HKSAR v. YU JIE

CACC 33/2022 [2023] HKCA 985

On appeal from [2022] HKDC 96

and [2022] HKDC 179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 33 OF 2022

(ON APPEAL FROM DCCC NO 579 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 17 February 2022, the appellant was convicted after trial of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374 (the Ordinance), by District Court Judge Dufton (the judge). She was sentenced to 15 months’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for two years and ordered to complete a mandatory driving improvement course prior to the end of the disqualification period. Prior to trial, the appellant had indicated that she would plead guilty to careless driving but this was not accepted by the prosecution.

2.  On 25 February 2022, the appellant filed a notice of application for leave to appeal against conviction and sentence. On 29 March 2022, the appellant was granted bail pending her appeal by a Single Judge, who also granted her leave to appeal against her conviction and sentence on 21 October 2022^[1].

3.  The ground of appeal against the conviction was directed to the judge’s failure both in law and on the facts to consider or show that he had considered, the evidence of Wong Ka Wai (DW4). It was argued that the judge seemed to accept the evidence of DW4, or at least gave no reasons for rejecting it, whose evidence supported the defence case.

4.  The ground of appeal against the sentence primarily turned on the personal circumstances of the appellant post-sentence, which were unknown to the judge and which may have afforded her additional mitigation. These new matters relate to the appellant’s medical condition, having contracted Covid-19 whilst in prison custody and having been diagnosed with serious mental health problems.

The prosecution case

5.  The offence arose from a road accident that took place at about 3:25 pm on 9 January 2020 on Nam Fung Road, South Island. The road was a two-way carriageway consisting of three lanes; two uphill lanes (the first left lane was the slow lane, which was closest to the pavement, and the second left lane was the fast lane); and one downhill lane with continuous double white lines separating it from the two uphill lanes. There was a bus lay-by area on the downhill lane and the speed limit of the road was 50 km/h. At the time of the accident, the weather was fine and visibility was good.

6.  It was accepted that a private vehicle driven by the appellant was making a U-turn from the bus lay-by area, across the three lanes, to the first left lane when a collision occurred between her vehicle and a motorcycle driven by Christian Huber (PW1), with his wife, Li Shuangying (PW2), as a pillion passenger, that was travelling uphill.

7.  The prosecution case was that the appellant was driving dangerously when she crossed the continuous double white lines and failed to pay due care and attention to the safety of others. PW1 was riding his motorcycle uphill in the second left lane, at about 30 to 40 km/h, when suddenly he saw in the middle of the road a vehicle from the opposite direction making a U-turn and blocking his lane. PW1 was unable to brake in time and collided with the vehicle. The collision took place in the second left lane. As a result of the accident, both PW1 and PW2 sustained injuries amounting to grievous bodily harm.

8.  PW1 testified that he never changed lanes, and the collision occurred in the second left lane^[2]. He said he knew the speed limit was 50 km/h and that he was travelling at a speed of around 30 to 40 km/h, which he believed was the maximum speed he could go on the road because his wife was a passenger and he was going uphill. He said[3]:

“Traffic condition were very good because there were no vehicle in front of me and there were also no vehicle behind me. And suddenly I saw a vehicle going in the opposite direction making a U-turn and obstructing, blocking my lane. This vehicle was also encroaching on the first left lane and also on the downhill lane and I was wondering what that vehicle was doing in the middle of the road and laying perpendicular to the traffic. I could not have changed lane because I didn’t know what that vehicle was going to do, moving forward or backward, I didn’t know. And as a result the collision was inevitable.”

9.  PW1 said that he first saw the vehicle at a distance of about 15 to 20 meters^[4].

10.  PW2’s evidence was fairly general. She testified that they were travelling in the second left lane when suddenly a vehicle appeared. She disagreed that prior to the accident, they had been travelling in the first left lane for about 120 meters; that the accident happened in the first left lane; that immediately before the collision, her husband was travelling at a speed over 80 km/h; and that her husband accelerated to pass through the first left lane^[5].

The defence case

11.  The defence case was that the appellant made the U-turn from the bus lay-by area, having first checked the traffic on both sides of the road, at which time she saw the motorcycle about 120 meters away, travelling at a speed of about 50 km/h in the first left lane. While making the U-turn, the motorcycle accelerated to a speed of over 80 km/h to try to pass the front of the appellant’s vehicle but was unable to do so and collided into the rear passenger door of the vehicle^[6].

12.  The appellant testified that she drove to the bus lay-by area intending to make a U-turn. She stopped there and saw the motorcycle at the bend of the road about 120 meters away, travelling in the slow lane. She estimated his speed to be around 50 km/h. She believed the motorcycle was at a very safe distance away to make a U-turn. She put on her right indicator to make the turn. She looked and saw that the motorcycle was just passing through the bend at about 100 meters away. She saw the motorcycle a third time when her vehicle was across the fast lane (the second left lane) and about to enter the slow lane (the first left lane). She was making a three-point turn and saw the motorcycle still travelled at around 50 km/h in the slow lane. She estimated the motorcycle was about 80 meters away. She said that when she had almost finished entering the first left lane and straightening up her vehicle she heard a loud bang on her left side^[7].

The expert evidence

13.  The defence called Ir Lo Kok Keung (DW5), a mechanical engineer, to give expert evidence on traffic accident reconstruction. He produced two reports. The prosecution called Dr Tao Chi Hang (PW8), a forensic chemist, to give expert evidence in reply to the reports produced by DW5. DW5 estimated that the motorcycle had accelerated to slightly over 80 km/h, and the collision occurred in the first left lane. He was of the opinion that the accident could have been avoided if the motorcycle was not speeding.

14.  PW8 disagreed with the speed calculation by DW5 because it involved “speculation and unstated assumptions”[8]. He agreed that the motorcycle did not squarely ram into the left side of the vehicle and that he was of the view that the collision occurred when the motorcycle and the vehicle were at an angle, which may have deflected the motorcycle to the left. He could not rule out the possibility that the collision occurred in the first left lane or the second left lane, although he was more inclined to the view that even if the collision occurred in the first left lane, it would have been on the right side of the lane[9].

15.  The judge questioned the impartiality of DW5 and rejected his evidence regarding the traffic accident reconstruction[10].

16.  It is noteworthy that the point of impact on the vehicle, as shown by the damage that was caused due to the accident, was at the rear of the rear passenger door with scrape marks extending to the front door[11]. This lends support to the collision occurring when the appellant was in the process of completing her turn.

The reasons for verdict

17.  Accepting the evidence of PW1 and PW2 that the appellant’s vehicle suddenly appeared in front of them, blocking their lane^[12], the judge concluded that the only reasonable inference he could draw was that the appellant made the U-turn from the bus lay-by area contrary to the double white lines without paying attention or sufficient attention to the traffic on the uphill lanes, resulting in the collision. He found that the appellant’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 that way would be dangerous^[13].

18.  The relevant findings of the judge in respect to this complaint were as follows^[14]:

“205. Whilst accepting the defendant may have made the U-turn from the layby/bus stop area, I have no hesitation in rejecting the defence evidence that the defendant first saw the motorcycle about 120 m away travelling in the slow lane at a normal speed of around 50km/h; that the defendant next saw the motorcycle when she started to make the U-turn at which time the motorcycle was 100 m away still in the slow lane and travelling at a speed of 50 km/h; that the defendant saw the motorcycle for a third time when she was about to enter the slow lane at which time the motorcycle was 80 m away still in the slow lane and travelling at a speed of 50 km/h; that Mr Wong Ka Wai (DW4) saw the motorcycle about 70 m away travelling in the first lane at a speed of about 50-60 km/h at which time the car was just past the double white lines making a U-turn and the evidence of Ir Lo that the collision happened because the motorcycle accelerated to speeds of up to 81.5 km/h.

206 I do not find this evidence credible. I find inherently improbable that a motorcyclist with a clear view ahead and having sufficient time not only to slow down but to stop to avoid a collision would instead accelerate to speeds of up to 81.5 km/h, 31.5 km/h over the speed limit, in an attempt to pass the front of the car thereby risking not only his life but the life of his passenger as well.”

19.  The judge found that only the injuries sustained by PW1 amounted to grievous bodily harm. PW2’s injuries were relatively minor. PW1 sustained injuries to his abdominal region and pelvis, for which he required surgery and long-term treatment. Accordingly, he convicted the appellant of the offence of causing grievous bodily harm to PW1 by dangerous driving.

The appeal against conviction

20.  At the centre of this appeal is the evidence of DW4, which Mr David Boyton, for the appellant, argues supported the defence case and was relevant to the following critical issues at trial:

(1) whether the appellant had sufficient room to make the manoeuvre “safely” and if not, whether that manoeuvre was careless or dangerous;

(2) in which lane was PW1 travelling; and

(3) was it PW1 who accelerated uphill in an unsuccessful attempt to avoid the appellant^[15].

21.  A feature in this case was whether the motorcycle was travelling in the first lane, and on seeing the vehicle making a U-turn accelerated and tried to get around the front of the vehicle as it was making the U-turn. The defence called a bystander, DW4, who was in a stationary vehicle in the bus lay-by area. He testified as to the position of the vehicle and motorcycle before the collision. He saw the appellant attempting to make a U-turn with an indicator light on and that the motorcycle was travelling at a speed of about 50 to 60 km/h in the first left lane. He estimated the motorcycle was about 70 odd metres away. He did not actually see the collision but made a report to the police after it had happened^[16].

22.  The essence of the appellant’s complaint is that the judge did not adequately address or resolve the issue of DW4’s evidence that he observed the motorcycle travelling in the first left lane and some distance away when the appellant was making a U-turn, which supported the appellant’s evidence. This evidence was a critical component of the defence case, directed to whether the motorcycle attempted to overtake around the front of the vehicle, notwithstanding the vehicle was making a U-turn.

23.  Mr Boyton submits that if the evidence of DW4 was, or may have been true, then this may have undermined the prosecution case: that PW1 may have seen the appellant’s vehicle well before the collision; that PW1 may have had sufficient time to stop to avoid the collision; that PW1 may have been in the first left lane; and PW1 may have accelerated to overtake around the front of the appellant’s vehicle. He further casts doubt on the judge’s findings as to the circumstances of the accident by reference to the prosecution expert, who accepted that the collision may have occurred in the first left lane^[17].

24.  Moreover, Mr Boyton contends that the conviction may therefore, have been reduced to “careless driving” because the judge found that the appellant’s driving was dangerous for failing to pay attention or sufficient attention to the traffic^[18]. He submits that as the conduct was not deliberate or reckless, this may have simply been a case of careless driving, which the appellant had admitted to before her plea was taken.

25.  Mr Boyton also complains that the judge did not properly consider the reliability of the evidence of PW1 and PW2, particularly PW1, who accepted that as a result of the accident, he lost consciousness and “my memories”^[19].

26.  Ms Winnie Mok, for the respondent, submits that even if there was justification in the complaint made by the appellant about the judge’s handling of DW4’s evidence, there is still a strong case that the appellant’s driving was dangerous because she deliberately disobeyed the double white lines and created a dangerous situation on the roadway by making a U-turn.

The offence provisions

27.  The legislation governing the offence of causing grievous bodily harm by dangerous driving is contained in section 36A of the Ordinance:

“(1) A person who causes grievous bodily harm to another person by driving a motor vehicle on a road dangerously commits an offence and is liable—

(a) on conviction on indictment to a fine at level 5 and to imprisonment for 7 years;

(b) on summary conviction to a fine at level 4 and to imprisonment for 2 years.

…

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

(a) the way he or she 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.

(11) A person is also to be regarded as driving dangerously within the meaning of subsection (1) if it would be obvious to a competent and careful driver that driving the motor vehicle concerned in its current state 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 (10) and (11), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard must 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.

…

(16) On the trial of any person charged with an offence under subsection (1), the person charged may be acquitted of the offence under subsection (1) and be found guilty of one or more offences under section 38, 39, 39A, 39J, 39K or 39L.”

28.  The offence of careless driving under section 38 of the Ordinance is a statutory alternative to an offence of causing grievous bodily harm by dangerous driving by virtue of section 36A(16). Section 38 provides that a person drives carelessly if, on a road, he or she drives a vehicle without due care and attention or without reasonable consideration for other persons using the road. The offence carries a maximum sentence of a fine at level 2 and imprisonment for 6 months.

29.  The appellant accepted from the outset that her manner of driving was careless. The issue was, therefore, whether the standard of her driving went further than that and was dangerous in that it fell far below the standard which would be expected of a competent and careful driver as required by section 36A(10)(a) and was obviously dangerous in terms of section 36A(10)(b). It is not necessarily the case that an accident caused by an appellant’s lack of due care and attention, and which results in injury to someone else, turns that act of careless driving into one of dangerous driving[20].

Crossing continuous double white lines

30.  Whether a driver of a vehicle who crosses double white lines is driving dangerously will depend upon the particular circumstances of the case: HKSAR v Au Ling-man, Steve[21]. In that case, the road in question was a two-lane carriageway with traffic going in opposite directions and separated by continuous double white lines. The lane in which the accident occurred provided parking along the left side, whereas the right side was for regular traffic. The appellant parked his vehicle on the left side of the lane. As he was leaving, the driver of a medium goods vehicle stopped slightly behind him on the right side of the lane to enable him to pull out. He made a U-turn, intending to cross the continuous double white lines and travel in the opposite direction. As he was doing so, a motorcyclist on the right side of the lane, travelling behind him, collided with the right front of his vehicle. The driver of the medium goods vehicle gave evidence in support of the appellant’s account as to what happened.

31.  The Court of Appeal held that, notwithstanding the appellant was intending to make a U-turn across continuous double white lines, his driving did not constitute dangerous driving. The Court explained:

“32. In our view, when a careful driver wants to U-turn on the left side of the road, the appropriate approach is to drive forward first. It is at least until he drives close to the dividing line with the lane on the right, may he then drive right to cross the dividing lines to make a U-turn. This approach allows the driver to see the situation behind the vehicle more clearly, and also allows the vehicles approaching from behind to see more clearly that the vehicle that is about to turn right and make a U-turn.

…

35. We consider that when the appellant, from the left lane, immediately turned right into the right lane, and further crossed the double white lines to make a U-turn into the opposite lane, he might have contravened traffic regulations. Further he drove without due care and attention, and without reasonable consideration for other persons using the road, which constituted careless driving. However, we think that when Mr. Tso stopped his vehicle to allow the appellant to drive out, turn right and make a U-turn, the appellant’s driving manner was not far below what would be expected of a competent and careful drive, and a competent and careful driver might not necessarily consider it was obviously dangerous.”

32.  Another traffic case involving a driver crossing continuous double white lines is HKSAR v Law Tik Ki [22]. In that case, the applicant pulled out suddenly from a parking position intending to do a U-turn and cross continuous double white lines but collided with a motorcycle travelling behind him. The Court of Appeal noted that the applicant contravening continuous double white lines to do a U-turn did not in itself constitute dangerous driving. However, he should have known that it would cause inconvenience or even danger to other road users and therefore should have paid extra care and attention to the traffic condition at the material time. The Court held that the applicant’s driving was dangerous because of the particular circumstances of the case.

33.  The respondent accepts that crossing continuous double white lines is not per se, dangerous driving[23].

The rejection of DW4’s evidence

34.  The judge in his reasoning accepted that the appellant may have made the U-turn from the bus lay-by area but nevertheless rejected the defence case. It was, therefore, not a case that the appellant made her U-turn abruptly from the downhill lane but rather negotiated the U-turn manoeuvre from the bus lay-by area.

35.  In his analysis of the defence case, the judge considered the evidence presented by the defence altogether, without considering separately DW4’s evidence, who was an independent witness. The judge seems to have concluded that because he found the defence case based on the defence expert’s evidence that the motorcyclist was speeding to overtake (from the inside) the vehicle as “inherently improbable”, then the rest of the defence evidence, including DW4’s evidence, was also “inherently improbable”.

36.  The judge failed to address DW4’s evidence or put any weight on it in his case analysis. DW4 supported the appellant’s account that the motorcyclist was some distance away in the first left lane before she negotiated her U-turn. It brings into question whether the motorcyclist was in the second left lane and was suddenly confronted by the vehicle in front of him at a distance where a collision was inevitable.

37.  We are also not entirely satisfied that the judge had appropriately considered that the point of impact by the motorcycle into the vehicle was at the rear passenger side (possibly slightly at an angel) or that the section of road near the bus lay-by area would have come into view at least 120 meters away if travelling in the opposite uphill lane of Nam Fung Road[24].

38.  We are of the view that had DW4’s evidence been properly taken into account, it would have led to the finding that the appellant negotiated the U-turn, having assessed that the motorcyclist was a reasonably safe distance away to complete the manoeuvre.

Whether dangerous or careless driving

39.  The defence case does not excuse the appellant’s manner of driving in making a U-turn in the circumstances. It was a risky manoeuvre, requiring an appropriate level of care when being made. Nonetheless, it raises the question of whether her driving was dangerous or careless.

40.  In examining whether the driving was dangerous, the key question is whether the appellant’s standard of driving fell far below what would be expected of a competent and careful driver and whether it would be obvious to such a driver that driving in that way would be dangerous. While for careless driving, it is whether the appellant drove her vehicle without due care and attention or without reasonable consideration for other persons using the road.

41.  The judge concluded that the appellant’s driving was dangerous because she “made the U-turn from the layby/bus stop area contrary to the double white lines without paying attention or sufficient attention to the traffic on the uphill lane, resulting in the collision”[25]. He came to this view primarily because the appellant’s vehicle suddenly appeared in front of the motorcyclist blocking his lane, who would not expect that a driver in the downhill lane would cross the double white lines[26]. However, this ignores his finding that the appellant made her U-turn from the bus lay-by area[27] and the motorcyclist’s evidence that he saw a vehicle in the opposite direction “making a U-turn and obstructing, blocking my lane”, which was encroaching the first left lane[28]. In other words, the appellant’s vehicle had travelled some distance, from the bus lay-by area across the continuous double white lines and into the first left lane of the opposite carriageway, where the motorcyclist was travelling. As we have already pointed out, the judge did not address the evidence of DW4, who saw the motorcycle further away than suggested by the motorcyclist and travelling in the first left lane.

42.  When assessing this type of offence, considerable care needs to be taken to make a realistic assessment of the circumstances of the case and the level of attribution or blameworthiness for the accident and its consequences. The primary considerations when assessing the degree of carelessness and culpability of a driver are the quality of the driving, the relevant circumstances at the time, and the extent to which the driving on the particular occasion fell below the standard of a reasonably competent driver.

43.  The accident occurred in the afternoon. It was daylight, and visibility was good. The weather was fine, and there was very little traffic on the road. The appellant made a U-turn into the opposite carriageway, divided by continuous double white lines. She was aware that the motorcycle was travelling in her direction but assessed wrongly, as it transpired, that she had the time to safely make a U-turn manoeuvre. It would appear that she was in the process of completing the manoeuvre when the rear of her vehicle was struck by the motorcycle. We consider that the appellant miscalculated the safety margin for her to execute the U-turn manoeuvre, even though the motorcycle may have been at a distance away, as suggested by DW4. It still did not give her enough time to carry out the manoeuvre safely.

44.  We are of the view that the appellant’s manner of driving, when assessed against the overall circumstances of the case, did not fall within the serious category of blatant disregard for the safety of other road users. In our view, the appellant made a serious error of judgement and drove her vehicle carelessly by not paying sufficient care and attention to the nature and circumstances of making a U-turn in this section of the road where there was a real likelihood of oncoming traffic travelling in the two uphill lanes. The appellant saw the motorcyclist but still carried out her U-turn when time and distance were critical factors. The appellant was careless and miscalculated the safety margin in making a U-turn manoeuvre in the circumstances that she faced.

45.  It follows from what we have said that we allow the appeal and set aside the conviction. Pursuant to section 36A(16) of the Ordinance, we substitute a conviction for careless driving, contrary to section 38(1) of the Ordinance.

Sentencing for careless driving

46.  Having overturned the appellant’s conviction for dangerous driving causing grievous bodily harm and setting aside her sentence, it now falls on the court to sentence the appellant for the substituted offence of careless driving[29].

47.  We recognise the difficulty in sentencing serious traffic offences when a sentencing court has to deal with an otherwise law-abiding citizen, who, but for the traffic offence, would not be before the courts. However, it is important to bear in mind that the primary object and purpose of the road traffic laws is to ensure the safe and efficient use of roads by all users and to reduce the risk of death and injury to persons and damage to property. When sentencing offenders for driving offences, the primary consideration is the gravity and culpability of the impugned driving, but the consequences of the driving will also be a relevant consideration. What weight is to be given to this factor will depend on the nature of the consequence and the circumstances of the case, such as whether there were other factors attributing to the accident and its outcome[30].

48.  The appellant failed to exercise the care required of a competent, careful driver in the circumstances. When she made her U-turn in a section of road that was divided by continuous double white lines, she did not make her manoeuvre with the greatest care to allow for any oncoming traffic in the two uphill lanes of the road. The consequences of the accident were serious, and the couple riding the motorcycle both sustained injuries, with the driver of the motorcycle receiving serious injuries to his abdominal region and pelvis, for which he required surgery and long term treatment.

49.  When the appellant was convicted for the offence of causing grievous bodily harm by dangerous driving, she received a sentence of 15 months’ imprisonment and disqualified from holding a driving licence for a period of 2 years and ordered to complete a driving improvement course[31]. Justice requires that the appellant, when resentenced for the alternative offence of careless driving, is given appropriate credit for the period during which she has been in custody and under disqualification from driving.

50.  At the time of the offence, the appellant was aged 41 years, a person of good character, responsible for the family home and looking after three children. She obtained a driving licence in 2004 and had been driving in Hong Kong since 2011 without any criminal or traffic conviction record. In mitigation, she expressed her remorse and regret for the accident and the injuries caused to the couple involved. Numerous testimonials were submitted variously describing the appellant as a thoughtful and caring person, who was a devoted and dedicated mother and a good and responsible driver. The accident and its consequences have seriously impacted on the appellant and her mental health[32].

51.  Taking into account the circumstances of the case and the background and circumstances of the appellant, including her offer to plead guilty to careless driving, we would have imposed a community service order for 120 hours and a period of disqualification from driving for 12 months for the offence of careless driving. The appellant has been in custody for 49 days and restricted from driving a motor vehicle for about 2 years. Therefore, she should not serve any further penalty or disqualification period for this offence.

Conclusion

52.  It follows for the reasons that we have given that we allow the appeal. We quash the conviction of causing grievous bodily harm by dangerous driving and set aside the sentence. We substitute the original conviction for the alternative offence of careless driving. No further sentence or period of disqualification from driving is required to be served by the appellant.