HKSAR v. LAU CHEU CHEONG

HCMA 276/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 276 OF 2012

(ON APPEAL FROM STCC 723 of 2011)

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BETWEEN

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J U D G M E N T

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1.  The Appellant, was convicted by Magistrate Madam Merinda Chow on one charge of Dangerous Driving Causing Death, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (RTO). He was sentenced to 10 months’ imprisonment. He appealed against both conviction and sentence.

Facts

2.  The basic facts generally were not in dispute.  At about 10.46 hrs on 16 August 2010 the Appellant drove his private vehicle, a small Daihatsu station wagon with 4-wheel drive, RN DZ1498, to a level area outside the Lek Yuen Union Village Office, Ngau Pei Sha Street.  There he dropped off his wife who was returning to the family home at Chap Wai Kong New Village which was close-by.

3.  The Appellant then reversed his car to leave the area outside the Village Office.  That area was effectively a cul-de-sac with a narrow passage opening into a wider, roughly square, space.  That space was reduced in area somewhat by cars parked on the perimeter.  It would have been possible, although awkward because of the limited space, for the Appellant to have turned his vehicle and to have driven out in a forward direction, but the Appellant elected to reverse out.

4.  While reversing he drove to his left and up a small incline on the sloping area to which he was transferring.  He had travelled about 4 metres, approximately one car length, when the car knocked against some obstacle.  The Appellant felt the rear of the car rise up so drove forward immediately, stopped the vehicle, alighted and found an elderly man (the Deceased – aged 75) lying prone on the ground at the nearside rear of his vehicle.  He made a report to the police.  Police and ambulance arrived and the elderly man was taken to hospital where, despite medical treatment, he was certified dead at 20.08 hrs the same day.  An autopsy confirmed the immediate cause of death to be “Pulmonary Haemorrhage and Multiple Rib Fractures”.

5.  The victim, who did not live in the area, was going to visit his mother who was in the Sha Tin Kwan Sum home for the elderly at Ngau Pei Shap New Village.  The course of the accident was witnessed by Madam Chan Yin-yin (PW1), who was the manager of the home.  She was standing at the top of a staircase which led to the home and saw the incident from about 20 metres’ distance.  It is likely that the Deceased had walked up some stairs before reaching the level of the Village Office intending to walk further up an incline to the staircase which led up to the home, but PW1 did not see from whence Deceased had come.

6.  At the time of the accident the weather was fine and dry, although the road surface was damp as there had been some light rain earlier.  There was no other moving traffic in the area at the time.  Subsequent investigation showed that there was nothing mechanically wrong with the vehicle, nor was there any suggestion that the Appellant had taken alcohol or drugs.  There were no road markings, traffic signs, or defined foot-paths in the immediate area.  The speed limit was 50 kph.

7.  The Appellant did not give evidence at trial but called two witnesses; the village head and Dr Beh, a forensic expert.  He agreed to answer questions during a Video Interview arranged and conducted by police some 24 days after the accident.  He told the interviewing officer that he had intended to drive back to his company and that at the time he reversed his speed was very slow “a few kilometres”.  Before reversing he had looked to his front, back, left and right and had checked his rearview mirrors.  He had no exact idea of how far he reversed before hitting the Deceased, but estimated it to be about 4 metres, approximately the length of one car.  At that point he heard a thud at the rear of the car and felt the rear of the vehicle lift up.  Immediately he drove forward, stopped his vehicle and alighted.  He saw the Deceased face down on the ground behind his vehicle and made a report to police.

8.  The Appellant admitted that he drove carelessly, and offered a plea to Careless Driving before the trial.  Later he entered a plea to Careless Driving.  The plea was not accepted by the prosecution.

Grounds of appeal

9.  The Perfected Grounds of appeal were numerous, prolix and confusingly detailed. 

10.  They alleged that the Magistrate’s approach to the case lacked balance and that she had failed sufficiently to take into account factors favourable to the Appellant; had erred in law and in fact in concluding that the Appellant was guilty as there was insufficient analysis of what the prosecution must prove to establish guilt; failed properly to apply the law relating to the drawing of inferences and erred in law and in fact in holding that there could be only one single conclusion why the Appellant failed to see the victim. 

11.  It was alleged too that the Magistrate had convicted the Appellant by applying the doctrine of res ipsa loquitur.  Further, she had erred in relying on the evidence of a single witness, PW1, to convict the Appellant, when that witness could not remember accurately or reliably all the major events or features of the accident.

The law

12.  The first question for the court was whether the Appellant’s admittedly deficient driving was dangerous in that it fell far below the standard which would be expected of a competent and careful driver (section 36(4)(a) RTO) and secondly whether it would be obvious to a competent and careful driver that driving in that way would be dangerous, either in terms of injury to any person, or of serious damage to any properly (section 36(4)(b) RTO).

13.  In deciding what is expected of a competent and careful driver in any particular case, regard shall be had to all the circumstances of the case including but not confined to:

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

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

(iii)  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.

Road Users Code

14.  A failure on the part of any person to observe any provisions of the Road Users Code, according to section 109(5) RTO, may be relied upon by any party in any proceedings whether civil or criminal and including proceedings for an offence under the RTO as tending to establish or negative any liability which is in question in those proceedings.

15.  Relevant passages of the Code were relied on in the court below by Mr Tam Sze-lok, SADPP, who appeared for the prosecution at trial and on this appeal.

Reversing

16.  The provision of particular relevance to this case was that relating to reversing.  The Code sets out strictures and warnings about the inherent dangers when reversing. 

“Before you reverse make sure that there are no pedestrians – particularly children – behind you. Be especially careful about the ‘blind spots’ behind you – that is – the parts of the road which cannot be seen from the driving seat. If there is any doubt – get out – or ask a passenger to check – to make quite sure.”

“If you cannot see clearly behind or if driving a large vehicle, get someone to guide you when you reverse.”

“You must not reverse unless it can be done in safety and you must not reverse for an unreasonable distance or time. Never reverse from a side road to a main road. Give way to other traffic and to pedestrians when reversing. … Only reverse if you can do so safely … Do not rely on reversing alarms – always look – a pedestrian may not hear your alarm or may be deaf.”

17.  Clearly to reverse out from a flat area and up a slight incline is, depending inter alia on the distance travelled and the speed, an inherently dangerous manoeuvre and in carrying it out the highest degree of care must be taken by the driver.  The Respondent submitted that the Appellant should have either reversed into the cul-de-sac on arrival, or failing that, should have asked his wife or someone else to help guide him out of the cul-de-sac as he reversed.

18.  The Appellant had lived in the area for 4 years at the time of this incident so should have had a good knowledge of the need for care, particularly, in the vicinity of the Village Office.  Evidence was given by the Village head (DW1) that there were at least 300 inhabitants of the Village – there were some 52 car parking spaces.

19.  As well as vehicles coming in and out, there would be pedestrian traffic which was likely to be heavier when inhabitants were going to and from work.  The home for the elderly would be a destination for visitors and staff to the area, so drivers would have to be aware of that also.

20.  Various photographs and sketches of the area were put into evidence.  From those exhibits one would expect that, as a counsel of perfection, drivers should leave the area outside the Village Office by driving out in a forward direction, but it is more likely in reality that most, if not all, drivers who stopped or parked in the area would choose to leave by reversing out, rather than by making several efforts to turn their vehicle in a limited space.  Although there was enough space to make such a turn, as Inspector Chan Hon Yiu (PW9) stated, it would be “troublesome” to do so and in any event would involve a degree of reversing in a limited space to execute the turn.

21.  The Magistrate did not accept that the Appellant had travelled only a few metres while reversing, or that his speed was slow, but found that he was lying and found too that he lied when he said he had looked in all directions before reversing.  It is unclear from the Statement of Findings on what basis she rejected the contention that the vehicle was going at a slow speed, except to note that she relied on the evidence of PW1, the eyewitness.

22.  In assessing the evidence the court had first to decide whether the speed of the vehicle was dangerous and secondly whether the driver had kept a proper lookout when reversing from the cul-de-sac to the space where the vehicle could turn in order to go downslope.

Speed

23.  The evidence about the speed came from a number of sources.  PW1, who was found by the Magistrate, somewhat surprisingly, to be a reliable witness, described the speed as neither fast nor slow and eventually agreed to a suggestion that it was “medium”.  Dr Phoebe Cheung Shui Yi (PW6), who was in her 6^th year of work in the Accident and Emergency Department, Prince of Wales Hospital, gave evidence that the injuries sustained by the Deceased were not of the type that one would normally expect from a collision at speed, e.g. organ injury; fractured pelvis; brain haemorrhage.

24.  Dr Beh Swan Lip (DW2), a forensic expert called by the defence concluded that the speed of the vehicle was likely to have been low or slow.  The Forensic Pathologist, Professor Ng Ho Keung (PW8) agreed with that conclusion.  There was no suggestion by PW1 that the car had accelerated out fast when reversing.  The distance travelled was about 4 metres or one car length according to the Appellant, so it was unlikely that the vehicle could have achieved any great speed before the collision. 

25.  The findings of Dr Beh Swan Lip were as follows:

(1)  the body of the victim was front down and his face was turned to the right;

(2)  the presence of tyre marks on the back of his T-shirt supported and suggested the wheel of the vehicle coming into contact with the back of the T-shirt / back of the body;

(3)  the matching of this tyre mark to the left rear wheel of the vehicle supported the fact that this wheel had been in contact with the back of the body;

(4)  the pattern of injuries of the deceased were predominantly on the left side of the body and supported the likelihood that it was the left rear wheel of the vehicle crushing onto the left back of the upper abdomen that caused the liver injury and also the fractures of the left ribcage.

26.  Dr Beh considered that the scenario was consistent with the vehicle:

a.  reversing at a low speed;

b.  hitting the pedestrian, the Deceased;

c.  causing him to fall face down to the road;

d.  the left rear wheel of the vehicle rolling onto the left back of the body;

e.  the vehicle stopping and then moving forward whilst the left rear wheel was still on the back of the body;

f.  the vehicle moved forward and the wheel dismounted the body of the Deceased.

27.  Another factor which indicated a low speed was the position of the Deceased after the collision.  He was lying quite close to the left rear of the Appellant’s car, about 1 metre away.  If the vehicle had hit the Deceased at a high speed, it was very likely that he would have been thrown further away and suffered greater injuries.

28.  The Magistrate did not accept the evidence which suggested the speed was slow and appeared to have relied on the evidence of PW1 that the speed was “medium”.  She stated: “The D said that it [speed] was only a few kilometres in the Record of Interview” and she went on to find the Appellant was “clearly not telling the truth as he had enough time namely 24 days, to think about all the details in defending himself in this case.”  [Statement of Findings page 13]

29.  Although the Magistrate was entitled to place what weight she thought appropriate on the contents of the Appellant’s Video Interview, it was incumbent on her to give some reason why she concluded that the Appellant was lying and why she was able to ignore other factors which supported the Appellant’s account of his speed being low.  Instead the Magistrate relied only on the evidence of PW1 whose assessment was of dubious value given the quality of her evidence overall.

Failure to keep a proper lookout

30.  The Appellant said that before reversing he had looked to his front, his back, to the sides and through his mirrors but had not seen the Deceased.  The defence suggested that the Deceased could have been behind a parked car after climbing the stairs and thus been wholly or partly obscured at the time the Appellant conducted his checks.

31.  The defence submitted that the Deceased may have been in one of the car’s blind spots as the Appellant had not seen him at all. It was also suggested that because the vehicle was going up a slope the Deceased may not have come within the range of the vehicle’s windows or rear view mirrors.  The Deceased was 157 cm in height and it was suggested that he may not have been clearly visible above the lower level of the vehicle’s windows.  The distances from the ground to the lower edges of the windows and mirrors were measured.  They showed however that the Deceased could have been visible through the windows and/or in one or other of the mirrors.

32.  A parked vehicle covered with a silver-coloured cover, or another of the parked vehicles outside the village hall could have blocked the Appellant’s view of the Deceased if he was walking up the steps from the main road and as he had made a short deviation to the right at the top of the stairs, before continuing to walk up slope towards the home, he may have been obscured, wholly or partially, by a parked car.

33.  The Magistrate did not analyse those submissions in detail, but stated that she found herself able to draw the irresistible inference that if the Appellant had conducted the checks as he claimed, he could not have failed to see the Deceased behind him.  That is certainly one inference that can be drawn, but it was not the only reasonable inference to be drawn, given the submissions made on behalf of the Appellant.

34.  The Magistrate concluded that he lied.  “All the figures showed that had the D looked, he should have noticed the presence of Mr. Ng.”

35.  She noted that in answer to a question at the Video Interview, the Appellant said that he did not know where Mr Ng had come from and that from the beginning of the reversing manoeuvre until he stopped his vehicle, he had not seen Mr Ng.  The Magistrate pointed out that the Appellant lived in the village, was familiar with the area and the traffic condition and stated “All the D needed to do is to turn his head to look, to see that Mr. Ng was there, bearing in mind that 75 years old Mr. Ng walked in a slow speed.”

Evidence of PW1

36.  PW1 was the sole eyewitness to the incident and her evidence was accepted by the Magistrate.  She had worked as manager at the Home for four years by the date of the incident.  She was giving evidence 18 months after the incident and at the beginning of her evidence professed herself to be, and initially was, a nervous witness.  There were clearly matters she had forgotten, was unsure of or had confused.  It is unfortunate that finding herself in that position she did not say she did not know, or could not remember, various matters but tried to answer all the questions put to her whether or not she could recall the events.

37.  Her major error was to insist that when he was hit by the car the Deceased fell with his back to the ground – when all the other evidence showed (and it was not in dispute) that the Deceased fell with his front to the ground.  Despite being shown her statement, made on 25 August 2010 which contained the latter description, PW1 insisted on maintaining the incorrect version.  This called into question her power of accurate recall.

38.  PW1 gave a number of different answers to the same questions.  Those questions were about the speed; which part of the Deceased had first been hit by the car; which part of the vehicle hit the Deceased, etc.  Although the variations in the answers were not in themselves very great, in total they cast serious doubt on PW1’s accuracy and her memory.

39.  When looking at the transcript of her evidence there are only a few matters on which she gives useful evidence, or can be considered reliable.  She confirmed that there was no other moving traffic in the vicinity at the time of the incident and could say that at that time of day (10.45 am) the village was quiet.  She saw the Deceased walked from left to right behind the Appellant’s car but could not say whether he had walked up the stairs or up the slope.

40.  The Magistrate, correctly, stated that the whole of PW1’s evidence was not rendered wholly unreliable because of her error about the Deceased’s position.  However she brushed aside the inconsistent answers given by PW1 on other matters, without explaining why she felt able to do so, simply saying: “To this end, I found the rest of PW1’s evidence was honest and reliable.  I accepted her evidence.” [Statement of Findings page 5 – AB 58]

41.  It was not however PW1’s honesty which was impugned, rather it was her limited powers of observation and her memory which caused concern.

42.  It was true that PW1 had an elevated overview of the scene and saw the course of the accident, but the quality of her evidence could not be regarded as so cogent that it could establish beyond reasonable doubt what had happened.

43.  Before she could convict the Magistrate was required to identify in what manner the Appellant drove dangerously.  At page 20 she stated: “When a driver reversed out without checking clearly, in my judgment it was blatantly dangerous.  It was a dangerous driving manner.”  She set out the legal tests and noted that the speed of the vehicle was not itself a determining factor.  The evidence relevant to speed on an objective view supported the Appellant’s claim that his speed was slow.  However the Magistrate rejected the Appellant’s assertion that his speed was “only a few kilometres”, commenting that the Appellant was clearly not telling the truth in his Video Interview, “as he had enough time, namely 24 days, to think about all the details in defending himself in this case”.  This ignored the account given by the Appellant when questioned under caution at the scene soon after the Accident, that he was reversing very slowly.  [Exh P2 and P2A – TB88]

44.  It appeared that the Magistrate considered the Appellant was lying, simply because of the time lapse between the date of the accident and the time of the Video Interview.  She failed to take into account the evidence that the Deceased fell practically on the spot where he was hit, which was unlikely to have been the case if the Deceased had been hit at speed; that there were no brake marks, skid marks or oil leaks which might indicate a fast speed hurriedly checked; that the injuries to the Deceased were not of the type one would expect from a collision at speed and the expert evidence also supported the contention that the reversing had been carried out at a low speed.  Further, the evidence suggested that the Appellant had moved only a short distance before his car hit the Deceased, which would not give the Appellant the opportunity to reach a fast speed.

45.  The vehicle was not high powered, which was another factor that made it unlikely the Appellant’s speed was fast.

Consideration

46.  In looking at the evidence afresh it appears that the Appellant was at fault in carrying out an inherently risky manoeuvre by failing to seek help or ask someone to keep a lookout for him and by failing to conduct his pre-reversal checks sufficiently carefully.  The evidence tended to support the Appellant’s claim that his speed was low or slow and that the distance for which the car reversed was not great.  It is difficult to see how the Magistrate on the evidence before her, could have been sure that the Appellant’s driving fell far below what would be expected of a competent and careful driver.

47.  The circumstantial evidence supported the Appellant’s claim that he drove out at a low speed.  There were no aggravating features of the type contained in the non-exhaustive list set out in Secretary for Justice and Poon Wing Kay CAAR 2/2006 which established dangerous driving.  The car was in good mechanical order; there was no finding that the Appellant had taken drink or drugs; there was no evidence of high speed; the weather was fine and there was nothing to show that this tragic accident was occasioned by anything other than lack of attention to, or failure to carry out, adequate checking before reversing. 

48.  The implicit criticisms of the Magistrate in the Perfected Grounds of Appeal, e.g. the alleged lack of balance, reliance on the doctrine of res ipse loquitur; and insufficient analysis of what the prosecution had to prove to establish guilt by and large were not made out.

49.  However I cannot rule out the possibility that the Appellant’s view of the Deceased was obscured wholly or in part at the time the Appellant began reversing.  The Magistrate appeared able to do so and as a result failed to give sufficient weight to the possibility of a doubt that should have been resolved in the Appellant’s favour.

50.  Because of the rather unusual setting and terrain where the accident occurred, this is one of those rare cases where the court would have benefitted from “taking a view” of the accident location.  Such a course was suggested but rejected by the Magistrate who believed that sketch maps and photographs would be sufficient.  Certainly those were valuable aids, but taking a view would have been more helpful.

51.  Given all these factors it is not possible to say that the Appellant’s driving fell so far below the standard to be expected of a competent and careful driver that it should be categorized as dangerous driving.  To give the Appellant the benefit of the doubt raised, this was a case of Careless Driving in that the Appellant drove without due care and attention and failed to check the area sufficiently carefully before reversing out of the cul-de-sac.

52.  Accordingly I allow the appeal, quash the conviction for Dangerous Driving and substitute for it a conviction for Careless Driving. 

Sentence

53.  It follows that I also quash the sentence of 10 months’ imprisonment.