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State v Low [2005] FJMC 12; Traffic Case No 2371 of 2004 (16 May 2005)

IN THE FIRST CLASS MAGISTRATES’ COURT
WESTERN DIVISION AT LAUTOKA

TRAFFIC CASE NO. 2371 OF 2004

STATE

V

KENNETH MANG KWONG LOW

For Prosecution: Inspector Shaukat Ali
For Accused: Mr S. Krishna

Date of Hearing: 12/4/05
Date of Judgment: 16/5/05

JUDGMENT

The accused is charged with the offence of careless driving. It is alleged that on 31/7/04 the accused drove a motor vehicle on Queens Road, Field 40 without due care and attention.

According to Ravin Dayal (PW1) at about 5.45pm a grayish brown Land Cruiser Registration No. DK 168 whilst overtaking his motor vehicle hit the front right fender. PW1 did not see the driver of DK 168. He said he stopped after the accident to inspect the damages and then drove and reported the matter to Lomolomo Police Post and gave a statement to Acting Corporal Arieta.

Subsequently PC Rameshwar Prasad (PW3) was appointed investigating officer and he carried out a search of the Land Cruiser DK 168 and was informed that it belonged to the accused. He later interviewed the accused and put the allegations to him that he had an accident with PW1’s car. The accused denied having a collision but admitted that he had overtaken PW1’s car. He also admitted that on 2/8/04 he realized that his Land Cruiser may have been involved in an accident when a police officer told him that his vehicle was involved in an accident and he later inspected his vehicle and found that it had minor scratches on the left hand side rear bumper.

PW3 prepared a rough scratch plan and he marked the point of impact before the tramline whilst PW2 said that the accident may have happened after the tramline crossing and Ulamila Susu (PW2) a passenger in PW1’s car said it was near the tramline and the accused said that he overtook PW1’s car after the tramline.

There was a vehicle coming from the opposite direction before the overtaking. There is variance in the evidence of PW1 and the accused as to how far away it was. PW1 said it was 2 chains away (152 feet) whilst the accused said it was 100 metres.

The accused said that as he positioned his vehicle to overtake after giving the right hand indicator and PW1 accelerated as he wanted to do a race and black smoke came out of his motor vehicle and he was able to overtake as his vehicle had a 4.2 litre engine. It was never suggested to PW2 by the defence counsel in cross examination that he had accelerated when he was being overtaken and since he was not asked to comment on this I am unable to accept the version put by the accused in his evidence. The accused also said that PW1 made a sudden stop and he saw in his rear vision that a bus was right on top of him and he made an instant decision to overtake and was able to overtake without any problem. It is inconceivable that PW1’s car which had 4 passengers would give a race to a 4.2 litre Land Cruiser from a stop situation.

The accused is indeed a very experienced driver. He has been driving in Fiji since 1964 but on the day in question he overtook PW1’s car and cut in too soon as there was an oncoming vehicle and thus his left hand bumper grazed the front right hand fender of PW1’s car and the accused did not feel the impact and therefore did not stop after the accident. The accused’s driving at that point in time fell below the standard of a reasonable, prudent and experienced driver and I therefore find the accused guilty of the charge and I convict him of the charge.

Mohammed S. Khan
Resident Magistrate