HKSAR v. FAN SIU TONG

HCMA 592/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 592 OF 2013

(ON APPEAL FROM KCCC 915/2013)

_______________________

REASONS FOR JUDGMENT

1. The appellant Mr Fan was convicted after trial before Deputy Magistrate Kelly Shui (the magistrate) on one count of “dangerous driving causing death”. He was sentenced to 18 months’ imprisonment, disqualified from driving for 5 years, and ordered to attend and complete a driving improvement course. After hearing, I allowed the appellant’s appeal, quashed the conviction and set aside the sentence, but convicted him of “careless driving”. I ordered a term of imprisonment which allowed the appellant to be immediately released, disqualified him from driving for one year, and ordered him to attend and complete a driving improvement course.

2. I now give the reasons for my judgment.

Facts and grounds of appeal

3. On the afternoon of 7 September 2012 the appellant, driving a Toyota multi-purpose private car, turned right from Ma Tau Wai Road into Bailey Street. Upon reaching the pedestrian crossing at Bailey Street, he knocked down one Mr Lee Hung in the vicinity of a safety island. Unfortunately Mr Lee died afterwards.

4. The junction of Ma Tau Wai Road and Bailey Street was a crossroad controlled by traffic lights. There were altogether 5 lanes on Ma Tau Wai Road with traffic moving in opposite directions. Before turning into Bailey Street the appellant stopped at the traffic lights on the third northbound lane of Ma Tau Wai Road. There were no other vehicles ahead of him. After the traffic light turned green, the appellant turned right into the second eastbound lane of Bailey Street. Bailey Street consisted of only two lanes for eastbound traffic but three for westbound traffic.

5. A witness, Ms Pun, witnessed the accident. The magistrate summarised her evidence as follows:

“Before the accident, the first prosecution witness Pun Lee Ling (PW1) and her younger brother, the second (prosecution) witness Pun Chi Leung (transliteration) (PW2) had just crossed Bailey Street from the pavement off Sang Lee (transliteration) Dried Seafood and reached the safety island (P6(2) refers) in the middle of the road, waiting for the pedestrian signal on the side involved in the accident to turn green. PW1 was then standing at where the monk on the safety island in photo P7(13) was. At that time PW1 did not see any other passers-by on the safety island except herself and PW2. When PW1 looked at the pavement across the road, she did not see any passers-by except the deceased. She saw the deceased step onto the road, stooping and not holding a cane. PW1 immediately looked to her left and noticed that a private car was proceeding on the yellow box on Ma Tau Wai Road in her direction at 20 - 30 kmph. The deceased was at the centre of the cautionary crossing at the time. Shortly afterwards the defendant knocked down the deceased somewhere on the third line of the cautionary crossing near the safety island, namely about 1.5 metres (away). Prior to the collision PW1 did not hear any sounding of horns or braking sounds from the private car or any screaming of passers-by. PW1 saw that the offside front of the private car, namely the part highlighted in orange in the upper sketch of P17, knocked down the deceased. The deceased immediately collapsed in front of the private car, at about two bodies’ distance from the car. He was lying on his side facing PW1, panting in pain. At that time the pedestrian signal was still red.”

6. Mr Cheung, Counsel for the appellant, indicated to me that the appellant would not dispute that he drove carelessly, but that the appellant disagreed that he had driven in a dangerous manner. Mr Cheung put forward three grounds of appeal:

(1) The magistrate did not consider, analyse and/or determine whether, in the view of a competent and careful driver, it would be obvious to a competent and careful driver that driving in the way the appellant did would be dangerous;

(2) The magistrate considered the evidence given by the prosecution witnesses together with that given by the defence witnesses, imposing the burden of proof on the appellant; and

(3) The magistrate equated the appellant’s lack of care with dangerous driving when the prosecution evidence failed to meet the high standard of proof required for dangerous driving.

7. As regards Ground (2), Mr Cheung set out several examples in his written submission which showed that the magistrate considered the evidence given by the prosecution witnesses together with the evidence given by the appellant and compared such evidence. However, in my judgment, mere comparison of evidence is not tantamount to shifting the burden of proof. At a trial, the prosecution evidence is as much evidence as the defence evidence, and it is not necessary for the court to deliberately separate the two in considering the evidence. Viewing the matter as a whole, I do not consider that the magistrate had, in considering the evidence, imposed the burden of proof on the appellant. Furthermore, at trial the evidence was under much dispute mainly in two aspects, namely the position of Mr Lee when he was knocked down, and from which direction he crossed the road. However, the magistrate had stated clearly in her statement of findings that she had reached her conclusions on these matters mainly by reference to the medical reports on Mr Lee. Therefore, in any event, the fact that the magistrate considered the evidence of both parties in the manner she did would not have affected her findings of fact.

8. Both grounds of appeal (1) and (3) relate to the statutory definition of dangerous driving. Section 36 of the Road Traffic Ordinance[1] provides:

“(1) A person who causes the death of another person by driving a motor vehicle on a road dangerously commits an offence …

(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if –

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

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

9. The Ordinance provides a clear definition of dangerous driving. The court has to consider not only whether the way a defendant drove fell below what would be expected of a competent and careful driver, but also whether it would be obvious to a competent and careful driver that driving in that way would be dangerous.

10. Neither in her statement of findings nor in the verbal reasons for verdict that she gave at trial did the magistrate begin to address the issue of whether it was obvious that the way the appellant drove was dangerous. Mr Li, Counsel for the prosecution, pointed out that at trial neither party advanced any argument on that issue. I cannot assume that the magistrate had taken into account this important element in coming to her conclusion as to whether the appellant had driven dangerously. In my judgment the magistrate had erred in law in this regard.

11. Having said that, I agree with Mr Li’s submission that in this appeal, which is conducted by way of rehearing, I am entitled to draw my own conclusion on the above issue in light of the evidence adduced at trial.

12. As to whether the way the appellant drove fell below what would be expected of a competent and careful driver, the magistrate arrived at the following conclusion in her statement of findings[2]:

“After careful consideration, I find that the traffic accident was not caused by the defendant’s momentary lack of attention. The whole process of turning right from Ma Tau Wai Road lasted no less than 5 seconds, but at no point did the defendant see the deceased who was on the cautionary crossing! In my view, the way the defendant drove at that time fell far below what would be expected of a competent and careful driver. I therefore find that the prosecution has proved its case beyond reasonable doubt. The defendant is convicted accordingly.”

13. The magistrate held that, by reason of the appellant’s failure to see Mr Lee throughout the process of turning right, the way he drove at that time fell far below what would be expected of a competent and careful driver. In this connection, in her statement of findings the magistrate posed a question and then answered it[3]:

“The question is: why was it that at no point during the whole course of turning right did the defendant see the deceased who was crossing the road? Was this sufficient to constitute dangerous driving? In Lam Siu Tong (CAAR 2/2009) the Court of Appeal pointed out that motorists were required to exercise utmost care when driving through pedestrian crossings. Relying on Ng Chun Man (transliteration) (HCMA 334/2011), the defence submits that the defendant merely lacked attention momentarily and hence was only liable for careless driving. In Ng Chun Man, Deputy Judge Andrew Chan said, ‘If the appellant, before turning right at the junction, focused his attention on his direct front and right front and failed to notice the deceased who was crossing the road exactly on his right side, it can only be said that he lacked attention momentarily and drove carelessly, but this was not sufficient to constitute dangerous driving …’ (paragraph 9). The present case is different from Ng Chun Man in that the defendant was at the material time already making a right turn. He was proceeding at normal speed and did not contravene any traffic regulations or signs. However, I cannot accept his contention that he would only focus his attention on his direct front while turning right. Knowing that pedestrians often jaywalked there, the defendant should have been all the more cautious when turning right by looking both ways to see if any pedestrians would rush out from either side of the pedestrian crossing, instead of only focusing his attention on his front, particularly so when he well knew that the private car had its blind spots. I do not accept his contention that the blind spots and illuminated bollard obstructed his view, because the private car was all along in motion and the deceased did not stoop throughout while walking. DW said she had never seen that the deceased would only stoop while walking. Furthermore, the deceased was 160 cm in height (see P13) and did not rush out suddenly, and there were only two persons, PW1 and PW2, on the safety island. In my view, had the defendant observed carefully, it would not have been difficult for him to notice the deceased and apply the brake in time. In fact, the defendant did brake immediately after the accident, and the offside rear wheel of the private car was still on the cautionary crossing.”

14. In Ng Chun Man, a light goods vehicle driven by the defendant knocked down a 92-year-old person while turning right into Tai Tsun Street from Kok Cheung Street. The elderly victim eventually died. The magistrate took the view that the accident could only have occurred in one of two possible ways: (1) the defendant drove in without looking at the right side of Tai Tsun Street at all, or (2) the defendant knew that the victim was crossing Tai Tsun Street but, judging that there was enough space to drive past, took the risk to proceed. Deputy Judge Andrew Chan (as he then was), however, was of the view that there was a third possible scenario[4]:

“… If the appellant, before turning right at the junction, focused his attention on his direct front and right front and failed to notice the deceased who was crossing the road exactly on his right side, it can only be said that he lacked attention momentarily and drove carelessly, but this was not sufficient to constitute dangerous driving, i.e. [the way he drove did not] fall far below what would be expected of a competent and careful driver.”

15. The reason given by the magistrate for distinguishing the present case from Ng Chun Man, namely that “the defendant in the present case was already making a right turn”, seems far-fetched. Of course, traffic accidents are fact-specific and no two cases are identical. However, the circumstances of the present case are in my view not very different from those of Ng Chun Man, the main reason being that in the present case, as in Ng Chun Man, the defendant neither contravened any traffic regulations nor drove too fast, and the accident occurred because the defendant failed to notice that the victim was crossing the road and knocked him down. Although the accident in the present case occurred at a pedestrian crossing, the pedestrian signal there was red at the material time. This being the case, it cannot, in my view, be inferred solely from the appellant’s failure to notice the pedestrian that the way he drove fell far below what would be expected of a competent and careful driver.

16. Relying on the evidence of the “expert witness” that the time required for the appellant to complete the turn was no less than 5 seconds, the magistrate found that his failure to see Mr Lee during such a long interval constituted dangerous driving. First of all, I have reservations about the value of this kind of “expert witness” evidence. The expert witness for the prosecution in the present case is a Government Chemist. He went to the scene six months after the accident, drove a different private car there, and attempted to give his opinion on whether the driver’s view would have been blocked when making a turn at various points. Also, making use of data on the length and width of the road measured by the police and the speed of the appellant’s vehicle, the expert calculated the time required for the appellant to make the turn.

17. As I pointed out at the hearing, the experiment conducted by the expert witness is not reliable. The curvature, route and speed adopted by the expert witness in making a turn were not necessarily the same as those adopted by the appellant at the material time. Furthermore, the height of the expert and the blind spots of the vehicle he used might be different from those of the appellant’s. In my view, any assessment based on such evidence of what the appellant’s view would have been like when he negotiated the turn at the material time is, with respect, of little referential value.

18. Furthermore, the calculation of time is just simple arithmetic which does not require the assistance of any so-called expert. As far as such arithmetic calculations involving actual vehicle speed are concerned, save in some extreme cases, a minute difference may lead to a huge error. The accuracy of calculations done in terms of seconds on the basis of speeds estimated by civilian witnesses (including the defendant) is very much open to question. It is indeed difficult for an ordinary civilian to accurately estimate whether a moving vehicle is actually travelling at 10, 20 or 30 kmph. In my view, it is not scientific to rely on a pedestrian’s impression of speed as the basis of working out whether there was sufficient time for a driver to notice someone crossing the road.

19. In any event, I do not think it can be said that the appellant’s failure to take notice of Mr Lee within 5 seconds would mean that the way he drove was dangerous. I would make the same observation as that made by Judge Chan in Ng Chun Man, namely that this accident might have been caused by the appellant’s momentary lack of attention.

20. In my judgment, the magistrate did not have sufficient evidence to find that the way the appellant drove fell far below what would be expected of a competent and careful driver. Given this conclusion, I do not have to proceed to consider whether the way the appellant drove was obviously dangerous.

21. Therefore, the appeal against conviction is allowed. The conviction is quashed and the sentence set aside.

22. As stated above, Mr Cheung did not dispute that the appellant did drive carelessly. I convict the appellant of careless driving.

23. Over the past decade the appellant has had 6 records of speeding, one record of contravening a traffic sign and one record of using a mobile phone whilst driving. Such record is by no means good, but cannot be regarded as appalling.

24. In the present case, the appellant’s carelessness had led to serious consequences, and a severe sentence should be considered. The appellant has been detained ever since the date of sentencing by the magistrate, and by now he has been detained for over 4 months. I do not intend to impose a sentence heavier than 4 months’ imprisonment, and I order the appellant to serve a term of imprisonment which will allow him to be immediately released. However, as the way the appellant drove was indeed problematic, the appellant shall be disqualified from driving for one year and be required to attend and complete a driving improvement course.

25. Mr Cheung applied for costs, such being confined to costs of this appeal. As the appellant did not plead guilty to “careless driving” at trial, Mr Cheung did not intend to apply for costs of the trial. The Department of Justice did not oppose the application. I order the respondent to pay the appellant the costs of this appeal taxed at HK$65,000.

[1] Chapter 374, Laws of Hong Kong.

[2] Paragraph 17 thereof.

[3] Paragraph 16 thereof.

[4] Paragraph 9.