HKSAR v. YAU SING TAK

DCCC 171/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 171 OF 2013

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Reasons for Verdict

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The case

1. Defendant pleads not guilty to one count of dangerous driving causing death.  The incident occurred after 5 am on a road in Kowloon near a pedestrian crossing governed by a set of traffic lights.

2. Prosecutor initially alleges defendant’s driving was dangerous in that (a) his speed was high; (b) he failed to maintain a proper lookout on the road; and (c) he had a DVD player near his seat turned on then which could distract him as a driver.  However, at the end of the trial, prosecutor has to give up the DVD player allegation as it is not supported by evidence. 

3. Defendant denies those allegations.  He claims he was not speeding.  He says the deceased rushed out onto the road suddenly to cause the accident.

Prosecution case

4. Prosecutor calls 12 witnesses on the list in the following order to give evidence.  They are PWs 1, 3, 6, 7, 8, 15, 10, 4, 13, 11, 2 and 12.  PW3 was an ambulanceman.  PW6 was one of the police officers who attended the scene.  PW8 was the officer who took a cautioned statement, P15, from defendant where defendant remained silent.  PW15 was the officer who examined the damages of defendant’s car which damages are self-apparent on the photos, P3.  The evidence of these several witnesses is not crucial, so there is no need to mention such evidence in this judgment.

5. Prosecutor produces Exhibits P1 to P19.

6. There was a verbal purportedly made by defendant to PW7, SPC 48596, at the scene.  Defence counsel objects to the admissibility of such verbal.  After hearing by alternative procedures, it is admitted as evidence.  There is no written record of that verbal utterance.  PW7 in court gives three slightly different versions of that utterance.  All refer to the defendant’s telling the officer that when he got to the pedestrian crossing his traffic light was green, a pedestrian suddenly came out from the left and he could not manage to stop in time. 

The deceased

7. The deceased was Mr Wong Keng, aged 73.  His wife is PW4, Madam Mak.  Madam Mak’s witness statement is admitted under section 65B of Criminal Procedure Ordinance as Exhibit P17.  According to the wife, the deceased was healthy and mobile.  He still went to work in a restaurant in the morning.  Madam Mak knew his husband had high blood pressure and cholesterol problems but she did not know what medication he took. 

8. PW13, Dr Ho, is a consultant doctor at the Accident & Emergency Department of the Queen Elizabeth Hospital.  He attended to the deceased after the accident.  According to the drugs report, Exhibit P8, there were three drugs found in the deceased’s body, namely chlorpheniramine, diazepam and nordiazepam, all at therapeutic levels.  Dr Ho says nordiazepam was a metabolic byproduct of diazepam.  Diazepam was a sedative while chlorpheniramine was a running nose medication.  Dr Ho says those drugs were not administered to the deceased during the resuscitation process, I therefore assume the deceased had taken the drugs for his own reasons prior to the accident.

9. Dr Ho says the drugs would have such side effects as tiredness, drowsiness and even judgment problem depending on the person and for how long the drugs had been taken.  Those side effects would exist even when the drugs were taken only at therapeutic levels. 

10. Dr Ho says the deceased suffered serious injuries compatible with a high speed impact but he explains that his reference of high speed is any speed above 15 kilometres per hour according to a medical protocol.

The taxi driver

11. PW1, Mr Chan Man-bun, was a friend of the deceased.  He drove the deceased to work from the latter’s home every morning around 5 am.  He had been doing that for the past few years.  On 24 August 2012, PW1 was a bit late.  He picked up the deceased around 5.15 am.  It took him less than 10 minutes to get to the outside of the church at No 200 of Po Kong Village Road.  PW1 stopped his taxi just after passing the traffic light controlled pedestrian crossing.  He draws that position on Exhibit P12.  PW1 knew there were double yellow lines.  Nevertheless, he stopped there because it was convenient for the deceased to alight there so that the latter could cross the road via the pedestrian crossing.  PW1 draws a triangle on P12 to show where the deceased usually walked to his workplace after crossing the road. 

12. PW1 saw the deceased alight from the left rear door of his taxi.  At first, he says the deceased walked in the back direction and he marks a red cross on Exhibit P12 to show where the deceased stood. Later, PW1 admits that he did not watch the deceased any more after the latter had got off the taxi from the left rear door.  PW1 just did not know whether the deceased walked to the pavement or placed himself at the roadside.  He did not know how the deceased crossed the road or where he crossed the road. 

13. PW1 says he then drove his taxi off after the deceased had alighted.  Soon, he heard a bang sound.  He looked to his right side and saw the deceased lying on a manhole cover on the second lane.  A private car stopped behind the deceased.  PW1 then pulled up his taxi on the first lane and went to have a look at the deceased.  PW1 draws a cross on Exhibit P13 to represent the deceased.  The two circles drawn there represent the two manhole covers.  PW1 also draws the two manhole covers on Exhibit P12. On P13, PW1 also marks the position of his taxi as well. 

14. Prosecutor and defence counsel agree that the deceased did not lie on one of those two manhole covers, but rather on a third manhole cover about 3 metres behind (see Exhibit P10 for that circle which links to the word “blood”).

15. Exhibit D1 was a photo taken by a press photographer who arrived at the scene soon.  That picture shows PW1’s taxi was behind where the deceased lay, contrary to PW1’s saying that his taxi had passed the deceased and stopped at that position which he marks on P13.

The CCTV of the church

16. The accident occurred outside a church.  A CCTV camera installed at the car park there captured that section of the road on the nearer side, ie the left side of the crossing as seen on P10.  But the camera did not capture the crossing itself.  I refer to the nearer side of the crossing as the left side when I refer to Exhibit P10 because the nearer side is on the left side of the scale plan.  The photo, P13, is actually the same photo as photo 15 of Exhibit P3.  These two photos are of the same orientation as P10.  But it is to be noted that Exhibit P12 which is the same photo as P3 (photo 14), these two latter photos are taken from the opposite view.  So their orientation is just the opposite of P10. 

17. PW2, Mr Ho Yun-tong, was a staff working in the church.  He provided a CCTV record, Exhibit P14, to the police.  He confirms that the CCTV system functioned normally at the material time.  

18. P14 does not show how defendant’s car knocked down the deceased.  However, it shows defendant’s car appeared in the CCTV at 05:23:06, ie 9 seconds after PW1’s taxi had disappeared from the CCTV.  The camera captured the movement of defendant’s car between 05:23:06 and 05:23:08.

19. PW12, Dr Cheng Yuk-ki, is a forensic scientist of the government laboratory.  His expertise is not challenged at all.  I accept he is a qualified forensic expert.  His reports in this case are Exhibit P18 and P19. 

20. In mid November 2012, Dr Cheng went to the church to check the CCTV system there.  He verified the time running of the system with a calibrated timer.  He says the timer was serviced by a certified contractor and was accurate.  Dr Cheng found that 5 minutes on the timer were indeed 5 minutes on the CCTV system.  Thus the time duration of the CCTV system was correct.  Dr Cheng found that the frame rate, ie number of image frames per second on P14 between 05:22:46 and 05:23:15 was stable.  It was 6.3 frames per second (see paragraph 3.3 and 4.2 of P18).  Dr Cheng extracted eight image frames between 05:23:07 and 05:23:08 to calculate the speed of defendant’s car.  The exact time span of these eight images was 1 over 6.3 seconds times 7 intervals.  That was equivalent to 1.11 seconds.

21. Dr Cheng used a police car for simulated movement over the different positions in those eight frames.  He repeated his test three times.  The measured distance between the eight positions, ie position 1 to position 8, was 23.71 metres, 23.83 metres and 23.50 metres respectively (see paragraph 3.6 of P18).  Dr Cheng used the shortest distance for defendant’s benefit and calculated the speed of defendant’s car from position 1 to position 8.  Defendant’s car travelled 23.5 metres in 1.11 seconds. The average speed of defendant’s car over that distance was thus 76 kilometres per hour.  Dr Cheng gives a 10 per cent deviation to account for any measurement errors (see paragraph 3.6 and 4.3 of P18).  In court Dr Cheng says his calculation shows that the defendant’s car was travelling at 74 kilometres per hour at position 7 and 68 kilometres per hour at position 8.  Position 7 was about 6.7 metres from the left edge of the crossing.  Dr Cheng says the reduction of speed from position 7 to position 8 signified a deceleration from position 7.  That means defendant might have braked his car from that position, ie position 7 (see paragraph 3.5 and 4.5 of P18).  Dr Cheng disagrees with defence counsel, who suggests that defendant’s car was travelling at around 50 kilometres per hour or less.

22. Dr Cheng marks a red cross on P10.  He says in his sight experiment he could see a person standing at that spot from a distance of 123 metres on the left side of the road when he was travelling on a car of about 46 kilometres per hour (see paragraph 3.7 of P18). Dr Cheng says that from his gathered experience in previous experiments conducted in similar situations when the car was moving at 70 to 80 kilometres per hour, that sight distance would be reduced to about 100 metres.  He says the sight distance would not be affected if the person standing at the red cross spot moved a few metres around. 

Braking

23. Dr Cheng agrees with the defence counsel that the braking distance stated in the Road Users’ Code can apply to the present road condition.

24. There were no skid marks at the scene.  Dr Cheng says a car with anti-braking system, ABS, might not leave any brake mark or skid mark even in emergency braking.

25. PW10, Mr Li Chun-ho, is a motor vehicle examiner of the Transport Department.  He said defendant’s car had a high braking efficiency of 98 per cent. 

Green-man crossing

26. PW11, Madam Lai Suk-kwan, is a traffic engineer of the Transport Department.  She says the pedestrian crossing in this case was a green-man crossing.  That means a pedestrian had to press the button to get his green light.  Depending on when in the operation cycle he pressed the button, the pedestrian would have to wait for as short as a few seconds or as long as 40 odd seconds to get his green light.  If no pedestrian pressed for his green light, the traffic light would remain green to allow traffic on the road to flow continuously.

PW7

27. PW7 is SPC 48596.  He arrived at the scene soon after the accident.  Some police officers were there already.  The deceased had been conveyed to the hospital.  PW7 learned from his colleagues that defendant was the driver of the car involved in the accident.  He asked defendant to confirm that.  Defendant said he was the driver.  PW7 then asked defendant what had happened.  PW7 says defendant answered him, but the officer now cannot recall the exact words used by the defendant.  In court, he is asked to repeat what defendant said as accurately as he can.  There are slight variations in the three versions he gives in court, but they all mean that defendant said when he got to the pedestrian crossing, his light was green and a pedestrian suddenly came out “走出嚟”.  In Chinese, “走出嚟” could mean the pedestrian walked out or ran out.

28. PW7 tried to ask defendant more questions but defendant said he was not feeling well.  Defendant also said he wanted to wait for his lawyer.  PW7 did not press on. 

29. PW7 admits that he wrote down what was said by defendant in his own investigation report, and later he also wrote it down in his own witness statement.  But he never recorded that in his notebook for defendant to sign for acknowledgment. 

30. On 5 September 2012, another officer, PW8, Senior Police Constable 2581, took a cautioned statement from defendant in the presence of his lawyer.  That officer also did not put down the purported verbal in the statement for defendant’s reply.  Anyway, during that interview defendant exercised his right of silence in the presence of his lawyer (refer to Exhibit P15).

Special issue

31. Defendant denies he had made that verbal utterance to PW7 at the scene.  In any event, he says the officer was oppressive in his questioning at the scene.  Defendant counsel also complains that PW7 had breached Rule II of the Practice and Directive for the Questioning of Suspects.  Counsel says PW7 should have cautioned defendant before he asked defendant questions about the accident.  Counsel also criticizes the officer for not putting down the purported verbal in writing for defendant to acknowledge or respond.  Now PW7 cannot recall defendant’s words exactly.  Counsel submits that it is unfair for the court to consider the purported utterance.

32. Alternative procedures are adopted to determine the special issue involved, ie whether the purported utterance can be admitted as evidence.

33. PW7 denies all the allegations made by defence. His evidence is that he let defendant refuse to answer his questions.  No friend of defendant’s came up to intervene at the scene because there was just no argument between the officer and defendant.  PW7 says when defendant said he needed to see a doctor, PW7 even suggested getting an ambulance for him.  But defendant turned down his offer.  PW7 admits he cannot recall defendant’s verbal in a verbatim way.  He cannot be 100 per cent sure of what defendant said then. 

Defence witness Mr Chong Heung-seng on the special issue

34. Defendant elects not to give evidence on the special issue.  He calls his friend Mr Chong Heung-seng to give evidence. Chong says he received defendant’s call and he went to the accident spot.  A police officer later appeared and asked who the driver was.  Defendant admitted he was the driver.  Defendant told the officer that he was not feeling well.  Defendant also mentioned his need for a lawyer and refused to answer the officer’s further questions.  The police officer then accused defendant of trying to play tricks.  Chong sensed the antagonism between the two.  He then went up to intervene.  Chong asked the officer to let defendant see a doctor first.  The officer then stopped questioning defendant further. 

Ruling on the special issue

35. Having considered all the evidence and submission on the special issue, I find PW7 honest and reliable.  He does not exaggerate his evidence.  He frankly admits he cannot recall defendant’s words 100 per cent accurate.  I am also sure the officer was not oppressive towards defendant in any manner.  He was considerate enough to offer to summon an ambulance for the defendant, only for the latter to turn his offer down.

36. On the other hand, the evidence of the defence witness Mr Chong is incredible.  If the argument between PW7 and the defendant got so heated that Chong had to go up to intervene, why the several police officers in the vicinity (some were just a few metres away according to Chong) would not go up to mediate or take action?  I am sure that PW7 speaks the truth in court, he was never oppressive towards the defendant, there was no argument between him and the defendant and no friend of defendant’s had to come up to intervene. 

37. I am sure PW7 behaved properly as a police officer and discharged his duties bona fide.  In the investigation, when PW7 asked if defendant was the driver and what happened, he had no more information than the fact that there was a serious accident involving defendant’s car.  He had no idea who was criminally liable at that time.  He had no ground to form any reasonable suspicion of defendant as the driver because the accident might not be his fault.  As an investigation officer, PW7 was entitled to ask the driver, ie defendant, without caution at the scene as to what happened earlier.  No doubt defendant would be emotional or upset after such accident, but I am sure he was not so distraught that no questions could be asked of him at all.  I am sure defendant replied to PW7 at the scene voluntarily that when he got to the pedestrian crossing, the light was green, a pedestrian came out suddenly from the left and he, ie defendant, could not manage to stop his car in time.  And defendant chose to refuse answering further questions posed by the officer.  PW7 just let him; he was not oppressive towards the defendant at any stage.  I find that PW7 had not breached Rule II of the Practice and Directive for the Questioning of Suspects. 

38. Defence counsel complains that the purported verbal had not been properly recorded in writing for defendant to acknowledge its content and now PW7 cannot recall what defendant said verbatim or accurately. 

39. It is true and a bit regrettable that PW7 had not reduced what defendant told him into writing for defendant to acknowledge. In court, the officer makes his best effort to recall what he can.  There are some variations in the three versions he gives, but the variations are slight. The very mildly different accounts all state this: defendant told the officer that when he got to the pedestrian crossing, his light was green, a pedestrian came out from the left suddenly and he, ie the defendant, could not manage to stop his car in time.  Such evidence should be placed before the jury for them to consider upon the proper direction by the judge.  Counsel’s complaint on accuracy and reliability must fail. 

40. In any fair trial, admissible evidence should not be excluded for insufficient reasons.  I rule defendant’s purported utterance to PW7 was voluntary.  There was no oppression from the officer, he did not breach any rule, his report of what defendant said was clear though not verbatim.  Such evidence is admissible.

Defendant’s evidence on the general issue

41. After prosecutor has closed its case, defence counsel has no submission to make.  I rule there is a case for defendant to answer on the charge.  He elects to give evidence.  He calls no other defence witnesses on the general issue.  There are defence exhibits D1 to D5.  Exhibit D1 to D4 are some photographs of the scene and the location.  D5 was a reproduction of the scale plan, P10.  Defendant draws some positions on D5 when he gives evidence.

42. Defendant says he was driving on the second lane of Po Kong Village Road.  When he was near the bus stop outside the church, he looked at the dashboard and noticed the speed of his car to be around 50 kilometres per hour.  Defendant understands the scale of D5, which is a reproduction of P10.  He draws on D5 car position 1 as he was just next to the bus stop.  Defendant says that from there he could see a lady pedestrian standing about 40 metres away on the pavement.  He draws a small figure on D5 to represent that lady pedestrian.  Defendant says he then slowed down his car to 40 odd kilometres per hour.  He noticed a taxi had stopped on the first lane some distance after the crossing.  He draws the position of that taxi on D5 as well.  The front of the taxi was drawn about 15 metres from the left edge of the crossing.  Defendant says as that taxi stopped at the double yellow lines, he thought it had broken down there.  He saw a man standing at the right rear of the taxi.  The man was looking towards his, ie defendant’s, direction. Defendant says that man was not moving and he did not appear to be going to cross the road.  Defendant says he nevertheless reduced the speed of his car to roughly 40 kilometres per hour.  He looked to the front.  The light was green and defendant drove past the pedestrian crossing.  Suddenly, there was a bang sound.  It was the deceased who hit the front of his car.  Defendant immediately braked his car to a stop and he had also swerved his car a bit to the right.  The deceased fell down in front of his car.  Defendant says he did not see from where the deceased had run out.  His car hit the deceased when the front of his car was less than a metre from the rear of the taxi.  The impact caused damages to his front bumper, bonnet and windscreen.  Defendant got out of his car.  PW1 also got off his taxi.  Defendant says that taxi had not moved at all from its original position. 

43. Defendant then called his girlfriend and another friend Mr Chong Heung-seng to come to the scene.  Chong arrived after defendant’s girlfriend.  Defendant told Chong that he was not feeling well. When police came, one of the officers, ie PW7, asked who the driver was, defendant said he was the driver.  PW7 then asked defendant what happened earlier, defendant said he was not feeling well and he wanted to see a lawyer. He also said he would give a statement only in the presence of his lawyer.  PW7 then turned fierce and asked if defendant was playing tricks.  The two argued. Chong intervened and told PW7 that the defendant was not feeling well.  Defendant says he did not make that verbal utterance as PW7 alleges.  Nevertheless, he followed police instruction and passed the breath test at the scene.  Police later let him leave.

44. Defendant says he lived nearby and was familiar with the road there.  When the accident occurred, he was just about 250 metres from home. 

Credibility and reliability of witnesses on the general issue

45. Having heard all the evidence and submission, I find all prosecution witnesses credible and reliable except stated otherwise. I find defendant at the scene told PW7 the truth, but in court he tells a pack of lies.

Speed of defendant’s car

46. The expertise of PW12, Dr Cheng, is not challenged.  Defendant, however, does not agree with his speed calculation.

47. Dr Cheng details his work and finding in his reports (P18 and P19).  In court, he further explains his tests.  The distance between position 1 and position 8 was measured three times.  Dr Cheng took the shortest one for speed calculation to defendant’s benefit.  The average speed of defendant’s car over that measured distance of 23-odd metres was 76 kilometres per hour.  Dr Cheng says any distance measurement error would have been taken care of by the ±-10-per-cent deviation.

48. Defendant, however, says he was at the material time travelling between 40 to 50 kilometres per hour.  Defence counsel criticises prosecutor for not calling the service contractor to prove the accuracy of the calibrated timer, which Dr Cheng used to check the time duration of the CCTV.  Counsel submits that Dr Cheng’s finding on the frame rate is thus hearsay.

49. I disagree.  Dr Cheng works for the government laboratory.  The calibrated timer was serviced by a certified contractor.  It is hard to imagine such a device used by the government laboratory with maintained service by a certified contractor would be inaccurate.  I am sure it was accurate when Dr Cheng used it to measure the time duration of the CCTV and thus found out the frame rate of P14.  The frame rate was constant at the material time.  It was 6.3 frames per second.  I am satisfied that Dr Cheng’s calculation of defendant’s car from position 1 to position 8 was at an average speed of 76 kilometres per hour plus or minus 10 per cent as deviation.  That finding was scientific, reliable and admissible.  The 10-per-cent deviation had already taken care of any measurement error.  To defendant’s benefit, the lower figure should be adopted, so the average speed of his car from position 1 to position 8 should be regarded as 76 kilometres per hour minus 10 per cent.  Dr Cheng states the 10 per cent as 7 kilometres per hour.  To be more exact, it should be 7.6 kilometres per hour.  Thus, the average speed of defendant’s car over position 1 and position 8, as calculated, would be 68.4 kilometres per hour, which should be rounded up to 68, again to defendant’s benefit.

50. I also accept Dr Cheng’s calculation in court that the speed of defendant’s car was 74 kilometres per hour at position 7 and 68 kilometres per hour at position 8.  Giving defendant the benefit of minus-10-per-cent deviation, those speeds were 66.6 kilometres per hour and 61.2 kilometres per hour respectively.  Rounding up, they were 66 kilometres per hour and 61 kilometres per hour respectively.

51. I reject defendant’s evidence that he was travelling between 40 and 50 kilometres per hour at the material time. 

Deceleration

52. According to Dr Cheng, defendant’s car decelerated from position 7.  At that juncture, the front of his car was about 6.7 metres from the left edge of the crossing.  Dr Cheng says in court that such reduction of speed, viewed in the light that subsequent traffic soon slowed down and halted, indicates the defendant might have braked to decelerate from that position 7.

53. I agree.  I am sure that that was the case. Looking at the said traffic condition in P14, the only irresistible inference to be drawn of such phenomenon is that despite defendant’s deceleration, his car met an accident on the road.  Subsequent traffic thus had to slow down and halt and then diverted their way. 

The accident

54. Defendant says that PW1’s taxi stopped and remained stationary at about 15 metres from the crossing.  That position was depicted in a press photo (i.e., Exhibit D1).

55. PW1, however, said he stopped his taxi shortly after passing the crossing for the deceased to alight and to cross the road via the pedestrian crossing.  He draws his taxi’s position on P12.  It was close to the crossing. 

56. I am sure PW1 did so.  It was a natural thing for him to do that.  There was no reason for him to stop about 15 metres from the crossing.  It was too far for the deceased to make use of the crossing.

57. Exhibit D1 shows the position of PW1’s taxi but I am sure that was the position where PW1 finally stopped after he had heard a bang sound and seen the deceased lie on the road.  I am sure PW1, after hearing that bang sound, had pulled up his taxi quickly there.  His taxi had only travelled a very short distance from its original stopping position.  I am sure PW1 wrongly thinks and thus says in court that he had passed the deceased.  In fact, he had not.

58. Defence counsel criticises PW1 for leaving the scene before police came and that PW1 cared to pick up the coins for the deceased from the road.

59. Different people behave differently.  Some might apply first aid to the deceased if they knew how.  Some might just feel awed. It was not surprising that PW1 would pick up the coins for his friend.  Nor was it suspicious that he left the scene before police arrived; he had already called the police.  I find PW1 honest and reliable except for his mistake on the final position of his taxi and where the deceased lay after being hit. What he draws on P13 is also not correct.

60. I am sure PW1 stopped his taxi very near the crossing after passing it.  He cannot say how close. 

61. I reject defendant’s evidence that PW1’s taxi only stopped about 15 metres from the crossing and that it had never moved.

62. PW1 honestly admits that he did not watch the deceased anymore after the latter had alighted from the left rear door of his taxi.  As such, PW1 is not clear whether the deceased stood on the pavement or at the roadside before crossing the road.

63. Defendant in court says the deceased positioned himself at the right rear of the taxi.  He understands the scale of D5 and draws the taxi there.  Defendant says when the front of his car came within 1 metre from the rear of the taxi, the deceased suddenly hit his car.  Defendant swerved a bit to the right and braked to stop.  The deceased fell about 4 metres ahead of his car (see Exhibit D5).

64. According to the Road Users’ Code, which Dr Cheng agrees with defence counsel that it can apply to the present road conditions, the mere braking distance would be 10 metres at least for a car travelling at 40 kilometres per hour.

65. Any stopping process would require thinking. According to the Road Users’ Code, it was about 0.9 seconds in the case of an average driver.  That would add at least another 10 metres to the stopping distance, so the total stopping distance would be at least 20 metres for a good car with good tyres travelling at 40 kilometres per hour in normal road condition.  Defendant’s car, even with a very high braking efficiency of 98 per cent, could not have come to a stop within 3 metres at a speed of roughly 40 kilometres per hour.  Defendant’s account is implausible.  I am sure he lies in court.

66. Defendant’s car stopped about 9 metres away from the right edge of the crossing.  The width of the crossing was about 3 metres. Position 7 was about 6.7 metres from the left edge of the crossing.  I am sure defendant started to brake at position 7.  The car at some point hit the deceased.  It came to stop there about 19 metres from position 7.  This 19 metres was arrived at by adding up approximately 6.7 metres to 3 metres to another 9 metres.  The Road Users’ Code states that the mere braking distance (not including the thinking distance) of a car, at 60 kilometres per hour is 20 metres.  Given that defendant’s car had to counter the impact of the deceased, whose mass was 54 kilogrammes (see the autopsy report, Exhibit P7), the fact that it stopped about 19 metres is consistent with Dr Cheng’s finding that defendant’s car was travelling at a speed of about 66 kilometres per hour when it braked at position 7.

67. According to the Road Users’ Code, an average driver requires about 0.9 seconds to react.  That means 0.9 seconds ago, defendant had seen a danger which caused him to brake later on at position 7.

68. Dr Cheng has calculated the average speed of defendant’s car over position 1 to position 8.  It is about 68 kilometres per hour.  At such speed, the distance traversed by defendant’s car was about 17 metres in that 0.9 second.  Deducing from the measured distance in paragraph 3.5 of P18, defendant’s car was around position 2 then.  That means, defendant sensed the danger at position 2.  I am sure it was the danger posed by the deceased’s sudden coming out onto the road at the crossing or he was just next to the crossing but very near the right edge of the crossing.  Defendant then reacted at position 7 to brake, thereby slowing down his car.

69. Defendant saw the deceased coming out, so it cannot be said that the defendant was not paying a proper lookout on the road then.  I am sure he was looking to the front, so he saw the deceased’s sudden coming out.

70. I cannot be sure whether the deceased had gone onto the pavement after alighting from PW1’s taxi or he was standing on the roadside (i.e., at some distance from the kerb before he crossed the road). Also, I cannot be sure whether the deceased had placed himself right at the striped area of the crossing or he was a bit from the right (i.e., the further edge) of the striped area of the crossing.  Prosecutor is right to point out that there were railings on either pavement, but there was still the possibility that the deceased might have tried to cross the road immediately after alighting from the taxi instead of going back to the pavement first.  If so, the deceased would be crossing the road from the roadside and a bit slantingly.

71. There is no evidence as to where the deceased was when he started to cross the road.  There is also no evidence as to how he crossed the road.  He might be running out onto the road.  He might be walking out onto the road.  If he was walking out, he must be walking out very fast.  I am sure in either event he came out onto the road suddenly.  To defendant’s benefit, I assume that the deceased ran out onto the road.  It might be that the deceased was in a hurry or he might be drowsy and had judgment problems at that time due to the effects of the drugs found in his body.  In any event, when the deceased almost came to the middle of the second lane, he was hit by defendant’s car.  The dent on the bonnet was a bit to the left side of the car from the middle.  The crash of the front bumper was a bit more to the left side of the car.  I am sure that was the first point of impact and the deceased was then flung onto the bonnet and the windscreen to cause those damages.  Each lane was about 3 metres wide on the scale plan of P10.  So, the deceased must be hit when he was about 4 metres from the kerb.

72. The deceased was aged 73.  But according to his wife, he was mobile.  If the deceased ran out from the pavement, it would take him about three seconds to reach the hit spot, given that a man started running had some inertia.  If the deceased, having alighted from the taxi, had not gone back to the pavement, then he would be on the roadside but he must be close to the kerb because he alighted from the left rear door of the taxi.  The time required for his running out then to the hit spot would be shortened a bit. So, if the deceased ran out from where he had alighted, the time for him to get to the hit spot would be about two seconds.

73. Whether the deceased was on the pavement or already a step or two out on the road before he started to cross the road, defendant should still be able to see him within 100 metres, according to Dr Cheng’s finding on the sight distance.

Dangerous driving causing death

74. The deceased as pedestrian must be blamed because I assume with reasons that he suddenly ran out onto the road.  However, the deceased’s own blameworthiness does not exonerate defendant of his own responsibility as driver, who as I am sure was speeding between position 1 and position 8 when he approached the said pedestrian crossing. 

75. Defendant was familiar with the road.  He lived nearby.  He knew there was a traffic-light-controlled pedestrian crossing there.  There were visible yellow stripes at the crossing.  The crossing was about 3 metres wide.  Defendant in court agrees with the prosecutor that a driver had to be careful near a pedestrian crossing.  Although it was early morning (i.e., 5-odd am), there were street lights on the road.  Nothing hindered defendant’s view in front.  I accept defendant was telling PW7 the truth at scene.  The light at that time was green in his favour.  He approached the crossing and passed it when the light was green.  As said, I am sure defendant was looking to the front as he saw the deceased coming out onto the road when defendant’s car was around position 2.  After seeing that danger, defendant took due time to react and he started to brake at position 7.

76. Defendant was speeding at the average speed of 68 kilometres per hour between position 1 and position 8. Deducing the distance from the data in paragraph 3.5 of P18, position 1 was about 28 metres from the left edge of the crossing. Position 8 was about 4 metres from that edge. Defendant saw the danger posed by the deceased coming out onto the road when his car was around position 2. He took time as an average driver to react. He braked at position 7. But before he braked, he was travelling at a speed of about 66 kilometres per hour at that spot. At that spot, the front of his car was just about 6.7 metres from the left edge of the crossing. Due to the braking, defendant’s car slowed down but it was still travelling at about 61 kilometres per hour at position 8. At that spot, the front of his car was very near the left edge of the crossing. It was just about 4 metres away. As said, the deceased was either crossing the road at the crossing or he was a bit away from the right edge of the crossing but very near to that edge. The crossing was just 3 metres wide, so defendant’s car and the deceased were very near each other. Even though defendant’s car was in constant deceleration due to his braking, it was inevitable that his car would hit the deceased. It did, when the deceased had run out onto the road and the deceased was hit at about 4 metres from the kerb on the second lane.

77. PW7 says defendant at the scene told him that his light was green when he got to the crossing, a pedestrian (referring to the deceased) came out suddenly from the left and he (i.e., defendant) could not manage to stop his car in time.

78. PW7 failed to reduce these words into writing for defendant to acknowledge.  He only recorded them later in his investigation report and even much later in his own witness statement. 

79. Defendant denies that he gave that account to PW7 at the scene.

80. I am sure PW7 is honest and reliable.  In court, he tries his best to recall what defendant said at the scene.  He does not cover up his inability to recall the exact words.  When asked to repeat himself, he gives slightly different versions in court but they all mean what is stated in paragraph 77.

81. I reject defendant’s claim that the officer made up that account.  I am sure defendant did answer the officer to that effect when the officer asked him what happened.  Defence counsel submits that it is unfair for the court to consider those words.  I disagree.  The meaning of defendant’s utterance is clear.  I am sure defendant was speaking the truth then and it is only fair to admit and to consider such verbal evidence.

82. However, I find that verbal utterance was not an admission of guilt or responsibility.  It was just an admission of facts. Defendant just told PW7 that his light was green, the deceased came out from the left suddenly and defendant could not stop his car in time.  That the defendant told PW7 that happened when his car got to the crossing can mean his car approached the crossing or it can mean his car was at the crossing.  That ambiguity was not clarified because defendant at that time elected not to answer PW7’s further questions.  The officer did not press defendant to clarify.  Defendant cannot be blamed for electing to remain silent after making that verbal utterance.

83. The traffic light at the material time was green in defendant’s favour.  He had the right of way.  I am also sure he had been looking out on the road so he could see the deceased coming out as a danger. That led him to react by braking at position 7.  Prosecutor has duly given up the DVD player allegation.  Thus, defendant’s only fault was his speeding at about 68 kilometres per hour between positions 1 and 8, although he started to brake at position 7.

84. Speeding itself is not dangerous driving but it can be dangerous driving, depending on the circumstances.

85. The case of Secretary for Justice v Lam Siu Tong, CAAR 2/2009 was a review of sentence.  There, the appellant was convicted not only because he sped at 74 kilometres per hour on a road with a speed limit of 50 kilometres per hour.  That appellant also went through amber lights to knock down the deceased.  However, in paragraph 19 there the Court of Appeal has this to say.

“It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious: it is highly likely that people will be crossing the road there, whatever the time of day or night. Accordingly, if motorists approach pedestrian crossings at high speed, or disregard traffic lights, there is a high risk that an accident will occur. And where a collision takes place, fatalities are common as we have seen in the Reviews before us.”

86. Defendant in the present case did not jump light. His light was green.  He had looked out on the road.  The question is whether he was approaching the crossing at a speed too high in the circumstances.

87. The road in question was a stretch of straight road.  The uphill gradient was only 4.4 degrees so it was practically level. The sight distance was long.  Nothing hindered defendant’s view.  Light was sufficient though it was 5-odd am in the morning.  At such hour, traffic and pedestrians were scarce but the speed limit of the road was only 50 kilometres per hour.  When defendant’s car was approaching near the crossing, he was travelling at an average speed of about 68 kilometres per hour between position 1 and position 8.  As said, position 1 was only about 28 metres from the left edge of the crossing.  Position 8 was a mere distance of about 4 metres from that edge. 

88. It is clear that defendant was travelling at a speed which was in excess of about 18 kilometres per hour over the road limit of 50 kilometres per hour between position 1 and position 8.  That represented an excess of speed by about 36 per cent.  Such speed of about 68 kilometres per hour when the car was so near the pedestrian crossing, that speed must be regarded as too high in the circumstance.

89. It was quite early in the morning.  Traffic and pedestrians were scarce.  But as the Court of Appeal in Lam Siu Tong points out, people would be crossing the road at such pedestrian crossings whether it was day or night.  Drivers do have to be careful when they approach pedestrian crossings.  They must drive at appropriate speeds.

90. In this case, the deceased did cross the road hastily.  He had to bear his own share of blameworthiness.  It is true that no driver can avoid all accidents but all drivers must be particularly careful at pedestrian crossings as said.  Defendant was aware of that.  He agrees with prosecutor in his evidence.

91. It was green light in defendant’s favour at that time but it did not mean defendant could travel through green light at whatever speed.  As said, defendant was travelling at too high a speed when he was approaching the crossing.

92. Speeding by as much as about 18 kilometres per hour above the speed limit of 50 kilometres per hour obviously posed a danger because if a pedestrian came out all of a sudden, defendant could not stop in time.  That was indeed the case here.

93. A competent and careful driver might speed at times but he would not speed so much as defendant did when his car was so near a pedestrian crossing in the circumstance.  The defendant sped that much as 18 kilometres per hour over and above the speed limit of 50 kilometres per hour. In the circumstance, he would not be able to stop in time to avoid hitting the rushing-out pedestrian (i.e., the deceased).  I find, as I am sure that defendant’s driving (i.e., speeding so much when he was so close to the crossing) was a dangerous act.  Such driving fell far below what would be expected of a competent and careful driver.  It would be obvious to a competent and careful driver that defendant’s driving as such would be dangerous because he would not be able to stop in time to avoid hitting a rushing-out pedestrian. The present accident was a combined consequence of the deceased’s unwise sudden coming out onto the road and defendant’s own dangerous driving -- speeding so much when he was so near the crossing.

94. I am sure if defendant at the material time had travelled at an appropriate speed within the prescribed speed limit or well below the speed limit, he either could have stopped in time or even if collision was inevitable, the deceased would not be so severely injured as to cause his death.

95. I find, as I am sure that prosecutor has proved the charge of dangerous driving causing death against defendant beyond all reasonable doubts.  I, therefore, convict defendant of that charge.