R. v. WONG YEE SING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 146 OF 1997

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J U D G M E N T

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1. The appellant was convicted of reckless driving. He was the driver of a light rail vehicle (LRV). On 13^th January 1996 at the junction at Castle Peak Road near Ma Wang Road, the LRV he was driving collided with a private vehicle. The damage to both vehicles was not serious and there was no serious injury.

2. The junction was a complicated junction involving three lines of traffic and a pedestrian crossing. There were traffic lights controlling road traffic and LRV traffic. Those controlling road traffic were the normal traffic lights consisting of red, amber and green while those controlling LRV traffic consisted of white, flashing chevron and red T lights; the white means "go" being equivalent to green in the traffic light and a flashing chevron according to the Road Traffic (Control of Traffic) Regulations means that the period in which the LRV driver may proceed, i.e. the white "go", is about to end.

3. There was evidence before the magistrate that there was a period of at least 5 seconds after the LRV lights became red before the road traffic lights turned green. The LRV red phase might be extended by 8 seconds in certain circumstances but there was no evidence as to what these circumstances were. There was further evidence that the traffic light system was such that it was not possible for both the road traffic lights and the LRV traffic lights to be green at the same time because when that happened there would be an auto breakdown resulting in a total black out. In other words, if the lights were green for road users, the lights for LRV could not be green. There was no dispute about such evidence which the magistrate accepted.

4. It was also not in dispute that at this junction, 35 meters before the stop line for LRV traffic there was a sign of 30 kph called the break marker. The purpose of this break marker was to instruct the driver of the LRV that the maximum speed allowed at that point was 30 kph so that he could reduce his speed and brake in time to stop safely before the stop line if he was required to stop at the junction.

5. The evidence before the magistrate was only the prosecution evidence. The appellant did not give nor call evidence. There was evidence that PW1 the driver of the private car stopped at the red light at the junction. When he saw the light turned green in his favour, he proceeded into the junction across the tracks of the LRV. While he was there, the LRV driven by the appellant struck his car. PW4 a taxi driver at the time in his taxi was also waiting on the right of PW1 for the lights to change. He saw the lights change to green and he saw PW1 move forward. He followed but there and then he saw the LRV coming from his right sounding its horn. He at once stopped his vehicle. But PW1 who was ahead of him was struck by the LRV. PW5 was a lorry driver in his lorry right behind the private car of PW1. He saw PW1 moved off in front of him and he saw the lights were green. He then saw the LRV coming from his right and he only moved a foot or so without proceeding further. He saw the private car of PW1 struck by the LRV.

6. The magistrate accepted the evidence of all these three witnesses and found PW1 did not move into the junction until the road traffic lights were green in his favour.

7. The first three grounds of appeal were in essence that the magistrate should not have accepted the evidence of PW1 that he did not move into the junction before the light was green because PW1 being a party to the collision, had a motive to exculpate himself and his evidence was inherently improbable. The evidence of PW4 and 5 also did not support PW1's evidence.

8. The magistrate in his reasons for verdict stated that he found that the credibility of PW4 and 5 was not challenged. He also found PW1 an honest, accurate and reliable witness.

9. In coming to that conclusion the magistrate must have taken into account the fact that PW1 was a party to the collision who had his interest to serve. Having heard and observed these witnesses and taken into account PW1's possible motive, the magistrate was entitled to conclude they were credible witnesses. There was nothing inherently improbable or in consistent about their evidence. The magistrate was entitled to accept their evidence and to conclude that he was sure that PW1 did not move into the junction until the lights were green in his favour. No complaint could be made against the magistrate in this respect.

10. The 4th ground of appeal was that the magistrate failed to consider the damage to the vehicle when he discounted the evidence of PW9 on the point of impact and rejected the defence submission that PW1 moved to the right lane when he crossed into the junction

11. PW9 was the police officer who went to the scene a few days after the accident to draw up the sketch and take photographs and based on the information he received from other officers and the drivers of the vehicles, he made up the location of the impact. The magistrate was right in rejecting his evidence on the point of impact. There was no expert evidence on the damage to both vehicles relative to the possible point of impact and the magistrate could make no findings in that respect; if he did, it would be speculation. In any case, whether PW1 had moved into the right lane when he crossed into the junction would be immaterial when the magistrate was sure that he did not move before the lights turned green.

12. The next complaint was that the magistrate erred in allowing PW10 to be called after both the prosecution case and the defence case were closed and after the magistrate had adjourned to deliberate.

13. This came about in this way. The magistrate, after he adjourned for verdict, found that the evidence on the various distances between the stop line and the point of impact and between the stop line to the middle of the junction, given by the witnesses and on the plans adduced in evidence were at variance with each other and they were also different from the observation he had during his visit to the scene. He wanted the Crown to call fresh evidence to clarify the matter. Counsel for the appellant at the trial objected to the magistrate taking such a step and submitted that the magistrate had to resolve the issue on the evidence before him. After hearing submission from both sides, the magistrate ruled that he had a discretion to allow fresh evidence to be called on the issue. As a result, PW10 a police inspector who had been to the location to take fresh measurement a few hours before he was called to give evidence told the magistrate that 66 meters was the distance between the stop line and the middle of the junction. This was another different figure. Counsel for the appellant accepted that there was a discretion for the magistrate to allow fresh evidence to be called at the close of the prosecution case or even at the close of the defence case. But it would not be right to allow fresh evidence to be called after that stage. He relied on a passage in the judgment of Widgery LCJ in Phelan v Back (1972) 56 Cr. App. Rep 257 at p. 261

"... It is, of course, quite clear, under our law that he who affirms must prove; therefore, strictly, once the prosecution have closed their case, there would be no opportunity for them to call further evidence, subject of course, to evidence in rebuttal, with which we are not concerned. Nevertheless, it does seem to me that there must always be some residuary discretion in the court to allow, in particular circumstances, evidence to be called, but the manner in which that discretion is exercised must depend on the stage of the case. If one turns to indictable offences, it is perfectly clear that it has become now an established rule of law that no evidence can be called after the summing-up, and a judge who in his discretion sought to exercise his discretion by allowing evidence to be called at that stage would be acting entirely wrongly and the conviction would be quashed. The same considerations do not wholly apply in magistrates' courts, but, nevertheless, as a general rule and in the absence of some special circumstances, it would certainly be wholly wrong for the justices to purport to exercise a discretion to allow evidence to be called once they had retired, and indeed, probably, after the defence had closed their case. At an earlier stage it may well be proper to exercise the discretion in favour of allowing a witness to be called, and indeed that was suggested in a decision of this Court in Saunders v Johns, The Times, November 10, 1964".

14. The magistrate took 77 meters as the distance between the stop line and the end of the junction when he came to consider the issue of whether the appellant had jumped the red light. It should be noted that the admitted fact was that this distance was 73 meters. Based on this distance of 77 meters, the magistrate made his calculations and concluded that he could not be sure that the appellant had jumped the red light. It would appear that the magistrate did not in any case take into account the new evidence of 66 meters between the stop line and the estimated point of impact.

15. On the authority cited, the magistrate was not correct in exercising his discretion to allow prosecution to call new evidence after the close of the defence case and after he had adjourned to deliberate. This was not one of the exceptional cases that evidence may still be called after the close of the prosecution case. The evidence of the various distances at the junction was already agreed in the admitted fact and if there was any distance in the admitted facts needed to be clarified or any relevant distance was not included, at that point of time, the inspector could be called to clarify before the prosecution closed their case. Be that as it may, the new evidence had not influenced the magistrate in coming to his conclusion and it had not prejudiced the appellant.

16. The magistrate found that the appellant at the scene had told the investigating police officer that he had rushed through the end of the red light and he rejected the appellant's later account in formal interviews that the chevron was flashing when he passed the stop line and when he passed the brake marker the chevron started to flash. The appellant complained that the magistrate was wrong in such findings because the evidence of PW3 was that the appellant told the officer at the scene he rushed through traffic lights and not the red light. Be that as it may, that did not affect the final verdict of the magistrate . The conclusion of the magistrate was that he was not sure that when the appellant crossed the stop line the light was red against him. He found that the appellant cross the line when the light was very close to red. That was in effect a finding that the appellant crossed the stop line when the chevron was still flashing. Thus, the inaccuracy of the magistrate about the evidence was in no way prejudicial to the appellant.

17. The magistrate found that the appellant had crossed the 30 kph sign at 57 kph and maintained that speed when he crossed the stop line. He found the appellant crossed the stop line when the LRV traffic lights were very close to red. He found the chevron had been flashing when the appellant passed the 30 kph sign. There was evidence that the appellant was driving at 57 kph when he drove past the sign and the appellant did not dispute he crossed the stop line when the chevron was flashing. The magistrate's findings in these respects could not be faulted.

18. The magistrate concluded that the appellant decided not to obey the brake marker and that he maintained a speed in excess of 30 kph before and when he passed it, even when the chevron had started to flash. His conclusion was this:

"The Defendant knew he was approaching a traffic light and knew of the presence of brake marker.

He knew that if he passed at a speed greater than 30 kph he could not guarantee to stop before the junction if the light went red. He was travelling at nearly twice the permitted speed so that when the chevron started to flash before he reached the brake marker, he had given himself no option but to go on.

He knew he would be going on to cross a particularly long and complex junction, a total distance of 100 meters with three lines of traffic and one pedestrian crossing incorporated into it.

In effect, he made it inevitable that he would jump the flashing chevron or, if it went red, the red light itself. He was thus defeating an important built in safety feature by his action.

This is consistent with his comment that he was rushing through the end of the light and with his immediate action of blowing the horn as he entered the junction.

I find that this amounted to the creation of an obvious and serious risk of causing injury or substantial damage. And it was a risk that the Defendant must have recognized and he deliberately chose to take.

This cannot, in my judgment, be characterized as anything other than reckless driving - it goes far beyond the careless driving which the defence are prepared to concede and it stands apart from the issue of whether the Defendant actually crossed the red light or not.

It follows that the Defendant must be convicted of reckless driving."

19. The remainder of the grounds of appeal were in essence complaints on the magistrate's interpretation of the meaning of the flashing chevron and the brake marker and the combined effect of the two. It was submitted that disobeying the brake marker and crossing the stop line at a speed in excess of 30 kph but less than the maximum 60 kph when the chevron was flashing would not create an obvious and serious risk of causing injury or substantial damage. It was submitted that the appellant should be guilty of careless driving rather than reckless driving.

20. The 30 kph sign was not a statutory sign so that disobeying such a sign did not constitute an offence. However, the instructions it carried together with the traffic lights for the road users and LRV traffic constituted a safe system to ensure smooth and safe running of traffic and to prevent collisions at the junction. The effect of such a sign to a LRV driver was if the light was a red "stop" against him when he passed the sign travelling at 30 kph, he could stop safely in time by the stop line. If the light was a white "go" in his favour when he passed that point, he could proceed without stopping and could cross the junction at a speed not exceeding the maximum allowable speed of 60 kph . If he passed that point when the chevron was flashing, he should be aware that the period in which he could proceed across the junction was about to end. He should judge for himself whether he should proceed or to reduce speed and prepare to stop at the stop line. That would depend on how much time he had before the signal turned red. The chevron would flash for seven seconds before the red appeared. If he passed the 30 kph point when the chevron started to flash, the chevron would still be flashing when he reached the stop line because it would only take about 4.4 seconds to travel at 30 kph the distance between the 30 kph sign and the stop line. That means he would have 7 - 8 seconds to cross the junction whether at 30 kph or at a higher speed, which was ample time before the road traffic lights turned green. If he passed the sign at the end of the 7 second flashes or when the flashes had already started, he would not be able to pass the stop line without the red being against him or there was a high probability that the red would be against him when he reached the stop line, in which case he should reduce speed and stop at the stop line and he could do so safely provided he travelled at the speed instructed by the sign.

21. The statutory definition for the white flashing chevron may not be the same as the amber for road traffic. The effect would still be the same and that is as I said before, the LRV driver should judge whether it was safe for him to proceed and if not, stop and in exercising his judgment, he must have regard to the 30 kph sign so that if he needed to stop, he would be able to do so safely without risk of going into the junction against a red light and collision with road traffic. The failure to observe the 30 kph sign by itself was not reckless driving but failure to observe it in such circumstances as the present case, that is rushing through the final flashes of the flashing chevron at a speed nearly twice as that the appellant was instructed and expected to obey into a complex junction, well knowing when he passed the brake marker at that speed with the chevron already flashing, he could probably not stop before the stop line, the appellant was prepared to take the risk of running through the red light and collision with other traffic in the junction when he drove into the junction.

22. On the evidence before him the magistrate was entitled to conclude that the appellant's manner of driving was such that it created an obvious and serious risk of causing physical injury to other person who might be on the road. There was evidence that the appellant in driving in that manner, did so without having given any thought to the possibility of there being any such risk or having recognized that there were some risks involved, had nonetheless gone on to take it.

23. The magistrate was entitled to convict the appellant of reckless driving and the conviction was neither wrong in principle nor unsafe and unsatisfactory. The appeal against conviction must be dismissed.