HKSAR v. WONG MIU LIN

DCCC 11/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 11 OF 2013

____________

REASONS FOR VERDICT

1.  Charge

The defendant is charged with an offence of dangerous driving causing death, contrary to section 36(1) of the Road Traffic Ordinance Cap. 374. He admitted to driving carelessly and causing death but denied dangerous driving.

2.  Overview

On 2 February 2012 at about 1420 hours, Madam Chan Lai-fun aged 73 was walking along the pavement of Kok Cheung Street whereupon. It appeared she had intended to cross Fuk Chak Street immediately ahead of her as she had stepped off the pavement and walked a few paces onto the road of Fuk Chak Street. At this juncture the defendant was driving a medium goods vehicle (lorry) along Kok Cheung Street and made a left turn into Fuk Chak Street, upon rounding the corner the lorry ran over Madam Chan with its nearside rear wheels which caused her death.

3.  A CCTV video recording (exhibit P2) showing the events leading up to the collision with Madam Chan and the lorry running over her was captured on a camera installed at the car park of Ta Chi Factory Building opposite the junction.  The recording did not however capture how Madam Chan ended up under the lorry. 

4.  Issue

The main dispute in this case was whether the defendant was driving carelessly or dangerously. One of the main questions in this case was whether the defendant was paying a proper look out? In resolving this issue the questions to be asked are:-

a. Should the defendant have been able to see Madam Chan while she was walking along the pavement on Kok Cheung Street which was on the nearside of the lorry?

b. Should the defendant have been able to see Madam Chan when she was walking to the rear of the van as she stepped off the pavement?

c. If the defendant should have able to see Madam Chan when she was walking along Kok Cheung Street, and near to the edge of the pavement, should the defendant have anticipated that Madam Chan was about to cross the road?

d. was the defendant continuing to negotiate the left turn dangerous in the circumstances?

5.  If the defendant should have seen Madam Chan before he turned the corner did the defendant’s failure to stop or steer his lorry clear of Madam Chan cause his lorry to collide with her when she was on Fuk Chak Street? Consequentially was the defendant’s driving far below the standard of a competent and careful driver.

6.  Witnesses

The prosecution called four witnesses. PW1 was a pedestrian waiting to cross Fuk Chak Street at the junction with Kok Cheung Street. He was standing on the opposite corner to Madam Chan and saw her standing on Fuk Chak Street itself immediately before she was run over by the lorry. PW2 and PW3 were police officers who arrived at the scene shortly after the accident and took part in the accident investigation. PW4, Dr Cheng Yuk-ki was an expert in traffic accident reconstruction and did a re-construction of the accident.

7.  As was the defendant’s right he elected not to give evidence nor call any defence witnesses.  His case as put to the prosecution witnesses in cross-examination was that he did look to his left and right upon making his turn but did not see Madam Chan.  It was it appears, his case that Madam Chan was all along in his blind spot before and when he was making his turn and thus he did not and he was unable to see her or he had insufficient time to see her. 

8.  The factual events leading up to the collision and after the collision

Much of the factual evidence to the lead up of the collision was not in dispute. PW4, Dr Cheng Yuk Ki’s conducted a re-construction of the accident and submitted two reports dated 5 October 2012 and 22 February 2013 (exhibits P14 and P15). He also viewed the CCTV video recording of the accident (exhibit P2) and arrived by scientific findings on matters such as the speed of the lorry at the time and the distance and speed covered by Madam Chan when she was walking along Kok Cheung Street. His evidence on the whole was not strenuously challenged by the defendant.

9.  The accident as seen from the CCTV footage (P2) and the still photographs (P3)

The video footage shows the junction of Kok Cheung Street and Fuk Chak Street. At the top left was the nearside pavement of Fuk Chak Street. At the top right corner was the offside pavement of Fuk Chak Street. Thirteen still photographs were captured from the video footage exhibit P3 (1-13).

10.  Shown on the video footage at counter 14:25:17 hours on 2 February 2012 Madam Chan can be seen walking along the pavement of Kok Cheung Street towards Fuk Chak Street carrying a number of bags (photo 1 to 3 of P3 walking from left to right of the screen).  She was at that time seen to be carrying a large white bag.  At the same time the defendant was driving his lorry along Kok Cheung Street in the same direction as Madam Chan was walking. He was intending to turn left into Fuk Chak Street.

11.  At the material time a white van was illegally parked at the junction of Fuk Chak Street and Kok Cheung Street (P3 photo 1-3 top left corner).  The van was parked on Fuk Chak Street but its rear was jutting out into Kok Cheung Street blocking the pavement and forcing pedestrians, like Madam Chan walking on Kok Cheung Street who wanted to cross Fuk Chak Street to walk around the rear of the van.  

12.  At 14:25:19 hours Madam Chan is near the edge of the pavement and the defendant’s lorry appears (photo 3 of P3).  At that time she is ahead of the defendant on his left. 

13.  The defendant then drives past Madam Chan, turning into Fuk Chak Street (P3 -photo 4) at 14:25:19.  From that moment on Madam Chan cannot be seen until she appears in about the middle off the road after the lorry has run over her (P3 photos 3-13). 

14.  At 14:25:20 the lorry commences its left turn into Fuk Chak Street.  For about 4 seconds from 14:25:20 to 14:25:25 it is making its turn.

15.  At 14:25:25 (photo 9 of P3) the lorry has turned into Fuk Chak Street and the nearside rear of the lorry is very close to the offside rear of the parked van.  At this time Madam Chan cannot be seen.  A white object can be seen at the rear off side of the van.  At 14:25:26 there is a clear space between the rear of the lorry and the van, the white object cannot be seen any longer and nor can Madam Chan (photo 10 of P3).

16.  At 14:25:27.12 the nearside rear of the lorry appears to have rocked significantly some 0.48 seconds later the brake lights of the lorry lit up and the lorry came to a complete halt at 14:25:28.04.

17.  At 14:25:27 (photo 11 of P3) a white object can be seen coming out from under the nearside rear wheels of the lorry.  At 14:25:28 (photo 12 of P3) a number of white objects can be seen coming out from under the rear of the lorry. 

18.  At 14:25:31 (photo 13) the defendant has stopped his lorry and the body of Madam Chan, surrounded by her bags is lying in the middle of Fuk Chak Street.

19.  The scene

Immediately prior to Madam Chan being run over, PW1 Mr Ng Wai-hung was standing on the opposite pavement to Madam Chan waiting to cross the road (PW1 pointed to the black bag pictured in photo 9 exhibit P5 as the position where he was standing). At that time he saw Madam Chan on the opposite side to him standing on Fuk Chak Street next to the rear wheel of the illegally parked white van (PW1 drew a red box depicting where the van was parked a photo exhibit P13). He saw that madam Chan was carrying a number of shopping bags.

20.  PW1 had wanted to cross Fuk Chak Street but stopped as he observed the defendant’s lorry making its turn into Fuk Chak Street in front of him.  

21.  PW1 saw the lorry first turn towards the right (to the direction of Tai Chi car park) then turn left into Fuk Chak Street.  This was consistent with defendant’s case in that to make the tight left turn he had to steer the lorry to the right then turn it to its left.  PW1 saw Madam Chan when the lorry had started its turn into Fuk Chak Street. 

22.  PW1 estimated the speed of the lorry to be about 30km/h and considered the defendant was driving very fast.  At the time the defendant was making the left turn PW1 looked up to the cab of the lorry and saw that the defendant’s eyes were looking straight ahead into Fuk Chak Street. As a consequence PW1 believed that the defendant was not looking left or right and had not seen any pedestrians either on Madam Chan’s side of the road or him on the pavement opposite to Madam Chan.  

23.  He immediately thought Madam Chan was in danger as he believed that the defendant had not seen her.  He then shouted towards the defendant “watch out” however there was no reaction from the defendant and the lorry continued to drive ahead turning into Fuk Chak Street. 

24.  When the front cab of the lorry had travelled past him he saw Madam Chan through the gap of the lorry’s cab and its loading compartment.  At that time Madam Chan was still standing near the white van. He then saw Madam Chan move backwards.  He believed the defendant had hit her and shouted loudly telling the defendant he had hit someone.  After that his view was blocked by the loading compartment of the lorry.  PW1 saw the lorry jolt twice and heard sounds when it jolted.  After the lorry had passed him he then saw Madam Chan’s body in the middle of the road. 

25.  Almost immediately after the jolts, the defendant stopped his lorry and alighted.  When the defendant saw Madam Chan lying on the ground surrounded by blood stains he started crying and was very emotional.  He repeated continuously “I hit someone, I hit someone.”  PW1 asked him to calm down and call the police however as the defendant was too emotional and had no reaction, PW1 himself called the police.

26.  Two to three minutes later an ambulance arrived.  Madam Chan was taken away and soon after that a police officer, PW2 arrived.  PW1 then related the course of the accident to PW2. 

27.  PW1 stated that when the defendant turned his lorry into Fuk Chak Street the lorry was only about three to four feet away from him.

28.  The police officer PW2 was the first officer to arrive at the scene.  When he arrived he asked the defendant how the accident happened.  He observed the defendant was very emotional, the defendant answered he did not know how the incident occurred but when he turned slowly left into Fuk Chak Street he felt the rear of the vehicle had hit something.  He therefore stopped his lorry and alighted to have a look and there he saw Madam Chan.  PW2 breathalysed the defendant and found no trace of alcohol.

29.  PW3 the investigating officer arrived at the scene later.  He took a series of photographs (P1 - 40 exhibited as P5). Subsequently he went to the vehicle pound where the defendant’s lorry was detained and together with the defendant conducted some experiments to test the driver’s field of view using the windows and the rear view wing mirrors.  He drew three sketches exhibited as P4 (1-3 with its translations at a- c).  It transpired that the defendant was able to see the rear of his lorry when someone of a height of 1.6 metres was at a distance of 1.3 metres from the lorry but was not visible when someone was closer than 1.3 metres.  The height of Madam Chan was 1.54 metres.

30.  Accident re-construction by PW4

Some seven months later in September 2012 PW4, conducted a re-construction of the accident using the same lorry as the defendant was driving on the date of the accident. Prior to the re-construction he looked at the photographs taken by PW3 and viewed the CCTV footage. He submitted his two reports (P14 and P15) encompassing photos with his findings. Some of the same but larger photos in his report were exhibited in an album P16.

31.  PW4 stated that in his accident re-construction he ensured the route followed by the defendant’s lorry matched precisely with the CCTV footage which showed the route immediately before the accident.  The defendant’s lorry which was used in the re-construction was driven by a police driver.  A police van was used in substitution for the illegally parked white van and a police officer was a stand in for Madam Chan.  The lorry was stopped at various stages of its route so that the field of vision of the driver could be ascertained. 

32.  The details of the reconstruction are at paragraphs 5.1 to 5.10 of his report P14.  The analysis is at paragraph 6.1 to 6.7.  His conclusions are at paragraphs 7.1.   I shall not reiterate Dr Cheng’s findings. 

33.  Based on the re-construction Dr Cheng was of the opinion that while the defendant was driving along Kok Cheung Street before he made his left turn into Fuk Chak Street, the defendant would have been able to see Madam Chan walking along the pavement on his nearside approaching the rear of the van. 

34.  With the defendant’s lorry abreast with the rear nearside of the police van the defendant could have seen Madam Chan either through the nearside window or the front windscreen of the lorry (photo 4 of Appendix IV of P14). 

35.  At the beginning of the defendant’s turn into Fuk Chak Street, when the front of the lorry was level with the rear of the van, the defendant would not have been able to see Madam Chan for a period of about one second (para 5.5 of report P14).  As the defendant commenced his turn into Fuk Chak Street he would not have been able to see Madam Chan in the gap if the defendant’s front cab of the lorry had passed the edge of the pavement by 4 and 4.8 metres (photo marked as P17). 

36.  PW4 was of the opinion that thereafter in the defendant’s turn he should have been able to see Madam Chan from his nearside wing mirrors.

37.  The law

A person drives dangerously in terms of section 36(4) of the Road Traffic Ordinance (RTO) cap. 374, if:-

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

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

38.  Section 36(7) sets out the circumstances that should be taken into account 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.

39.  Section 36 sets out a wholly objective test see Lam Chi Fat CACC89/2011 paragraph 39.  The Court in Lam quoted Lord Woolf CJ in AG’s Reference (no.4 of 2000) (R v GC) R.T.R. 415 at p.425.  Whether the driver intends to drive dangerously is not relevant to any assessment as to whether the driving was dangerous. 

40.  Proof

It is for the prosecution to prove their case beyond all reasonable doubt. There is no reversal of onus on the defendant.

41.  Submissions

I have taken into consideration all the evidence and submissions made by Mr John Dunn counsel-on-fiat and Mr David Boyton and Mr Kevin Li for the defendant.

42.  The fact that I do not mention a particular piece of evidence or submission does not mean that I have not considered it or factored it into my decision-making.

43.  Mr Boyton’s submissions were principally that if Madam Chan was standing at the rear wheel of the parked van, then she would have been in the defendant’s blind spot for the whole time when he rounded the corner.  Her height of 1.54 metres would have prevented the defendant seeing her. 

44.  Further if Madam Chan was not in defendant’s blind spot for the whole time it was submitted that the defendant may have glanced in his rear view wing mirrors at the time Madam Chan was at the blind spot of his lorry and as the turn only took about 3 seconds to make, he might have missed seeing her on his turn as he was not only looking to his nearside but also ahead and to his right.

45.  Mr Boyton cast doubts and reservations upon Dr Cheng’s re-construction, as a policeman was used as the driver of the lorry and not the defendant.  As it was not the defendant but an officer who was the viewer, the angle of the wing mirrors were adjusted according to the police officer and not the defendant.  Mr Boyton submitted each driver will have his own respective view and mirror angle and thus the findings of PW4 were not conclusive in regard to the defendant. 

46.  Mr Boyton suggested that the evidence of PW3 as to the wing mirrors and the distance of a person’s position from the cab of the lorry should be the preferred view of the defendant.  As could be seen from PW3’s photos, they were taken on the day of the accident and the wing mirrors were adjusted to the defendant’s view on that day.  

47.  Analysis

PW1 was an eye-witness at the scene. He was 55 years of age and had 35 years of driving experience. I accept that he had over- estimated the defendant’s speed at 30 km/h when he saw the defendant rounding the corner and accept PW4’s evidence that the defendant was turning the corner at about 10km/h. Otherwise, I found PW1’s evidence and observations to be honest and reliable.

48.  I reject the submissions that Madam Chan may have been walking along Fuk Chak Street and was not standing intending to cross Fuk Chak Street.  PW1’s evidence was clear that he saw her standing at the rear wheel of the parked van before the defendant made his turn and upon making his turn he still saw her standing when he looked through the gap of the cab and its compartment but for her going backwards. 

49.  Dr Cheng’s evidence was that the defendant should have been able to see PW1 as he rounded the middle of the bend.  It was clear from Dr Cheng’s accident re-construction that the police officer standing in as Madam Chan was standing at a different position from where Madam Chan was standing as stated by PW1 on the day of the accident. 

50.  In the re-construction the police officer was seen to be standing at the rear of the van and not at its rear offside wheel as was the evidence of PW1.   It can be seen and I accept as did Dr Cheng, that there was a possibility that Madam Chan may have been in the defendant’s blind spot if she was standing at the rear wheel of the van when he rounded the corner into Fuk Chak Street as depicted in photo 6 of Appendix IV of the report P14.  The gap in the turn between the lorry and the parked van was about 1.4 metres and narrowed to 0.9 metres when the lorry mover further forwards. 

51.  It was clear from PW4’s evidence at paragraph 5.6 of his report P14 when the lorry was still along Kok Cheung Street stopped at two positions with its front about 4 and 4.8 metres from the kerb of the nearside pavement of Fuk Chak Street (substituted for the then illegally parked van), at these two positions the defendant was unable to see Madam Chan either through the nearside side window or the nearside wing mirrors.  

52.  The above re-construction took place without the defendant as the driver or evidence that the wing mirrors were in the same position as they were on the day of the accident, the substitute police officer for Madam Chan was not in the same position as she was.  I was of the view that the references to the defendant’s blind spot as stated by Dr Cheng on turning were not of material significance in assisting me in deciding the issue. 

53.  However significantly Photo 40 of P5 taken on the day of the accident and PW3’s visibility test as seen in the sketch P4(3) shows that the defendant was able to have a clear view down the nearside of the lorry.  Photo 40 shows that the defendant had a clear view right along the near side of his lorry if he had looked at his left nearside wing mirror the defendant would have been able to see Madam Chan when he rounded the corner at the requisite distance.

54.  In light of the present facts which are not challenged and which I consider as the most significant evidence, is whether the defendant should have known of Madam Chan’s presence before he made his left turn into Fuk Chak Street.

55.  Importantly therefore is what the defendant should have observed BEFORE he turned the corner into Fuk Chak Street and not when he was commencing his turn or while negotiating his turn into Fuk Chak Street.

56.  What is not in dispute and what is clearly depicted on the video footage and the still photos of the footage, is that when the defendant was driving along Kok Cheung Street Madam Chan was walking ahead of him on the pavement on his nearside and the illegally parked van was on the nearside with its rear jutting out towards Kok Cheung Street. 

57.  The defendant BEFORE he made his turn into Fuk Chak Street should have seen Madam Chan walking along the pavement.  Visibly at the time she was carrying a large white bag which should have stood out more than usual.  He should have seen her walking off the pavement at the rear of the van had he been paying a proper lookout.  Even if he had not seen her walking off the pavement he as a competent and careful driver should have anticipated that she may not stop and intend to step onto Fuk Chak Street ahead of her which if she did inevitably meant she would have to go around the parked van.

58.  It was crystal clear upon the reconstruction that when the lorry’s cab was abreast with the nearside rear of the van that the defendant should have been able to see Madam Chan either through the near side window and front windscreen of the lorry (see photo 4 of Appendix IV of report P14).   

59.  The defendant would have seen the illegally parked van with its rear end blocking the pavement.  He should have seen Madam Chan as she started to walk around the parked van photos 2 and 3 of P3 the still photos of the CCTV depict Madam Chan clearly close to the edge of the pavement.  If the defendant had observed what was going on to his left that is that it was anticipated that Madam Chan was going to cross the road ahead, then as a competent and careful driver would do BEFORE he made his left turn he would have been aware that Madam Chan was intending to cross Fuk Chak Street from a point somewhere on the offside of the parked van.

60.  In the Road Users Code.  It states that for pedestrians on or crossing road ahead :-

At Chapter 5 it states:-

Look out for pedestrians forced on to the road when a pavement or footpath is closed or blocked by works (in this case the illegally parked van)

Give pedestrians walking on the roadway plenty of room. ..be especially careful on a left-hand bend and keep your speed down. If there is insufficient room to pass, slow down or stop until it is safe to do so. This was a left hand bend for the defendant to which he had to be especially careful.

Be on the look-out and keep your speed down and be prepared to stop.

Junctions are a common place for pedestrians to cross the road….Give way to pedestrians crossing the road into which you are turning. The defendant should have seen Madam Chan on the pavement, it was a junction, it was a common place for her to cross the road, he was about to turn into that road.

As people grow older, their reaction times become longer and the likelihood of inattention increases together with a general physical or mental deterioration. The elderly may not judge speeds very well or notice approaching traffic and may step on to the road unexpectedly. Give them plenty of time to cross the road. Although the defendant was unable to know the age of Madam Chan he should have anticipated that she may well not have noticed him approaching her from behind and anticipated that she may step on to the road unexpectedly.

Safety of pedestrians

looking out for and making allowances for pedestrians is a continuous task for a driver, particularly when driving along urban roads, near junctions..

61.  If the defendant had paid a proper lookout and attention to the road condition ahead and to his sides particularly his nearside, he should have noticed the presence of Madam Chan well in advance of her walking to the rear of the van and more so when she was close to the edge of the pavement, intending to cross the road.  He should have seen that she had stepped off the pavement on the road and would have been forced to have walked behind the van.  He thus should have anticipated her intention of crossing of the road.

62.  The defendant should have either slowed down, given her plenty of room and or stopped.  Despite seeing Madam Chan, noticeably intending to cross the road and at that time intending to cross, the defendant surprisingly it would seem on the defendant’s case, did not even see her. 

63.  PW1 observed that when the defendant was making his turn into Fuk Chak Street, he was only looking at the road directly ahead and not any pedestrians to the sides either on the road itself or on the pavements.  This immediately caused him grave concern for the safety of Madam Chan.  Evidently PW1 believed that the defendant did not even see him standing on the offside pavement or Madam Chan when he was making his turn this caused him to shout at the defendant in an attempt to alert him of the danger.  I was satisfied that that the defendant had not seen Madam Chan when he should have. If the defendant had seen Madam Chan he failed to give her plenty of room or stop.

64.  If the defendant was driving as a competent and careful driver had, he would have paid attention to Madam Chan, the pedestrian walking on the pavement and anticipated that Madam Chan, would have continued to cross the road or that she may not even have seen him on the road, the defendant could have applied his brakes in time, either stopped his lorry and or allowed her plenty of room and the collision with Madam Chan would have been avoided. 

65.  Further the defendant was well aware that he was turning into a very narrow road, moreover in making his turn there was an illegally parked van near the junction on his left side, he was aware that the nearside of the lorry wheels or tyres would track inside of the front wheels and hence would inevitably come very close to the rear offside of the illegally parked van.  He did not give plenty of room when he made the turn, on Dr Cheng’s estimate the distance with the lorry and the van would have been probably less than 0.9 metres at its closest (see para 7.1.7 of PW4’s report P14).  The defendant should have been especially carefully in light of the tight left bend, his very large long lorry, in an urban area where there were pedestrians. 

66.  I accept there was no evidence nor could it be seen that the defendant’s lorry collided with the van but clearly the defendant knew that the distance between the two vehicles would become very tight in the turn. 

67.  The defendant had an unobstructed view of the road ahead of him and to the nearside of him when he was travelling along Kok Cheung Street.  The weather was fine and the visibility was good.  The road surface was dry. 

68.  I came to the conclusion that the defendant drove in such a way as to create a danger of injury to Madam Chan. 

69.  I was satisfied that the defendant was not paying a proper lookout as he did not see Madam Chan at all or if he saw her, he did not take any obvious steps to brake, stop or manoeuvre his lorry to avoid an accident or collision with her.  As a consequence of his non- actions and his failure to take these elementary precautions I was satisfied that his driving fell far below the standard of a competent and careful driver.  As a result of him failing to observe her before he negotiated his left turn he inevitably knocked Madam Chan down. 

70.  The defendant’s driving fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that manner would be dangerous.

71.  Conclusion

I was satisfied on all the evidence before me that the prosecution had proved beyond all reasonable doubt that the defendant drove dangerously causing the unnecessary death of Madam Chan.

72.  The defendant is convicted of the charge accordingly.