HKSAR v. CHUNG CHI MING

bjbj HCMA363/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.363 OF 2002 (ON APPEAL FROM STS 6215 OF 2001) --------------------- BETWEEN HKSAR Respondent and CHUNG CHI MING Appellant ---------------------- Before : Hon Nguyen J in Court Date of Hearing : 31 July 2002 Date of Judgment : 31 July 2002 ----------------------- J U D G M E N T ----------------------- AUTONUMOUT The appellant was convicted of the offence of being the driver of a bus without a reasonable excuse, failing to take all reasonable precautions to ensure the safety of a passenger on his bus. He was convicted by Ms L.K. Loh on 21 March 2002 at Shatin Magistracy. He now appeals against his conviction. AUTONUMOUT His counsel, Mr Luk, has advanced a number of grounds. The first ground is that the learned magistrate failed to appreciate and consider the explanation of stopping in compliance with traffic lights given by the appellant as sufficient to constitute a reasonable excuse. AUTONUMOUT The offence in question is one of strict liability involving as it does the safety of passengers of public buses. The only defence open to a defendant is one of reasonable excuse. Once that defence is raised by the defence, it is incumbent on the prosecution to try and negative it. The explanation offered by the appellant was considered by the magistrate who, in her Statement of Findings, sets out the reasons why she found that he had not taken all reasonable precautions to ensure the safety of his passengers. AUTONUMOUT The second ground is that the magistrate erred in rejecting the evidence of the husband of the injured passenger when she found that his evidence differed from her evidence in a material particular. The magistrate was entitled to accept the evidence of one witness and reject that of another even if she found the evidence of the latter reasonable and credible, especially if there was a difference between the evidence of the two witnesses. The reason why she accepted the complainant s evidence was mainly because she had demonstrated in court many times and in detail her position when she fell. AUTONUMOUT The third ground of appeal is that the magistrate had conveyed a wrong message to defence counsel when she said to him that it would be to his advantage not to ask further questions. Defence counsel at the trial was Mr Luk himself. It is a matter of record that Mr Luk is counsel of a number of years experience. It goes without saying that just because the magistrate had said that it was to his advantage not to ask again, he would have felt constrained to stop his cross examination if the continuance of it would advance his case. Apparently what had happened was the husband had said that his wife had changed seats and was about to settle into her seat when she fell and she had said that she was about to change seats when she fell. It was a fair and correct comment by the magistrate that the husband s evidence was more advantageous to the defence and therefore, it was only her opinion that it would be to the defence s advantage not to pursue that point. I find nothing in that ground. AUTONUMOUT The fourth ground is that the magistrate had erred in finding the appellant had not taken all reasonable precautions because this finding was totally inconsistent with her finding that his account was credible and logical. The complainant had testified that she fell because of the bus jerking and the jerk occurred when she was on her feet about to change from her original seat to the seat next to it, which would have placed her next to her husband. The appellant s evidence was that he slowed his bus to about 20 km/h at about 50 metres from the traffic lights. At around 10 to 11 metres from the junction, the lights changed to amber and he prepared to and did stop the bus. He said he stopped the bus normally without any sudden jerking. AUTONUMOUT Cheung for the respondent accepts that it was unfortunate that the magistrate had said that that account by the appellant was credible and logical. His account contrasted directly with that of the complainant in that he said there was no jerking when he stopped the bus. The magistrate said that just because he had stopped his bus normally , it did not mean that he was driving with the level of care required by law. She found eventually that he could have taken all reasonable precautions by approaching the traffic lights more slowly. Implicit in that finding is a finding that she rejected that part of his evidence when he said that he had stopped the bus without any sudden jerking. AUTONUMOUT In my view, what occurred which led to the magistrate s eventual conclusion could not have rendered the conviction unsafe or unsatisfactory. This particular law is a very stringent one to ensure that all passengers travelling on public buses do not suffer any injuries. It requires a very high standard of drivers of public buses. It may slow the progress of buses but it is necessary to ensure that members of the public remain safe. AUTONUMOUT What can be said on behalf of the appellant is that when the complainant decided to change seats, the bus was in motion and he would not have expected a passenger to be doing that, but, as the magistrate pointed out, he should have been aware that there was always the possibility of that happening because people rise from their seats to ring the bell or to move towards the exit doors to get ready to alight from the bus. AUTONUMOUT The appeal against conviction is therefore dismissed. (Peter Nguyen) Judge of the Court of First Instance, High Court Mr Patrick Cheung, DPGC, for HKSAR Mr Albert Luk, instructed by Messrs Susan Liang & Co., for the Appellant - PAGE - "@AB "@AB "@AB & 6" Alice Normal.dot setup Microsoft Word 9.0 Title Microsoft Word Document MSWordDoc Word.Document.8