R. v. TSE TONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO.1168 OF 1995

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

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

J U D G M E N T

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

P. Chan, J.:

1. This is an appeal against conviction and sentence. The appellant was convicted after trial of causing death by reckless driving. He was sentenced to four months imprisonment and disqualified for 18 months.

2. The prosecution's case was basically that the appellant drove his light goods vehicle past a zebra-crossing with the traffic lights red against him. He knocked down a boy of 16 years of age who was then using the zebra-crossing.

3. There were four civilian and two police witnesses at the trial. In his Statement of Findings, the learned Magistrate dealt with the evidence very carefully and meticulously. He came to the conclusion that the charge had been proved beyond reasonable doubt. He said he was impressed by the evidence of PW1 and PW2 and accepted their evidence. He disregarded in total the evidence of PW5 as being a completely unreliable witness.

4. The main complaint before me is that the learned Magistrate had failed to give any weight to the evidence of PW5 who was the person nearest to the appellant and would be in a better position to observe what happened. It was submitted that had the learned Magistrate considered his evidence and the evidence of the other witnesses in the light of this witness, he might have concluded that there was a reasonable doubt.

5. The evidence of the two main witnesses was this. PW1 said that she was travelling in the fast lane towards Tuen Mun on the opposite lane as the appellant. She was doing 40-50 km/h. When she was approximately 50-60 metres away from the traffic lights, she saw the boy by the roadside pressing the button in a hurriedly manner to activate the traffic lights control. When she was about 10 metres from the traffic lights, they turned to amber. She then slowed down and finally stopped in front of the zebra-crossing when the traffic lights turned to red. She saw the boy walking along the crossing in front of her car, and then about two to three seconds later, she heard a banging sound to her rear right which was the sound of the accident. She said that at that time the traffic lights were still red. It was therefore quite clear that at the time when the boy was crossing the road, the traffic lights were red against the oncoming traffic and therefore green in his favour. Even if PW1 had encouraged, as submitted before the learned Magistrate, the boy to start crossing by slowing down before she came to the traffic lights, I think it was quite clear that when the boy passed in front of her car, the traffic lights were red and when he was crossing the zebra-crossing on the other side of the road, the traffic lights were still red against the traffic.

6. PW1's evidence was supported to some extent by PW2. He was the passenger of the following car and also in the fast lane. He said that his vehicle stopped behind that of PW1, he saw the boy on the right hand side between the first and second strip of the zebra-crossing, and then starting to run slowly out of the zebra-crossing area. He then saw the appellant knocking down the boy while he was about 2/3rd across the zebra-crossing.

7. In essence, there was ample evidence to show that when the appellant drove across the zebra-crossing and hit the boy, the traffic lights were red against him for some time. It is also important to note that when the boy was crossing the fast lane, the appellant was travelling in the slow lane and the traffic lights were already red. So when the appellant knocked down the boy in the slow lane, that was some time after the traffic lights had turned red. It is quite clear that the appellant had not heeded the traffic lights and just drove on.

8. Counsel relied heavily on the evidence of PW5. This person said he was about 12 metres or about two vehicles lengths behind the appellant. He was in the fast lane and the appellant was in the slow lane. The traffic lights were green when he was about 40 metres from the zebra-crossing. They then turned to yellow when he was about 15 to 20 odd metres away. He started to slow down and stopped in front of the traffic lights and the zebra-crossing. He said he then saw the boy dashing out, but the appellant's vehicle did not stop and was still moving. However, it is important to note that in not less than four places PW5 said that the boy dashed out after the traffic lights had turned red. Although he said he was travelling at very slow speed, about 30 km/h and the appellant was doing the same, judging from the distance the appellant had travelled after knocking down the boy, I do not think that could possibly be the case. There were debris spread out on the road for about 18 metres. The vehicle after it had come to a complete halt was about 26.8 metres from the zebra-crossing, i.e. about over 80' away. The vehicle was about 6 metres long, i.e. about 18'-19'. Therefore it appears that if the impact was just outside the zebra-crossing area, the vehicle must have travelled about 100' before it came to a halt after knocking down the boy. This evidence clearly suggests that the appellant was not travelling at only 30 km/h as estimated by PW5. This is evidence of recklessness and speeding when he approached the zebra-crossing against the traffic lights.

9. The learned Magistrate described PW5's evidence at page 75 of the Bundle as follows :

"From the earliest this witness presented as variously uninterested, obtuse, irritated and generally vague and uncooperative. These features were constant throughout his evidence whether it was the prosecutor, defence counsel or the court asking questions."

And he said :

"... Quite apart from not addressing the issues asked about, his body language became exaggerated and he presented as impatient and uncomfortable. He often responded to questions by collapsing his arms to the witness table and slumping back in the chair while averting his eyes from the questioner.

It became very clear he was not at court to assist with a clear account of all he saw.

... I will not set out the details here as I formed the very clear view I could not rely on any aspect of his evidence at all."

10. I must say I have very seldom seen such remarks but they reflected on the evidence given by PW5. Looking at the notes of proceedings, I am not at all surprised that he made such remarks. In my view, the learned Magistrate sitting as both judge and jury is perfectly entitled to reject the evidence of PW5 in total, given his view on the demeanour of the witness. It is not a case where a magistrate simply says : "in view of his demeanour I do not believe him". In the present case, he had given good and sound reasons for rejecting PW5's evidence in total. A court is entitled to accept all of a witness' evidence or reject all of it, or he can accept part of the evidence and reject the rest. I do not think that the learned Magistrate can be criticised for doing that.

11. Even on the evidence of PW5, there is evidence of jumping the red traffic lights. From the markings, the position of the vehicle and the debris, there is clear evidence of speeding. In the present circumstances, I think the learned Magistrate was entitled to accept the evidence of PW1 and PW2 and had come to the correct conclusion. I do not think for one moment that the conviction is either unsafe or unsatisfactory. The appeal against conviction is dismissed.

12. I now come to the appeal against sentence. The appellant is now 57 years of age. He was of previous good character. He has been a long time professional driver. He runs his own transportation business. According to the record, he had two minor traffic violations in the past which are nothing near the seriousness of the present offence. In sentencing him, the learned Magistrate correctly reminded himself of the case of Boswell and the case of Chung Yim Chow. Counsel submitted that the present case falls outside Chung Yim Chow, and that by comparison, it was much less serious. Counsel submitted that there were no aggravating factors and therefore it was a proper case for the sentence to be suspended.

13. From the evidence before the learned Magistrate, I think he is quite right in saying that the appellant had travelled through a red light controlling a pedestrian crossing in broad day light. I would add that, if he can be criticised, it is that it was not only a pedestrian crossing, but a zebra-crossing controlled by traffic lights. In my view, the learned Magistrate was quite justified in concluding that an immediate custodial sentence was called for. This is a serious offence. A boy of 16 years of age had been killed in this reckless driving. In the normal case, a sentence of four months' imprisonment with a suspension of licence would be warranted. The sentence in the present case is neither wrong in principle or manifestly excessive. I think it serves as a stern warning that every person has a right to use the road and be safe and that reckless driving will be dealt with harshly by prison terms.

14. However, I note, as counsel indicated, that the case occurred nearly two years ago and the appellant had this case hanging over his head for a long time. He had two trials and this is his second appeal. I am given to understand that he had been in prison for slightly more than five weeks already. Purely on humanitarian grounds, I think that he had been sufficiently punished. He had not only had the prison doors clanging behind him but also a taste of prison already.

15. I think that I ought to tamper justice with mercy. I would allow the appeal against sentence and vary the term of imprisonment to two months to allow his immediate release. The disqualification for 18 months will stand.