HKSAR v. HUI WANG CHIN

DCCC 1347/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1347 OF 2011

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

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

Reasons for Verdict

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

1.  The defendant herein faces a charge of causing death by dangerous driving, contrary to Section 36(1) of the Road Traffic Ordinance, Cap 374. He denied the charge.

2.  There were six prosecution witnesses.  At the conclusion of the prosecution case, no submissions were made on behalf of the defendant.  I found that there was a case to answer.  Having had his rights explained to him by counsel, the defendant elected not to give evidence nor to call evidence.  After hearing closing submissions from counsel, I adjourned the matter until today for verdict.

3.  I bore in mind at all times that the burden of proof remained throughout upon the prosecution to prove guilt beyond all reasonable doubt.  The defendant elected not to give evidence nor to call evidence.  That was his right and I drew no adverse inference against him for exercising that right.  I have taken into account that he has a clear traffic record in reaching my verdict.

4.  I do not intend to repeat all the evidence that was adduced.  Suffice to say that I have considered all the evidence adduced before me as well as the submissions of counsel.  It was not disputed that there was a fatal traffic accident at the material time and place wherein the public light bus bearing registration mark FS 2041 driven by the defendant herein hit Yim Koom-wing, and he died shortly thereafter as a result of the injuries that he had sustained.  The only issue is whether the prosecution has proven to the requisite standard that the driving manner of the defendant at the material time amounted to dangerous driving.

5.  Facts admitted by the prosecution and defence under Section 65C of the Criminal Procedure Ordinance, Cap 221, marked as exhibit P6, disclosed that:

(a) Lai Shun Road is a dual carriageway with three lanes in the southeast bound direction which runs downslope and forms a T-junction with Hoi On Road. Traffic from southeast bound Lai Shun Road can make a right turn into southwest bound Hoi On Road. Hoi On Road is also a dual carriageway, and there are two lanes in the southwest bound direction. Traffic at the junction of Lai Shun Road and Hoi On Road is controlled by traffic lights and there are pedestrian crossings as well. The speed limit is 50 km/h.

(b) At about 1853 hours on 23 May 2011, the defendant was driving a public light bus with the registration mark FS 2041 along the second left lane of southeast bound Lai Shun Road. There were a number of passengers on board the vehicle, including PW2, PW3 and PW4. The defendant drove into the junction of Lai Shun Road and Hoi On Road, and made a right turn into southwest bound Hoi On Road. The public light bus hit a 77 year old man, Yim Koon-wing, who lay on the ground thereafter, bleeding and unconscious. The public light bus came to a halt after the collision, straddling the 1^st and 2^nd lanes of southwest bound Hoi On Road. The matter was reported to the police.

(c) At about 1913 hours on 23 May 2011, SPC 51187 arrived at the scene. He found that the road at the scene was dry and in good repair, and well illuminated by streetlights. There was a pool of blood at the scene, 4.2 metres from the front of the public light bus. Skid marks produced by the offside rear tyre of the public light bus measured 3.8 metres in length. The front of the public light bus was damaged with a dent. SPC 51187 took photos at the scene, photos 20-35 of exhibit P1, and also drew a sketch, exhibit P2, and took measurements at the scene.

(d) When questioned at the scene at 1940 hours by SPC 51187, the defendant said that he was in the middle lane of Lai Shun Road and turned right into Hoi On Road at a speed of 20 to 30 km/h when he saw the amber light. He subsequently saw somebody present near the front of his vehicle. He applied the brake but it was too late and the front of his vehicle hit that male.

(e) Mr Yim was sent to the Yan Chai Hospital and was certified dead at 1942 hours.

(f) At 1945 hours, SPC 51187 arrested the defendant for the offence of dangerous driving causing death. Under caution, the defendant said that he was moving at 20-30 km/h at the material time and when he entered the junction with Hoi On Road, the traffic light turned to amber.

(g) SPC 51187 arranged for the vehicle to be towed to the Tai Lam Chung Vehicle Examination Centre for vehicle examination on the same day. He also checked the traffic light at the road junction in question and found that they were in working order.

(h) PC 33805 took 12 photos of the road junction on 25 May 2011, exhibit P1, photos 1 to 12, and also took photographs of the public light bus in question, exhibit P1, photos 13 to 19.

(i) The Autopsy Report of Mr Yim, dated 27 May 2011, was produced by agreement and marked exhibit P3, and confirmed that the cause of death of Mr Yim was from multiple injuries.

(j) The traffic engineer confirmed that traffic lights governing the junction in question were functioning properly and in good working order at the material time, ie at 1853 hours on 23 May 2011.

(k) The traffic light sequence report, marked exhibit P4, was produced by agreement, and disclosed that:-

(i) The traffic light that controlled vehicles on Lai Shun Road travelling toward Hoi On Road, after the amber light came on, it lasted for 3 seconds before it changed to red;

(ii) The pedestrian traffic light for pedestrians on Hoi On Road, New Territories bound, did not change from red to green until the traffic light that controlled vehicles on Hoi On Road, New Territories bound, changed to red;

(iii) The pedestrian traffic light at the pedestrian crossing where Mr Yim was crossing Hoi On Road when he was hit by the public light bus driven by the defendant should still have been in the red phase.

(l) The data retrieved from the ‘speed display unit’ installed on the public light bus FS 2041 showed that the speed of the public light bus was 47 km/h prior to the collision. The data retrieved was produced by agreement, and marked exhibit P10(1) to (22).

(m) The Motor Vehicle Examination Report on the public light bus FS 2041 was produced by agreement and marked exhibit P5 – it disclosed that there was no mechanical defect on the public light bus FS 2041 at the material time.

(n) A ‘Line of Vision’ test was conducted by the Government Chemist, Dr Wong Koon-hung, and he found that the defendant would have had an unobstructed view of the deceased from 60 metres away, sitting in the driver’s seat of the public light bus FS 2041 when it was being driven on the second left lane of Lai Shun Road before it turned right onto Hoi On Road, as the deceased was standing on the traffic island preparing to cross Hoi On Road.

6.  I shall deal firstly with the evidence of PWs 5 and 6.

7.  PW5, Au Man-yu, is a traffic engineer with the Traffic Control Division of the Transport Department and his duties include the supervision of the operation of traffic lights.  He explained the traffic light sequence report, exhibit P4, for the traffic lights that controlled the traffic travelling on Lai Shun Road and Hoi On Road, as well as the pedestrian traffic lights for this junction.  He testified that the length of time for the green light at the junction of Lai Shun Road and Hoi On Road depends on the traffic condition on the road as detected by the traffic detector on these roads.  There is a minimum and a maximum time for the length of the green light.  In Phase A, the green traffic light on Hoi On Road has a minimum duration of 10 seconds and a maximum duration of 34 seconds, in Phase B, the minimum duration of the green traffic light is 9 seconds and the maximum is 25 seconds, while for Phase C, the minimum duration is 8 seconds and the maximum is 23 seconds.  In Phase A, the red and amber light is on for 2 seconds, and the amber is on for 3 seconds.  In Phase B, when the maximum duration of the green traffic light for traffic on Hoi On Road is 25 seconds, the pedestrian traffic light for pedestrians on Hoi On Road will be red for 6 seconds, green for 5 seconds and flashing green for 7 seconds.  In Phases A and C, the pedestrian light would be red for pedestrians crossing Hoi On Road.

8.  Phase A follows Phase C.  The traffic light for traffic on Hoi On Road will be green, while that for traffic on Lai Shun Road would be red, and the pedestrian traffic light for pedestrians crossing Hoi On Road will be red as well. 

9.  Phase C is when the traffic lights governing traffic on Lai Shun Road turning right or left into Hoi On Road is green.  The amber light will last for 3 seconds before it changes to red, and another 4 seconds, before the red traffic light governing traffic along Hoi On Road changes to green, ie Phase A.

10.  So whether the traffic light controlling traffic on Lai Shun Road is amber or red, the pedestrian traffic light for pedestrians crossing Hoi On Road is red.

11.  PW6, Terry Li Shu-ming, is a technician employed by Chin Fai Transfull Ltd, the sole agent for the speed display units used in vehicles, and he is responsible for the production, installation, data processing and maintenance of speed display units installed in public light buses.  On 25 May 2011, he went to the Tai Lam Chung Vehicle Examination Centre to retrieve the data stored in the speed display device installed on the public light bus FS 2041 – he downloaded the data onto a USB device which he handed to the police.  It was not in dispute that exhibit P10(1) to (22) were the printouts of the data that he had retrieved from the speed display unit of the public light bus FS 2041.  The date shown on the 22 pages of printouts was the date and time on the speed display unit, and these 22 pages are the printouts of the speed of the public light bus FS 2041 on 23 May 2011 from 17:59:39 hours to 17:51:00 hours – totally 22 seconds.  These were the recorded speeds for the public light bus in the last 22 seconds before the collision after which the public light bus was removed to the Tai Lam Chung Vehicle Examination Centre.  It was admitted that the incident in question occurred at 1853 hours.  It was not in dispute that although the times recorded by the speed display unit differed from the time admitted by the parties as being the time when the incident occurred on Hoi On Road, the data on the printouts were the data of the speed of the public light bus immediately before and at the time of the incident.  PW6 testified that the date and time set on the speed display unit may not correspond to the actual time, as it is an independent clock set on the speed display unit.

12.  Each page of the printout depicts four reading of the speed of the public light bus in one second.  So, on exhibit P10(1), the 4 recorded speeds of the public light bus on 23/05/2011 at 17:50:39 hours as recorded on the speed display unit installed on the public light bus was 0 km/h.  It was stationary.  One sees a gradual increase of the speed recorded so that at exhibit P10(11) at 17:50:49, ie 11 seconds before the last reading, one sees speeds recorded in that one second reading ranging from 45 to 47 km/h, and then the speed reduces so that by 17:50:58 hours, exhibit P10(20), the speed recorded had reduced to 0 km/h.  PW6 pointed to exhibit P10(17) which showed 4 readings for the time 17:50:55, the first reading being 10 km/h, then 30 km/h, 24 km/h and 17 km/h.  He said that this was a strange reading, as it was unstable speed, slowing and then picking up again, and theoretically, this would mean that the brakes were applied sharply – a sudden braking rather than a normal one.  He also said that with this pattern of braking, a passenger on the public light bus would feel a jerk movement.

13.  PW1, Lo Kwok-kuen, was waiting to cross Lai Shun Road at the material time.  He is aged 55 years, and a retired police officer, now working as a bodyguard.  His view at the time was an unobstructed one.  He marked on the photocopy of the sketch exhibit P2, which was produced and marked as exhibit P2A, his own position at the material time as he was waiting to cross the road, and marked with the letter ‘A’ the position of the public light bus FS 2041 in the middle lane of Lai Shun Road when he first saw it and the traffic light for traffic on Lai Shun Road to turn into Hoi On Road was amber at that time – he described the distance between the public light bus from where he stood waiting to cross to be about 2 coach lengths, and estimated that to be about 50 to 60 feet.  He himself was a driver, and estimated the speed of the public light bus when he saw it to be about at least 50 km/h.  He marked on the sketch exhibit P2A with the letter ‘B’ the position of the public light bus when the traffic light changed to red for traffic turning into Hoi On Road.  He said he heard the sound of the shifting of gears from the public light bus, from a higher gear to a lesser gear.  He also circled on exhibit P2A the traffic light signals he was looking at.  He said that the public light bus did not decelerate as it approached the junction and estimated its speed to be at least 40 km/h.  He did not see any brake lights come on as the public light bus drove past him to turn right into Hoi On Road, and thought to himself how could the public light bus dash forward in such a way and make the turn.  The pedestrian light changed to green and he began to cross Lai Shun Road, and after about 3 seconds, he heard the sound of a collision and looked to his left, and saw a male being thrown into the air at the front of the public light bus.  He immediately went to see if he could help – the male was lying on the ground face upwards, bleeding from his mouth and the back of his head.  PW1 asked someone at the scene to call ‘999’ and he himself did so as well.  Under cross-examination, he was referred to his witness statement to the police dated 31 May 2011 and the sketch drawn, which were produced and marked exhibit P7, and its English translation, which was admitted to be an accurate translation, to be exhibit P7A.  On the sketch, he had marked the position of the public light bus when he first saw it and that the traffic light at that time was amber.  He also marked on this sketch that the traffic light was red when the public light bus drove past the white line marked on the road.  It was suggested to him under cross- examination that it was only after the public light bus had driven past the white line marked on the road that the traffic light changed to red but PW1 disagreed.  It was also suggested to PW1 that the speed of the public light bus was much less that his estimate of about 40 km/h but PW1 disagreed.

14.  PW2, Ms Lo Ying-lai, is aged 62 and a housewife, doing part-time work in accounting.  She previously held a driving licence, but now no longer does as she did not have such a need.  At the material time, she was a passenger on the public light bus, seated at the single seat  at the nearside rear of the vehicle.  She described the speed of the public light bus on Lai Shun Road to be ‘quite fast’, ‘kind of dashing forward with some force of dashing’.  She said the public light bus had stopped, and then started again, and was on the stretch of Lai Shun Road going downslope when she felt this ‘dashing’.  When the public light bus negotiated the turn into Hoi On Road, this ‘dashing force’ was greater and the passengers on the public light bus were jerked forward.  She could not describe the speed of the vehicle.  She had looked at the traffic light and it was amber, almost reaching the traffic lights, but she could not describe the distance.  She described the public light bus as being in the right most lane of Lai Shun Road.  Her witness statement was produced and marked exhibit P8, and its English translation, which was admitted by the parties to be an accurate one, exhibit P8A.  It was suggested to her under cross-examination that when she saw the amber light, the public light bus was on the white line marked on the road, but she said she could not recall that.  Nor could she indicate the position of the public light bus when she saw the amber light – she said she was not clear as to the position of the public light bus when she saw the amber traffic light.

15.  PW3, Ms Chan Mei-wa, was also a passenger on the public light bus, seated at the passenger seat in the second row of passenger seats behind the driver’s seat.  She saw the public light bus hit a man after it turned onto Hoi On Road.  The man was crossing from the side of the road near the seaside towards the sports centre.  The man was in the middle of the road when he was hit.  He was crossing the road at the pedestrian crossing.  She described the speed of the public light bus as normal.  She did not hear the driver sound the horn of the public light bus at the time.  She marked on the sketch exhibit P2B the position of the public light bus when she first saw the male that was hit by the public light bus, as well as the position of the male – he was already on the pedestrian crossing.

16.  PW4, Ma Ping-nam, was another passenger on the public light bus at the material time, seated in the second last row in the seat near the aisle, on the offside of the public light bus. He said that the traffic light was amber when the public light bus was about one to two public light bus spaces from the traffic light.  The public light bus did not slow down – the speed was about 50 km/h – what he described as ‘quite fast’.  Nor did he hear the driver sound the horn of the public light bus.  Under cross- examination, he said that when the public light bus drove past the traffic light signals, the traffic light was amber.  He did not see the traffic light when it was green.  He was referred to his witness statement which was produced and marked exhibit P9, and its English translation, which was admitted to be an accurate translation, exhibit P9A, where he said he saw the light change from green to amber – he was asked if he saw the light change from green to amber and he said ‘I think so’.

17.  PWs 1 to 4 each gave their account of what they saw at the material time.  When the public light bus approached the traffic lights governing traffic on Lai Shun Road, it did not slow down – that was a downslope.  PW1 said the traffic light had turned to amber when the public light bus was some 50 to 60 feet from the traffic lights, and had changed to red by the time the public light bus crossed the white line on the road.  PW2 said she saw the traffic light was amber when it was near the traffic lights, but was unable to describe the distance from the traffic lights when she saw it was amber – but it was amber as the public light bus was approaching the traffic lights governing traffic on Lai Shun Road.  PW4 said the traffic light had turned to amber when the public light bus was one to two public light bus spaces from the traffic light.  In his witness statement, he had said that the traffic light was amber when the public light bus drove past the traffic light and that he had seen the traffic light change from green to amber, whilst in his testimony in court, he initially said he did not see the light change from green to amber.  When shown his witness statement and asked if he had seen the light change from green to amber, he said ‘I think so’.  PW3 did not notice the colour of the traffic lights. 

18.  I find that both PW2 and PW4 were quite confused as to where the public light bus was on Lai Shun Road when they saw the amber light.  What is evident from their evidence is that even before the public light bus reached the traffic lights, the traffic lights had changed to amber, but the public light bus did not slow down.  PW2 was even confused as to which lane of Lai Shun Road the public light bus was travelling along.  I do not doubt that both PW2 and PW4 were trying their best to recall something that happened suddenly and in a matter of seconds.  But they were both somewhat confused as to the colour of the traffic lights when the public light bus actually drove past the traffic lights.

19.  PW1 impressed me as a witness of the truth.  He gave his evidence in a direct and cogent manner, and clearly described what he saw at the material time – he was standing at the pedestrian crossing waiting to cross the road, and paying attention to the traffic on the road as well as to the traffic lights.  He had an unobstructed view.  He saw the public light bus driving downslope on Lai Shun Road towards him and described the public light bus as ‘dashing’ down the road – the light was amber when he first saw the public light bus some distance from the traffic lights and had changed to red before the public light bus reached the traffic lights, but it did not slow down on approaching the lights but drove past when the traffic lights had already changed to red.  I accepted the evidence of PW1 in its entirety.

20.  I am satisfied beyond all reasonable doubt that the defendant was the driver of the public light bus FS 2041 at the material time as it drove along Lai Shun Road, and that the traffic light for traffic had already changed to amber when he was some 50 to 60 feet from where PW1 stood at the pedestrian crossing on Lai Shun Road waiting to cross the road.  The traffic light had changed to red before the public light bus reached the traffic lights, but the defendant did not slow down or stop, and when he drove the public light bus past the traffic lights, the traffic lights governing traffic on Lai Shun Road turning into Hoi On road was red.

21.  The deceased crossed at the pedestrian crossing on Hoi On Road.  The pedestrian light at the material time was red and he should not have crossed at the time.  The ‘Line of Vision’ test conducted by the Government Chemist, Dr Wong Koon-hung disclosed that the defendant would have had an unobstructed view of the deceased from 60 metres away, sitting in the driver’s seat of the public light bus FS 2041 when it was being driven on the second left lane of Lai Shun Road before it turned right onto Hoi On Road, as the deceased was standing on the traffic island preparing to cross Hoi On Road.  The road surface was dry and in good repair and the road junction was well lit by street lights.  The defendant had initially told the police officer that he had turned right at a speed of 20 to 30 km/h and then saw the traffic light change to amber.  He maintained that account when he was cautioned.  He did not give evidence and therefore did not make the same claim under oath.  His one-sided assertion was not tested.  I do not accept that account of the defendant.  The data retrieved from the speed display unit disclosed the speed of the public light bus in the 22 seconds before it came to a halt after the collision, and it clearly shows what the recorded speed of the public light bus was and that the speed gradually increased before it decreased.  Although the speed limit in that section of road is 50 km/h, and the defendant did not exceed the speed limit, here he was approaching an intersection and he was turning right and would have had a clear and unobstructed view of the deceased waiting to cross the road.

22.  Pursuant to Section 36(4) of the Road Traffic Ordinance, Cap 374, a person is regarded as driving dangerously if the way he drives falls 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 way would be dangerous.  Whether a person’s way of driving is dangerous is a matter to be decided objectively, but the elements of the offence of dangerous driving do not include any specific intent to drive dangerously.  Yeung VP, giving the judgment of the court in HKSAR v Lam Chi Fat, CACC 89/2011, said:-

“33. Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way of driving. Evidence that supports the charge of dangerous driving may include:

(1) Excessive speeding, particularly when it is raining and the road is slippery.

(2) Non-compliance with traffic signs, such as driving through a police road block; “jumping a red light”, failure to stop in front of a “zebra crossing” to give way to pedestrians; ignoring pedestrian stud crossing and driving past at high speed; driving into a “No entry” section of road, speeding at double white line, etc….”

23.  Here, the defendant ‘jumped the red light’ at the intersection at Lai Shun Road and Hoi On Road as he turned right into Hoi On Road.  His 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 way would be dangerous.  As a result of his ‘jumping the red light’, the public light bus hit the Mr Yim, who subsequently died from the injuries that he sustained.  I am satisfied that the prosecution has proved all the elements of the charge against the defendant beyond all reasonable doubt and he is convicted as charged.