, no professional driver would drive at excessive speed.

11. Furthermore, the magistrate said that he was not satisfied with what the appellant said because she only said that the bus was “veryfast” but could not tell the actual speed. This is a view that I think is arguable. Many people cannot accurately tell speedor distance but can give descriptions only with abstract wording such as “very fast” and “very far”.

12. In the present case, the magistrate was wrong in refusing what the appellant said. If what the appellant said was or might be true,then the prosecution has failed to prove the guilt successfully.

13. In dealing with this appeal by way of “rehearing”, I only have the transcript of the trial and did not have the advantage oflistening to and observing the witnesses at first-hand. I could not make findings on facts in respect of whether the version givenby PW1 or the appellant was reliable.[2] Under such circumstances, the prosecution has failed in proving beyond reasonable doubt that the appellant had committed carelessdriving.


14. In the light of the above reasons, I allowed the appeal with the conviction quashed and sentence set aside.

(Judianna Barnes)
Judge of the Court of First Instance
High Court

Ms Catherin PC Ko, SADPP (Acting) of the Department of Justice, for the Respondent

Mr Foster HC Yim, instructed by Messrs Tony Kan & Co, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Patrick W.S. Cheung,Barrister-at-law.

[1] See the authority Archbold Hong Kong 2016 4-210 and the precedents cited therein, including: Sze Kwan Lung & Others v HKSAR (2004) 7 HKCFAR 475, Law Chung Ki & Another v HKSAR (2005) 8 HKCFAR 701 and Liberato & Others v R (1985) 159 CLR 507

[2] See HKSAR v Ip Chin Kei & Others [2012] 4 HKLRD 383