HKSAR v. CHEUNG YUK TONG

 [English Translation – 英譯本]
HCMA 808/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 808OF 2007

(ON APPEAL FROM KCS NO. 4254 OF 2007)

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REASONS FOR JUDGMENT

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1.  The appellant was convicted after trial in the Magistrates’ Court on one count of ‘dangerous driving’, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong. He was fined $2,500 and disqualified from driving all classes of vehicles for 6 months. The appellant appealed against his conviction.

2. After hearing, I dismissed the appeal, for reasons to be set out below. 

Prosecution case

3. The prosecution case, in a nutshell, was that the appellant drove dangerously at 8:09 p.m. on 30 November 2006 at the intersection of Jordan Road and Lin Cheung Road. When the traffic lights governing Lin Cheung Road southbound were red, he drove into the road junction against the traffic lights and collided with a taxi travelling along Jordan Road westbound which had entered the junction when the traffic lights were green. The taxi driver, surnamed Kung, and a female passenger were injured. Damage was also done to the taxi and the appellant’s private car.

4. The admitted facts were that under normal circumstances, when the traffic lights governing the lane where Kung’s taxi was travelling were green, the traffic lights governing the lane on which the appellant was driving should be red.

5. The incident was witnessed by another taxi driver (PW1). PW1 was also travelling along Jordan Road westbound and was on the offside of Kung’s taxi (there were altogether 4 lanes for westbound traffic, Kung was on the second lane from the left, whereas PW1 was on the third lane from the left). PW1 said that after the traffic lights governing their lanes turned green, Kung started off faster than he did. All the vehicles in the direction of the appellant had come to a complete halt and the appellant’s car was the only “odd one that charged through”. A police officer (PW2) arrived at the scene shortly after 8 p.m. The officer observed the traffic lights at the scene and found that they were functioning normally: when the traffic lights governing the westbound flow of traffic on Jordan Road were green, the light signals at that junction governing the southbound flow of traffic on Lin Cheung Road were red.

6. The police officer then conducted a recorded interview with the appellant. The appellant admitted that he was driving along the third lane on Lin Cheung Road southbound and entering the cross-junction, on his way to Tsim Sha Tsui. He “felt” that the lights were green and “felt” that there were vehicles ahead, and hence entered the cross-junction without slowing down. He said he was not sure which was the green light that he had seen.

Defence case

7. The appellant elected not to give evidence. Nor did he call any witness.

Grounds of appeal

8. Mr. Poon, Counsel for the appellant, raised two grounds of appeal:

(1)    The prosecution failed to prove that the lights governing the traffic on the appellant’s lane were red; and

(2)    The prosecution could not rule out the possibility that the appellant had mistaken the green left-turn arrow light to be the green arrow light for traffic going straight ahead, which would at most constitute an offence of careless driving, not dangerous driving.

9. Regarding Ground (1), Mr. Poon submitted that the magistrate had misinterpreted Exhibit P3 (a diagram of traffic light cycles) and wrongly relied on that diagram to prove that the traffic lights were functioning properly at the material time. Mr. Poon submitted that the magistrate had attached undue weight to the part of Exhibit P7 (i.e. the written statement of the traffic light engineer of the Transport Department, admitted under section 65B of the Criminal Procedure Ordinance) which was hearsay evidence. Mr. Poon relied on the case of R v. Ma Siu King[1] as authority for his argument.

10. As for Ground (2), Mr. Poon submitted that since the police officer agreed that a driver might have mistaken the light signals, the prosecution could not rule out the possibility that the appellant had “mistaken the lights”. The appellant’s driving against traffic light signals would only constitute careless driving, not dangerous driving. Mr. Poon urged this Court to refer to some authorities[2].

The Respondent’s reply

11. Mr. Tam, Senior Government Counsel, made detailed written submission on behalf of the respondent. 

12. In relation to Ground (1), Mr. Tam referred to an authoritative textbook Cross & Tapper on Evidence (10^th edition)[3] which stated that the court, in the absence of any evidence to the contrary, would presume that the traffic lights were in order at the material time.

13. Mr. Tam also cited English[4] and South African[5] cases in support of his argument. He submitted that the defence in this case admitted that when Mr. Kung, the taxi driver, drove into the intersection, the traffic lights controlling his lane were green. Having said that, the discussion should start with whether the traffic lights controlling the lane of the appellant’s car were red. More importantly, the police officer arrived at the scene and found that the traffic lights at the scene were functioning properly. The evidence of the officer in this regard was not challenged by the defence. The magistrate also took into account the various explanations offered by the appellant in his record of interview, and ruled that the appellant was not the least sure which traffic light was the ‘green light’ that he saw. The argument that there was a ‘possibility’ that the traffic lights were not functioning properly was a theoretical possibility first raised when the defence made the closing submission.

14. In relation to Ground (2), Mr. Tam referred to the definition of ‘dangerous driving’ in section 37(4) of the ‘Road Traffic Ordinance’, as well as the legal definition of ‘dangerous driving’ according to an authoritative textbook Wilkinson’s Road Traffic Offences (22^nd edition, paragraph 5.07). In support of his argument, he also cited the case of Attorney General’s Reference (No. 4 of 2000)[6], that is, whether a person’s manner of driving amounts to ‘dangerous driving’ is a matter to be decided objectively, and the defendant’s mens rea is not important. The fact that the offence of dangerous driving was committed by mistake goes only to mitigation.

Judgment

15. A magistracy appeal is dealt with by way of a ‘rehearing’, based on the evidence before the magistrate (supplemented by any fresh evidence admitted by the appellate court): see the case of Chou Shih Bin v. HKSAR[7]. In my judgment, insofar as factual issues are concerned, it must be acknowledged that a magistrate has the advantage of observing witnesses giving evidence in court, whilst an appellate court can only rely on the written transcript. The credibility and reliability of any particular witness is solely within the assessment of the magistrate. It is only where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable, or that the magistrate misquoted, omitted or failed to consider any significant aspect of the evidence, that the conviction can be rendered unsafe.

Ground (1)

16. I agree with Mr. Tam’s submissions.

17. The present case is very different from the case of Ma Siu King. In that case, there was no evidence to show that after the collision, someone had tested the traffic lights and the computer system controlling the traffic lights and found them to be in normal working order; and thus the evidence of the engineer was limited to merely explaining the cycles of a traffic light when functioning properly. The relevant computer record was not produced. There was only the engineer’s testimony that no malfunctioning was found according to the computer record. The Court of Appeal concluded that the conviction was unsafe because the magistrate improperly admitted the inadmissible testimony of the engineer.

18. In the present case, in addition to the undisputed evidence of the independent witness that only the appellant’s car started off when other vehicles in his lane had stopped, there was also the evidence of the police officer who arrived at the scene to make observations and found that the traffic lights were in working order. Under such circumstances, Exhibits P3 and P7 are no more than evidence that corroborates the evidence of the independent witness and the officer. In the present case, the prosecution has proved that the traffic lights governing the appellant’s lane were red when he was entering the cross-junction.

19. Furthermore, the court in Ma Siu King had not considered the presumption that traffic lights were in working order in the absence of any evidence to the contrary.      

20. This ground must fail.

Ground (2)

21. The definition of ‘dangerous driving’ is set out in section 37 of the Road Traffic Ordinance:

(5)    A person is also to be regarded as driving dangerously within the meaning of subsection (1) if it would be obvious to a competent and careful driver that driving the motor vehicle concerned in its current state 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 at the 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.

22. I agree with Mr. Tam’s submission that the wordings ‘obvious to a competent and careful driver’ clearly show that the test is an objective one.

23. Each case presents its own facts. Although precedents are helpful references, the Court has to consider the particular facts of the case.

24. At around 8 p.m. at the cross-junction, the appellant having driven across many lanes, collided with the taxi that came out from the left second lane on Jordan Road westbound. Judging from all the circumstances, in particular the traffic condition at the road junction, the appellant’s act of travelling against the traffic light signals and driving his car into the cross junction clearly fell within the definition of dangerous driving. His manner of driving fell far below the standard expected of ‘a competent and careful driver’ and would be regarded as obviously dangerous by ‘a competent and careful driver’.

25. The appellant alleged that there was a possibility of ‘mistaking the traffic lights’. Firstly, there was no evidence to indicate that the appellant had mistaken the light signals. Under caution, the appellant said he ‘felt’ the lights governing his lane were green. I cannot understand how he entered the cross-junction when he ‘felt’ that the lights were green. It seems to me that the appellant dared not lie and insist that the lights were green, so he ended up with such a ridiculous account.

26. Although the police officer agreed that there was a possibility that the appellant had mistaken the traffic lights, the officer said that the left-turning arrows and the arrows for traffic going straight were clear. It was the appellant’s right to elect not to give evidence. However, there was no evidence to substantiate his account as to under what circumstances he had mistaken the lights. Furthermore, even if the appellant had mistaken the lights, his manner of driving was dangerous in the circumstances at that time. I agree with the learned author of Wilkinson that committing dangerous driving by mistake goes only to mitigation. If the appellant intentionally ‘jumped the red light’, his culpability would be greater than a contravention of the traffic regulations by ‘mistaking the traffic lights’ and the same would be reflected in the sentence.

27. This ground of appeal must also fail.

28. For the above reasons, the appeal is dismissed.

[1] The Queen v. Ma Siu King, HCMA 1397/1994

[2] HKSAR v. Lee Mechian, HCMA797/2005; HKSAR v. Mak Siu Leung (transliteration), HCMA999/2006

[3] The author said, at page 41, that ‘A presumption which serves the same purpose of saving the time and expense of calling evidence as that served by the maxim omnia praesumuntur rite esse acta is the presumption that mechanical instruments were in order when they were used. In the absence of any evidence to the contrary, the courts will presume that stopwatches and speedometers and traffic lights were in order at the material time.’

[4] In the case Tingle Jacobs & Co. (a firm) v. Kennedy [1964] 1 WLR 638, Lord Denning considered whether there was evidence in the case to indicate that a particular traffic light was functioning properly or not. He said ‘… I must say that I do not think that suggestion has any foundation whatsoever. There was a sergeant from the traffic department of New Scotland Yard, who gave evidence of the inspection of these lights. They had been inspected in January and in April and there had been no reports of complaints or any trouble about them. It seems to me in the face of that evidence it would not be right to suggest the lights were not working properly. Furthermore, when you have a device of this kind set up for public use in active operation, I should have thought the presumption should be that it is in proper working order unless there is evidence to the contrary and there was none here. Therefore, I cannot go along with the suggestion of the judge that the lights were not working properly …’

[5] The South African Court made the following observation in S v. Lund (1987) (4) SA 548 (at page 548) ‘…if the court is entitled to take judicial notice of a fact in a civil case, it is entitled to take judicial notice of the fact that if one traffic light is green the one at right angles to it must, beyond reasonable doubt, be red. Once a court has taken judicial notice of a fact, it is still a question of fact whether or not that fact establishes what the State had to prove in the case in question, and established it sufficiently clearly for it to be said to be established beyond reasonable doubt.’

[6] (R v. GC) [2001] R.T.R. 415: ‘… the offence was intended to cover cases in which a driver had made a mistake with tragic consequences; but the fact that the offence was due to a mistake went only to mitigation.’

[7] Chou Shih Bin v. HKSAR, FACC11/2004