HKSAR v. WU YAT CHEUNG

DCCC 668/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 668 OF 2012

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REASONS FOR VERDICT

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1.  The charges arise as a result of a fatal traffic accident which occurred on the afternoon of 31 December 2011. At about 1442 hours the defendant was driving a Public Light Bus registration number EK 3613 ( the PLB) along Kwun Tong Road in an easterly direction towards Kwun Tong. There were  about  10 persons onboard the minibus. The speed limit was 70km per hour. The PLB travelled along the third lane of  Kwun Tong Road. Immediately before the accident the PLB was travelling at a constant speed of 61/2 km per hour As the PLB approached the junction of Choi Shek Lane which was on its nearside, the PLB, without warning, crossed from the third lane across the second lane and  into the nearside lane maintaining its speed at 61-62 km per hour. The PLB then mounted the pavement on the easterly side of Choi Shek Lane, smashed through the roadside railings, a speed sign and  a street sign before smashing into a bus shelter where it eventually stopped.

2.  One elderly passenger on the PLB  was killed, and another passenger suffered grievous bodily harm.  Another passenger sustained minor injuries. A female pedestrian, PW4, was walking along Kwun Tong Road towards the bus shelter carrying her 2 year-old grandson. She was struck  from behind by the PLB and both she and her grandson suffered grievous bodily harm.

3.  After the accident the defendant was trapped inside the driving seat of the PLB and firemen assisted in freeing him from the vehicle. The defendant was placed inside an ambulance where he was later spoken to by a police officer investigating the accident, PW5. According to PW5, the defendant said that the accident occurred because he was forced to take evasive action  in order to avoid a light goods vehicle which had swerved into his path. According to PW10, a doctor from the United Christian Hospital who saw the defendant on the ward of the hospital at 2017 hours on the day of the accident, the defendant told him the accident was caused by his taking evasive action because of a vehicle overtaking his bus on the right side.

4.  Video footage of the accident taken by cameras inside the PLB and a private vehicle following behind made it clear that the PLB was not impeded or obstructed by any other vehicle.

5.  The defendant denied having said anything to either PW5 or PW10 about his vehicle being impeded or obstruced. The defendant said in evidence that the accident was caused because, somehow, his right foot was trapped between the accelerator and brake pedals of the PLB.

6.  No defects were found with the PLB which might have contributed to the accident.

Admitted Facts Ex P14

7.  Inter alia, the following facts were admitted:

1) On 31 December 2011 Mme Chow Yee, aged 90, was a passenger on the PLB at the time of the accident. On 1 January 2012 she died as a result of head injuries sustained in the accident. A pathologist’s report was admitted as Ex P13.

2) On 31 December 2011, Sin Wong Chan, age 48, was a passenger on the PLB at the time of the accident and sustained grievous bodily harm. A medical report was produced as Exhibit P3.

3) On 31 December 2011, Wong Wai Chun, PW4, aged 47, and her two -year old grandson, Chan Ka Ho, were pedestrians, walking along the footpath of Kwun Tong Road when they were hit by the PLB. Both sustained grievous bodily harm. Their medical reports were admitted as Exhibits P5 and P6.

4) On 04 January 2012, the PLB was examined at the Homantin vehicle compound. No defects were found which would have contributed to the accident. The lights and horn were found to be operative.

5) On 03 January 2012 the speed display was removed from the PLB and given to the vehicle manufacturers who downloaded the relevant information. A report showed that the PLB for the 10 seconds or so during the occurrence of the accident was travelling at a constant speed of 61-62kph.

6) The defendant rented the PLB daily from 5 am each morning until 3 pm and the PLB plied between Pak Hoi Street, Jordan and Po Tat Estate.

7) Photographs of the scene taken at 3.25pm on 31 December 2011 were produced as Exhibit P8.

8) At 3.20pm on 31December 2011, PC 10175 drew two sketches of the accident scene, one not to scale and the second drawn to scale based on distances recorded in the first sketch. They were produced as Exhibits P9  and P10.

9) During the police examination of the scene of the accident on 31 December 2011 no skid marks were found.

10) At about 6pm on 31 December 2011 a police officer took 8 photographs at the scene of the accident which were produced as P11. The police officer also took photographs of the PLB at the Homantin vehicle compound at 11am on 3 January 2012 which were produce as Exhibit P12.

11) The PLB was fitted with a camera recording device. The memory card from the camera was seized by a police officer and downloaded on to a disc which was produced was Exhibit P1.

12) Shortly after the accident, a Ms Cheung Siu Mei, PW1, gave the memory card from a camera recorder fitted to her private car to a police officer, PC10175. The officer never viewed the contents of the memory card. The contents of the memory card were downloaded on to a disc and produced as Ex P2.

13) A medical report relating to injuries sustained by the defendant during the accident was produced as Exhibit P18.

Prosecution Witnesses

PW1 Madame Cheung Siu Mei – A motorist

8. PW1 said that at the material time she had driven her private motor car out of the car park at Megabox and along Kwun Tong Road towards Kwun Tong. She was intending to go to a church in Choi Shek Lane.

9. PW1 said that the weather was good and the traffic was average. She said that she did not notice the PLB until after it had crashed. She said that she did not see where it came from.

10. PW1 said she gave the police her memory stick from the car’s video camera.

11. She said that prior to the crash she heard no sounds of horn or screeching of brakes. PW1 said that the date and time on her camera have not been adjusted and are therefore not accurate.

PW2 Chak Lai Fan - a passenger on the PLB

12. PW2 said that she was seated in the third row of the PLB on the driver’s side in the aisle seat. She said that there were about 10 passengers the PLB. She said that she did not pay attention to the traffic.

13. PW2 said that immediately before the crash she was not paying attention as she was putting on her jacket. She said she did not know what happened before the crash.

14.  PW2 said that just before the crash she heard no one say anything nor the sound of any horn. She said that she was not aware of anyone asking to get off.

15.  PW2 said she was able to get off the bus after the crash. She said the driver was still in the driving seat with his head was to one side. She said that she thought he had passed out.

16.  PW2 said that when she got off the bus the police and firemen had arrived.  She said that she thought the door of the PLB opened automatically after the crash. PW2 said the police arrived about 3-4 minutes after she got off the bus.

PW3 Madame Ho Sui Fun, a passenger on the PLB

17.  PW3  said she  was seated on the nearside of the bus in a single seat. She said that immediately before the crash she changed to the last seat on the left hand side and she wore a seat belt.

18.  PW3 said she was not paying attention to the road conditions before the crash. PW3 said she heard no warning. She heard no hooter being sounded. PW3 said that before the crash, she was aware of no swerving of the PLB nor  any braking.

19.  PW3 said she was able to get out even though injured. PW3 said she was very scared, the door opened and she got off.

20.  PW3 said that after the crash she saw the driver was leaning to one side lying on his seat.

21.  PW3 said that immediately before the crash nothing unusual happened. She said that  she did not hear anybody ask to alight before the crash.

PW4 Wong Wai Chun – pedestrian walking along Kwun Tong Road

22.  PW4 said that at the time of the accident she was walking along Kwun Tong Road towards the bus stop outside  St Joseph’s Anglo Chinese School.

23.  She said that she had collected her two-year old grandson to take him to a family party. She said that she intended to get a bus, Route 40, from the bus-stop, and to go to Laguna City. PW4 said that she can recall walking along Kwun Tong Road  towards the bus stop  and the next thing she recalled was waking up in intensive care in hospital. She said she heard no car horn before the accident nor any other warning. PW4 said she is still walking with a stick as a result of the injuries sustained and she has no idea how long she will need it. PW4 said her grandson was injured but has now recovered. Both PW4 and her grandson sustained serious injuries.

PW5 SPC 3659 Wong Chi Kin – Police officer who attended the scene and spoke with the defendant

24.  The defence counsel indicated that he would object to the admissibility of an alleged oral utterance made by the defendant to PW5 shortly after the accident on the grounds that the defendant was not cautioned and, in any event, his mental state was such that no weight could be attached to any utterance allegedly made.

25.  PW5 said he is attached to the Police Traffic Unit in Kowloon East. He said he arrived at the scene of the accident  by motorbike and he was not the first officer to arrive on the scene. PW5 said that he received the call at 1442 and arrived at 1450. When he arrived there was one police officer present, ambulancemen and firemen. PW5 said that when he arrived the driver was trapped in the driving seat and eventually he was freed by the firemen. PW5 said the defendant was conscious. PW5 said he did not speak to him at that stage. PW5 said he was freed from the PLB about 7-8 minutes later. PW5 said that  ambulancemen took the defendant to the ambulance and he was conscious.

26.  PW5 said he boarded the ambulance and  asked the driver how the accident occurred. PW5 said that the driver said that he was driving the PLB along Kwun Tong Road eastbound and travelling in the first lane. PW5 said that the defendant said that when he reached Choi Shek Lane he was travelling in the second lane and suddenly there was a lights goods vehicle moving from the second lane to the nearside and cut into the first lane . PW5 said that the defendant said that as he wanted to avoid an accident so he veered to the left and lost control of his vehicle and the vehicle crashed onto the pavement. PW5 said that the defendant said that  he did not recall the colour or registration number of the goods vehicle.

27.  In cross-examination PW5 said firemen were trying to release the defendant from the PLB when he arrived. PW5 said he has had some first aid training. PW5 said he did not know if any medicine or drugs were administered at the scene. PW5 said that when he arrived the ambulance staff were still giving treatment to the defendant. PW5 said he did not know at that time that the driver would be subject to criminal investigation. PW5 said that at that time he did not suspect the driver had done something wrong.

28.  PW5 said that he wrote down what the driver had said after he returned to the police station at about 2 hours after the accident in his notebook what the defendant said. PW5 said he recorded it verbatim.

29.  PW5 said that after his conversation with the defendant he left the ambulance. The defendant was escorted to hospital by another officer. PW5 said he had no further contact with the defendant.

30.  PW5 agreed the defendant told him he was affected by a light goods vehicle. PW5 said he asked him to describe the vehicle but the defendant said he could not describe its colour or the registration number. PW5 agreed that part of the conversation was not recorded in his notebook or statement. PW5 agreed he did not record the question in his notebook PW5 said he recorded the answer in his statement that he could not give the colour of the vehicle. PW5 agreed that the characters he used were only used in written Chinese and not spoken, PW5 disagreed he paraphrased. PW5 said that it was what he wrote down

31.  PW5 said he did use two Chinese characters “But Cheung” which mean “details unknown” and that those words were written in brackets in his statement and in his notebook he did not put those characters in brackets.

32.  PW5 denied that the  defendant was in an extremely distressed and confused  state.

33.  PW5 agreed that the defendant was suffering from head injury, injury to chest and injuries to both his legs. PW5 said he saw no special reason to caution the defendant. PW5 said that the defendant was not yet arrested. PW5 said he had no idea when he was arrested.

34.  PW5 said he thought D was conscious so he took the opportunity to question him. PW5 said he did not intend to incriminate him.

35.  In re-examination, PW5 said that when the defendant was in the cab of the PLB he was speaking to the ambulancemen who were performing first aid upon him. They asked him what was wrong with him and in which parts of his body did he feel uncomfortable. PW5 said that the defendant seemed able to respond to those questions. PW5 said that the defendant said that his chest was painful and his legs.

PW6 Mr Lau Wai Kwok – Motor Vehicle Examiner – Report produced as P16.

36.  The report of  PW6 showed that there were no defects found in relation to the PLB which might have contributed to the accident.

37.  In cross-examination PW6 was shown a number of  pictures showing the PLB he examined, Exhibit D1. These pictures were taken the month before the trial. PW6 agreed that from the photographs it did appear that the pedal for the brake is higher than the pedal for the accelerator. He agreed that the shape and size of the pedals are standard and had  not been altered from its original design

38.  In re-examination, PW6 looked at photo 17/18 of Exhibit P11 which show the position of break and accelerator of the PLB shortly after the accident. PW6 said he did not measure the distance between the pedals as the positions had not changed. He agreed that there appeared to be about 4 inches between the two pedals according to Exhibit D1. PW6 said the measurement is not important: what matters is whether the driver could operate the vehicle normally.

39.  PW6 agreed that the dash board of the PLB was pushed towards the steering wheel and under those circumstances the hand movement would be hindered by the steering wheel and the dashboard would be close to the leg of the driver but would still allow control the footbrake. PW6 said the alignment of the pedals would be affected by the crash.

PW7 Mr Li Ka Wo, Driving examiner

40.  PW7 is a driving examiner with the Hong Kong Transport Department. His expertise was not challenged.

41.  PW7 said he assisted with an accident reconstruction of this accident at 10.30am on 11 July 2012. He said that a government issued public light was used which was similar to the PLB involved in the accident. He said that the three lanes of Kwun Tung Road had been closed and he carried out three tests. PW7 said he sat in the first passenger seat on the left. There were five or six other persons on board, a total of 6 or 7.

42.  PW7 said that for the first test a police officer drove the PLB at 60 km per hour and when it travelled at that speed the police officer  took his foot off the brake and accelerator pedal. PW7 said that the PLB slowed down as soon as the foot was removed from the pedal. He said that the speed reduced gradually.

43.  PW7 said that for the second test the driver changed lane from the third to the second lane at 40kmph and whilst in the second lane the driver removed his hand from the steering wheel and the vehicle continued in a straight lane into the first lane diagonally. PW7 said that the PLB  remained on its course

44.  PW7 said that when the bus was in the first lane the officer again gripped the steering wheel and corrected the course in which it was travelling. PW7 said that it was easy to gain control.

45.  PW7 said that this was repeated for the third test and the result was the same, the officer could easily correct the vehicle.

46.  PW7 said he had seen CCTV footage Ex 1 and 2. PW7 said it is clear from the Exhibit 2 he could see that when the PLB reached near Choi Shek Lane he saw that the PLB moved from 3^rd to 1^st lane  and then ran onto the pavement. PW7 said that the PLB did not slow down at all because the brake lights did not come on.. He said that from what he could see ,the vehicle did not slow down and ran onto the pavement directly.

47.  PW7 said he took the view that there was nothing to indicate the vehicle was out of control before it mounted the pavement.

48.  PW7 was shown Exhibit D1. These were pictures taken of the PLB by instructing solicitors on 7 October 2013. Some of the photographs show the brake, accelerator and clutch pedals from right to left. The defence case was that immediately before the collision the defendant’s foot had somehow been trapped between the pedals. PW7 said he could not see how this might have happened and had never heard of any such occurrence.

PW8 Dr Cheng Yuk Ki, Forensic Expert

49.  PW8 specialises in traffic accident reconstructions. He produced a report in relation to the accident the subject of these proceeding as P17. His expertise was not challenged.

Video Footage, Exhibits 1 and 2

50.  PW8 said that he viewed the video footage taken by cameras in the PLB and the vehicle driven by PW1, Exhibits 1 and 2 respectively. He said that the times recorded on the videos were inaccurate.

51.  PW8 said that the PLB could be seen from Exhibit 1 to be travelling along the third lane of Kwun Tong Road towards Kwun Tong at near Kwun Tong Road Children’s playground at the video time of  23:41:52 ( Position A). It gradually moved to the nearside and into the second lane at 23:41:58 near Kai Tak Mansion Block 4 ( Position B). It proceeded diagonally across that lane moving into the first lane of  Kwun Tong Road at the junction of  Choi Shek Lane  ( Position C) at 23:42:01. The PLB was seen to travel diagonally across the first lane and rammed into the railings on the east side of Choi Shek Lane at 23:42:02. PW8 said that there were no vehicles on either side of the PLB or to its front. PW8 said that the PLB kept at an almost constant speed until it smashed into the railings.

52.  PW8 said that from observing the video footage Ex 2 he could see that throughout the period the PLB changed lanes no brake lights or indicators lights could be seen.

53.  PW8 said that from the tachograph records recovered from the PLB, Exhibit 17 A, the average speed of the PLB for the 10 seconds before the impact was 61.2 km per hour. He said that the positions A to C away from the point of impact with the railings were respectively calculated to be 179 metres on the 3^rd lane, 68 metres on the second lane and 17 metres on the first lane. PW8 said that these three positions were subsequently located at the scene for the purpose of reconstructing the path of the PLB.

Accident Reconstruction

54.  PW8 said that a reconstruction of the accident was  carried out at the scene on 11 July 2012 at 1045 hours using a similar model PLB to the vehicle involved in the accident. A test was conducted to determine whether or not the PLB could have sustained the same direction of travel without controlling the steering wheel. The police test driver was invited to follow a similar path to that taken by the PLB at a speed of 40km per hour and release the steering wheel. After releasing the driving wheel the test vehicle was found to run in a straight direction. PW 8 said that the test was conducted at 40 km per hour for safety reasons but the fact that the PLB at the time of the accident was travelling at 61/2 Km per hour would have made no difference.

55.  During the three tests conducted, PW8 found that in each test that the speed of the test vehicle decreased when the driver removed his foot from the accelerator.

56.  PW8 concluded from his tests that the accelerator of the PLB was depressed and the vehicle was under the control of the driver at the material time.

57.  PW8 said that he could see from the tachograph that at the point of impact the speed of the PLB decelerated from 61 to 39 km per hour and that this deceleration was caused by the impact rather than by any breaking  by the driver of the PLB.

58.  PW8 was shown the photographs produced as D1. It was suggested to him that the driver’s foot might have somehow been trapped between the accelerator and brake pedals. PW8 said he could not see how that could have happened and he had never heard of  such an occurrence. PW8 said that in his view it would be impossible for a shoe to be trapped in the manner suggested. PW8 said that if  for some reason the driver had been struggling with the pedals one would not have expected the speed to remain constant.

PW9 SPC 48249 Fung Ka Wing – Attends scene and later seizes Ex 1

59.  PW9 attended the scene of the accident at about 5.30 pm. He was to examine the scene and ascertain the points of impact.  PW9 said that the photographs ExP8 show the scene. PW9 said that  photo 1 shows the damaged railings at the junction of  Kwun Tong Road and Choi Shek Lane which the PLB smashed into after mounting the pavement. Thereafter a traffic sign and road sign were demolished before the PLB smashed into a bus shelter.

60.  PW9 said that at 6.20pm he returned to the police station and PC10175 gave him the memory card Ex 2 memory card  which had been given to him by PW1 at the scene.  PW9 said he viewed the memory card on the computer at the police station and copied it onto a disc.

61.  PW9 said that he subsequently went to the Ho Man Tin vehicle compound on 3 January 2012 to inspect the PLB. PW9 said he seized a camera which was on the floor near the passenger seat behind the driver’s seat. He said that he removed the memory card from the camera and made a copy of it on a disc, Ex P1. PW9 produced the camera as P1 A for the memory card as P1B.

62.  PW9 said he went to the scene on 5 January 2013 at 2.35pm and prepared a sketch, Exhibit P15, as a result of viewing the recordings to measure the distances relating to the PLB changing lanes. PW9 said he wrote down 53 A on the sketch which is the number of a building as a result of seizing the recording and showed where the lane changing started. He said that that position is 176 meters from the railings into which the PLB crashed.

63.  PW9 said he arrested the defendant on 26 June 2013 after advice was received from the Department of Justice.

64.  PW9 said that from the memory card he received from the PLB he downloaded all the files from the card on to two discs and one of the discs contained footage of what happened after the accident, Ex P1C. PW9 said that ex 12 photo 17 shows a microphone which enabled communication with persons.

65.  PW9 said that the footage shown in Ex P1 C shows that the camera was in a fixed position and it shows the area behind the driving seat.

66.  Exhibit P1C recorded a conversation between the defendant and his console shortly after the crash and before the arrival of the police. The defendant told the console to call the police. He informed the console that he and some of the passengers had sustained injuries and gave details of his location.

PW10 Dr Cheng Kai Chu -United Christian Hospital – Report P18

67.  PW10 saw the defendant at 2017 hours. PW10 said the defendant told him that he was a minibus driver. He said the defendant was involved in a motor traffic accident when he tried to avoid an overtaking a car on his right side and  he turned left and hit the driveway. He said that the defendant told him that he lost consciousness for a few moments in the minibus. He said that the defendant complained of  pains at his forehead, neck and right ankle. PW10 said the defendant had  no shortness of  breach, chest pain or abdominal pain.

68.  PW10 said that he had not spoken to any police officer about the accident.

69.  PW10 said defendant had a Glasgow Coma score of 15/15 which meant that he was fully conscious. He said the score  depends on eye opening, verbal response and motor response. PW10 said that 15/15 is the maximum score.

70.  PW10 said that  a skull chip was detected in his forehead and in his left hand. PW10 said the defendant  needed operation to remove foreign bodies.

71.  A second medical report relating to the defendant’s injuries were produced as Exhibit P19. This showed that the defendant required minor surgery to remove small superficial broken glass from his left hand and his right ankle had a haematoma on the inside of his right ankle which was evacuated, a bleeding artery was cauterized and the wound closed. It stated that the defendant was well all along with good wound condition and he could walk unaided into the ward. The report states that the defendant complained of diplopia but none could be detected.

Special issue

72.  At the close of the prosecution case, the defendant elected not to give evidence on the special issue concerning the admissibility of his alleged utterance to PW5 nor did he call any evidence. I accepted the evidence of PW5 whom I found to be a reliable and credible witness. I was sure in all the circumstances that the defendant was fully conscious when PW5 spoke with him on board the ambulance. I saw no reason for the officer to caution the defendant at that stage. He was making preliminary enquiries into the accident. He has a duty to make enquiries concerning road traffic accidents and is entitled to ask questions of persons at the scene, whether suspected or not. An officer is only required to administer a caution where he has reasonable grounds for suspecting that the defendant had committed an offence as required by Rule II of the Rules and Directions for the Questioning of  Suspects and the Taking of Statements.

73.  I noted that the answer to PW5’s enquiry was mixed in that he admitted being the driver of the PLB but stated that accident was caused by his trying to avoid another vehicle. I also noted that the defendant gave a similar explanation to PW10, the doctor at the United Christian Hospital who treated the defendant at 2017 hours the same day.

74.  I was sure beyond reasonable doubt that the circumstances in which the alleged reply made by the defendant to PW5 were voluntary and I saw no reason to exercise my residuary discretion to exclude the alleged utterance on grounds of unfairness.

75.  At the conclusion of the prosecution case I found a case to answer.

Defence Case

76.  The defendant elected to give evidence.

77.  The defendant told the court that he has been a PLB driver since 2005. He said he had been the driver of the PLB involved in the accident for 2 years.

78.  The defendant said he rented the PLB. He said that there was a fixed route. He said he would pick up the PLB at 0500 hours and check it. He said he would pick it up from Sau Ching House Sau Mau Ping. The defendant said that he would then  drive until 1500 hours. The defendant said he would have had his breakfast and start work at 5.40am. He said he would have lunch at around 10.30am. He said that he would have a lunch break for 15-20 minutes. The defendant said that was the only break as it was after the peak hour and he would have more free time. The defendant said that was the only food he would take during his shift. The defendant said he had no health problems.

79.  The defendant said that the regular route was to travel from Jordan along Kwun Tong Road. He would then turn off Kwun Tong Road into Choi Wan Road and on to other estates in Ngau Tau Kok and then to Sau Mau Ping. It was an admitted fact that Choi Wan Road was 500 metres  beyond Choi Shek Lane.

80.  The defendant said that when proceeding along Kwun Tong Road he would travel along the fast lane, the third lane. He said that when he got to Choi Shek lane he must get into the first lane. He said he starts to move out of the third land when almost at Choi Shek Lane.

81.  The defendant said that on 31 December as far as he could recall he was travelling along Kwun Tong Road at 61/2 Km per hour and  he changed lane and when he when almost reached Choi Shek Lane. The defendant said that he found his foot was trapped between the break pedal and the accelerator and he was very scared and he tried to stop the vehicle by pressing on the break but he could not get his foot out. The defendant said that he noticed his foot was trapped once he reached Choi Shek lane and he wanted to decelerate but he could not do so. He said that he looked down and saw his foot trapped there and then there was a crash.

82.  The defendant said that after the crash he was very scared and he was worried that the passengers might be  injured and he was injured and so he called his console. The defendant said that the firemen seemed to rescue him as he was trapped by the iron bar and his foot was trapped and he could only move his left hand to press some buttons to call the console . He said he could do nothing else. The defendant said that he was then placed in an ambulance and he did not know where he was sent to.

83.  The defendant said when he was in the ambulance he vaguely recalled someone talking to him and asking him the telephone numbers of his family members but he could not recall who it was. The defendant said an ambulance man told him not to say anything and not to talk. The defendant said he recalled a police officer did get on to the ambulance and  talked to him. The defendant said that  he cannot recall what he said. The defendant then said that  the officer asked him if he had telephone numbers of family members and that is all he could recall him saying.

84.  The defendant was reminded about the evidence of the doctor from United Christian Hospital, PW10 . The defendant recalled speaking with him but he has a vague recollection as it has been a very long time.

85.  The defendant said that after discharged from hospital there was follow-up treatment. The defendant said he had a fracture to his forehead which is still painful after the stitches removed. He said he had stitches to forehead in two places. He said that they were small wounds. The defendant said surgery was recommended but he considered that  it was not necessary.

86.  The defendant said he had an injury to his right ankle which required 8 stitches and which has healed completely but he still feels pain. The defendant says he has physiotherapy every week. The defendant said he has not driven since the accident.

87.  The defendant said that on 7 October 2012, on the suggestion of he legal advisers, he had some pictures taken inside the PLB, Ex D1. He said that the legs shown in the photographs are his legs. The defendant said that he takes shoe size 43. The defendant said he was wearing the shoes shown in the photographs on the day of the accident. The defendant said that the last pictures show how his foot was pressed on the accelerator.

88.  The defendant said his foot was trapped between the accelerator and brake as the position of the brake was higher. He said that he wanted to pull out his foot but he could not do so as his foot was trapped there below the brake and above the accelerator.

89.  The defendant accepted that the distance to Choi Wan Road which was the exit road from Kwun Tong Road which he intended to take  was 500 meters beyond Choi Shek Lane.

90.  In cross-examination the defendant said that he first got his driving licence in 1998/9. The defendant said the pedals on all PLB’s are more or less the same. He said that he drove the PLB 4-5 days per week. The defendant said that when he was had the accident he was making his last run of the day.

91.  The defendant was shown Exhibit 8 photograph 1 shows the entrance to Shek Chik lane. He agreed he normally drives along the third lane and usually changes lanes at Choi Shek Lane. The defendant said that sometimes he changes lanes where the PLB is shown in the third lane of Photo 1 and sometimes before that. The defendant said  it depends on the traffic condition.

92.  The defendant agreed he cannot change lane at Choi Shek Lane. The defendant was shown Ex 15 which shows he started to change lane well in advance of Choi Shek Lane. The defendant said he changed lane as not many vehicles that day, it was not busy so he changed lane there.

93.  The defendant agreed when he changed lanes he would move into the second lane travel along and then when safe move into the first lane. He agreed that he would not go across the three lanes in one continuous movement.

94.  The defendant said he did not use his indicator out of negligence. He said that there was not much traffic on that day. He said that he would normally use his indicator. The defendant said he did stay for some time in the second lane to check the first lane. He disagreed he did not travel directly into the first lane. The defendant said he was in control of his vehicle and he knew what he was doing. He agreed he had to keep his foot on the accelerator to keep it at a constant pressure.

95.  The defendant was unable to explain how his foot got trapped between the pedals. He said that even now he did not understand how it happened.

96.  The defendant said he found his foot trapped when he was in the nearside lane before the start of the Choi Shek Lane junction and within a short moment the PLB crashed.

97.  The defendant said he did not sound his horn because there was no time before him to do so. He said that he could not react as  he was scared. He said he could not shout out. The defendant denied he was day dreaming. The defendant said he did not pull on the handbrake. The defendant denied his leg injuries were caused during the crash.

98.  The defendant agreed that shortly after the crash he had the presence of mind to speak to the console, to ask for the police to come and , give the location of the accident.

99.  The defendant denied telling PW5 that a vehicle caused him to swerve. The defendant said that no vehicle caused him to swerve. The defendant said he could not recall that at 2017 he spoke to PW10. The defendant said he did not tell the doctor that the accident occurred when he attempted to swerve to avoid a vehicle. The defendant said he never told any doctor that that is what happened. The defendant agreed he had not seen the CCTV footage by the time he spoke to the doctor. The defendant denied he told a story to try to explain the crash. The defendant denied that it was only after viewed CCTV footage he changed his story. The defendant denied he lost his concentration.

100.  No further witnesses were called by the defence.

Directions

101.  I reminded myself that the prosecution are required to prove each and every ingredient of  each offence beyond reasonable doubt, the defendant has nothing to prove.

102.  I reminded myself  that if I were to disbelieve the evidence of the defendant that does not mean he is guilty of either offence.  I have to consider the evidence I do accept and decide if that satisfies me of the guilt of the defendant to the required standard.

103.  In this case there was disputed evidence as to what if anything, the defendant said to PW5, the police officer who spoke to the defendant in the ambulance shortly after the accident, and PW10, the doctor from the United Christian Hospital, who saw the defendant on a ward of the hospital at 2017 hours on the day of the accident.

104.  I reminded myself that a lie by itself cannot prove guilt as a matter of  law, it usually only affects credibility. I reminded myself that care must be taken not to make improper use of an accused’s lie. Before a lie told by the accused is permitted to assist the prosecution’s case or to strengthen an inference of guilt against him, certain criteria must be met. The court must be satisfied that

· the lie is a deliberate lie relating to a material issue in the case.

· there is no innocent explanation for the lie

· the lie is admitted or proved by independent evidence.

105.  I reminded myself that where a court relies upon circumstantial evidence, the facts upon which the inferences are to be drawn must be established beyond reasonable doubt and inferences drawn from such facts must be the only inferences that can reasonably be drawn, they must be irresistible.

The Law

Dangerous driving

106.  Ss. 36(4), (6) and (7) of the Road Traffic Ordinance, Cap. 374 provide as follows:

“(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if-

(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

…

(6) For the purposes of subsections (4) and (5), ‘dangerous’ refers to danger either of injury to any person or of serious damage to property.

(7) For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including-

(a) the nature, condition and use of the road concerned at the material time;

(b) the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned material time; and

(c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.”

Evaluation of the Evidence

107.  It was not disputed in this case that at 1442 hours on 31 December 2011 the defendant was driving the PLB along Kwun Tong Road in an easterly direction. There were about 10 passengers on the  PLB.

108.  For several seconds before the accident the speed of the PLB was 61/2 kmph. The PLB was being driven in the third lane of  Kwun Tong Road. The PLB then drove, without any indication, at a uniform speed and in a diagonal straight line across the second and first lanes of Kwun Tong Road before mounting the pavement and  smashing into an iron railing on the easterly side of the junction of Kwun Tong Road and Choi Shek Lane. The PLB demolished a traffic sign and road sign on the pavement  and eventually stopped after smashing into a bus shelter.

109.  The distance between the point where the PLB started to move into the second lane of  Kwun Tong Road and the iron railings at Choi Shek Lane is 117.6 metres. The PLB was driven at a constant speed of 61/2 Kmph  over that distance. There was no deceleration until the PLB smashed into the iron railings. Throughout the manoeuvre, no horn was sounded, the defendant said or did nothing to alert the passengers of anything untoward and he did not use his indicators.

110.  An elderly passenger on the PLB was killed as a result of injuries sustained during the accident. A passenger on the PLB sustained grievous bodily harm.  A 48- year old female pedestrian who was carrying her two-year old grandson on the pavement of  Kwun Tong Road towards the bus shelter was knocked down from behind. Both she and her grandson sustained grievous bodily harm.

111.  Shortly after the accident, the defendant got in touch with his headquarters via his console and instructed them to call the police and told them the location of the accident.

112.  PW5 arrived at the scene of the accident at 1450. He said that when he arrived the defendant was still in the driving seat of the PLB and he was conscious. PW5 said that it took 7-8 minutes for the defendant to be freed by fireman from the PLB. PW5 said that the defendant was then placed in an ambulance were he approached him and asked him what happened. I was sure that at that time the defendant was conscious. I did not accept PW5’s evidence that he was able to make a verbatim note of what passed between him and the defendant when he made a note of the conversation in the ambulance some two hours later but I was sure that the defendant told PW5 that as he was driving along, suddenly, there was an LGV cutting in which caused the defendant to take evasive action. I was sure that several hours later at 2017, the defendant gave a similar explanation to PW10, a doctor at the United Christian Hospital.  At that time PW10 said the defendant was fully conscious and scored full marks on the Glasgow Coma Scale. I was sure that PW5 and PW10 never discussed the incident.

113.  I was sure that PW5 and PW10 had not spoken to each other. I bore in mind that after the accident, the defendant would obviously have been in a distressed state and had sustained injuries.  I was, however, sure that the explanation given by the defendant to PW5 and PW10 was a lie. The video footage downloaded from the PLB, Exhibit 1, and the private motor car driven by PW1,Ex 2, make it quite clear that the PLB was not impeded in any way by any other vehicle. At trial, the defendant did not make any similar assertions; he claimed he had made no such statement to either PW5 or PW10. Again I was sure he was lying.

114.  The defendant told the court that the accident was caused by his right foot somehow getting caught between the accelerator and brake pedals. He said immediately before the collision he was struggling to free his foot when he was in the first lane immediately before the junction with Choi Shek Lane.  I bore in mind that after the accident the defendant was treated for injuries to the inside of his right ankle.  From all the evidence, I was sure that this too was a lie. None of the passengers called were aware of any problems on the bus. The speed of the bus did not alter. There was no change in the bus’s direction. Tests demonstrated that the  PLB  would decelerate if the accelerator pedal was  released. There was nothing to stop the defendant altering the direction of the bus even if his foot had somehow become trapped. I was also sure that if the accident had somehow occurred in that way he would have said something about that to PW5 or PW10 rather than the lies he did tell them.

115.  In considering the lies told by the defendant, I took the view that the lies told to PW’s 5 and 10 might have been used to assist the prosecution case. There was independent evidence to establish that the defendant was lying; in my view the lies were deliberate and, in my view, there was no innocent explanation for the lies. However, the prosecution did not address the court on that basis and there were no submissions about this issue by defence counsel. I therefore decided that the court, provided it was satisfied that those assertions were lies, should treat such lies as only affecting the credibility of  the defendant. I also decided to treat the defendant’s lie about his foot somehow becoming caught between the pedals in a similar manner.

116.  The defendant said he had picked up the PLB at 0500 hours on the day of the accident. He said that he then had breakfast and would start work at 0540 hours. He said he had lunch at 1030 hours when he took a break of 15-20  minutes. The defendant said that this was his only break. He said that the accident occurred on his last run of the day. I was sure that the accident did not happen in the way described by the defendant in evidence. I was quite sure that immediately before the accident the defendant had lost concentration due to fatigue.  I was sure that this was a physical condition of which he could be expected to be aware and which was within his knowledge. I was sure that it would be obvious to a competent and careful driver that driving in these circumstances would be dangerous.

117.  I took into account that the defendant was driving within the speed limit and there was no evidence of incapacity due to drink or drugs. I was, however,  satisfied so that I was sure that the defendant was not concentrating on the road for a significant period of time before he crashed into the metal railings on the east side of Choi Shek Lane. I was satisfied so that I was sure that his condition was such that he should not have continued driving and that to continue driving in that condition was obviously very dangerous. I was sure that at the relevant time the defendant was effectively unconscious. I was sure that there was a sustained period of time during which the defendant was not doing what was expected of him: namely, to pay attention, be alert and concentrate on his driving.

118.  I was satisfied that the prosecution had established the guilt of the defendant beyond reasonable doubt on both charges and convict him accordingly.