HKSAR v. LUI CHUNG TAK

DCCC 22/12

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 22 OF 2012

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REASONS FOR VERDICT

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1. The defendant pleaded not guilty to a charge of dangerous driving causing grievous bodily harm.

2. The charge concerns an accident which occurred at approximately 12.45pm on 28 June 2011 at a green man crossing on Cheung Sha Wan Road near its junction with Wing Lung Street Kowloon ( the green man crossing). The crossing is opposite the entrance to the Cheung Sha Wan MTR station.

3. The accident occurred on the northwest bound carriageway of the road which is made up of three lanes of traffic along a straight stretch of road. The speed limit is 50 km/hour.

4. At the material time, the defendant was driving a Light Goods Vehicle registration number JT 7668 ( the LGV) when it struck an 83 year-old pedestrian, Mme Lau Sau Heung who was on the crossing in the third lane of the carriageway.

5. Mme Lau was taken to hospital where she was treated for a number of lacerations, bruises and swelling. She underwent a CT scan which revealed that she had suffered a subarachnoid haemorrhage over her left frontal lobe. She was admitted to intensive care for close observation and discharged two days later. She was unable to provide the police with a statement.

6. It was not disputed that the defendant was the driver of the LGV at the time of the accident and that the vehicle had hit Mme Lau when she was on the green man crossing.

Evidence for the Prosecution

PW1

7. PW1 told the court that at the material time, when he approached the green man crossing, the lights for vehicular traffic were on green. PW1 said that there was a bus-stop layby just beyond the crossing and there were buses queuing to enter the lay-by. PW1 said that that whilst the lights were on green for vehicular traffic, there was a stationary double-decker bus in the first lane of the carriageway to his right waiting to cross over the crossing.

8. PW1 said that he observed a couple of people at the central reservation of the crossing waiting to cross towards his direction.

9. PW1 said that he was able to observe one of the two traffic lights on the central reservation of the road which controlling vehicular traffic coming from his right. PW1 said that he saw the lights on that traffic light change to red and he stepped out on to the road whilst looking to his right to make sure the double-decker bus to his right was still stationary. PW1 said that about one second after the light changed to red he heard a loud bang and saw a lady propelled away from the front of the LGV which was in the third lane of the crossing.

10. PW1 said that he had not noticed the lady on the crossing before the accident. PW1 said that after the accident he approached Mme Lau. He notice her head was bleeding. He said he moved her head to put her in the recover position but otherwise did not touch her. PW1 said that Mme Lau did not appear to be conscious and her hand was lying on the ground trembling.

Police Evidence

11. Various police officers attended the scene. Sketch plans were produced as Exhibits 7-9 and photographs as exhibits P5 and P6.

12. They showed that Mme Lau was lying in the third land of the carriageway near to the second lane and about 3 meters beyond the crossing. Photo 3 of P6 shows blood on the road where her head had been.

13. PW4 said that he attended the accident at about 1300 hours and spoke with the defendant. He said that the defendant told him that he had been driving the LGV not fast along the third land of Cheung Sha Wan Road. PW4 said that the defendant told him there was a big lorry on the second lane which obstructed his vision partially and that when his vehicle was near Wing Lung Street he discovered the injured person on the line of the pedestrian crossing in the third lane and he was unable to brake in time.

14. PW4 said it was not raining when he arrived at the scene. PW4 said he drew the sketches P8 and P9 and took the photographs P6. PW4 said that photograph 5 shows the defendant indicating the start of the skid marks from the offside front wheel of his vehicle and photograph 6 shows where that skid mark finished. PW4 said that photographs 10 and 11 show the wheels of the vehicle which were wet when the photograph was taken and the road beneath the LGV is damp.

15. PW4 said that the skid mark made by the LGV measured 14.1 metres and were as shown on P8. However, it became apparent that the measurements as shown on P8 could not be correct. The evidence was clear that the skid mark indicated in the photographs by the defendant was the skid mark made by the front offside tyre of the LGV. The measurement of that skid mark as shown on P8 ends at the rear wheel of the vehicle. The distance between the wheels is approximately 4 meters, the vehicle length being 6.2 metres. If this were right it would mean that the skid mark would have started some 2.5 meters before the stop line and not 6.5 metres as shown on the plan. However, from photograph 5, where the defendant points out the beginning of the skid mark, one can see that that is quite clearly more than 2.5 metres from the stop line.

16. PW4 agreed that the defendant did not make it clear when he first saw the lady. PW4 denied that the defendant said that when he first saw the lady she was in the second lane, close to the third lane, crossing from left to right.

Expert Witnesses

PW5 Dr Dao Kwok Leung – Government Forensic Chemist

17. His expertise was not challenged. He said that for a vehicle such as the LGV leaving a skid mark of 14.1 meters on a wet road would indicate that that the vehicle would have been travelling at 42 kmph at the start of the skid. Had the road been dry the speed would have been 50 kmph. I noted the problems with the skid mark measurements referred to above.

18. PW5 said that the safe stopping distance for a vehicle of this type travelling at 42 kmph is 24.6 meters.

Tai Yuet Ming – Traffic Engineer of Transport Department

19. PW7 gave evidence concerning the traffic light phases of the green man crossing. He said that for traffic travelling in the direction of Mei Foo the green lights show for 68 seconds, the amber for 3 seconds, the red for 45 seconds and the red/amber for 2 seconds.

20. PW7 said that for the pedestrian lights, the green light comes on 2 seconds after the red traffic light. It remains green for 32 seconds and then flashes for 9 seconds. The red/ amber traffic lights for vehicular traffic are displayed one second later. He said that at the time the lights were in order.

PW6 – the mother of Mme Lau

21. PW6 said that prior to the accident her mother lived independently. She said that she had slight cataract and hearing impairment. PW6 said her mother was mobile, went around on her own and did her own cleaning.

22. PW6 said that since the accident, her mother requires a walking stick to walk and her memory deteriorated to the extent that she could not recall what she was told and could not find her way back to her home. PW6 said her mother cannot now look after herself and requires assistance with washing herself. She said that her mother is now unable to cook for herself and her family have to take it in turns to look after her.

Directions

23. I reminded myself that the prosecution are required to prove the guilt of the defendant beyond reasonable doubt, the defendant has nothing to prove. I reminded myself that no adverse inference could be drawn against the defendant for electing to remain silent.

24. I reminded by myself that exculpatory statements made by the defendant are admissible as evidence of their truth.

25. I reminded myself that where a court seeks to draw an inference from circumstantial evidence, it can only do so from facts proved beyond reasonable doubt and any such inference drawn must be the only inference that can be reasonably drawn in all the circumstances. It must be an irresistible inference.

Law – Dangerous Driving

26. Ss. 36A(10), (11) and (12) of the Road Traffic Ordinance, Cap. 374 provide as follows:

“(10) A person is to be regarded as driving dangerously within the meaning of subsection (1) if-

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

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

…

(12) For the purposes of subsections (10) and (11), ‘dangerous’ refers to danger either of injury to any person or of serious damage to property.

(13) For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including-

(a) the nature, condition and use of the road concerned at the material time;

(b) the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned material time; and

The Road Users’ Code

27. I reminded myself that failure to comply with the road users’ code is in itself not an offence, but any failure to observe any rule or follow any advice may be taken into account in any proceedings in deciding if a road user was at fault or not and to what extent.

28. The code reminds drivers that pedestrians are not just “traffic”- they are people. They are unpredictable.Looking out for and making allowances for pedestrians is a continuous task for a driver.

29. With regard to elderly pedestrians, the code observes that as people grow older their reaction times become longerand the likelihood of inattention increases together with a general physical or mental deterioration. Motorists are advised to give them plenty of time to cross the road.

30. The code provides that drivers have the legal and moral responsibility to take proper care to avoid accidents with pedestrians at all times and places, even if the pedestrian is jaywalking. Drivers are enjoined to drive carefully and slowly when pedestrians are about.

31. In relation to green man crossings the code states that when the green light shows the driver may go forward if there are no pedestrians on the crossing and there is room for the driver to do so. The code states that the elderly may need extra time to cross the road.

32. The code states that when the amber light shows a driver must stop unless he is so close to the junction or crossing that to do so suddenly might cause an accident.

Evaluation of the Evidence

33. There was no dispute in this case that the defendant was driving the LGV when it struck Mme Lau who was on the green man crossing. The evidence indicates that she was in the third lane near to the second lane. At the time of the accident the road surface was wet. There was a bus stationary in the first lane before the green man crossing. There were persons at the central reservation waiting to cross the crossing towards where PW1 was standing.

34. The unchallenged evidence of the independent witness, PW1, was that the victim was hit about one second after the traffic lights controlling vehicular traffic travelling along Cheung Sha Wan Road towards Mei Foo had changed to red. The amber phase for traffic travelling in that direction lasts for three seconds.

35. The defendant told PW4 that prior to the accident, he was driving his LGV along Cheung Sha Wan Road not fast on the third lane. He claimed that there was a big lorry in the second lane which obstructed his vision partially and when his vehicle was near Wing Lung Street he suddenly discovered the injured person on the line of pedestrian crossing in the third lane and he was unable to brake in time. PW4 denied that the defendant told him the lady was in the second lane close to the third lane crossing from left to right.

36. The evidence of PW4 in relation to the length of the skid mark was unreliable. There was no dispute about where the defendant indicated the start of the skid mark from his offside front wheel and where his front wheel finished up after the accident. I also accepted the evidence that the skid mark was unbroken. From the evidence I was sure that the skid mark was at least 14.1 meters in length and that that would indicate a speed of 42kmph on a wet road and 50 kmp on a dry road. PW5 said that a longer skid mark would indicate a greater speed.

37. I was sure from the evidence that the traffic lights in question turned to amber 4 seconds before the accident. There was no evidence that when the traffic lights change to amber the defendant’s vehicle was so close to the crossing that he was unable to stop without causing an accident.

38. I noted that a vehicle travelling at 42 kmph covers 38 feet per second. The distance covered would obviously reduce as the vehicle braked. The skid marks indicated that emergency braking was only applied when the LGV was a few meters from the stop line. PW5 said that the safe stopping distance for this type of vehicle travelling at 42 kmph is 24.6 meters.

39. The three-lane carriageway leading up to this green man crossing is straight. At the time of the accident there was a double decker bus stationary immediately before the crossing. This would obviously obstruct the view of part of the crossing of a driver approaching from the Mong Kok direction. I accepted the evidence of PW1. I was sure that the traffic lights changed to amber well before the defendant’s vehicle got to the crossing. The defendant did not tell PW4 what colour the lights were showing as he approached the crossing. There was no evidence to suggest that when the lights changed to amber the defendant was so close to the crossing he was unable to stop safely.

40. Any driver approaching a green man crossing has to do so with the utmost caution to make sure there are no pedestrians on the crossing no matter what the colour of the traffic lights. In this case, part of the defendant’s view of the crossing would have been obstructed by the double decker bus stopped in the first lane.

41. Having regard to all the circumstances of the case, I had no doubt that the way in which the defendant drove, fell far below what one would expect of a competent and careful driver and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.

42. I was sure that immediately after the accident, Mme Lau lost consciousness, was bleeding from the head and her hand was trembling. I was satisfied that the multiple injuries for which the Mme Lau was treated at hospital were caused by being struck the defendant’s LGV. There were abrasions over bilateral upper limbs and left knee, bruising over her right knee, laceration over lip and forehead. The left eye lid was swollen.

43. Computerised tomography showed traumatic subarachnoid haemorrhage and the fracture of the finger bone. These injuries were managed conservatively.

44. PW6, the daughter of Mme Lau, told that before the accident her mother was independent, mobile and able to look after herself. Afterwards, she required a walking stick to get around, she needed assistance to bathe and cook and members of her family have to take in turns to look after her. She said after the accident her mother cannot recall what she is told and cannot even remember how to get herself back to her home.

45. Paragraph 20-222 of Archbold Hong Kong 2012 states that

1.  “ ‘Grievous bodily harm’ should be given its ordinary and natural meaning of really serious bodily harm, and it is undesirable to attempt any further definition of it: DPP v. Smith [1961] AC 290 HL……..It is not necessary that grievous bodily harm should be either permanent of dangerous…..There is no definitive list of the kind of injuries “really serious”. Whether the injuries amount to grievous bodily harm is a question of fact in each case.”

46. I noted that in HKSAR v. Cheong Un Ieng MA 111 of 2004, the High Court upheld a magistrate’s finding that wounds caused by holding a hot iron to the back of a domestic helper amounted to grievous bodily harm.

47. Taking into account all the evidence in relation to the injuries sustained by Mme Lau, I was satisfied that she had suffered grievous bodily harm.