THE QUEEN v. CHOI SIU WAH

Mag. App. No. 978 of 1991

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H E A D N O T E

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CAUSING DEATH BY RECKLESS DRIVING : ABSENCE OF AGGRAVATING FEATURES : SENTENCE SUSPENDED

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 978 of 1991

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J U D G M E N T

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1. The appellant was convicted by Mr Thomas in Fanling Magistrates Court of causing death by reckless driving, contrary to section 36(1) of the Road Traffic Ordinance. He was sentenced to six weeks imprisonment, fined $5,000 and ordered to pay $3,000 costs. He now appeals against both conviction and sentence.

2. The magistrate found the following facts. On the evening of 27th September, 1990, PC14369 was supervising, two workers employed by a contractor, who were erecting road works warning signs on the north-bound carriageway of Tolo highway near Taipo. The intention was that the middle and fast lanes would be coned off, leaving only the left-hand lane open.

3. Some 600 metres from the place where the cones were to be erected the workers placed triangular warning signs on each side of the carriageway. The signs depicted a man digging and the words and characters "600 metres". On top were flashing amber lights.

4. PC14369 and the workers moved on and, at 400 metres from the cone positions, they erected rectangular signs showing the road narrowing from the right-hand side. They showed the words and characters "400 metres" and were also topped by amber flashing lights.

5. 200 metres farther north PC14369 stopped his car in the left-hand lane and the workers erected on the near side of the road a sign showing that the centre and right-hand lanes were closed. This sign contained the words and characters "200 metres," but there was no evidence that it bore a flashing light.

6. The workers then carried the twin sign across the road and began to set it up on the central barrier. Meanwhile PC14369 moved his car across the carriageway and stopped astride the line dividing the centre and right-hand lanes with his offside wheels in the latter. The magistrate could not be sure whether more of the car was in the right-hand lane or vice versa. It was parked level with the spot where the workers were putting up the sign. The flashing light on the sign was not in operation.

7. The police car was illuminated by a red and blue flashing light display across the full width of its roof. The headlights were also switched on.

8. PC14369, who was in uniform and wearing a fluorescent vest and white sleeves, alighted from the car and saw the lights of approaching traffic. The first vehicle was a double-decker bus travelling in the centre lane. The police constable raised his hand and the bus driver stopped ten metres away and switched on his hazard flashers.

9. PC14369 also saw headlights in the left-hand lane and was walking towards the near side of the road when he heard the sound of braking behind him. This was the appellant's car. It crashed into the police car and then collided with the deceased, who was standing on the kerb tying up the sign. The deceased, who was also wearing a reflective vest, was-thrown into the air and landed in the opposite carriageway. The appellant's car scraped along the central divider against which, it came to rest some distance beyond the police car. These events were clearly visible to the driver of the bus.

10. The appellant gave evidence and said he was travelling at about 100 kph in the fast lane. Traffic was very light and he thought the road surface was dry, althought he admitted it had been raining earlier. He noticed both the 600 metre and 400 metre signs but he did not slow down because he did not see any evidence of road works. In his experience it was quite common for such signs to remain in place after all road works had been completed. He was however on the alert that there might be road works and a narrowing of the road ahead.

11. As he approached the scene of the accident the appellant noticed the bus in the middle lane. It slowed and stopped and he saw its warning flasher come on. At that moment the appellant took his foot off the accelerator. He did not brake because there was no obstruction ahead; he did not associate the bus stopping with the road signs he had seen. He then saw blue lights ahead of the bus, which he took to be those of a police car. He braked but could not avoid skidding out of control into the latter, which was in the middle lane but "perhaps jutting out a little into the fast lane". He did not see the deceased. Nor did he see the 200 metre sign.

12. The magistrate directed himself on the law of reckless driving in terms of R. v. Lawrence [1981] 1 AER 974 and R. v. Caldwell [1981] 1 AER 961. He cited inter alia the passage in Lawrence where Lord'Diplock said:-

"In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and, second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.

It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.

If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference."

13. The magistrate was satisfied that, by failing to slow down after seeing the signs and the stationary bus, the appellant drove in such a manner as to create an obvious and serious risk to other road users. The magistrate was also satisfied from the circumstances of the accident, and from the appellan t's own evidence,

"..... that he knew full well that there existed ahead of him the risk of danger from road works or other obstructions. It was clear that the exact nature of such dangers was unknown to him and that he had, at the most, a hope that he would have sufficient time and distance to deal with any eventuality or emergency. He himself admitted that the time within which he would have the opportunity to deal with any emergency would be very short.

Thus I was satisfied so that I was sure, beyond a reasonable doubt, that the Appellant had recognised the risks inherent in the manner of his driving but had, nonetheless, taken the" decision to continue to drive in that manner. I was, therefore, satisfied so that I was sure, beyond a reasonable doubt, that the Appellant was driving recklessly."

14. Mr Plowman, for the appellant, takes no issue with the magistrate's direction as to the law nor with the way in which the trial was conducted. His main complaint is that the magistrate was not justified in reaching his primary finding as to the position of the police car in the light of conflict in the evidence of the prosecution witnesses, which, as he puts it, removes the main plank of the prosecution case.

15. It is true that PC14369 said he parked his car in the fast lane, which was contradicted by what he told the accident investigator at the scene. The bus driver also said in chief that the car was in the fast lane, but in cross-examination he said it straddled the line and a large part of the car protruded into the fast lane and in re-examination he said the near-side wheels were on the line.

16. Yet the photographs show a severe impact between the side of the appellant's car just in front of the near rear wheel and the offside rear of the police car. Had the police car been fully in the right-hand lane this could not have taken place: it would have been struck squarely in the rear in the line of the brake marks of the appellant's car. Moreover the final position and angle of the police car, as shown in the photographs and the sketch - the offside rear wheel touching the dividing line - indicate that, having regard to the force of the collision, it must have been several feet nearer the central divider at the moment of impact. This is consistent with the point of impact having occurred near the end of the brake marks and the commencement of the debris, which is shown on the sketch as lying in both lanes.

17. Indeed, whichever way one looks at it, the police car could not have been wholly in the middle lane, for in that case there would have been no need for the appellant to have braked so violently that he skidded sideways to such an extent. There would have been no obstruction at all in his lane, which was 3.5m wide. Furthermore, if it had been wholly in the middle lane, it would have finished up farther to the left than it did. The appellant himself concedes that part of the police car was in the fast lane.

18. It cannot therefore be fairly said that the prosecution case depended on what the witnesses said in chief about the position of the police car. Nor can the magistrate be criticised for his finding that it straddled the two lanes. It follows that its lights were not obstructed by the bus to any significant extent. It is not suggested that lighting conditions were other than good.

19. The other ground of appeal is that the magistrate failed properly to consider the appellant's explanation as required by Lord Diplock in the passage cited from Lawrence. It was the appellant's case that he recognised the existence of the risk but dismissed it from his mind because he looked carefully but could see no road works ahead and therefore assumed that they had already been completed. Alternatively he had no reason to expect trouble 200 metres short of the indicated hazard.

20. The passage cited above from the Statement of Findings makes it clear that the magistrate gave full consideration to the appellant's explanation and rejected it as a defence. All it amounted to was that he knew there was a risk but, by his decision not to slow down, decided to take it in the hope that he would be able to cope if any danger in fact eventuated. If the police car had been another 200 metres down the road that would have made no difference to the appellant's state of mind.

21. The appeal against conviction is dismissed.

22. When considering sentence the magistrate reviewed the leading English case of R. v. Boswell [1984] 2 AER 353, in which Lord Lane set but the relevant principles in these terms :-

"One may perhaps pause for a moment to consider what factors in the driving may tend to aggravate the offence, and what factors tend to mitigate it. The following, amongst others, may be regarded as aggravating features: first of all, the consumption of alcohol or drugs, and that may range from a couple of drinks to what was described by the court in R v Wheatley (John) (1982) 4 Cr App R(S) as a 'motorised pub crawl'. Second, the driver who races: competitive driving against another vehicle on the public highway; grossly excessive speed; showing off. Third, the driver who disregards warnings from his passengers, a feature which occurs quite frequently in this type of offence. Fourth, prolonged, persistent and deliberate course of very bad driving (one of the cases today illustrates that), a person who over a lengthy stretch of road ignores traffic signals, jumps red lights, passing other vehicles on the wrong side, driving with excessive speed, driving the pavement and so on. Next, other offences committed at the same time and related offences, that is to say driving without ever having had any licence, driving whilst disqualified, driving whilst a learner driver without a supervising driver and so on. Next, previous convictions for motoring offences, particularly offences which involve bad driving or offences involving the consumption of excessive alcohol before driving. In other words the man who demonstrates that he is determined to continue driving badly despite past experience. Next, where several people have been killed as a result of the particular incident of reckless driving. Then, behaviour at the time of the offence, for example, failure to stop, or even more reprehensible, the driver who tries to throw off the victim from the bonnet of the car by swerving in order that he may escape. Finally causing death in the course of reckless driving carried out in an attempt to avoid detection or apprehension, and again in one of the cases today we find an illustration of that.

On the other hand the mitigating features may be numbered as follows amongst others. First of all the piece of reckless driving which might be described in the vernacular as a 'one off', a momentary reckless error of judgment; briefly dozing off at the wheel (see R v Beeby (1983) 5 Cr App R(S) 56, to which reference was made in the course of argument); sometimes failing to notice a pedestrian on a crossing. Next, a good driving record will serve the defendant in good stead. Good character generally will also serve him in good stead. A plea of guilty will always be taken into account by the sentencing court in favour of the defendant. Sometimes the effect on the defendant, if he is genuinely remorseful, if he is genuinely shocked. That is sometimes coupled with the final matter which we wish to mention as being a possible mitigating factor, namely where the victim was either a close relative of the defendant or a close friend and the consequent emotional shock was likely to be great.

The situation where there are not aggravating features present is that, so far as sentencing is concerned, a non-custodial penal ty may well be appropriate, but where aggravating features, or a aggravating feature is present then a custodial sentence is generally necessary."

23. The magistrate also cited the Hong Kong cases and in particular AG v. Chung Yim-chow [1986] HKLR 109, in which the Court of Appeal endorsed Boswell thus :-

"We think that the decision in Boswell establishes a valuable principle which ought equally to be applied in Hong Kong. Where recklessness has been proved in the sense adopted by Lord Lane in Boswell and where the conduct of the defendant cannot be described as a 'one-off' momentary reckless error of judgment, or momentary inattention in failing to notice the presence of  pedestrians (the first of Lord Lane's points of mitigation), or something of that kind, and where, in addition, there is any feature of aggravation in the conduct of the defendant a custodial sentence will normally be required. The gravity of the aggravating feature or features will dictate the appropriate length of sentence."

24. He also cited the Court of Appeal's comment in R. v. Cheung Kin-man [1981] HKLR 684 that only in cases of gross negligence or deliberately dangerous driving is an immediate prison sentence appropriate.

25. The magistrate went on to give the appellant credit for his previous clear record but considered that the appellant's speed in the conditions, plus his failure to pay heed to the signs and the stopping bus were aggravating factors

26. A prison sentence was warranted; the only question is whether it should have been suspended. The magistrate considered the matter with great care and it must have been a borderline decision, with which I am reluctant to interfere. However there are two matters to which I think, with respect, the magistrate gave insufficient weight. The appellant's driving, although not merely a momentary reckless error of judgment, did not include any aggravating features as described by Lord Lane.

27. There is also no doubt that the appellant has been seriously affected by the accident. He has spent a night in custody. He has had a great shock. He is unlikely to drive again.

28. For these reasons I think it is proper that the sentence should be suspended for 12 months. The appeal against sentence is allowed to that extent.