HKSAR v. LAM YING YU

CACC 320/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 320 OF 2012

(ON APPEAL FROM DCCC NO. 291 OF 2012)

____________

______________

JUDGMENT

______________

Hon McWalters J (giving the judgment of the Court):

Introduction

1.  The applicant was tried in the District Court by District Judge S. D’Almada Remedios (“the judge”) on 23-26 and 30 July 2012 on a Charge Sheet containing one count of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (“the Ordinance”). On her arraignment she admitted careless driving but pleaded not guilty to dangerous driving causing death.   On 7 August 2012 she was convicted as charged and on the same day sentenced to 3 years’ imprisonment and disqualified from holding or obtaining a driving licence for a period of 5 years and ordered, under section 72A of the Ordinance, to attend and complete a driving improvement course.

2.  The applicant applied for leave to appeal her conviction and sentence. On 30 August 2012 the applicant was granted bail pending appeal, after having served only 23 days of her sentence.

3.  At the hearing of the appeal, we dismissed the application for leave to appeal against conviction and said we would give our reasons for doing so at a later date.  This we now do.  In respect of the application for leave to appeal against sentence, we reserved our judgment.  We now hand down that judgment.

The Prosecution Case

4.  The prosecution was, in fact, quite a simple one.  A road accident occurred at 9.25 a.m. on 21 September 2011 at the junction of Morrison Hill Road Eastbound leading to Sports Road and Morrison Hill Road Southbound leading to Queen’s Road East.  The speed limit for the two roads is 50 kilometres per hour and at the time of the accident the weather was fine and the road surface was dry.  The two vehicles involved in the accident were a Mercedes Benz model S350 driven by the applicant and a taxi driven by the first prosecution witness (“PW1”).  The accident occurred when the applicant, without stopping, drove through a stop sign onto the junction and collided with PW1’s taxi.

5.  Present at the scene were three construction workers who were working on a part of the intersection.  When the applicant’s car came into contact with PW1’s taxi, it forced the taxi into the three workers causing serious injuries to one of them from which this person later died.

6.  The statements of most of the prosecution witnesses were admitted under section 65B of the Criminal Procedure Ordinance, Cap 221 and only some of them were called or tendered for cross-examination.

7.  PW1 said in his statement that he was driving along Morrison Hill Road Southbound and stopped at traffic lights intending to turn left into Morrison Hill Eastbound.  This he did when the lights turned green and it brought him across the path of the applicant’s car.  He said he was travelling at 25 to 30 kilometres per hour as he entered the junction and as he did so he noticed the applicant’s car, which he said showed no sign of pulling up, “travelling at a very high speed”.[1] He said that he adjudged that even if he immediately braked he would not be able to bring his taxi to a halt and so he decided that his best course of avoiding a collision with the applicant’s vehicle was to accelerate so that he might get past the junction before a collision took place.

8.  In his testimony PW1 added nothing significant to what he had said in his statement.  He was not cross-examined by defence counsel which meant that PW1’s evidence that the applicant was “travelling at a very high speed”, went unchallenged.

9.  In their statements the workmen said that they were wearing reflective vests and put up traffic cones and traffic signs around their work area.  One was using an electric drill and this person was wearing ear plugs.  He was concentrating on his work and so did not see how the accident happened.  The other worker heard a braking sound and the impact of the collision and from the corner of his eye saw the taxi charging towards them.  He saw the taxi hit his colleagues and press the deceased against a wall.

10.  Following immediately behind PW1’s vehicle was a Citybus driven by PW4. He had, in fact, stopped at the same traffic lights as PW1 had, but in front of him. He said in his statement that when the lights turned green PW1 overtook his bus and then cut back in front of it.  PW4 assessed PW1’s speed at around 30 kilometres per hour.  PW4 said he saw the applicant’s car emerging from Morrison Hill Road Southbound and going straight ahead.  As to the speed at which the applicant’s car was travelling, he said:

“I am not sure of the speed of the private car but I am certain that it was not the speed a vehicle could reach when it just moved off because no vehicle could move so fast when it just moved off.” [2]

11.  This witness was not called to give oral evidence.

12.  Driving behind the applicant and in a separate lane on her left‑hand side was PW5.  He was also driving a taxi and it was equipped with a video camera which was mounted within the cabin of his car.  This camera recorded images of the road ahead and it captured images of the applicant’s car and of the accident as it occurred.  PW5 was not called to give evidence and his statement said little about what he saw of the accident.

13.  The final eye-witness was PW6.  He was a taxi driver and appears to have been driving behind PW5.  In his statement he assessed his own speed at about 20 miles per hour and of the applicant’s car as twice that – 40-45 miles per hour.  He said that the applicant’s car increased in speed as it approached the junction.  In his statement he described his assessments of speed in terms of miles per hour but in his evidence he referred to kilometres per hour.  He said in evidence that he was driving behind a slow moving vehicle that was only travelling at about 10‑15 kilometres per hour.  He said he saw the applicant’s car approaching the junction and it was clear to him that it was not being driven in a way that was “responsive to the situation;” [3] that is, the situation of approaching a junction at which there were stop signs.

14.  At trial there was no dispute about much of the prosecution case, and in particular there was no dispute that the applicant drove her vehicle, within the speed limit but not at a slow speed, without stopping at the stop sign and that it was her failure to stop at the stop sign that caused the collision with the taxi.

15.  Neither PW1 nor the applicant were seriously injured in the accident. The police and ambulance were called to the scene and some 15 minutes after the accident took place, the applicant was spoken to by police officers. The first officer to speak to her, PW7, testified that when he asked her how the accident had happened, she replied:

“When I reached here, I stopped for a while and looked ahead but I did not pay attention that there was vehicles on my right. I then started off again and the collision occurred.” [4]

That was the extent of PW7’s conversation with the applicant.

16.  Another police officer, PW9, also spoke to the applicant and asked her how the accident occurred.  PW9 described her reply as follows:

“She said, at that time she was travelling along Canal Road flyover coming down. When she reached the point -- the location of the accident, she stopped for a moment but she did not look to her right-hand side. As she saw that there was no vehicles ahead of her, she therefore started off. Once she started off, she rammed into the rear of the taxi and the taxi bounced off. That’s all.” [5]

This was all that the applicant said to PW9 about the accident.

17.  The defence challenged these admissions by the applicant on the basis that, although voluntarily made, they should be excluded by the judge in the exercise of her discretion.  It was said that the making of these admissions were tainted by unfairness to the applicant because at the time she made them, she had not been cautioned by the police officers.  The applicant gave evidence on this issue, in substance denying making these admissions and saying that her answers were short answers of the “Yes” and “No” kind made in response to questions asked of her and, although she could not now recollect clearly what she said to the officers, she did not give a narrative answer.

18.  The judge found that there was no basis for exercising her discretion to exclude these statements by the applicant and admitted them into evidence.

19.  Thus, the prosecution case consisted of evidence from the driver of the taxi whose car was struck by the applicant’s car; statements of the road workers whose colleague was killed in the accident; and statements from other drivers of vehicles in the vicinity.  In addition there were the statements of the applicant to the police officers which, in respect of the assertion by the applicant that she stopped at the stop sign, contained a lie; and the video recording of the accident that was taken by the video camera in the following taxi.  Apart from this evidence, there was the usual road traffic accident exhibits of police photographs and sketches.

20.  A written opening was filed by the prosecutor and it is quite clear from this document that the prosecution case was based upon the applicant failing to keep a proper lookout.  It was the prosecution case that the signage of this junction was so prominent that any driver concentrating on their driving and focusing on the road immediately ahead of them could not possibly miss all the indications that this junction existed and that drivers approaching it from the applicant’s direction were required to stop before proceeding across it.  In addition to the stop sign, there were double lines at the junction and the junction itself was marked with yellow hatched lines.  Furthermore, there were also road markings which instructed road users to stop.  These road markings were also in bold letters in both Chinese and English and were painted on the road immediately before the double white lines at the junction.

21.  Thus, in its opening, the prosecution based its case on the accident being due not just to the applicant failing to comply with the stop sign and road markings and stop at this road junction but also on an explanation for her failure to do so, namely that it was due to her not keeping a proper lookout.  Not keeping a proper lookout and consequently not realizing that she was required to stop at this road junction before proceeding across it was a manner of driving, the prosecution maintained, that fell far below what would be expected of a careful and competent driver, and that it would be obvious to a competent and careful driver that driving in this way would be dangerous, thereby, satisfying the objective test for dangerous driving laid down by section 36(4) of the Ordinance.

22.  Absent from the way it presented its case was any reference to excessive speed or to an assertion that the applicant knowingly ignored the stop sign and recklessly drove through it.

The Defence Case

23.  As we have mentioned the applicant challenged the admissibility of the statements she made to the police officers at the scene of the accident.  She gave evidence on the admissibility of her statements and later, in the defence case, she gave evidence on the general issue.

24.  In her evidence the applicant said that her occupation was a full-time investor in the securities market.  However, as a result of the actions of a broker in misusing her account, she lost $28 million and was declared bankrupt.  Her declaration of bankruptcy took place in August 2011, that is, the month before the accident happened.  She said that even though she had held a driving licence for 13 years, she was not a regular driver because prior to her bankruptcy she was usually driven by a chauffeur.  She said that she had been living at Leighton Hill for a total period of 4 years before the accident but at the time of the accident she was living in Sham Tseng with her grandmother. Although she had been driven along this stretch of road in the past, she had never herself driven a car through this particular junction.  On the day of the accident she was using a borrowed car and driving to Star Street in Wanchai in order to attend a meeting.  She described herself as not being in a “good mood” at the time.[6]

25.  In cross-examination she was asked more about her mood and the following exchange with the prosecutor took place:

“Q: I think generally speaking, as a result of the bankruptcy and the loss of the moneys financially, you were emotionally not there at the time, is that what you’re saying?

A: Yes, at that moment I was disturbed.” [7]

26.  In her evidence on the general issue, she described how she drove along the road as she approached the junction:

“I looked ahead and there was no vehicle in front of me, then I looked right and I saw very clearly that there was no vehicles on my right. Then I felt safe because the road condition was safe and so I accelerated. Then all of a sudden I saw the emergence of the front of a taxi, then I was a bit shocked because I was wondering as to why there was the front of another vehicle coming out and at that time I couldn’t move both my feet because I didn’t expect any vehicle coming out. Then I immediately and slowly braked.” [8]

27.  When asked whether she had seen the stop sign, she said:

“No, I only concentrated on the conditions of the road itself.” [9]

Her concentration on the road ahead was repeatedly advanced by her as the explanation for her failure to notice the stop signs and the road markings.  For example, when asked if she could explain how it was that she did not see the stop sign, she answered:

“I don’t know because I was focusing my attention to the conditions of the road itself and therefore I did not pay notice to other things and I did not notice that.” [10]

A few questions later the same question was asked of her and she answered:

“I cannot give an explanation as to why I didn’t see them, I can only say that on that day my focus and attention was on the conditions of the road. I saw that there was no vehicles ahead of me and there was no vehicle on the side, so it was safe for me at the time.” [11]

28.  This explanation seemed at odds with the prominence of the stop signs and the numerous road markings and it is clear that the Court and the prosecution were having some difficulty in understanding the applicant’s very simple explanation that she didn’t see any of these things.  Consequently, the prosecutor continued to probe her on why she did not see them.  The following cross‑examination took place:

“Q: So you are saying you were keeping a proper lookout?

A: No, I only look ahead of me, straight ahead, I saw no vehicles in front of me and then I took a look at the side briefly and I saw no vehicles and then I turned to look straight ahead again and there was no vehicles ahead of me and since I felt that it was safe I accelerated a bit and then all of a sudden the front of the taxi came out all of a sudden and I was shocked at that and I didn’t know what to do.

Q: When you looked ahead there was nothing blocking your view of the road ahead, nothing at all?

A: It was very clear that there was no vehicle even very far ahead of me.

Q: And your evidence is simply you didn’t see the stop sign, is that correct, you simply didn’t see it?

A: Right, because I was only looking at the conditions of the road ahead.

Q: If you were looking at the conditions of the road, you could not have failed to see the stop sign written on the floor, on the ground?

A: I just looked straight ahead, there was no vehicle straight ahead and then I looked to the side briefly and there was no vehicle on the side and then I looked ahead, straight ahead again, there was no vehicle so I just accelerated a bit.

Q: Did you see the road markings in Chinese and English saying “stop”?

A: I did not. I only looked straight ahead.

Q: Yes, I’ll come to that.

COURT: Hang on, please. Just for the record, the witness had lifted her head up, her neck up, and her eyes above her shoulders, should I say, she’s on the record.

Q: Did you see the double white lines that separate the two stop signs, continuous white lines?

A: My sight concentrated to my front.

Q: Yes, Miss Lam, the two …

COURT: She’s doing the same thing again, head up, eyes above her shoulders.

Q: Directly ahead on the road is or are the two double white lines, correct?

A: Because I didn’t see, I was looking ahead of me, I was looking straight ahead, there was no vehicles in front. I looked to the side, there was no vehicle on the side. I just focusing on the conditions of the road, I didn’t look.

Q: So you didn’t see the double white lines?

A: Correct.” [12]

29.  What the applicant said in explanation of why she did not see any of the indicators that she had to stop, and the way she held herself as she advanced this explanation from the witness box, suggested that she may have been focusing her eyes on the long distance to the exclusion of the short distance, causing her to see the road ahead through what the judge later described as “tunnel vision”.

30.  The prosecutor then put to her that the reason she did not see the signs or road markings was because she was not concentrating on her driving, a proposition with which she agreed.  She explained that her poor concentration was in effect due to emotional reasons.  This is apparent from the following exchange that took place with the prosecutor:

“Q: The reason you didn’t see them was because you did not pay careful attention to the road at the time?

A: I only concentrated on the conditions of the road and I looked clearly, as to the others I didn’t really pay attention, I didn’t see them.

Q: Can you answer my question, please. You didn’t see the signs and/or road markings because you failed to pay careful attention to the road surroundings and the conditions at the time?

A: Right.

Q: You failed to keep a proper lookout for other road users at the material time that you approached the junction?

A: Are you saying that I didn’t notice or pay attention to those sides?

Q: Yes, because if you had paid attention you would have seen those signs?

A: That is right because at that time my mood was down and confused and I was not really my usual self as a driver, that’s right.

…

Q: Your condition did affect your driving manner?

A: Right.” [13]

31.  Later in her evidence, she was asked by the Court whether she knew that this was a junction where cars would come from her right.  She answered:

“When I looked ahead, I saw that there was a cross-junction. There was a straight road leading to the front and there was another straight road crossing the straight road leading to the front. So when I looked ahead I saw that cross-junction.” [14]

32.  When she was then asked a question as to why, if she could see the cross-junction, she could not see the road sign.  She said:

“I cannot really explain, I only concentrated on the conditions of the road.” [15]

33.  She was later asked about the speed at which her vehicle was travelling when she approached to the junction and she answered as follows:

“I don’t know but I would say that it’s just a normal speed, I don’t think that I have driven in a speed over the limit. I didn’t feel that I would be driving with a speed that is over 50 kilometres per hour.” [16]

34.  She explained her actions as she approached the junction:

“After I’ve passed this section, that is the means I’ve chosen this particular route, so I travelled straight ahead. I knew that there would be vehicles coming from that side so I looked ahead as I knew that there might be vehicles coming from that side, therefore I also looked to that side and I saw very clearly that there was no vehicles from that side and I looked ahead again and then I felt that I was very safe and after that I accelerated.” [17]

35.  The prosecutor also cross-examined the applicant on the statements she made to the police and accused her of deliberately trying to mislead the police officers by that statement in order to deflect attention away from herself. She disagreed with that suggestion.

36.  An exchange then took place between the prosecutor and the judge.  It appears that the judge thought that the prosecutor was now saying that by telling the police officer that she had stopped at the stop sign that statement would indicate that she knew there was a stop sign there.  To this Mr Chau, counsel-on-fiat for the prosecution, replied:

“only afterwards, only after the events, sorry …” [18]

This then led to the following exchange with the judge:

“COURT: All right so it’s not after.

Q: You made a story to the police officers because you realized after the accident that you had failed to see the stop sign?

COURT: But then you’re accepting her case, you’re saying she blatantly ignored the stop sign, that’s what you’ve just put to her, that’s why I’m not very clear on your cross‑examination. You’ve told her “you did see the stop sign and you blatantly ignored it”.

Mr Chau: No, no, that’s not our case but it’s the scenario that she’s raised in her evidence. If you don’t accept our case then the other scenario is her own evidence that she accelerated into a junction and she looked right, didn’t see anything and she went straight through. I’m putting it on that basis, we don’t say that’s our case, but just in case you don’t accept the prosecution’s opening, the way we put it, then this is the other scenario that she’s alluded to. It’s only come out in her evidence, your Honour. I’m trying to cover all bases for the prosecution.

COURT: That’s right.

Mr Chau: Yes. So if I can just clarify. Our case has always been she did not pay careful attention as a careful, a competent driver ought to have done because if she had she would have seen the signs and stopped.

COURT: Correct.

Mr Chau: That’s always been our case.

COURT: Correct.

Mr Chau: We’re saying her verbal admissions were lies to deflect the attention away from her because after she realised the accident happened, she realised she was in the wrong so she told lies to deflect the attention away from herself.

COURT: Yes.

Mr Chau: Yes. Now, if we put that to one side, I had to put the scenario to her because her evidence was she accelerated into a junction, she knew there was a crossroads but she still went through it anyway without stopping.” [19]

This exchange with the judge continued as each sought to understand the others’ position and concluded in the following way:

“COURT: But you’re saying what she told the police was she did stop?

Mr Chau: Yes.

COURT: So is that not a sign that she saw a stop sign?

Mr Chau: No, she’s lying, that’s what I’m saying. She is not telling the truth when she says that.

COURT: But if she was telling the truth then it would be that she’s seeing a stop sign and she stopped.

Mr Chau: But we know that to be not the case, your Honour. Forgive me if I’m missing something, it’s probably me, your Honour, but I think …

COURT: By her answer, is the prosecution asking the court to draw that inference that she stopped. that she knew she was obliged to stop?

Mr Chau: No, she never stopped, we’re not asking you to draw that inference.

COURT: Not the inference that she stopped, that she knew she was obliged to stop and therefore that is why she told the officer she stopped?

Mr Chau: We’re proceeding on the basis that she, after the accident, she knew she was at fault, that’s why she deliberately told the police officer that she stopped when she knew she did not. She tried to deflect attention from her by giving a story which was untrue that that goes with our case, the prosecution’s case that when she …” [20]

37.  The importance of this exchange between bench and prosecutor is that it would appear to be the origin of the alternative scenario raised by the judge in her Reasons for Verdict.  This was a scenario where the applicant knew of the existence of the stop sign and deliberately chose to ignore it.  This scenario, needless to say, represented a much more serious level of culpability than merely not seeing the stop signs and driving through the junction in ignorance of their presence.

38.  The only other witness that was to be called in the defence case was an expert in road safety.  Application was made to call him but this was resisted by the prosecutor and ultimately refused by the judge who felt that she would not be assisted by him, given the nature of his evidence, in making the findings of fact that were required of her in order to determine the guilt of the applicant.  This road safety expert was being called to express the opinion that there were deficiencies in this particular junction that could be categorized under two heads.

39.  The first head concerned the visibility of drivers as they approached the junction, specifically their ability to see cars driving through the junction from the right.  This was a visibility issue and it was created by the presence on the right-hand side of the road on which the applicant was driving of Mills barriers which were stored there by the police for use by them for crowd control on race days at Happy Valley.

40.  The second head was described as a readability issue.  This issue related to various features peculiar to the Morrison Hill Southbound Road which may have the effect of causing drivers to think that they are travelling on a priority road and in this way may contribute to them not seeing the stop signs of this junction.  Presumably, it was intended to bolster the credibility of the applicant’s claim that she did not see the signs by providing an explanation of why she might not have done so.  In giving her ruling on the application to call this expert, the judge said:

“… The issue therefore in this case as rightly stated by both counsel is was the defendant driving dangerously?

I must consider all the circumstances of the case and it is her case that she did not see the stop signs on the road or the road marking stop signs. The issue is whether she did see them and she blatantly ignored it or, as she said, she drove ahead and did not see them and that is why she crossed the junction.

I cannot see any assistance this road safety expert can give me in making a factual finding that I have to make. This is a simple dangerous driving case of which I must decide a factual issue. The expert does not in any regard refer to the fact that she cannot see the stop sign or that it impeded her view or that it was blocked or obstructed by anything. That is one of the major and significant issues in this case.

Nothing in this report assists me and nor do I need expert evidence to assist me to decide on hearing the evidence whether the defendant either saw the signs, blatantly ignored it, or she did not see it and it fell far below a standard of a competent driver. Those are the simple, simple issues before me.” [21]

In response to this ruling counsel for the applicant then closed the defence case.

The Reasons for Verdict

41.  After setting out the law and the evidence, the judge proceeded to discuss the submissions of the counsel and to analyse the case.  She noted that the primary issue in the case was whether the applicant was guilty of dangerous driving and that defence counsel’s principal submission was that the applicant’s driving only amounted to careless driving as it reflected a momentary lack of concentration by the applicant which unfortunately had tragic consequences.

42.  The judge was satisfied that even on the applicant’s own account of what happened, there was a clear failure by her to keep a proper lookout.  She said:

“52. On the defendant’s evidence and as was demonstrated by her I found that if her account, was correct she was driving with tunnel vision. Her eyes were fixed at looking straight ahead above her shoulder height and beyond her car. All she was able to see was that there were no cars ahead of her across the junction. She clearly did not look anywhere else. If the defendant had paid a proper lookout, she would have had a clear sight of the road signs and/or road markings. I was satisfied that on her account she was not keeping a proper look out at all to any of the road traffic signs and traffic regulations that governed the traffic on the road she was travelling upon.

53. … I found it wholly inexplicable or inconceivable that the defendant or any competent and careful driver could have failed to notice any of the road signs or markings mandating all vehicles to stop at the junction.

54. For the defendant to have failed to have seen any of the stop road signs and or markings on the road commanding her to stop I was satisfied that she did not pay careful or any attention to or keep a proper lookout on her approach to the junction.

55. A competent and careful driver would have kept a constant lookout for road signs and for traffic regulations and would have seen the road signs and traffic regulations. The defendant failed to do so which rendered her driving far below what was expected of a careful and competent driver. It would be obvious to a competent and careful driver that driving in the way the defendant did would be dangerous.” [22]

43.  The judge also found, on the basis of the applicant’s own evidence, that “she was emotionally unstable, she was not in a good mood” [23], was unfamiliar with the road and seldom drove.  This situation, the judge observed, called for her to take more care and pay more attention to her driving.

44.  These findings would, of course, have been sufficient for the purpose of convicting the applicant of the charge.  However, the judge went on to consider whether there might be another basis on which the applicant was guilty of the offence.

45.  This basis was a far more culpable one and was the alternative scenario that arose in the discussions between the judge and the prosecutor in the course of the applicant’s cross-examination and which we have quoted earlier in this judgment.  Under this alternative scenario the applicant was aware of the stop signs and deliberately ignored them.

46.  In discussing this alternative scenario the judge noted that the applicant had lied to the police that she had stopped at the stop sign and in respect of this lie the judge said:

“I was satisfied she lied to the police to extricate herself from responsibility that she had caused the collision and her failure to abide by the road signs.” [24]

47.  The judge then said:

“68. I was satisfied that as the stop signs, the road signs and the hatchings were so prominent and the fact that that the defendant knew this was a cross junction the defendant did know that she was required to stop. I rejected her evidence that she did not see or know of the stop signs prior to the collision.

69. I was satisfied by the defendant’s answer to the police telling them that she had stopped at the junction was because she knew that she was required to stop at this junction when she was approaching the junction.

70. On all the evidence before me I was satisfied that the defendant had accelerated towards the junction as she assumed there were no cars approaching from her right to the junction. Seeing there were no vehicles ahead of her she knowingly ignored the stop signs and accelerated towards the junction without slowing down or stopping.” [25]

48.  The judge concluded her Reasons for Verdict by saying that if she was incorrect in this finding she was nevertheless satisfied that even on the applicant’s own evidence of failing to see or notice the stop signs in the circumstances as described by her she was guilty of dangerous driving.

The Reasons for Sentence

49.  The judge said she was sentencing the applicant on the basis of her finding that the applicant “accelerated into the junction assuming there were no cars approaching from your right and ignored the stop signs.” [26] This was a finding that the applicant “deliberately ignored the traffic signs to stop”.[27]

50.  In discussing the applicant’s manner of driving, the judge turned to the issue of speed saying:

“Although the speed limit was 50 kilometres and there was no evidence of the defendant’s vehicle exceeding that limit, the evidence is clear that the defendant drove into the junction at a high speed of about 45 kilometres an hour. The speed to which she drove into the junction was at a much faster and greater speed than she should have ever been driving into the junction. This is as an aggravating factor.” [28]

51.  For the purpose of determining the gravity of the applicant’s driving, the judge characterized it as follows:

“The defendant’s driving was in my view, a conscious decision by her to disregard the approach to a junction to slow down and to reduce her speed and to ignore the stop sign. This was not a momentary error of judgment. In those circumstances, I consider that a sentence in the intermediate culpability is the most appropriate starting point.” [29]

52.  The reference to intermediate culpability is a reference to the categories set out in R v Cooksley [2003] 2 Cr App R 18 which were discussed by this Court in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660.

53.  By this route the judge determined upon 3 years’ imprisonment as the appropriate starting point and that was the sentence she imposed.

The Grounds of Appeal

54.  There are seven grounds of appeal against conviction.  The first complains that the judge erred in finding that the applicant could not have failed to see the stop signs or road markings.  In support of this ground it is argued that the judge failed to have regard to all the matters mandated by section 36(7) of the Ordinance.

55.  The second ground asserts that the judge erred in finding that by accelerating before the junction knowing that traffic may be coming on her right, the applicant drove dangerously.

56.  Ground 2A of the Perfected Grounds of Appeal complains of the judge’s finding that the applicant drove into the junction at about 45 kilometres per hour.

57.  Ground 3 argues that the judge was wrong to conclude that the applicant knew of the presence of the stop signs and deliberately chose to ignore them.

58.  Ground 4 argues that the judge misconstrued the applicant’s evidence in respect of her statements to the police when she described the applicant as asserting that the police had fabricated their evidence.

59.  Ground 5 complains that the judge erred in ruling the evidence of the road traffic expert inadmissible.  However, at the hearing of the appeal counsel for the applicant, Mr A Hoo SC, asked that this be treated as a ground of appeal against sentence only.

60.  Ground 6 is that the judge failed to properly take into account the fact that there were a large number of Mills barriers present which obstructed her view to her right-hand side.

61.  Ground 7 simply asserts that the evidence only established careless and not dangerous driving.

62.  A new ground, Ground 7A, for the first time raised a causation issue, arguing that the evidence did not establish the necessary causal link between the manner of the applicant’s driving and the death of the deceased.

63.  There are two grounds of appeal against sentence.  Ground 8 complains about the starting point and the assessment of the gravity of the applicant’s driving as placing it in the intermediate category of culpability. Ground 9 complains about the factual findings on which that assessment was based and the undue weight that it is said the judge placed on the consequences of the applicant’s dangerous driving.

Discussion: Appeal Against Conviction

64.  Mr Hoo, who appeared for the applicant before us, but not at trial, dealt with grounds 1, 5 and 6 together under the heading of “The Locus in Quo” as they are all concerned, in one way or another, with features of the stretch of roadway and the junction where the accident occurred.  It was the applicant’s case that there were features of this stretch of roadway which could have the effect of causing drivers to think that they are driving on a major road with a clear stretch of open highway ahead of them and that these features may explain why the applicant did not see the road signs.  Essentially, this was the purpose of the applicant’s expert evidence at trial and of the bulk of the fresh evidence on appeal.  However, at the hearing of the appeal Mr Hoo said he would seek to adduce this evidence on the appeal against sentence rather than conviction and so we shall discuss it in detail later in this judgment when dealing with that part of this appeal.

65.  Even without this evidence Mr Hoo complains that the judge did not have regard to all the matters enumerated in section 36(7) of the Ordinance.  We do not agree.  In identifying the cause of any accident, everything will be taken into consideration but once this cause is identified then the relevance and weight of the section 36(7) matters and the other circumstances can be properly assessed.  The section 36(7) matters and other circumstances are only relevant if the applicant did not, in fact, see the road signs and markings, that is the first scenario.  They have no relevance to the second scenario which is based upon a finding that the applicant knew of the road signs and markings and deliberately ignored them.

66.  Even though it is true that all the features of the road may be relevant to the first scenario, their relevance lies in bolstering the credibility of the applicant’s claim that she did not see the road signs and road markings but only then if the applicant’s position was that she could not account for her failure to observe these things.  But, in her evidence she gave an account of her mood, state of mind and manner of driving which enabled the judge to conclude that the applicant’s failure to notice the road signs and road markings was due to her not concentrating on her driving and failing to keep a proper lookout of the road immediately ahead of her.  Thus, even under this first scenario the applicant’s failure to keep a proper lookout had nothing to do with the road features but was simply due to the applicant not concentrating on her driving.  We can find nothing in the judge’s Reasons for Verdict to show that she did not have proper regard to all the relevant contextual circumstances in finding the first scenario proven.

67.  In Ground 2 the applicant complains that the judge erred in concluding that in accelerating into the junction the applicant drove dangerously.  In making this finding the judge was, it seems to us, assuming that the applicant knew she was travelling on a minor road, that is a road on which she would have to give way to traffic on her right.  It is a finding which is relevant to the alternative scenario of guilt but not to the first scenario which was the one on which the prosecution presented its case.  As we do not think the judge’s conviction on the alternative scenario can be upheld it is not necessary for us to deal with this ground.

68.  In relation to the applicant’s driving, complaint is made in Ground 2A about a statement by the judge that is contained in her Reasons for Sentence where she said:

“the evidence is clear that the defendant drove into the junction at a high speed of about 45 kilometres an hour.” [30]

69.  This statement must be placed in context.  Here, the judge is sentencing the applicant on the basis of the second scenario where the applicant, aware of the stop signs and the existence of the junction, consciously makes a decision to drive through it and accelerates her car before doing so.  On this scenario the speed at which the applicant was driving is relevant to an assessment of her culpability.  But, even on this scenario it is not relevant to the cause of the accident although it may well explain the force behind the collision and why PW1’s taxi was propelled into the workmen.

70.  It was never the applicant’s case that she was driving slowly for on her case there was no reason for her to do so.  She said she was driving normally on what she thought was a straight, open stretch of highway and the video recording certainly shows her driving her vehicle “normally” in the sense of showing no indication of slowing down and consistent with the speed of a driver driving along an uninterrupted straight section of road.

71.  We agree that the evidence is not sufficiently precise to enable a positive finding that the applicant’s speed was 45 kilometres per hour. It was at least 30 kilometres per hour and was a high speed as opposed to a slow speed.  It was not high in the sense of above the speed limit.  But, the witnesses in this case were assessing the applicant’s speed in the context of a vehicle they expected to be slowing down to stop and then accelerating away from standing or almost standing start.  In this context any speed between 30-45 kilometres per hour can be described as a high speed and we have no doubt after seeing the videos that the evidence would allow of a finding that the applicant was driving at a speed within this range.

72.  But, we must emphasize that the applicant’s speed is not relevant to her guilt under the first scenario which is based upon her failure to keep a proper lookout, as explaining why she did not see the road signs and road markings and hence did not stop before entering the junction.  On this scenario, her speed in travelling along the road and entering the junction was irrelevant to the question of whether she was driving dangerously.  Any speed was dangerous in these circumstances.

73.  Before dealing with the third ground of appeal, which in our view is the key ground of appeal, we shall briefly mention grounds 7 and 7A. Under the seventh ground of appeal the applicant submits that her driving amounted to careless driving only and not dangerous driving and asserts that momentary inattention is not dangerous driving.  It is argued, correctly, that careless driving does not become dangerous driving simply because someone has been killed.  In this respect reliance is placed upon the comment by McMahon J in HKSAR v Li Chau Wing CACC 347/2005; unreported, 20 February 2006, at paragraph 15(3):

“If the accident was caused by the applicant’s lack of care, the consequences of that lack of care do not turn an act of careless driving into one of dangerous driving.”

74.  As this case emphasises it is necessary to focus on the standard of the accused’s driving and make and assessment as to whether it fell far below the standard which would be expected of a competent and careful driver and it would be obvious to such a driver that driving in that way would be dangerous.

75.  Doing that to the facts of this case it is clear to us that this was not a case of momentary inattention.  This was a case of a driver so affected by her personal problems that she was in a poor mood and unable to concentrate on her driving.  This caused her to drive with tunnel vision and a lack of awareness of her broader surroundings.  We have no doubt that driving in such a condition and allowing her personal problems to affect her driving in the way they did was to drive, to quote section 36(4) of the Ordinance, “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”.

76.  Ground 7A asserts that there was no causal connection between the applicant’s driving and the death of the deceased and unless the causal connection is proven the applicant must the acquitted (see section 34(9) of the Ordinance).  This argument centres around the fact that it was PW1’s taxi which struck the deceased and the evidence of PW1 who said that he accelerated when he saw that the applicant’s car was not going to stop.  It is submitted that it was PW1’s act of accelerating his car which caused the collision with PW1’s taxi to occur in such a way that it was propelled into the workers thereby causing the fatal injuries to the deceased.

77.  The law relating to causation in respect of this offence is that an accused’s dangerous driving has to be a cause of the deceased’s death.  It does not have to be the only or even the substantial or major cause of the death, as long as it is something more than de minimus then it qualifies as a cause. (See R v Chiu Tat Shing Dennis [1985] 2 HKC 487, following R v Hennigan [1971] 3 All ER 133.)  “De Minimus” simply means that the dangerous driving was a cause of the accident and “something more than a slight or trifling link.” [31]

78.  The applicant argues that even if she drove dangerously and her dangerous driving caused the collision with PW1’s taxi, it did not cause the death of the deceased, which was due to the subsequent collision between the taxi and the deceased.  It is submitted that PW1’s evasive action constituted a new, intervening act which caused a break in the causative link to her dangerous driving.  In support of this argument Mr Hoo relies upon the English Court of Appeal’s judgment in Girdler v R [2009] EWCA Crim 2666 where the Court, in dealing with a situation where the death was due to a second collision, introduced the concept of foreseeability into the direction to the jury.  In giving the judgment of the Court Lord Hooper said at paragraph 43:

“We are of the view that the words “reasonably foreseeable” whilst apt to describe for a lawyer the appropriate test, may need to be reworded to ease the task of a jury.  We suggest that a jury could be told, in circumstances like the present where the immediate cause of death is a second collision, that it they were sure that the defendant drove dangerously and were sure that his dangerous driving was more than a slight or trifling link to the death(s) then: the defendant will have caused the death(s) only if you are sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the second collision did occur.”

79.  It is not necessary for us to decide whether such a test is one which should be applied in Hong Kong for the situation that arose in the present case is not the same kind of situation for which the English Court of Appeal formulated its test.  It was concerned with a situation where a collision occurred on a highway as a result of which one of the cars in this accident, a taxi, blocked a lane, creating a hazard to oncoming traffic.  Other cars travelling in this lane drove around the taxi but one oncoming vehicle subsequently collided with it. The driver of this oncoming vehicle was killed and as a result of this second collision the driver of the taxi was killed.  The accused was the driver of the first vehicle that collided with the taxi and his defence was that the driver of the second vehicle that collided with the taxi was responsible for her own death and that of the taxi driver.  This situation bears no similarity to the circumstances of this applicant and so the test formulated by the English Court of Appeal to deal with this particular situation is not applicable to the accident of this applicant.

80.  Here, as a result of the applicant’s dangerous driving, there was a likelihood of a collision; perhaps, even the inevitability of one.  In order to try and avoid a collision, PW1, made a spur of the moment decision and took evasive action.  This split-second decision was a perfectly reasonable one given the circumstances in which PW1 found himself.  But, it was not PW1’s evasive action that caused his taxi to hit the deceased; PW1 did not swerve his taxi towards the deceased in order to avoid a collision.  Indeed, had PW1 been successful no-one would have been hurt as there would have been no collision.  It was the force of the applicant’s car colliding with his taxi that propelled it into the workmen.  This is simply not a case of the death of the deceased being caused by a new, intervening act.  Rather it is a case of the applicant’s driving causing a person, PW1, to be placed in harm’s way, and in order to escape that potential harm, to take evasive action.  Clearly, the applicant’s dangerous driving was a cause of the death of the deceased and something well beyond a de minimus cause.  We see no merit in this ground of appeal.

81.  We now turn to Ground 3.  By this ground it is said that the judge erred in making the findings that led to her convicting the applicant on the basis of the second scenario.  These findings are that the applicant knew of the junction and knew that she was required to stop before proceeding further but that she deliberately ignored this requirement and sped through it.

82.  The reasoning of the judge on this issue can be summarised as follows:

 

(i)	Because:	(a) the road signs and markings were so prominent; and
		(b) the applicant admitted that she knew there was a junction
	the applicant must have known she was required to stop and her evidence to the contrary is rejected; and
(ii)	the applicant lied to the police when she told them she had stopped at the stop sign; and
(iii)	the reason the applicant lied to the police was
	(a) in order to extricate herself from responsibility for causing the collision and because she had not complied with the stop sign; and
	(b) because she knew that she was required to stop at this junction.

     

83.  There are several problems with this reasoning.  In relation to (i) above, the finding that the applicant must have known she was required to stop depends very heavily on the prominence of the road signs and markings, for it is this very prominence that, it is said, makes the assertion by the applicant that she did not see them, simply unbelievable.  Of course, one of the purposes of the expert evidence, which was excluded, was to bolster the credibility of the applicant’s explanation that she did not, in fact, see them.

84.  Secondly, in using the lie as she did the judge not only went well beyond the use that the prosecution asked her to make of it, she never directed herself on the legal principles on the use of lies as laid down by the Court of Final Appeal in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113.  In that judgment the Court of Final Appeal said that before a lie could be used adversely to an accused the following criteria must be met:

(i) it must be a deliberate lie;

(ii) it must relate to a material issue in the case;

(iii) there must be no innocent explanation for the lie; and

(iv) it was a lie which was either admitted or proved by independent evidence.

85.  Clearly, criteria (i), (ii) and (iv) were met.  However, we do not see how criteria (iii) is met, especially as the prosecutor himself conceded at trial that the lie may show no more than that by the time the applicant told the lie she was aware of the existence of the stop signs and road markings and recognized that in not abiding by them she had broken the law.  The prosecutor was not asking the judge to go further than this in making use of the lie and, in fact, eschewed any reliance on the lie to prove prior knowledge of the stop signs. The existence of this innocent explanation appears to have been recognized by the judge when she identified the reason for the applicant telling the lie as:

“… to extricate herself from responsibility that she had caused the collision and her failure to abide by the stop sign.”

86.  An after-the-event lie told by the applicant to exculpate herself from responsibility may show, as the prosecution said, that at the time she told the lie she knew of the presence of the road signs and realized that she had failed to abide by them, but it doesn’t necessarily mean that she knew of the requirement to stop at this junction before the accident took place.

87.  We are satisfied that there is merit in this ground of appeal and that in her reasoning which underlies her conclusion that the applicant knowingly ignored the stop signs, the judge has erred.  However, that does not mean that the application for leave to appeal against conviction must be allowed.  For the judge found two scenarios of guilt proven and though she convicted the applicant of the more serious scenario, she made it quite clear that she would have convicted the applicant of the first, less culpable one.  In respect of that scenario we can find no error by the judge.

88.  This scenario, which was the basis of the prosecution case, was proven by the applicant’s own evidence, namely that she was distracted by her personal problems, and this caused her to look with tunnel vision to the road ahead, into the long distance, rather than concentrating on the road immediately in front of her.  We agree that the applicant’s guilt of dangerous driving causing death, based on a failure to keep a proper lookout, was clearly established.

Discussion: Appeal Against Sentence

89.  As the judge erroneously sentenced the applicant, on the basis of the second scenario, it now falls to us to sentence her on the basis of the first scenario.

90.  As we indicated earlier the applicant applies to adduce fresh evidence on appeal in order to demonstrate that the accident site was a traffic accident black spot with accidents regularly occurring there.  The evidence goes on to explain why, in terms of various features of the road and junction, accidents similar to the present one occur at this junction.  Finally, the evidence seeks to demonstrate that the judge’s finding that the applicant was driving at 45 kilometres per hour was erroneous.

91.  However, when sentencing the applicant on the basis of the first scenario all this evidence is simply irrelevant.  The reason it is not relevant is that under the first scenario the applicant’s claim that she did not see the signs and markings is accepted and the reason for her failure to see the signs and markings, to effectively be aware of her surroundings, has nothing to do with the road, the junction or other locus in quo matters.  On her own evidence her failure was due to her not concentrating on her driving and not keeping a proper lookout.  On this scenario the speed at which the applicant drove the car is also irrelevant to her culpability.  The accident and the death were due to the applicant not stopping and to driving through the junction at a normal speed.  For these reasons we refused the application under section 83V of the Criminal Procedure Ordinance, Cap 221 to adduce fresh evidence on appeal.

92.  The applicant is a 40 year-old woman with a clear criminal record. She had been a successful businesswoman but through the fault of another had lost $28 million and been declared bankrupt.  Her bankruptcy occurred in the month preceding the accident so it is, perhaps, not surprising that she was distracted by her personal problems.  She felt genuine remorse after the accident and contributed to the cost of the deceased’s funeral expenses.

93.  However, as this Court has made clear on many occasions, the sentences for this offence must include a strong element of deterrence and for this reason imprisonment is inevitable in most cases.  Good character and remorse will not usually be a reason for departing from the need to impose a deterrent sentence.

94.  The primary consideration in assessing the appropriate sentence for this offence is the culpability of the offender’ driving.  In the circumstances of this case we believe that the applicant’s dangerous driving falls into the least culpable level as there was not present any serious aggravating factors. On the first scenario the applicant’s culpability lies only in her not concentrating on her driving and failing to keep a proper lookout.  Nevertheless, in the circumstances of this case this was a significant failure.  The judge was right in saying the signs and road markings were prominent and for the applicant to not see them indicates how badly distracted she was from her task of driving her car.

95.  Notwithstanding that the primary sentencing consideration is the culpability of the applicant’s driving, the consequences of her dangerous driving do still have a role to play in the assessment of sentence.  Here, this was not just an accident that caused the death of one person; the accident affected the lives of the other two workmen on the road and even though they survived they still suffered injuries, as did the driver of the taxi into which the applicant collided.

96.  The extent of the applicant’s inattention to her driving, in our view, places her culpability at the higher end of the least culpable dangerous driving range.  An appropriate sentence for this level of culpability with the consequences it caused is 18 months’ imprisonment and that is the sentence we impose.

Conclusion

97.  For the reasons we have given we dismissed the application for leave to appeal against conviction and allow the application for leave to appeal against sentence.  We treat the hearing of the application for leave to appeal against sentence as the hearing of the appeal, allow the appeal, set aside the sentence of the judge and in substitution for it sentence the appellant to 18 months’ imprisonment.  We do not disturb either the disqualification order made by the judge or the order made under section 72A.