HKSAR v. CHAN CHIU HEI

DCCC 656/2017

[2018] HKDC 1363

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 656 OF 2017

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REASONS FOR VERDICT

1.  The defendant pleads not guilty to one charge of causing death by dangerous driving, contrary to section 36 (1) of the Road Traffic Ordinance[2].

Introduction

2.  At about 3:15 a.m. on 10 December 2016 the defendant driving light goods vehicle GP 690 collided with the rear end of light goods vehicle HD 4836, which was stationary underneath an overpass on the first lane of Ching Cheung Road eastbound.  The collision was captured on CCTV.

3.  At the time of the accident the driver of HD 4836, Mr Ting Tak Kwong, was outside the vehicle on the nearside kerb.  The vehicle hood was open and the hazard lights were on.  The impact of the collision pushed HD 4836 forward and trapped Mr Ting underneath the nearside rear wheel.  An ambulance was called and Mr Ting was certified dead. 

4.  The prosecution case in summary is that as the defendant drove along Ching Cheung Road he had a clear unobstructed view of HD 4836 and that by failing to pay proper attention to HD 4836, whether due to losing concentration or falling asleep, the defendant drove dangerously causing the death of Mr Ting[3]. 

5.    The defence case in summary is that when driving along Ching Cheung Road the defendant had a sudden loss of awareness and that when he regained awareness he was unable to avoid a collision.  In submissions the defence say that the defendant might have experienced a microsleep, which was sudden and unexpected and was outside the confines of what is expected of a driver[4].

Evidence

6.  The prosecution called all five witnesses listed on the schedule of witnesses attached to the prosecution opening:  SPC 58057 (PW1) who attended the scene and arrested the defendant; Dr Cheng Yuk Ki (PW2)[5], who gave expert evidence on the speed of GP 690 immediately prior to the collision; PC 3008 (PW3)[6], who attended the scene and conducted an accident reconstruction to ascertain the line of vision of the defendant prior to the collision; Mr Ng Nap Keung (PW4)[7], the motor vehicle examiner who examined the two vehicles; and Dr Chung Ka Fai (PW5), who gave expert evidence on sleep disorders and stress. 

7.  At the beginning of the trial facts were admitted pursuant to section 65C of the Criminal Procedure Ordinance[8], including that the defendant was the driver of light goods vehicle GP 690 and caused the death of Mr Ting; sketches of the scene[9]; photographs[10]; the CCTV footage[11]; the arrest of the defendant and his reply under caution[12] and the findings of the motor vehicle examiner Mr Ng Nap Keung. 

8.  The defendant elected to give evidence.  No witnesses were called on his behalf. 

9.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

10.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

Dangerous Driving

11.  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[13].

12.  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 at the material time; and

(c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused[14].

13.  The test is objective, the elements of the offence not requiring an intention to drive dangerously[15].

14.  In reaching my verdict I keep firmly in mind, however tragic the outcome, the high threshold that the Ordinance establishes for the commission of the offence[16].

Prosecution evidence

Collision

15.  Admitted in evidence is that the defendant was the driver of light goods vehicle GP 690 when the vehicle collided with the rear end of light goods vehicle HD 4836[17].

Death

16.  Admitted in evidence is that Mr Ting, the driver of HD 4836, died as a result of the collision and that the defendant caused the death of Mr Ting[18].

Road condition at the material time

17.  Admitted in evidence is that the collision took place at about 3:14 a.m. and that when the police arrived at about 3:40 a.m. the weather was fine, the road surface was dry and there was no roadworks in the vicinity[19].    

Traffic flow

CCTV footage (exhibit P1)

18.  Admitted in evidence is CCTV footage of the accident.  The CCTV camera which recorded the collision was located opposite Ching Cheung Road and shows the collision but not the registration numbers of the vehicles[20]. 

19.  The CCTV footage comprises of two cameras CH 01 and CH 02 of which only CH 01 shows the collision.  CH 01 is divided into three video clips. The two goods vehicles in the foreground are not HD 4836 and GP 690.  These are two vehicles parked in a slip road leading to Ching Cheung Road.  Ching Cheung Road is the main road on the far right of the footage with the westbound lane nearest to the camera. The accident occurred in the eastbound lane.

20.  The first video clip starts at 02:18:13. HD 4836 can be seen coming to a stop at 02:18:48.  At 02:19:48 the hazard lights begin to flash and the headlights are turned off. 

21.  Admitted in evidence is that the traffic volume was light[21].  From the CCTV footage (first and second video clips) the traffic flow can be seen to be light.  In the five minutes before the collision at 03:14:50 (second video clip) only one vehicle passes HD 4836.  In oral submission Ms Crebbin informed the court that after HD 4836 stopped a total of thirty-one vehicles passed HD 4836 prior to the collision.  It is not however possible from the CCTV footage to see which lane the vehicles were travelling prior to passing HD 4836.    

Lighting

22.  Admitted in evidence is that the collision took place underneath an overpass across Ching Cheung Road where there was no street lighting[22]. 

23.  SPC 58057 who arrived at the scene of the accident at 3:40 a.m. described the lighting underneath the overpass as not sufficient.  SPC 58057 explained that although street lamps were on the lighting underneath the overpass was not sufficiently bright because of shadows underneath the overpass.  

24.  Also admitted is that nearby street lamps were lit and operating properly at the material time[23].

25.  Just beyond the overpass where the collision took place there is a single street lamp on the pavement which points towards the overpass and a double street lamp in the middle of the road at the end of the concrete divider separating the east and westbound lanes as seen in photographs 11-16 and 50 (exhibit P4) taken by the police shortly after the accident at 4:00 a.m.[24]  

26.  SPC 58057 said photograph 50 best reflected the lighting condition when he arrived at the scene.  Photographs 27 and 29-33 (exhibit P5) taken by the police at 05:35 a.m. show the street lamps in daylight[25].

27.  There are two double lamps on the approach to the overpass on the concrete divider separating the east and westbound lanes as shown in photographs 7-13 (exhibit P5) which were taken in daylight.  Photographs taken shortly after the accident (exhibits P3 & P4) do not show the lighting on the approach to the overpass.

28.  Photographs (exhibit P7A & P7B) showing the lighting at night on the approach to the overpass were taken by PC 3008 when he conducted an accident reconstruction to ascertain the ‘line of vision’ of what the defendant was able to see prior to the collision. The evidence of PC 3008 is summarised later in the section on line of vision[26].

Lighting on GP 690

29.  The CCTV footage between 03:14:49 and 03:15:10 (second video clip) shows that just before the collision the headlights of GP 690 were on.  Upon impact the hazard lights are switched on and the vehicle reversed.  

30.  Dr Cheng Yuk Ki, who gave expert evidence on the speed of GP 690, noted that the headlamps of V2 (GP 690) were clearly captured by the CCTV camera[27].  The evidence of Dr Cheng is summarised later in the section on speed[28]. 

31.  Admitted in evidence is that Mr Ng Nap Keung, Motor Vehicle Examiner, found, inter alia, that the lighting system of GP 690 was working properly[29].  The evidence of  Mr Ng is summarised later in the section on condition of both vehicles[30].

Lighting on HD 4836

32.  When SPC 58057 arrived at the scene he saw the hazard lights of HD 4836 flashing.  

33.  Photographs 3 & 8 (exhibit P3) taken by the police at 3.40 a.m. and photographs 1, 2 & 3 (exhibit P4) taken by the police at 4.00 a.m. show the front hazard lights were on[31]. As noted earlier the CCTV footage also shows the front hazard lights flashing.

34.  Photographs 4, 5, 16 & 17 (exhibit P3) and photographs 5, 7 & 8 (exhibit P4) show the rear hazard lights were on[32]. The offside rear hazard light was shining on the ground.  This is best seen in photographs 5, 16 & 17 (exhibit P3).  SPC 58057 believed the rear offside hazard light was shining down on the ground because the rear of HD 4836 was damaged in the collision.

35.  After SPC 58057 gave evidence paragraph 5 of the admitted facts relating to the hazard lights was amended to read that at the time of the collision all the hazard lights of HD 4836 were switched on and all were found to be flashing[33].  

36.  In cross-examination SPC 58057 agreed that when he arrived the rear red lights of HD 4836 were not illuminated[34].

Condition of both vehicles

37.  Admitted in evidence is that Mr Ng Nap Keung, Motor Vehicle Examiner, found, inter alia, that neither vehicle had any mechanical defects and that the braking, steering and lighting systems were all working properly and the tyres were in good condition[35].

38.  The prosecution also called Mr Ng[36]. Mr Ng gave evidence about the testing of the handbrake of HD 4836.  Mr Ng’s findings were that the handbrake was normal and when driving at a speed of 30 km/h the handbrake had an efficiency of 25% and that when parking on slope of 1.625 gradient and the handbrake was applied the vehicle was able to stop without moving.

39.  In cross-examination the defence asked for production of Mr Ng’s report relating to HD 4836 (exhibit P11). 

Line of vision

40.  Admitted in evidence is that under caution the defendant said[37]:

“My (vehicle) had just left the roundabout and was about to move up Ching Cheung Road. I was driving in the left lane. The seen (sic) vehicle was stopped in the shadows (area) beneath the flyover. Because its lamps were not on, I did not take notice of it. When I discovered (it), I could not manage to swerve and avoid, but ran into (it).”

41.  PC 3008, who attended the scene of the accident at 5:35 a.m. to make investigation and take photographs (exhibit P5)[38], returned to the scene of the accident on 11 February 2017 to carry out further investigation.  The purpose of returning to the scene was to conduct an accident reconstruction to ascertain the ‘line of vision’ i.e. how much the defendant was able to see.

42.  In order to carry out the test PC 3008 arranged to rent a light goods vehicle of the same model as GP 690.  PC 3008 measured the size of the windscreen and the distance between the windscreen and the ground of the rented vehicle and confirmed they were the same as GP 690.

43.  HD 4836 was towed to the scene of the accident and parked in the same position of the collision, which position PC 3008 ascertained from measurements taken at the scene and from an assessment of the CCTV footage. 

44.  A rope was used to secure the right offside rear indicator/hazard light of HD 4836 which had been damaged in the collision.  All the lights were working properly.

45.  PC 3008 conducted the reconstruction at 3 a.m. because that was roughly the same time as the accident.  PC 3008 conducted two tests, one where HD 4836 had both hazard lights and brake lights on and one where only the hazard lights were on.  In both tests the headlights of the rented vehicle were on.

46.  Photographs taken by PC 3008 from distances of 140 m, 120 m, 100 m, 80 m, 60 m, 40 m and 20 m from HD 4836 have been admitted in evidence[39]. The first test conducted by PC 3008 was with both the hazard lights and brake lights on (photographs, exhibit P7A) and the second test with only the hazard lights on (photographs, exhibit P7B).  PC 3008 made the measurements before beginning to take the photographs which he took while sitting in the driver’s seat. 

47.  PC 3008 explained that the lighting in photograph 1, exhibit P7B was very different to photograph 2 because mistakenly the flash was on for photograph 1. 

48.  In cross-examination PC 3008 agreed that all the photographs were taken when the vehicle was stationary. Asked why there was different quality in the photographs, for example photographs 2 and 3, exhibit P7B, PC 3008 explained that some of the photographs were blurred because of handshake; he was unable to change any of the settings on the camera except for the flash and the zoom and he was unable to delete any photographs. 

49.  PC 3008 commenced the tests from 140 meters away from HD 4836.  From 140 meters away PC 3008 was able to see clearly the two lanes of Ching Cheung Road and the location of HD 4836 underneath the overpass.  Nothing impeded the view of PC 3008.  From 120 meters away PC 3008 was able to see that the hazard lights of HD 4836 were flashing and the whole of the vehicle.  Nothing obstructed the view of PC 3008. 

50.  PC 3008 then progressively moved closer to HD 4836 taking photographs at 100, 80, 60, 40 and 20 meters from HD 4836.  At every point PC 3008 could see the hazard lights flashing and the whole of the vehicle with nothing obstructing his view. 

51.  PC 3008 said that he had no difficulty in seeing HD 4836 with only the hazard lights on (photographs, exhibit P7B) but that it was even easier to see HD 4836 when the brakes lights were on (photographs, exhibit P7A). 

52.  PC 3008 could not recall the actual time he took to complete the tests but said that it was over an hour during which time it was dark. 

53.  Dr Cheng Yuk Ki, who was called to give expert evidence about the speed of GP 690, read into evidence his supplemental statement[40]. Dr Cheng stated that when he attended the scene he could have an unobstructed view of HD 4836 (V1) on either lane of at least 100 m away from V1 when the carriageway was clear[41]. The evidence of Dr Cheng relating to speed is summarised in the next section.

54.  Dr Cheng also considered the reconstruction conducted by PC 3008 and came to the opinion that the driver of V2 (GP 690) could have an unobstructed view of V1, in particular the flashing hazard lights, when V2 was 100 m away from V1 before the impact[42].

Speed

55.  Admitted in evidence is that the speed limit was 50 km/h[43].  The prosecution called Dr Cheng Yuk Ki, a forensic scientist, who gave expert evidence as to the speed the defendant was driving immediately prior to the collision.  

56.  Dr Cheng produced his Traffic Investigation Accident Report[44].  The qualifications of Dr Cheng are set out in his report.  I ruled Dr Cheng could give expert evidence on reconstruction of traffic accidents[45].

57.  In summary Dr Cheng, who attended the scene of the accident at 7:30 a.m. on the day of the accident, concluded that GP 690 (V2) collided with HD 4836 (V1) pushing V1 forward a distance of over one and a half vehicle length[46].

58.  Dr Cheng also examined the CCTV footage in order to determine the speed of V2 prior to the impact.  From the headlamps of GP 690 (V2) captured on the CCTV footage Dr Cheng estimated the distance V2 travelled prior to the impact[47]. 

59.  Dr Cheng attended the scene of the accident and with the assistance of a colleague measured the distance V2 travelled as 3.8 meters.  Dr Cheng roughly estimated that the speed of V2 prior to the impact was 54 km/h.  Due to the uncertainty of the estimation Dr Cheng said an allowance of ± 10% i.e. ± 5 km/h should be given thereby making the range of speed of V2 between 49 and 59 km/h.  In the circumstances Dr Cheng was of the opinion that the speed of V2 could have been within the speed limit[48].

60.  In evidence Dr Cheng said the degree of uncertainty should be higher and that it would be more safe to have an allowance of ± 7 km/h thereby making the range of speed of V2 between 47 and 61 km/h. 

61.  In answer to the court Dr Cheng said that in determining the speed of V2 he did not consider the distance V1 was pushed forward or the damage to the vehicles because the calculation would involve determining the strength of the vehicles which information was not readily available.  Dr Cheng also said that such calculation had a very large uncertainty, much more than the calculation he carried out. 

Dr Chung Ka Fai

62.  The prosecution called Dr Chung Ka Fai to give expert evidence with regard to sleep disorders and stress[49].

63.  Dr Chung produced his report (exhibit P12).  The qualifications of Dr Chung are set out in his report.  I ruled Dr Chung could give expert evidence on psychiatry, including sleep disorders[50].

64.  Dr Chung was requested to give his expert opinion on, inter alia, whether the defendant was suffering from microsleep or any related medical condition at the time of the incident; whether the defendant’s sleep deprivation would affect his ability to drive and whether the defendant was suffering from Acute Stress Reaction immediately after the incident[51].

65.  Dr Chung never interviewed the defendant and therefore his opinion was based on what the defendant told Dr Wong Yee Him, who examined the defendant on behalf of the defence[52].

66.  In his report Dr Chung summarises what the defendant reported to Dr Wong, including he had no significant past medical or psychiatric history or history of sleep disorders and epilepsy; he experienced great work stress in the 3-4 months prior to the accident; he worked 7 days per week often without holidays or rest days; he slept from 10 p.m. to 2:30 a.m. often with difficulty initiating sleep and what happened on the day of the accident[53].

67.  In evidence Dr Chung said that in order to have a healthy physical and mental health at least seven hours’ sleep was recommended each night and that most people would know when they awake from sleep.  In cross-examination Dr Chung said that the community was probably aware of the importance of sleep and getting enough sleep but not how many hours of sleep.

68.  Dr Chung also explained that some people under stress may have difficulty initiating sleep; the longer the period of sleep deprivation, the greater the chance of dozing in daily situations, for example reading a book or sitting as a passenger in a car; the longer there was sleep deprivation the lack of sleep would accumulate and will get worse the longer it lasts and that it would be very obvious there was a problem because sleep deprivation was occurring every day.    

69.  In part IV of his report (pages 6-8) Dr Chung explains microsleep and sleep deprivation with reference to authoritative works on microsleep and sleep deprivation[54].

70.  In his report Dr Chung states that microsleep is not a medical or psychiatric disease[55]and refers to the paper “Quantifying microsleep to help assess subjective sleepiness” in which it is stated that,

“Microsleep, subjectively related to the sensation of ‘nodding off’, is associated with electrophysiologically short episodes of slow eye movements, or interruption of the blinking artifacts characteristic of full wakefulness….The length of microsleep is generally accepted to be from 3 s to a maximum of 15 s….”

71.  In evidence Dr Chung said that microsleep was a research term which is defined as sleep for 3 to 15 seconds and was the same as “nodding off” for a few seconds.

72.  In his report Dr Chung states that partial sleep deprivation is common and refers to the chapter on “Sleep Deprivation” in Principles and Practice of Sleep Medicine which states that surveys in the US showed that neurobehavioral deficits accumulate across days of sleep restriction to levels equivalent to those found after one to three nights of total sleep deprivation and that individuals frequently underestimate the impact of sleep deprivation[56].

73.  In evidence Dr Chung explained that partial sleep deprivation was used to distinguish from complete sleep deprivation where people do not sleep for the whole night and that the effect of partial sleep deprivation will accumulate to the degree as severe as total sleep deprivation.  

74.  Dr Chung further explained that neurobehavioral deficits mean a deficit in cognitive functions, for example the response time will be longer with people who have a lack of sleep or sleep deprivation and as the degree of lack of sleep increases more errors will be made.  As neurobehavioral deficits accumulate subjective assessment of sleepiness and alertness may not assess the risk to be more severe.  This Dr Chung explained is why neurobehavioral experiments will be more accurate in assessing the degree and impact of sleep deprivation than subjective assessment. 

75.  In his report Dr Chung also referred to experiments using driving simulators which showed that drivers are unable to accurately recognize crash risk[57].

76.  In evidence Dr Chung said the chance of dozing will be higher when doing something mundane, boring, routine, monotonous or passive and that driving a vehicle on a regular route at a regular time can be considered a monotonous task. 

77.  Dr Chung also referred to the results of a study of professional truck drivers. The study revealed that professional truck drivers had a mean duration of sleep of 4.78 hours/day in a 5-day period.  Within that period, 56% of drivers displayed at least six non-continuous minutes of sleep while driving.  The vast majority of these “micro” sleeps were said to occur during the late night and early morning[58].

78.  In evidence Dr Chung said that there were two peaks of sleepiness with the highest peak between 4 and 6 a.m. and the second peak between 2 and 4 p.m. 

Opinion

79.  In summary Dr Chung is of the opinion that the defendant had most likely fallen asleep while driving prior to the traffic accident.  The defendant having no history of cardiac, neurological, psychiatric or medical diseases, Dr Chung is of the opinion that the most likely cause of his brief transient loss of consciousness was a sleep attack[59].

80.  In conclusion Dr Chung is of the opinion that the defendant was likely having chronic partial sleep deprivation of 2-4 hours’ sleep per day; the defendant might have underestimated the impacts of sleep deprivation on his daily life and driving performance; and that the traffic accident is likely as a result of the defendant falling asleep while driving[60].

81.  In evidence Dr Chung explained that a person would be aware of their sleepiness but underestimate the risk of that sleepiness.  Similarly, in cross-examination Dr Chung said that a person would underestimate the severity of their sleep deprivation but they would be aware of the effect of sleep deprivation for example that they may fall asleep more easily and gave the example of a driver falling asleep at a red light. 

82.  In cross-examination Dr Chung said that older persons were more likely to experience microsleep. Asked whether an older person is more likely to assess the risk of a microsleep than a younger person, Dr Chung replied that he was not sure whether there were any studies which looked at the assessment of the risks.  Dr Chung said that most studies looked at the degree of sleepiness and the chance of dozing off. 

83.  Based on his clinical experience Dr Chung said that young persons may not recognise their sleepiness is a problem.  Asked if young persons would be less likely to recognise the consequences such as a microsleep, Dr Chung replied he could not answer that question and said that based on his clinical experience he could only say that young persons are less likely to seek help for their problem but could not say why they would not seek help. 

84.  In re-examination when asked even if the defendant underestimated the impact of sleep deprivation on his daily life and driving performance whether his underestimation necessarily meant he was not aware that he had been getting lack of sleep or was suffering from sleep deprivation, Dr Chung replied “He aware of his sleepiness and the effect on his daily life, but he has underestimated the degree of it.” 

85.  By reason of sleeping 2-4 hours per night prior to the accident Dr Chung was of the opinion  the defendant’s ability to drive was affected[61].  In evidence Dr Chung stated that if the defendant slept only 2-4 hours per night every night, he would experience daytime sleepiness and that his account of another episode of unawareness while driving may have been another sleep attack[62].   

Stress

86.  Dr Chung is of the opinion that the defendant did not satisfy the diagnostic criteria of acute stress disorder and was not suffering from acute stress reaction immediately after the accident because the defendant was coherent and relevant in answering questions of the police[63].

Defence evidence

87.  In summary the defendant, aged 23, testified that he lived with his family and three siblings.  Since the age of 17 the defendant worked in his father’s business of recycling styrofoam.  At first the defendant worked as a driver’s assistant and when he was 19, after passing his driving test, he worked as a driver.  The defendant’s elder brother also worked in the business, which the father had operated for 20-30 years. 

88.  The defendant usually started work at 2:30 a.m.  On a typical working day, the defendant would leave home in Kwun Tong at 2:30 a.m. and drive to Stonecutters Island where he would take another vehicle to carry out the day’s work. 

89.  The defendant would then drive to Kwun Tong and begin collecting Styrofoam boxes from various wet markets.  The defendant would have a set round of places to collect the boxes.  At around 5 – 6 a.m., after the first round, the defendant would take the boxes to Stonecutters Island and place them in a yard.  Around 7 a.m. the boxes would be placed on a vehicle and taken away.

90.  The defendant would usually finish work at around 4:30 p.m. but if the traffic was busy he may not finish until about 5:30 p.m. The defendant’s father and elder brother worked the same hours as the defendant. 

91.  The defendant worked seven days a week including public holidays except Chinese New Year when he would have two to three days off work.  The defendant had a social life and would probably go out once a week.

92.  In cross-examination the defendant said that in the 3-4 months prior to the accident he was very stressed at work because the business was short staffed; there were occasions when he did not get a lot of sleep but not too many; basically he only had very quick breaks for breakfast and lunch; by the time he returned home he felt totally exhausted and would lie on his bed and eat in his bedroom as he was too tired to move; his social life deteriorated because he felt he did not have enough energy to go out and socialise very often with his friends.

Sleep

93.  Normally the defendant went to bed at 10 p.m. and woke up at about 2:20 a.m.  Usually the defendant would be able to fall asleep right away but sometimes he would fall asleep at about 11 p.m. but normally not later than 11 p.m. 

94.  The defendant’s father and elder brother also slept approximately the same hours as the defendant.  The father and elder brother had never said they had difficulty in staying awake. 

95.  In cross-examination the defendant agreed that in the 3-4 months prior to the accident he had a maximum of 4½ hours sleep but often a bit less[64] and said that when he went to bed early the duration of the time when he was actually asleep would be about the same.

Previous incident

96.  Prior to the accident on 10 December 2016 the defendant said he never “nodded off” while working.  Asked whether prior to the accident on 10 December there was an incident which caused him concern, the defendant replied that when the psychiatrist asked him if a similar incident had happened before he remembered that about three months prior to the accident a similar incident happened[65].   

97.  On that occasion at about 3 – 4 a.m. the defendant was driving from Kwun Tong to Stonecutters Island.  When travelling at 60-70 km/h along a straight stretch of Lung Cheung Road the defendant’s attention was diverted for about 1-2 seconds.

98.  At the time the defendant did not think he fell asleep.  There was no collision on that occasion.  When asked how he regarded that incident and whether it was frightening or concerning to him, the defendant replied that at the time he thought it was an attention diversion case and did not pay much attention to it.  The defendant did not at the time connect the incident to his sleep pattern and did not change his sleep pattern for example having more sleep.

99.  Prior to telling the psychiatrist about this incident the defendant had not mentioned the incident to his father, elder brother or any member of his family.  Asked whether at the time he thought this was important or significant, the defendant replied that he thought his attention had been diverted so he paid more attention to his driving and did not pay much attention to the incident.  

100.  In cross-examination the defendant said that he could not remember clearly what exactly happened but at that time he only felt that his attention was diverted. 

10 December 2016

101.  The night before, the defendant went to bed at 10 p.m. but could not remember what time he got to sleep.  The defendant woke up at 2:20 a.m. feeling fresh as usual.  In cross-examination the defendant said that on the day of the accident he did not have the feeling of being tired when he woke up.

102.  After getting dressed he went to Stonecutters Island together with his father and elder brother.  After arriving at Stonecutters Island the defendant changed to another vehicle and left intending to go to Kwun Tong via Ching Cheung Road.

103.  The defendant reached Ching Cheung Road from a roundabout.  After exiting the roundabout, the defendant travelled in the left lane of Ching Cheung Road.  The defendant saw a vehicle ahead of him underneath the flyover.  Looking at the photographs the defendant estimated that he was about 100 meters away when he saw the vehicle underneath the flyover. 

104.  At the time the defendant thought the vehicle was moving.  Asked if he paid much attention to it at all, the defendant replied “No”. 

105.  In cross-examination the defendant said that he did not pay much attention to the vehicle because it was travelling; he did not move to the offside lane when he first saw the vehicle under the flyover because at the time he thought the vehicle was travelling; agreed that it would have very quickly become apparent that he was getting closer to the vehicle; and did not move to the offside lane because after driving a little bit he had already started losing awareness. 

106.  The defendant did not expect a vehicle to be parked under the flyover because there were double yellow lines and no one was allowed to stop there for 24 hours a day.  The defendant had not seen anyone stop there before. 

Lighting

107.  Asked if he noticed anything about the condition of the lights at the rear of the vehicle, the defendant replied that he did not pay attention at the time.  When the defendant first noticed the vehicle the lighting condition was dim and underneath the flyover the lighting was particularly dim.

108.  In cross-examination when asked if the hazard lights alerted him to the fact that the vehicle had stopped, the defendant replied that when he saw the light flashing he thought it was the indicator light not the hazard lights. 

109.  Later in cross-examination when asked why he did not tell the police that when he first saw the vehicle he saw the indication light on, the defendant replied at the time he gave the statement he was very confused and frightened.  The defendant disagreed he deliberately misled the police by saying there were no lights on the vehicle he collided with.   

Collision

110.  Not long after driving on the straight stretch of Ching Cheung Road the defendant all of a sudden lost awareness.  Asked if he had any recollection of the journey on the straight stretch of the road, the defendant replied that after exiting the roundabout he was doing 40-50 km/h and that after about 2-3 seconds he lost his awareness. 

111.  Looking back the defendant said this was about 80 meters from where the collision took place.  From a distance of 80 meters the defendant said that he did not have much recollection of what happened and that when he regained his awareness the distance from the vehicle was about the distance from the witness box to the computer monitor of the court clerk.  This was measured as 8½ feet (2.6 meters).

112.  The defendant swerved the steering wheel once to the right and wanted to step on the brake but he was not able to brake in time and crashed into the vehicle. The defendant could hear the sound of gas leaking but did not know where the sound came from.  The defendant could see smoke coming from the front of his vehicle.

113.  The defendant could not get out from his vehicle because his left foot was trapped and the front part of the vehicle was damaged.  Not long after the collision the defendant’s father drove past and stopped.  The defendant’s father helped the defendant out of his vehicle. 

114.  The defendant sat on the concrete divider in the middle of the road to rest.  The defendant felt frightened. Not long after, the defendant’s father walked over and told him that someone had been knocked down. 

115.  The defendant’s father summoned the police.  After about ten minutes the firemen arrived followed by the ambulance and then the police.  The defendant sustained abrasions to his face, left foot and both hands.   The defendant’s injuries were treated on the ambulance[66].

116.  While on the ambulance the police arrested and cautioned the defendant.  The defendant was referred to the police note book which recorded his reply under caution[67]. Asked what he meant when he told the police “The seen (sic) vehicle was stopped in the shadows (area) beneath the flyover.  Because its lamps were not on, I did not take notice of it”, the defendant replied:

“At that time what I meant was when I came from the roundabout I saw a vehicle underneath the flyover, that’s the shadows area and when it says the lamps were not on I think that is the time I began to lose awareness”.

117.  The defendant said that the last sentence “When I discovered (it), I could not manage to swerve and avoid, but ran into (it)”, was the time when he regained his awareness. 

118.  The defendant said he did not tell the police about losing awareness and regaining awareness because he knew somebody was dead; he had seen the deceased; he was frightened and also because his injuries were still hurting.

119.  In answer to the court when asked why he told the court when he first saw the vehicle it was travelling whereas he told the police the vehicle was stopped in the shadows area, the defendant replied that it was probably because of the emotions after seeing the deceased and because of his own injuries and that all along he had been thinking about what had happened. 

120.  Immediately prior to the accident the defendant considered himself in good health without any heart condition. 

121.  In cross-examination the defendant agreed that there was nothing medically or psychiatrically found to be wrong with him to account for his loss of awareness; said that in the 3-4 months prior to the accident he was not really getting more and more tired and disagreed that he lost concentration because he was overtired due to a lack of sufficient sleep. 

122.  In re-examination the defendant said he did not think that the stress he experienced in the3-4 months prior to the accident affected his ability to drive safely on the roads of Hong Kong and that with the amount of sleep he had he considered he was fit to drive on the roads of Hong Kong.

123.  Admitted in evidence is no alcohol was detected in the body of the defendant[68].

Discussion

124.  I have carefully considered all the evidence and the submissions of Ms Crebbin and Mr Bruce SC. 

125.  I have no hesitation in rejecting the defendant’s evidence.  I do not find the defendant’s evidence credible, for example I do not find credible the defendant’s evidence that prior to the collision when he first saw HD 4836 about 100 m away he thought the vehicle was moving and that not long after driving on the straight stretch of Ching Cheung Road he all of a sudden lost awareness. 

126.  Mr Bruce SC submits that the defendant’s evidence he thought HD 4836 was moving when he first saw the vehicle makes a great deal of sense given the double yellow lines on Ching Cheung Road and that at 3 a.m it is unlikely in the extreme that a vehicle would be parked on the side of the road.  Mr Bruce SC submits that in the circumstance a careful and competent driver given the location might well have been fooled into thinking that HD 4836 was actually proceeding[69].

127.  I have no hesitation in rejecting this submission.  In my view, the defendant’s evidence of what happened when he entered Ching Cheung Road is materially different to what he told the police. 

128.  Under caution the defendant told the police[70]:

“My (vehicle) had just left the roundabout and was about to move up Ching Cheung Road. I was driving in the left lane. The seen (sic) vehicle was stopped in the shadows (area) beneath the flyover. Because its lamps were not on, I did not take notice of it. When I discovered (it), I could not manage to swerve and avoid, but ran into (it).”

129.  Issue has arisen whether the defendant admitted seeing HD 4836 when he entered Ching Cheung Road or only just before the collision.  Mr Bruce SC submits that obviously what the defendant said is open to both constructions and that if there is any ambiguity that must be resolved in favour of the defendant[71]. 

130.  In paragraph 15 of the prosecution closing submissions Ms Crebbin states that it is not clear whether the defendant was saying that he did not see HD 4836 until moments before he hit the vehicle or that he had originally seen HD 4836 which he ignored and only noticed again moments before the collision.    

131.  In oral submissions Ms Crebbin explained what she meant was that on the face of what the defendant said it was not clear when he first saw HD 4836 but when analysing what he said it was clear he was saying he did not see HD 4836 until moments before the collision, which was quite different from what he told the court[72].

132.  The defendant did not tell the police that when he first saw HD 4836 he thought the vehicle was moving and did not tell the police about losing awareness and regaining awareness.  The defendant explained that he did not tell the police because he knew somebody was dead; he had seen the deceased; he was frightened and also because his injuries were still hurting[73]. 

133.  Mr Bruce SC submits that it would be hardly surprising that a person would be severely shaken by the collision and that it would defy both common experience and common sense to think that the defendant would have been at his articulate best thirty minutes after being involved in a major collision[74].

134.  Accepting that the defendant was frightened after the collision and may not have been at his articulate best, I find inherently improbable that the defendant would give a materially different account to the policeto that which he says actually happened. 

135.  I am satisfied that there is no ambiguity in what the defendant told the police.  I am satisfied that the defendant was telling the police that he did not notice the vehicle which had stopped under the flyover until it was too late to avoid a collision because the vehicle did not have lights on. 

136.  I do not find credible the defendant’s evidence about the lighting at the rear of HD 4836.  The defendant told the court that he did not pay attention to the lights at the rear of the vehicle whereas in cross-examination he said he saw the light of HD 4836 flashing but thought it was the indicator light not the hazard lights[75]. Both versions are inconsistent with what the defendant told the police that he did not notice the vehicle because it did not have lights on.  

137.  I reject the defendant’s evidence of what happened when he entered Ching Cheung Road, in particular that he thought HD 4836 was moving and that he all of a sudden lost awareness.

The opinion of Dr Chung the defendant had most likely fallen asleep while driving

138.  In rejecting the defendant’s evidence that he all of a sudden lost awareness, I have carefully considered the evidence of Dr Chung, which I have summarised earlier[76].

139.  I have already set out the evidence and opinion of Dr Chung, which in summary is that the defendant was likely having chronic partial sleep deprivation of 2-4 hours’ sleep per day; the defendant might have underestimated the impacts of sleep deprivation on his daily life and driving performance; the defendant having no history of cardiac, neurologic, psychiatric and medical disease, the most likely cause of his brief transient loss of consciousness was a sleep attack and that the traffic accident is likely as a result of the defendant falling asleep while driving[77].

140.  It is clear from the report of Dr Chung that his opinion is based on the premise that the defendant did have a brief transient loss of consciousness.  For the reasons already given I reject that the defendant all of a sudden lost awareness.

141.  The evidence of Dr Chung does not cause me to doubt the rejection of the defendant’s evidence that he all of a sudden lost awareness. 

142.  I also note that at no time in his evidence did the defendant say that he was tired; nodded off or fell asleep[78].

143.  I remind myself that the rejection of the defendant’s evidence is not determinative of the issues in the case.  The defendant has to prove nothing. A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt. 

Dangerous Driving

144.  In reaching my verdict I proceed on the basis that the defendant was travelling at a speed below the speed limit.

Road conditions

145.  HD 4836 was stopped on Ching Cheung Road under an overpass.   The approach to the overpass is a straight stretch of road as seen in photographs 5-16, exhibit P5, taken in daylight.  

146.  Photographs 5 & 6, exhibit P7B, taken by PC 3008 during his accident reconstruction, show that the straight stretch of road is about 120 m to where HD 4836 was stopped under the overpass.

147.  Admitted in evidence is that at about 3:40 a.m. the weather was fine, the road surface was dry and there was no roadworks in the vicinity[79].  

148.  Also admitted in evidence is that the traffic volume was light[80].  CCTV footage shows that only one vehicle passed HD 4836 in the five minutes prior to the accident[81].

Lighting

149.  Admitted in evidence is that there was no street lighting under the overpass[82] and that nearby street lamps were lit and operating properly[83].

150.  SPC 58057 described the lighting under the overpass as not sufficiently bright because of shadows underneath the overpass[84].

151.  SPC 58057 was referred to photographs 15, 16 and 50, exhibit P4, taken shortly after the accident and said that the lighting condition when he arrived at the scene was best reflected in photograph 50. 

152.  Mr Bruce SC submits that the obvious difficulty with photograph 50 is it depicts the sky as considerably lighter than could possibly have been the case at the time of the collision and that in photographs 15 and 16 there is the additional lighting of the police motorbikes. 

153.  Although photographs 15 and 16 show the approach to the overpass the only lights they show are those beyond the overpass.  Photograph 50 shows only the underpass and the lights beyond the overpass and not the approach to the overpass.  

154.  Whilst the lights beyond the overpass may have to some degree illuminated the road under the overpass, I am satisfied no weight can be attached to these photographs in assessing the lighting condition as the defendant approached the overpass.  

Lighting on the approach to the overpass

155.  There are two double lamps on the approach to the overpass.  As noted earlier the photographs taken shortly after the accident do not show the lighting on the approach to the overpass[85].

156.  The lamps are shown in photographs 7-13, exhibit P5 taken in daylight.   Photographs 5-13, exhibit P7B, taken by PC 3008 during his accident reconstruction, show that the lights are approximately 100 m and 40 m from where HD 4836 was stopped underneath the overpass. 

157.  In addition, the headlights of the defendant’s vehicle were also on thereby lighting the road ahead[86].

Line of Vision

158.  When SPC 58057 arrived at the scene he saw the hazard lights of HD 4836 were flashing.  Admitted in evidence is that at the time of the collision all the hazard lights of HD 4836 were switched on and all were found to be flashing[87].  

159.  PC 3008 conducted an accident reconstruction to see how much the defendant was able to see[88]. The reconstruction took place at roughly the same time as the accident. PC 3008 conducted two tests, one where HD 4836 had both hazard lights and brake lights on and one where only the hazard lights were on. 

160.  In cross-examination SPC 58057 agreed the rear red lights of HD 4836 were not on[89].  This is consistent with the CCTV footage showing that after HD 4836 stopped the headlights were switched off.  I have therefore only considered the second test conducted by PC 3008 where only the hazard lights of HD 4836 were on (photographs, exhibit P7B). 

161.  Photographs were taken by PC 3008 from distances of 140 m, 120 m, 100 m, 80 m, 60 m, 40 m and 20 m from where HD 4836 had stopped under the overpass.  At every point between 120 m away to 20 m away PC 3008 could see the hazard lights flashing and the whole of the vehicle with nothing obstructing his view. 

162.  Dr Cheng Yuk Ki also stated that when he attended the scene he could have an unobstructed view of HD 4836 on either lane from at least 100 m away when the carriageway was clear.  Dr Cheng also considered the reconstruction conducted by PC 3008 and came to the opinion that the defendant could have an unobstructed view of HD 4836 when 100 m away, in particular the flashing hazard lights[90].

163.  I accept the evidence of PC 3008 and Dr Cheng.  Notwithstanding there was no lighting under the overpass, I am satisfied so I am sure that the approach to the overpass was sufficiently lit for the defendant to see that HD 4836 was stopped under the overpass with the hazard lights flashing.  In addition, the headlights of the defendant’s vehicle were also on thereby lighting the road ahead. 

164.  In reaching this finding I have carefully considered the submission of Mr Bruce SC that it would be dangerous in the extreme to derive any assistance from the photographs in the absence of any information about the settings of the camera[91] and that there was an element of unconscious confirmation bias in PC 3008’s testimony[92].  I reject there was any bias.  The submissions of Mr Bruce SC do not cause me to doubt the approach to the overpass was sufficiently lit for the defendant to see that HD 4836 was stopped under the overpass with the hazard lights flashing. 

Condition of GP 690

165.  Admitted in evidence is that GP 690 did not have any mechanical defects and that the braking, steering and lighting systems were all working properly and the tyres were in good condition[93].

166.  Taking into account that;

(a) the weather was fine, the road surface was dry and there was no roadworks in the vicinity;

(b) the traffic flow was light;

(c) only one vehicle passed HD 4836 in the five minutes prior to the accident;

(d) the approach to the underpass where HD 4836 was stopped was a straight stretch of road of about 120 m;

(e) the hazard lights of HD 4836 were flashing;

(f) the headlights of GP 690 were on;

(g) the approach to the overpass was sufficiently lit for the defendant to see that HD 4836 was stopped under the overpass with the hazard lights flashing;

(h) the defendant had an unobstructed view of HD 4836;

(i) the defendant had sufficient time in which to brake and avoid a collision, the shortest stopping time when travelling at between 40 to 60 km/h being 20 to 35 m (see the Road Users Code[94]); and

(j) GP 690 did not have any mechanical defects and the braking, steering and lighting systems were all working properly and the tyres were in good condition,

I am satisfied so I am sure that the only inference to draw is that the defendant failed to pay attention to the road ahead and failed to notice HD 4836 was stopped under the overpass until it was too late to avoid a collision. I am satisfied so I am sure the defendant’s driving fell far below what would be expected 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.

Microsleep

167.  In the event that I am wrong to reject the defendant’s evidence that he might have had a loss of awareness, which transient loss of consciousness Dr Chung says is most likely a sleep attack and that the traffic accident was most likely as a result of the defendant falling asleep while driving, I have considered whether by falling asleep the defendant’s driving was dangerous. 

168.  In the Scottish case of Alexander v Dunn, the High Court of Justiciary held that it is no defence for a driver to assert that he did not intend to drive in a manner which was dangerous or that he did not intend to fall asleep at the wheel and that the act of falling asleep, in the absence of special circumstances, is a voluntary act and, when it occurs in the context of driving, will usually be regarded as dangerous[95].

169.  The court quoting from R v Wilson said this is because drivers who fall asleep “are always aware that they are feeling sleepy…there is always a feeling of profound sleepiness and they reach a point where they are fighting sleep”.  The court said this coincides with human experience and does not require formal proof.  

170.  The court went on to say that,

“A jury is entitled to infer, from the fact that a driver falls asleep, that, prior to falling asleep, he or she was aware of doing so and ignored the obvious dangers in so doing.”

171.  Special circumstances include the onset of a medical condition which is unforeseen, for example where the driver had a stroke or an epileptic fit or some intervening act such as being hit by a stone on the head or attacked by a swarm of bees[96]. 

172.  In summary the defendant said that normally he went to bed at 10 p.m. and woke up at about 2:20 a.m. and that usually he would be able to fall asleep right away but sometimes he would fall asleep at about 11 p.m. but normally not later than 11 p.m.[97]

173.  In cross-examination the defendant said that in the 3-4 months prior to the accident he had a maximum of 4½ hours sleep but often a bit less; he was very stressed at work; there were occasions when he did not get a lot of sleep but not too many; by the time he returned home from work he felt totally exhausted and stayed in his bedroom because he was too tired to move; and his social life deteriorated because he felt he did not have enough energy to go out and socialise very often[98].

174.  Mr Bruce SC submits that it is important to understand that people, especially younger people, underestimate the risks and dangers of sleep deprivation and that the microsleep being an event so disabling and so unexpected is outside the confines of what is expected of a driver[99].

175.  I have no hesitation in rejecting the submission that if the defendant had a microsleep it was so unexpected that it was outside the confines of what is expected of a driver.

176.  Dr Chung explained that the longer the period of sleep deprivation the greater the chance of dozing off; that it would be very obvious there was sleep deprivation because this was occurring every day and that the longer there was sleep deprivation the lack of sleep would accumulate and get worse the longer it lasts[100].    

177.  Dr Chung’s evidence was clear that while a person may underestimate the risk of sleepiness he would be aware of his sleepiness[101]. 

178.  In cross-examination Dr Chung said that based on his clinical experience young persons may not recognise their sleepiness is a problem and are less likely to seek help for their problem but could not say why they would not seek help[102]. 

179.  In re-examination Dr Chung specifically stated that the defendant would have been aware of his sleepiness and the effect on his daily life but underestimated the degree of it[103].

180.  Dr Chung also stated that if the defendant slept only 2-4 hours per night every night, he would experience daytime sleepiness and that his account of another episode of unawareness while driving may have been another sleep attack[104]. 

181.  In evidence the defendant did not however say that he often had difficulties getting to sleep despite feeling very tired; that sometimes, maybe a few times per month, he could not get to sleep until after 12 midnight and that generally he would sleep 2 to 4 hours per night, matters which were relied upon by Dr Chung[105].

182.  In oral submissions Ms Crebbin submitted that Dr Chung’s evidence is clear that even if a person only had 4 hours sleep or thereabouts per night, the lack of sleep would accumulate and the person would have sleep deprivation.  Ms Crebbin submitted that on his own evidence the defendant had sleep deprivation which on the evidence of Dr Chung resulted in a microsleep[106].  Ms Crebbin also referred the court to the study of drivers having up to five hours sleep showing the same results[107].

183.  On the defendant’s evidence that he normally went to bed at 10 p.m. and woke up at about 2:20 a.m.; that in the 3-4 months prior to the accident he had a maximum of 4½ hours sleep but often a bit less; he was very stressed at work; by the time he returned home from work he felt totally exhausted and stayed in his bedroom because he was too tired to move, I am satisfied that the defendant had chronic partial sleep deprivation in the 3-4 months prior to the accident.

184.  Taking into account, inter alia, that

(a) there was no medical reason for the loss of awareness;

(b) the defendant had chronic partial sleep deprivation;

(c) the defendant was totally exhausted at the end of each day;

(d) the defendant was under stress in the 3-4 months prior to the accident;

(e) the longer there was sleep deprivation the lack of sleep would accumulate and get worse;

(f) it would be very obvious there was a problem because sleep deprivation was occurring every day;

(g) the longer the period of sleep deprivation, the greater the chance of dozing;

(h) the defendant would be aware of his sleepiness;

(i) the defendant would experience daytime sleepiness; and

(j) the defendant had previously experienced loss of awareness,

I am satisfied so I am sure, notwithstanding the defendant may have underestimated the risks of his sleep deprivation, that his falling asleep while driving in that condition was a voluntary act and not so unexpected that it was outside the confines of what is expected of a driver.

185.  I am satisfied so I am sure that the only inference to draw is that by falling asleep while driving, the defendant’s driving fell far below what would be expected of a competent and careful driver and that it would be obvious to a competent and careful driver that driving under these circumstances would be dangerous[108].

186.  I have also considered the Australian case of Jiminez v The Queen[109].  For the reasons given I am satisfied the defendant’s falling asleep while driving was a voluntary act and not so unexpected that it was outside the confines of what is expected of a driver[110].

Verdict

187.  In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Bruce SC both individually and collectively, including that there was no eyewitness to the collision; the doctrine of  res ipsa loquitur has no place in criminal proceedings and the monumental negligence of the deceased in stopping his vehicle under the overpass[111].  Nothing said by Mr Bruce SC causes me to doubt the findings I have made.

188.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.

189.  The defendant is convicted as charged.