HKSAR v. LEE MECHIAN

HCMA797/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 797 OF 2005

(ON APPEAL FROM ESCC 894 OF 2005)

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

1. The appellant was convicted after trial of one charge of 'dangerous driving causing death' contrary to section 36(1) of the Road Traffic Ordinance (Cap. 374).  She was sentenced to 3 months' imprisonment and disqualified from driving for 2 years.  She appeals against both conviction and sentence.

The facts

2. The basic facts of the case were admitted under section 65C of the Criminal Procedure Ordinance (Cap. 221).  They are reproduced hereunder with a few of my own factual elaborations in square brackets, also undisputed :

“1. On 28 August 2004 at approximately 1300 hours the defendant was the driver of a motor vehicle registration number XX9500 ('the private car').

2. The private car travelled along Tanner Road on to Kam Hong Street [at a right angle] approaching the junction with Tsat Tsz Mui Road ('the junction').  Kam Hong Street is a two-lane two-way carriageway running in a north and south direction.

3. On Kam Hong Street, the private car was traveling in a northbound direction [sloping down gently].

4. At the junction is a pedestrian crossing ('the pedestrian crossing').  The junction and the pedestrian crossing are governed by a system of traffic lights.

5. The traffic light governing the north- and southbound flow of traffic on Kam Hong Street was displaying red and the light signal governing the pedestrian crossing was on green.  The traffic light system was functioning properly.

6. A 37-year old female pedestrian Hui Hung-hung ('the deceased') together with her 2-year old daughter ('the daughter') were walking across the pedestrian crossing from east to west.

7. The private car travelled on to the pedestrian crossing and collided with the deceased at a location on the southbound carriageway of Kam Hong Street [at a speed of no more than 20 kmph].

8. The deceased was knocked down and trapped beneath the private car.

9. The private car travelled for a distance of approximately 18 metres from the junction along the southbound carriageway of Kam Hong Street [still at no more than 20 kmph]before coming to a halt in a slip road adjacent to the southbound carriageway of Kam Hong Street ('the slip road') when the vehicle hit the kerb.  The deceased was dragged beneath the private car for a distance of approximately 12 metres and then lay at the Give Way road marking on the slip road.

10. The deceased was certified dead at 1943 hours on 28 August 2004 from injuries sustained in this traffic incident.

11. The daughter sustained injury to her forehead, scalp, both hands and right knee.  She was hospitalized for one day and fully recovered from her physical injuries.” 

The prosecution case

3. The prosecution opened their case on the basis that the appellant was using her mobile phone without a hand-free device, thereby losing control of the car and dashing through a red light.  This is clear from the summary of facts adopted as their opening.  It was based on the statement of one of the eyewitnesses but was proved impossible in the course of the trial by the appellant's calling record.  This left the prosecution with five live witnesses (PW1 to 5) and one read statement describing what happened as seen from different angles.  In addition, SPC 16542 (PW6), first officer attending scene, and PC 58176 (PW7) of the Accident Investigation Team were tendered for cross-examination.  A government vehicle examiner, Mr Lee (PW8), also gave evidence on his examination of the appellant's car four days after the incident. 

The defence case

4. In short, the appellant said there was a brake failure.  Quoting the full background from the learned magistrate's Statement of Findings :

“The accused is a Malaysian woman of 45 years old.  She cam o settle in Hong Kong in 1982, and has been in possession of a driving licence for over 14 years.  She has no criminal records, and could be taken as clear for driving offences.  Her husband is the registered owner of XX9500 for over seven years, and is the main user.  The accused regards herself as a weekend driver, as she only drove when her husband was out of town at the weekends.  They are churchgoers on Sundays, and her husband usually drove to church in North Point.  The car would usually be parked at Island Place, which is opposite their church in the name of 'International Christian Assembly Church' …

28 August 2004 was a Saturday, and the accused was obliged to drive if she wanted to in the absence of her husband.  It appears that the accused had quite a schedule to attend to on this day.  Since there would be a meeting at 2:30 pm at church, she decided to have lunch with her son – who was about 16 – in North Point before the meeting.  She did drive this day.  Some time after 9 am she left home in Happy Valley to go to Causeway Bay to run errands for somebody.  Then she went home to pick up her son, who became her passenger up to the time of the tragedy.  She first went to Chai Wan to give something to her sister-in-law before she came to North Point.

Shortly before 1 o'clock her car arrived at the east end of Tanner Road, North Point.  Tanner Road is a short road running parallel to and on the south of King's Road in east-west direction.  It ends in the west with a right bend joining the south end of Kam Hong Street … The International Christian Assembly Church is on the north side of King's Road junction with Kam Hong Street and the Island Place is there between King's Road and the whole length of Tanner Road.

…

The accused said that she intended to park the car at the car park in Tsat Tsz Mui Road, to have lunch with her son in a Japanese restaurant across the road, and then to walk across King's Road to the church.  The intended route of the car was to run along Tanner Road westbound, then to take a right turn into Kam Hong Street northbound, and then to take a left turn into Tsat Tsz Mui Road westbound.

…

The important matter for consideration is: how did the accused come onto the wrong side of the road [Kam Hong Street]?  The accused testifies on this aspect.  She traveled on Tanner Road westbound.  She was familiar with the location and knew there was a traffic light at Kam Hong Street.  When she made the right turn she saw the amber traffic light and was prepared to stop.  She first braked when her car got into alignment with Kam Hong Street.  She said there was no vehicle before her, and she said she was shocked when she found the brake did not work, and she tried three more times, with no response.  She noticed many people on the pedestrian crossing before her, but more people on her left.  By instinct she swerved to her right, on which side she saw the victim woman there.  The car hit the woman, and she could see her body first on the bonnet, and then fall.  She could not brake despite many attempts.  She later veered the car into the lay-by on her right and came to that final position of the journey.” 

5. In support of the appellant's contention, her son (DW2), who was in the car, and Mr Wong (DW3), her mechanic, who also examined the vehicle after the incident, were called as defence witnesses.

The magistrate's findings

6. In the end, the learned magistrate rejected the appellant's version of events :

“No eyewitnesses testifying in this court noticed how the accused changed course into the wrong carriageway.

…

The evidence of [PW4], which I accept, together with the evidence of other witnesses, shows that the accused's car was travelling well within and along the wrong side of the road, and not coming in at an angle as a result of swerving in panic.

…

[PW5] saw the brake lights were never on.  As an experienced driver, he was wondering to himself at that time … why the driver did not brake.

…

All eyewitnesses [PW1 to 5] had slightly different observations, but they appear to agree that the accused's car, travelling down slowly along the wrong side of Kam Hong Street, was able to keep on lane without hitting the kerb on her offside or horning. 

…

… I am satisfied that it was possible for the accused to turn into the wrong side of the road through failure of attention at the bend.  The car was last seen on the westbound carriageway of Tanner Road at the bend.  Her car was next seen hitting the woman at the pedestrian crossing on the wrong side of the road.  The change of course must have happened between these two positions.

On the general evidence of the circumstances she must have changed course early enough to go straight forward along Kam Hong Street, as was seen by all witnesses.  In this way, as I mentioned earlier, whether there were vehicles waiting in the northbound lane of Kam Hong Street is not important.  If she had gone into the wrong lane she would not have seen any vehicles before her.

…

The accused also suggests that her intended route was on the northbound carriageway as she intended to turn left into Tsat Tsz Mui Road to go to the car park there.  In the examination-in-chief she said that she had been there a few times.  When I asked her about the parking fee she said she had not been there before.  As a weekend driver I believe the accused would not try a new and unfamiliar car park while a familiar one, just as convenient, was nearby.

As I said in the beginning, and I say it now again: the facts speak for themselves.  This tragedy was the result of lapse of attention, as partly described by [PW2].  It was a human failure.  If the accused did not notice she was on the wrong way she would not notice other things in her way.  It is clear that she was looking without seeing as her mind was not on the road.  When her car hit the woman and the girl who showed up on the bonnet, she panicked and did not have the presence of mind to brake.  [PW5] did not see any braking.”

7. As a separate issue, he accepted the evidence of PW8, rejected the evidence of DW3 and concluded that the car's braking system was working normally.

The appeal against conviction

8. Counsel for the appellant has filed three grounds.

9. Ground 1 :

“The learned magistrate erred in fact and law in finding that the evidence proved beyond a reasonable doubt that the appellant drove dangerously.”

10. I will come straight to the point and say that I find force in this complaint, at least insofar as it concerns the learned magistrate's factual findings.

11. PW2 was the only witness who saw the appellant negotiate the right-angle bend joining Tanner Road and Kam Hong Street.  She did so while standing at the corner of the bend.  She was attracted to the appellant's car by its registration number XX9500.  She watched it come down Tanner Road, turn right and drive past her.  She even saw the back of the car after it had taken the bend into Kam Hong Street (p. 230H-I & p. 231N-O, Appeal Bundle).  Yet there was no mention of it driving into the wrong carriageway.  

12. Note also that the distance between the bend and the pedestrian crossing is no more than four car-lengths.  That it is so is clear from the photographs exhibited.  It follows that any car entering Kam Hong Street would reach the pedestrian crossing within seconds.  It also follows that if the appellant did not enter the wrong carriageway at the bend (which is what PW2's evidence indicates) she could only have done so at or very near the pedestrian crossing.

13. The same photographs show that just before the bend, there was a safety island forming part of a pedestrian crossing unregulated by traffic lights.  After that, in the middle of the bend and on the southbound carriageway of Kam Hong Street, were the big road markings “SLOW” and “慢駛” taking up the entire width of that lane.  For the appellant to drive mistakenly into that carriageway, she would have to make a sharp turn at the safety island with all the road markings looking upside down.  As a theory, it does not strike one as particularly convincing.

14. The learned magistrate, of course, suggested a “failure of attention” on the part of the appellant.  Such a suggestion, however, seems to me to be completely against the weight of the fact that the appellant had been using this road for eight years.  It makes no difference whether the husband was the one who normally drove or whether the appellant was talking to her son at the critical moment.  (PW2 had seen her mouth moving at the bend.)  The weight of the evidence is that she knew that part of North Point extremely well.

15. I should add that according to the appellant, her intended route for that day was to turn into Tsat Tsz Mui Road to get to a particular car park, a manoeuvre she could only accomplish from the northbound (hence correct) lane of Kam Hong Street.  But this assertion was met by the incredulity of the learned magistrate who based his disbelief on the fact that :

“In the examination-in-chief [the appellant] said that she had been [to that car park] a few times.  When I asked her about the parking fee she said she had not been there before.”

A closer look at the transcript reveals, however, that this is what the appellant said in toto :

“Tsat Tsz Mui -- actually that was my -- for me, it was my first time parking there.  But my husband … my husband does [sic].”

16. Besides, if one looks at the photographs, everyone coming into Kam Hong Street from Tanner Road will have to take the left turn into Tsat Tsz Mui Road.  If one does not, one will run into the opposite and southbound traffic of Kam Hong Street also turning into Tsat Tsz Mui Road.  In other words, turning into Tsat Tsz Mui Road was the only thing that the appellant or any driver in the northbound lane could do.  The learned magistrate seems to have missed this entirely.

17. Regarding whether the appellant's car was travelling straight and well within its lane at the time of impact, a point which, if established, may support the theory that the appellant drove unwittingly into the southbound (hence wrong) carriageway, I cannot help but notice the following points.

18. The first is that it was contradicted by PW2.  If her evidence is anything to go by then when people started shouting, the appellant's car was “in the centre of the road … turning into the lay-by outside HSBC”.  And if the meaning of that is not sufficiently clear, one need only look at Exhibit P3B [a to-scale sketch plan] to see how PW2 expressed it in diagram — with the car straddling the two lanes at an angle pointing towards the slip road. 

19. Even more important is the evidence of PW4.  She was making her way through the pedestrian crossing when the appellant drove past her from behind and hit the deceased woman and her daughter.  That happened when she was still “four to five paces” away from the pavement outside HSBC.  The most conservative estimate would, therefore, put her four to five feet into the southbound carriageway.  If one looks at the photographs again then the appellant's car could not have been travelling well within that lane.  As a matter of fact, PW4 placed herself at just beyond the central dividing line in Kam Hong Street in Exhibit P3D [another to-scale sketch plan].  It shows how far in her mind she was away from the opposite pavement.

20. In my judgment, the learned magistrate's finding that the appellant drove into the wrong carriageway in a lapse of attention is against the weight of the evidence.  There was no analysis of PW2's evidence and insufficient regard had been given to PW4's.  The factual matrix upon which the conviction was based is, therefore, unsustainable.

21. Ground 2 :

“The learned magistrate's own finding of fact, with which the appellant respectfully disagrees, amounts in law to no more than findings of driving without due care and attention.”

22. In view of my conclusion re Ground 1, it is no longer necessary to deal with Ground 2.

23. I will, however, mention this in passing.  If the learned magistrate's finding is that due to talking, the appellant had no realization of what she was doing, that is, drove into the wrong lane and did not notice the red light — which must all have happened within seconds, then this ground may well be made out.

24. Ground 3 :

“The learned magistrate erred in law and fact in finding that the prosecution had discharged the requisite burden that, at the time of the accident, the brakes of private car XX9500 were operating properly and had not failed unforeseeably.”

25. As mentioned, the appellant's defence was one of brake failure.  She claimed shouting that out to her son before the impact and later, as a fact, told it to PW6.  This information was related at scene to PW7 who noted that down in an “Accident Vehicle Examination Form” and sent the car on for examination.  This was done by PW8 who in his report dated 30 August 2004 found the car in good working condition.  In particular, and I am quoting the learned magistrate hereafter :

“… he found the efficiency of the footbrake at 85%, a better than average figure for this model of car, and the handbrake at 18%, which was normal.  He did not find any problems with the braking system.  He spent 30 to 45 minutes on visual and physical examination, which include the turning of the wheels manually.  He spent 10 to 15 minutes on road test, and a computerized instrument recorded the efficiency of the foot and handbrakes.”

26. The criticism against PW8, however, is that he had not paid any attention to the “Accident Vehicle Examination Form”, and that all he did was a routine inspection which did not involve dismantling the braking system.  Moreover, the road test was not long enough to bring the brakes to a state of overheating which is what might have happened on the day in question.  Brake fluid, it is said, should have been drawn for examination to see if it had the proper boiling point.

27. On this issue the learned magistrate had devoted substantial coverage in his Statement of Findings, and I share his skepticism towards the defence photographs of the brake pads taken some four and a half months after the incident.  In the end, I do not find it necessary to go any further than the fact that PW8 had tested and found the car's lighting system to be operating (p. 278U, Appeal Bundle).  This, coupled with PW5's unshaken evidence that he had paid attention but could see no brake lights on the appellant's car before and during impact (p. 262H-P, Appeal Bundle), leave me no doubt that the appellant did not step on her brakes.  I should add that there is overwhelming evidence that the light at the Tsat Tsz Mui Road junction was red and not amber as she suggested.

28. As a conclusion, the evidence strongly suggests that the appellant had driven into the correct lane.  For some reason, she failed to see the red traffic light until moments before the impact when she swerved the car to the right and ran into the deceased and her daughter without using the brakes. 

29. The remaining question is : what caused it and how would that affect the outcome of this appeal?  In the absence of any contra-indication hence duty-bound to regard the matter in its best possible light for the appellant, I adjudge it to be inattention followed by panic.  Given the layout of the location, and the few seconds that the appellant had to take remedial action — even if she had the presence of mind to do so, I also conclude that it cannot amount in law to 'dangerous driving'.  However tragic the result, a driver guilty of a momentary lapse of attention can only be guilty of 'careless driving'.  The respondent has not sought to argue otherwise.   

30. The appeal is allowed.  The conviction of 'dangerous driving causing death' is set aside and substituted by one of 'careless driving'.

The appeal against sentence

31. Given the result in paragraph 30, the appellant's original sentence is also set aside.  It is substituted by a fine of $5,000 and disqualification for 12 months.