HKSAR v. YANG XIANG DONG

HCMA806/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 806 OF 2012

(ON APPEAL FROM STS 7287/2012)

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JUDGMENT

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1.  The appellant was convicted on 16 November 2012, after trial, of a single charge of dangerous driving contrary to s 37(1) of the Road Traffic Ordinance, Cap. 374 (the Ordinance). He appeals the conviction.

BACKGROUND

2.  The offence occurred on 5 February 2012 at the intersection of Sha Tin Wai Road and Sha Tin Road, New Territories. The appellant was driving a Porsche Cayenne motor vehicle bearing registration PP 4908 (the Porsche) which collided, in the intersection, with a Volkswagen Passat motor vehicle bearing registration MK 9600 (the Passat) which was driven by one Yue Ho-wai, the first prosecution witness (PW1). Traffic flow in the intersection was controlled by traffic signals.

3.  The Porsche had travelled in Sha Tin Wai Road in a northerly direction. At the intersection the northbound carriageway comprises three lanes each of which permits motor vehicles to travel straight ahead across Sha Tin Road: the leftmost lane, viewed from the perspective of the appellant, also permits a vehicle to turn left to the west into Sha Tin Road.

4.  The Passat had travelled in Sha Tin Wai Road in a southerly direction. At the intersection that carriageway comprises four lanes, the leftmost two of which permit motor vehicles to travel straight ahead across Sha Tin Road whilst the remaining two lanes, which are separated from the leftmost two lanes by a small island, require motor vehicles to effect a right turn, to the west, into Sha Tin Road – hence across the three lanes of the northbound carriageway of Sha Tin Wai Road.

5.  The front offside of the Porsche collided with the front nearside of the Passat in more or less the middle of the northbound carriageway of Sha Tin Wai Road at a time when the Passat was in the process of effecting a turn from the southound carriageway of Sha Tin Wai Road into Sha Tin Road. As a result of the impact the Passat span through almost 180°, facing back generally in the direction from which it had travelled, whilst the Porsche ended up in a flower bed on the northwest corner of the intersection.

THE EVIDENCE

6.  23 photographs of the vehicles and the scene were produced by the prosecution as exhibits, as was a detailed sketch plan of the intersection:  PW1 and the appellant marked up copies of that sketch plan in the course of their testimony at trial. Also in evidence was a chart prepared by a traffic engineer from the traffic Control Division of the Transport Department who possessed expertise in the operation of traffic signals: that chart explained the sequence of the signals controlling the flow of traffic in the two carriageways of Sha Tin Wai Road. A Professor Jackson Ho testified as an expert on behalf of the appellant: he produced a detailed report which incorporated the exhibits already mentioned as well as additional photographs; the results of observations which he had made at scene in October 2012; and his opinions. In addition to these exhibits the appeal bundle contained a transcript of the entire oral evidence.

7.  It was the evidence of PW1, in short, that his vehicle had been stationary in the most easterly of the two lanes of the southbound carriageway of Sha Tin Wai Road waiting for the traffic signal to authorise him to effect his intended right turn to the west into Sha Tin Road. The traffic signal controlling his progress changed to green. Even so he delayed several seconds before commencing his turn across the intersection. He noticed the presence of a vehicle in the most easterly lane of the northbound carriageway of Sha Tin Wai Road. That vehicle was stationary when he commenced his turn. He continued his turn towards the entrance of Sha Tin Road, looking ahead into Sha Tin Road and not to his left along the northbound carriageway of Sha Tin Wai Road. He became aware of “something happening” to the left front of his vehicle which he explained was “a certain vehicle in a very swift manner bumping into” his vehicle. That was the Porsche. He had not seen the Porsche until the moment of , or a split-second before, the collision.

8.  It was the evidence of the appellant, at least when he testified, that he had been driving the Porsche on the northbound carriageway of Sha Tin Wai Road. As he approached the intersection he observed that the traffic signal for his direction of travel was green and it remained green as he closed in on the intersection. He testified that that signal changed from green to amber “when [he] crossed the line” or, as he then said, “after [he] crossed the line”, and repeated, “after [he] crossed the stop line on that side”. He had observed this change occur on the traffic signal on the northern side of the intersection on the carriageway on which he was travelling.

9.  He said he had “hesitated a little bit” when he had seen the amber signal but had not braked because, had he done so, the Porsche would have stopped in the middle of the intersection which would have been dangerous. He assessed his speed as being between 30 and 40 km/h at that stage. He had then suddenly seen a car coming at him from his right hand side, at the very last second before that car collided with his. That was the Passat. He described the Passat as driving “very fast” or at “about the speed limit” of 50km/h.

10.  As is apparent, each driver testified that he had entered the intersection at a time when the traffic signal controlling his progress authorised him to do so. Extracted from the chart prepared by the expert from the Transport Department were agreed facts that: when the traffic signal governing the movement of the Passat was green that governing the movement of the Porsche was red; when the traffic signal governing the movement of the Porsche was amber that governing the movement of the Passat was red; the traffic lights were working properly at the time of these events.

THE MAGISTRATE’S FINDINGS

11.  It was the prosecution case that the appellant had entered the intersection at a time when he was prohibited from doing so by a red traffic signal. The magistrate was fully alive to the basis of the prosecution’s case and what it was necessary for the prosecution to prove in order for the appellant to be liable to be convicted, saying the following in his Statement of Findings:

86.   From the proved facts I found that PW1, after the traffic light signal governing his side changed green for 3 to 5 seconds, PW1 made a right turn towards Sha Tin Road, and PW1 was travelling at a speed of 10km/h when he made the right turn and PW1 later travelled at a speed of 15 to 20km/h when he reached position 2 Exhibit P3.

87.   When PW1 made the right turn, the traffic light signal governing the direction of the defendant had been red for a period of time and the defendant jumped the red light and the right front part of the defendant’s car subsequently crashed into the left front of PW1’s car, causing PW1’s car seriously damaged and causing PW1 suffered from injury as a result of the collision.

88.   After considering the relevant part of section 37 of the Road Traffic Ordinance, Cap 374, and judging from all the circumstances and, in particular, the traffic condition at the road junction, the defendant’s act of travelling against the traffic light signal and his driving his car into the junction, clearly fell within the definition of dangerous driving.

89.   the defendant’s manner of driving fell far below the standard expected of a competent and careful driver and would be regarded as obviously dangerous by a competent and careful driver.

12.  He arrived at these findings of fact after indicating that he accepted the evidence of PW1 and the prosecution witnesses but rejected that of the appellant and his expert witness. He did so by considering the credibility of the various witnesses.

13.  An appeal from the decision of a magistrate is a rehearing on the evidence before the magistrate, together with such other evidence as the appellate court may allow to be adduced. It is for this court to arrive at its own conclusion based on that evidence. In this matter I have had available all of the documentation described above. The advantage that the magistrate has over me, however, is of observing the witnesses giving evidence in court. The assessment of the credibility and reliability of the witnesses is within the purview of the magistrate. This court will not interfere with such a finding unless the magistrate’s assessment is shown to be unreasonable, illogical or inherently improbable or it is shown that the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence.

14.  Although the grounds of appeal may not have been expressed in such direct terms, the appeal is essentially a criticism of the magistrate’s acceptance of the prosecution evidence and the rejection of that of the defence.

THE EVIDENCE OF PW2

15.  A particularly important aspect of the prosecution’s evidence to which the magistrate referred, correctly in my view, is that of PW2, a police officer who attended the scene within minutes of the collision. He spoke to the appellant. Objection was taken to the admissibility of the evidence of that police officer. The magistrate dealt with this issue by way of the alternative procedure. He concluded that the evidence was properly admissible and that no grounds existed for the exercise of his discretion to exclude it. He was correct in that decision.

16.  It was the evidence of PW2 that when he had communicated, in English, with the appellant he had asked him the cause of the collision. The appellant had replied:

I don’t remember which lane I’m travelling, maybe it’s the middle lane. Then I saw the traffic light from yellow changed to red, but I can’t stop immediately because it’s so danger. When I arrived at the junction of the road, I get that car right turn so fast. I can’t stop, then we crashed.

17.  When he was cross-examined the police officer indicated that it was possible that he had left out one or two words uttered by the appellant. It was suggested to him that the appellant, after saying that he could not recall in which lane he had been travelling but “... maybe it’s the middle lane” had added the phrase “... or maybe it’s the right-hand lane”. The officer said that if the appellant had used those words he would have recorded them in his written not of the applicant’s response: in re-examination he indicated that, to the best of his recollection, the appellant had not said anything to that effect.

18.  It was also suggested to him that, rather than using the phrase “... from yellow changed to red” the appellant had actually said ”...from green to yellow changed to red”: the officer disagreed. The further suggestion was made to the police officer that after saying that he had not stopped immediately “...because it is so danger” the appellant had continued “... to other road users (or drivers) behind me”: the officer said that he did not recall the appellant saying that but it was possible.

19.  The magistrate found that PW2 was an honest and relible witness. He accepted his evidence as to what the appellant had said at the scene and also found that even if he had omitted one or two words said by the appellant that would not alter the “true meaning” of the message conveyed by the appellate.

REJECTION OF THE APPELLANT’S EVIDENCE

20.  The magistrate rejected the evidence of the appellant largely, apparently, on the basis that, given that the appellant had stressed in his testimony that he had paid close attention to the traffic signal and had made sure that he was on the correct lane for his intended journey, it would be “... strange and unreasonable that the appellant could not remember which lane he was on at the material time”, particularly in view of the fact that the conversation with PW2 had occurred only some eight minutes after the collision.

21.  In my judgment there are two further relevant aspects that emerge from the evidence of PW2 which support the magistrate’s rejection of the evidence of the appellant: first, the only realistic meaning to be placed upon a dispassionate reading of what the appellant said to the police officer is that he had seen the traffic signal change from amber to red prior to his entering the intersection, which is significantly at variance with his oral testimony –it defies common sense to contend that if, indeed, the appellant had entered the intersection when the traffic signal was green in his favour he would have failed to say so to the police officer; second, the suggestion put to the police officer that the appellant had said that he was concerned about creating a danger to traffic following him was at variance with his testimony that he was concerned about stopping in the middle of the intersection, thereby creating a hazard to other road users.

THE DEFENCE EXPERT

22.  In concluding that he would attach no weight to the evidence given by the defence expert the magistrate referred to two issues: first, the witness agreed that the speeds of the respective vehicles and the distances involved – in the sense of their relative positions on the road and whether the appellant in fact had been travelling in the middle lane –were two important elements to take into account when performing a reconstruction yet the witness did not have that information available to him when forming his opinions and that, without the information, his opinions were speculative; second, the magistrate found that the witness’s conclusion that PW1 had been careless when driving and had infringed the Road users Code was an unfounded opinion.

23.  The magistrate was justified in taking that approach. It is trite that a tribunal is not obliged to accept the evidence, even unchallenged evidence, of an expert witness.

24.  The issue of the manner in which PW1 was alleged by the appellant to have driven, which led to the expert concluding that he had driven carelessly, was one that was raised both at trial and on appeal. It was submitted that the driving of PW1 had fallen below the requisite standard by virtue of the fact that he had accepted in his evidence that, once he had commenced his turn to the right across the northbound carriageway of Sha Tin Wai Road, he had no longer looked to his left.

25.  Whether PW1’s driving was at fault or not is irrelevant in these proceedings. As the magistrate rightly appreciated, what he had to determine was whether the appellant’s driving was dangerous in the sense contemplated by the Ordinance. Whether or not PW1’s conduct also may have given rise to criminal liability, if he had been charged, simply has no bearing at all on whether the magistrate, and now this court, is satisfied that the prosecution has proved its case against the appellant. At the risk of stating the obvious, even if the manner in which PW1 drove may be relevant in the context of civil proceedings, in the sense of constituting contributory negligence, it plays no role in determining the question of the guilt of the appellant.

26.  A second matter arising from the evidence of the defence witness upon which considerable store was placed on behalf of the appellant was his opinion that the collision could have occurred even if both PW1 and the appellant had entered the intersection when the relevant traffic signal permitted them to do so. The reason for this, it was submitted, was that the evidence of PW3, the traffic engineer, showed that at the moment when the traffic signal controlling the progress of the Porsche changed from amber to red, that controlling the movement of the Passat changed from red to green.

27.  The argument ran that, because there was no period of delay, it was a possibility that the Porsche lawfully could have entered the intersection when the traffic signal controlling its movement was green whereupon it changed, instantaneously, to amber and, thereafter, to red at which point the traffic signal controlling the movement of the Passat changed to green and the Passat immediately commenced its right-hand turn accelerating rapidly into the side of the Porsche.

28.  Even assuming that to be a theoretical possibility, there are several difficulties with the submission that that is what occurred in this instance. The most obvious is the content of the conversation between the appellant and the police officer at the scene, with which I have already dealt, that he entered the intersection only once the traffic signal had changed to red or as it did so.

29.  The second is that the evidence of PW3 was that the amber period of the traffic signal controlling the movement of the Porsche was three seconds once it had changed from green to amber and before it changed to red. The testimony of the appellant was that when he had crossed the white line and entered the intersection he was travelling at a speed of between 30 and 40 km/h: assuming that to be so he would have travelled between 25 and 33 metres into the intersection during the three second period, more than 60% and 80% respectively of the width of the intersection as determined by the expert witness. That does not accord with the evidence of either PW1 or the appellant as to the approximate point of collision as shown by the markings they made on Exh. P3 and D1 respectively. Moreover, to suggest that the Passat would have been able to accelerate from rest to a speed of, according to the appellant, approximately 50km/h whilst effecting a right-hand turn and then to collide with the Porsche in a position such as to result in the two motor vehicles coming to rest where they did is, with respect, so unrealistic as to not warrant serious consideration.

THE ACCEPTANCE OF THE EVIDENCE OF PW1

30.  Mr. Surman, who appeared for the appellant at trial and in this appeal, repeated the detailed criticisms which he had made to the magistrate of the evidence given by PW1. The magistrate had traversed the testimony of PW1 in the course of his Statement of Findings: his analysis of the evidence was unexceptionable. The magistrate particularly noted the testimony of PW1 that when he had commenced his manoeuvre he had noticed a vehicle stationary in the easternmost lane of the northbound carriageway of Sha Tin Wai Road. That evidence was not directly challenged in cross-examination. The magistrate noted:

44.   His observation was consistent with the fact that he had waited three to five seconds before he started to turn right at a speed of 10 kilometres per hour, because he noticed the presence of the vehicle on the other side and this showed that he had observed the traffic of the other side, if he did not wait for some seconds before he turned, he would not be able to make such observation and this was also consistent with PW1’s explanation that he was not in a hurry.

31.  It was submitted that, rather than supporting the version of PW1, this testimony called into question his veracity as, so it was submitted, he could not have seen the stationary vehicle in the northbound carriageway if he had not looked to his left – and he had said in his testimony that he had not looked to his left.

32.  With respect, this submission misunderstands the position which is clear from the photographs as well as the plans of the intersection. When PW1’s vehicles was stationary prior to commencing its turn, the stationary vehicle in the northbound carriageway of Sha Tin Wai Road would have been opposite to him and slightly to his right, rather than to his left: consequently, that vehicle would have been visible to him without the necessity to turn to look to his left. Moreover, when he commenced his turn to the right that vehicle would have been immediately to his front and thus directly in his line of vision before falling behind him to his left. In my judgment the magistrate was correct in regarding this as supportive of PW1’s testimony.

33.  I am satisfied that no valid criticism may be directed at the magistrate’s finding on credibility. His acceptance of the evidence of PW1 and PW2 led inexorably to the finding of guilt on the part of the appellant.

THE GROUNDS OF APPEAL

34.  That actually disposes of the appeal but as a matter of courtesy I shall briefly deal with each of the nine grounds of appeal.

35.  Ground One: the evidence was not capable of supporting the conviction. This depends upon the magistrate’s finding of credibility and requires no further comment.

36.  Ground Two: the magistrate failed to provide proper reasons for the decision to convict. Whether reasons given are adequate is a question of fact and degree in each instance. The reasons provided by the magistrate are no less than is required in the light of the nature of the offence and the evidence as whole. Moreover, it is hard to envisage this ground availing an appellant in the context of a magistracy appeal due to the nature of these proceedings.

37.  Ground Three: the magistrate erred in dismissing the evidence of the appellant which was uncontradicted by other evidence and which is not inherently improbable: the appellant had no previous criminal convictions and was of good character. Again, the answer to this is the issue of credibility. The magistrate was aware of the appellant’s character and dealt with it appropriately.

38.  Ground Four: the magistrate failed to warn himself of the danger of convicting on the basis of the evidence of PW1 alone which evidence was incapable of bearing sufficient weight to convict. He did not do so: he also took into account the admissions made by the appellant to PW2.

39.  Ground Five and Ground Seven: the magistrate erred in rejecting the evidence of the defence expert. He was entitled to do so and was justified in doing so.

40.  Ground Six: this repeats the complaint about the rejection of the evidence of the defence expert, coupled with a complaint the prosecution had failed to prove that the appellant had entered the intersection against the traffic signal. This latter aspect depends upon the issue of credibility.

41.  Ground Eight: the magistrate erred in drawing as the only inference that the appellant had entered the intersection against the traffic signal. That was the inevitable inference once the magistrate had rejected the defence evidence and accepted that of the prosecution.

42.  Ground Nine: there is a “lurking doubt” about the safety of the conviction. With respect, that ignores the character of these proceedings. The issue now is whether prosecution has satisfied this court of the guilt of the appellant beyond reasonable doubt –which it has.

CONCLUSION

43.  In the circumstances, the appeal is dismissed and the conviction of the appellant is confirmed.