HKSAR v. LEE SUI WAH

DCCC 1178/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1178 OF 2016

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

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

REASONS FOR VERDICT

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

1.  The defendant is charged with one count of “Causing death by dangerous driving” (1^st Charge) and one count of “Causing grievous bodily harm by dangerous driving” (2^nd Charge), contrary to section 36(1) and 36A of the Road Traffic Ordinance, Cap 374, Laws of Hong Kong respectively. The defendant pleaded not guilty to both charges.

Undisputed facts

2.  It is not disputed by the defence that at about 9:45 pm on 10 June 2016, the defendant, who is a public light bus driver, was driving a public light bus bearing registration mark LV7180 along Tsing King Road, Tsing Yi, New Territories with passengers on board.  When the public light bus reached a pedestrian crossing outside Maritime Square, the public light bus knocked down three pedestrians (PW1 Mr JIA Yuming, PW1’s wife Madam Tian Yanping, and their daughter JIA Yuewen) who were crossing the pedestrian crossing.

3.  As a result of the accident, PW1 suffered multiple injuries including back contusion and fractured multiple ribs, fractured left collarbone, left medial malleolus and right radial styloid.  Emergency operation was performed on him and he was hospitalized for 7 days.  His wife sustained fatal head injuries and was certified dead on 11 June 2016 at 6:15 am.  PW1’s daughter also suffered injuries and was hospitalized for 6 days.

4.  It is not in dispute that at the material time the traffic volume was light.  The visibility was good.  The weather was fine.  The road surface was dry and in good condition.  There were street lamps on the road.  Traffic sign “SLOW” was marked on the lanes approximately 80 metres before the pedestrian crossing in question.

5.  The speed limit of the material section of Tsing King Road was 50 km per hour.  According to the report (Exhibit P9) prepared by an expert on forensic accident investigation and reconstruction, Dr Tam Yiu Yan, the defendant’s public light bus was travelling at 50 km per hour immediately before the defendant braked. 

6.  At the material time the defendant’s public light bus was in sound condition and had no mechanical defect.

7.  Immediately after the accident at 10 pm, a police officer made enquiry from the defendant.  The defendant voluntarily said, “At that time, I was travelling on the second left lane at the speed of about 40 km per hour.  At that time I saw 3 people cross the road about 25 metres away.  At that time I did honk the horn and turn to the left, but still knock them down.”

Prosecution case

8.  At the trial, the prosecution called 7 witnesses.  In addition to PW1, PW2 was also a pedestrian who was crossing the pedestrian crossing from the opposite direction at the time of the accident.  PW3 was jogging along Tsing King Road and saw part of the accident.  PW4 was a passenger on board of the defendant’s public light bus who also witnessed part of the accident.  PW5 and PW6 were police officers attached to the Accident Investigation Team who were both involved in the investigation of this case.  Lastly, PW7 was a technician who was responsible for the installation and maintenance of the speed display devices on public light buses.

9.  The prosecution case is summarized as follows: PW1 and his family arrived in Hong Kong on 9 June 2016 as tourists.  He and his wife were both aged 35 while their daughter was 5 years old.  PW1 and his wife both received university education.  He worked as an engineer in Mainland while his wife was a teacher at a university in Mainland. 

10.  After visiting the Hong Kong Disneyland on the material day, PW1 and his family took MTR to Tsing Yi MTR Station.  They planned to change to a bus to go back to the hotel they were staying.  Initially they walked across Tsing King Road and waited for bus at the bus station opposite to Maritime Square. Then a local resident advised them to take taxi on the other side of the road outside Maritime Square.  Therefore, they crossed the pedestrian crossing again and intended to walk back to the pavement outside Maritime Square. 

11.  The pedestrian crossing in question was divided into two sections by an island.  After PW1, his wife and his daughter walked past the first section, they reached the island and they continued to cross the second section of the crossing.  All the time they walked in normal walking pace.  PW1’s wife was a little ahead while his daughter was a little behind at his left side.  After walking about 3 paces on the road, PW1 looked at his left side and saw a public light bus approaching them at high speed.  Next he felt he was hit and lost consciousness.  When he regained consciousness, he found all three of them were lying on the ground.  They were all injured and his wife did not respond to him.  Later they were all taken to the hospital.

12.  PW2 was crossing the pedestrian crossing in question with his wife when PW1 and his family were crossing from the opposite direction.  After PW2 stepped out of the pavement, he saw that a public light bus was negotiating the bend and was approaching the pedestrian crossing.  At the same time, he saw a family of three walking towards his direction from the island in normal walking pace.  When he was in the middle of the crossing, PW2 observed that the public light bus was driving at a rather high speed and was not slowing down.  He felt that it might be dangerous if he continued to cross the road at the same pace. So he took his wife’s hand and walked quickly to cross the road.  PW2 walked past PW1 and his family at about 3 to 4 steps away from the island.  When PW2 and his wife reached the island, he heard a laud braking sound from behind.  He turned round and saw some people lying on the ground.

13.  At the material time, PW3 had just finished jogging and was walking along Tsing King Road alone.  Suddenly he heard a braking sound.  He looked up and saw a public light bus collided with some pedestrians.  After the collision, the public light bus continued to travel a short distance before it came to a halt.

14.  PW4 was seated on the third row on the left side of the defendant’s public light bus at the time of the accident.  When the public light bus was approaching the pedestrian crossing in question, PW4 saw from the windscreen that there were pedestrians crossing the road.  He estimated they were about 20 metres away from the public light bus.  When the pedestrians were about only 5 metres away, PW4 saw that the public light bus was not slowing down at all.  He shouted out “Hey!” and immediately closed his eyes because he knew that the pedestrians would be knocked down.  Then he heard the sound of collision and the public light bus braked.

15.  PW5 attended the scene shortly after the accident and drew a sketch of the scene (Exhibit P6).  He confirmed the sketch was accurate and up to scale. In the sketch, 1 centimetre represents 2 metres.  Further, he had measured the skid mark and it was 18.60 metres.  The skid mark started at about 7 metres away from the pedestrian crossing.  PW6 was also involved in the investigation and the photos of the scene were taken by him.  

16.  Lastly, PW7 was tasked to collect the data from the speed display device of the defendant’s public light bus and compiled into reports (Exhibit P7, P7A and P7B).  PW7 said because there was time lapse between the timer of the device and actual time, he could not be sure what was the speed of the public light bus at the time of the accident.

Defence case

17.  The defendant elected to give evidence but did not call any witness. The defendant obtained his driving license in 1987.  He started to work as public light bus driver in 1992 and had been driving the route in question for about 5 years.  He was familiar with the route.

18.  At the material time, the defendant was driving his public light bus as usual.  He drove carefully and paid attention to the condition of the road. When he approached the pedestrian crossing in question, he was driving at about 50 km per hour.  When he was about 40 metres from the pedestrian crossing, he saw a man and a woman crossing the road.  He then slowed down to about 40 km per hour.  He saw a family of three (a couple and a little girl) waiting to cross the road on the island.  When he was about 7 to 8 metres from the pedestrian crossing, the little girl suddenly came out from the island.  Then the woman came out to try to get hold of the little girl.  The defendant sounded the horn and applied the brake but was unable to avoid the collision.  As a result, the family of three were all being knocked down.

19.  In cross-examination, the defendant explained that when he told the police that he saw PW1 and his family crossing the road when they were 25 metres away, what he really meant was that he saw them waiting on the island when he was 25 metres away.  The defendant said he did not expect them to walk out of the island as his public light bus was approaching.  When being asked why he never mentioned it was PW1’s daughter who suddenly came out, the defendant said he did tell the police officers about that. 

Discussion

Finding of facts

20.  I bear in mind the burden of proof is always on the prosecution and the standard of proof is beyond all reasonable doubts.  The defendant does not have to prove anything. 

21.  I have carefully considered the evidence of PW1.  I find his evidence clear and straight forward.  He was sincere and honest.  He told the court what he remembered and made it clear that he had forgotten a lot of details of the accident.  He was unshaken under cross-examination and there is no inherent improbability in his evidence.  After careful consideration, I am sure he has told the court the truth.  I find him to be any honest and reliable witness and I accept his evidence in full.

22.  I have also carefully considered the evidence of PW2, PW3 and PW4. They are all independent witnesses who are not related to the accident in any way.  Their evidence is clear and straight forward.  They gave evidence in sincere manner.  They were unshaken under cross-examination and in fact most of their evidence was not really challenged by the defence.  There is no inherent improbability in their evidence.  After consideration I am satisfied they have all told the truth.  I find all of them to be honest and reliable witnesses and I accept their evidence.

23.  The evidence of PW5, PW6 and PW7 is not disputed by the defence.  After consideration I am also sure they have told the truth.  I find them to be honest and reliable witnesses and I accept their evidence.

24.  The defendant elected to give evidence.  After careful consideration, I am certain he has not told the truth.  First of all, about the speed of the public light bus at the time of the accident, the defendant has given different versions at different times.  According to the second Admitted Facts (Exhibit P12), at the scene when the defendant answered the enquiry of PC 12966, he said he drove at 40 km per hour.  In his evidence-in-chief, the defendant first said he drove at 50 km per hour.  During cross-examination, the defendant said he was slowing down from 50 to 40 km per hour moment before the accident when he saw pedestrians at the crossing.  When he was further cross-examined, he said when he saw PW2 crossing the road, he slowed down to 30 to 35 km per hour. However, according to expert report (Exhibit P9) which is not challenged by the defence, the speed of the public light bus was 50 km per hour before it braked.  Obviously, the defendant tried to understate the speed of the public light bus the more he was asked about this issue.

25.  Secondly, as to how far was the public light bus away from PW1 and his family when the defendant first spotted them, the defendant also gave different versions.  It was agreed in P12 that the defendant told the police officer at scene that he saw PW1 and his family crossing the road about 25 metres away. However, during cross-examination, he said when PW1’s daughter suddenly came out, he was only about 7 to 8 metres from the pedestrian crossing.  Again, the distance of PW1 and his family when the defendant first saw them is one of the central issues of the case.  The defendant changed his evidence on this important issue only shows that he was not telling the court the truth.

26.  Base on the above reasons, I am certain that the defendant has not told the truth and I reject his evidence.

27.  Though I rejected the evidence of the defendant, the burden still remains with the prosecution and the standard is still the same.

Whether the defendant drove dangerously?

28.  The only issue of the case is that whether the defendant was driving dangerously at the time of the accident.  Pursuant to section 36(4) of the Road Traffic Ordinance, a person is to be regarded as driving dangerously if the way he drives falls far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous. 

29.  Section 36(6) continues to set out what constitutes “dangerous” driving and “dangerous” refers to danger either of injury to any person or of serious damage to property.  Section 36(7) sets out the circumstances that should be regarded in determining what would be expected of, or obvious to, a competent and careful driving.

30.  Whether a person’s way of driving is dangerous is a matter to be decided objectively, and the elements of the offence of dangerous driving do not include any specific intent to drive dangerously: HKSAR v Lam Chi Fat [2012] 1 HKLRD 968 at paragraph 31. 

31.  In the present case, as I accepted the evidence of all the prosecution witnesses and rejected the evidence of the defendant, I have the following findings of fact:-

(1) The defendant was all along driving at the speed of 50 km per hour until he applied the brake. He never slowed down when he was approaching the pedestrian crossing;

(2) PW1 and his family were walking in normal walking pace all along before the accident. His daughter did not suddenly walk out of the island and his wife did not rush out to get hold of the daughter;

(3) The defendant said he first saw PW1 and his family crossing the road when they were about 25 metres way. According to PW5, the skid mark started only at about 7 metres from the pedestrian crossing. With reference to the Road Users’ Code, the thinking distance for a driver driving at 50 metres per hour should be 12.5 metres. The defendant said he immediately braked after he saw the pedestrians on the road. It means when the defendant first saw PW1 and his family, he was only about 20 metres away from them.

(4) The defendant only noticed PW1 and his family when they were about 20 metres away and only started to apply the brake when the public light bus was about 7 metres from the pedestrian crossing. By that time, it was too late to avoid the collision.

32.  Base on the above findings of fact, I am of the view that the following driving acts of the defendant fall far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that the defendant’s driving in those ways were dangerous:-

(1) Failure to keep proper lookout

The defendant was approaching a pedestrian crossing near a MTR station in the evening. It would be reasonable to expect that there would be some pedestrians using the crossing. After the defendant negotiated the bend he should have very clear and unobstructed view on the pedestrian crossing including the island. Exhibit P5 Photos 7 and 8 show the views from 40 and 30 metres. A driver who had kept proper lookout should have no difficulty to see PW1 and his family walking on the island. If the defendant was paying due attention to the road ahead, he should be able to see PW1 and his family from 40 metres. He should be able to see them walking in normal pace on the island and were prepared to cross the road. If he had seen them and started to brake at 40 metres or even 30 metres, according to the Road Users’ Code, he should be able to stop in time to avoid the collision.

(2) Driving at excessive speed

The defendant had been driving at the maximum permissible speed without giving due regard to the road condition. As pointed out earlier, it is not unreasonable to expect there were pedestrians using the crossing. Further, he was just coming out from a bend where he should have slowed down. When approaching the pedestrian crossing in question, the defendant should not accelerate back to the maximum permissible speed unless he was certain there was no pedestrian crossing the road. The fact is, at the material time, there were at least 5 pedestrians (PW1’s family and PW2 and his wife) crossing the road. The defendant should have slowed down when he approached the pedestrian crossing. Had he been driving in a lower speed, even if he only saw PW1 and his family in a short distance, he might still be able to stop in time to avoid collision, or even if collision was unavoidable, the consequence might not be as serious as it turned out to be.

33.  The above dangerous acts are not momentary lapse of attention or momentary error of judgment.  It was poor driving attitude of the defendant who was oblivious to the danger of driving into a pedestrian crossing without slowing down and without paying due attention to the pedestrians crossing or about to cross the road.  It was almost as if the defendant did not care whether or not he would hit anyone at the pedestrian crossing.  Any competent and careful driver, when approaching a pedestrian crossing, should slow down and pay extra attention as to whether there are pedestrians using the crossing.  I find the defendant failed to do both. 

Conclusion

34.  I find that the way the defendant drove at the material time falls far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous.  I find the prosecution has proved beyond reasonable doubts all the elements of the two charges.  I find the defendant guilty of both charges.