HKSAR v. WONG KAM MAN

HCMA 647/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 647 OF 2005

(ON APPEAL FROM KCS 2613 OF 2005)

____________

____________

_______________

J U D G M E N T

_______________

1.  The Appellant, a public light bus driver in his mid-40s, appeals against his conviction after trial before D.I. Thomas, Esq. in the Magistrate’s Court at Kowloon City on a charge of careless driving.

2.  The front of a public light bus driven by the Appellant struck the rear of a private car.  PW1, who was the driver of the car, testified that he was stopped at traffic lights showing red when the collision took place. The Magistrate did not accept that.  He found instead that the lights were showing green and that the collision occurred when the car, having gone through the green light, stopped before negotiating a bend to the left, to see if any traffic was coming from the right.  Nevertheless he convicted the Appellant of careless driving, doing so on his view that the Appellant should have contemplated that the car would stop and should therefore have driven slowly enough to stop too.

3.  That basis of conviction was at variance with the case for the prosecution which, as the Magistrate said in his Statement of Findings, was “that the front of the public light bus driven by the defendant collided with the rear of a private car waiting at a set of traffic lights showing red.”

4.  On the papers before me, the only hint of it having been put to the Appellant that he was careless in the way on which the Magistrate convicted him is to be found in a reference, in the Statement of Findings, to the prosecution having suggested to the Appellant that on his account he would have been making an assumption about the progress of the car.  The prosecution made no final speech.  The Magistrate did not invite the Appellant to deal with the basis on which he was eventually convicted.  And the Appellant naturally directed his final speech to contesting the prosecution’s case that the lights were showing red.

5.  In my view, the Appellant was convicted on a basis at variance with the prosecution’s case and of which he had no fair notice.  The conviction is therefore unsafe and unsatisfactory.  The just course is to allow the appeal, to quash this conviction, and I do so.