HKSAR v. CHENG TAK YIU

DCCC 161/2018

[2018] HKDC 1488

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 161 OF 2018

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty to one count of “causing death by dangerous driving”, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.

Prosecution’s case

2.  The majority part of the prosecution’s case is not disputed.  According to the admitted facts, the incident happened at about 2345 hours on 15 August 2017 on southbound Chatham Road South passed the Mody Road junction.  The southbound Chatham Road South at the junction of Mody Road is a 2-lane carriageway.  It gradually widens to a 3-lane carriageway near the junction of southbound Chatham Road South and Salisbury Road.  At the time of the incident, the weather was fine and the road surface was dry and in good repair.

3.  At the material time, Mr Yeung Chi Hang was driving a private car bearing registration number UR2720.  It was the first car turning into Chatham Road South from Mody Road.  The defendant’s taxi bearing registration number TJ4632 (“the defendant’s Taxi”) was the second car making a left turn into Mody road.  Another taxi bearing registration number EP7882 (“EP7882”) was following the defendant’s Taxi and turned from Mody Road into Chatham Road South.  The Dash Camera of EP7882 captured the incident.

4.  At that time, the deceased, Mr Chaudhry (“the Deceased”), was lying on the right lane on southbound Chatham Road South.  The defendant’s Taxi came into contact with the Deceased and stopped 27 meters away from the first bloodstain on the road.  As a result of the collision, the Deceased died of multiple injuries.

5.  It is the prosecution’s case that the defendant caused the death of the Deceased by driving his Taxi on a road dangerously by failing to have noticed the Deceased when he had at least 50m of unobstructed view in front of him. 

Defence case

6.  The defence had no half time submissions.  After I ruled a case to answer, the defendant elected not to give evidence nor call defence witness.

7.  The defence case is that the defendant might have been inattentive for a few seconds but this did not amount to dangerous driving.

Analysis

8.  Prosecution has the burden to prove the requisite elements of the offence beyond reasonable doubt.  The defendant has no burden of proof.

9.  The defendant elected not to give evidence.  This is his right and I will not draw any adverse inference from his exercising of his right.  On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence put by the prosecution. 

10.  In the present case, the defence did not dispute that the Deceased died as a result of the collision with the defendant’s Taxi.  The only issue is whether the defendant was driving dangerously at the material time.  The defence agreed what the defendant did was careless.

11.  Section 36(4) of the Road Traffic Ordinance define the meaning of “dangerous driving” as follows:-

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

(a) the way he 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.”

12.  In HKSAR v Lam Chi Fat [2012] 1 HKLRD 968, the Court of Appeal stated that whether a person’s way of driving is dangerous is a matter to be decided objectively, but the elements of the offence do not include any specific intent to drive dangerously.  Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way of driving.

13.  In the present case, the majority of the incident was captured by the video camera installed on EP7882.  According to the recording:-

23:48:04   Mr Yeung’s car entered Chatham Road South

23:48:07   The defendant’s Taxi entered Chatham Road South

23:48:10   EP7882 entered Chatham Road South

23:48:12   Mr Yeung’s car was on the left lane with hazard lights on

23:48:17   The defendant’s Taxi hit the Deceased

14.  It is Mr Yeung’s evidence that when he first entered Chatham Road South, his car was travelling in the middle between the left and right lane.  He only moved to the left lane when he noticed something on the right lane.  However, he could not tell when he moved to the left lane.  In other words, it is not known when the defendant started having unobstructed view of the right lane. Given Mr Yeung’s car was seen on the left lane with hazard lights on at 23:48:12 and the defendant’s Taxi hit the Deceased at 23:48:17, the maximum period of the defendant having unobstructed view of the right lane would be about 5 seconds.

15.  According to Mr Yeung, he could not tell what the thing was when he first noticed something on the right lane.  He only realized it was a person, ie the Deceased, when he drove nearer.  However, he could not tell the distance when he could figure out the thing on the right lane was a person.

16.  According to PC 3008 who conducted investigation on the line of vision by using a dummy, he could only see “shadow and silhouette” at a distance of 50m from the dummy.  He only started to recognize the silhouette as a person at a distance of about 30m away from the dummy. 

17.  From the evidence available, I accept the defence submissions that the prosecution has failed to prove the defendant had a clear view of the Deceased at a distance of 50m.  It would only be possible for the defendant to make out that it was a person at a distance of 30m.  From the video, it is clear that the defendant did not slow down or try to brake before hitting the Deceased. The only irresistible inference must be he did not notice the presence of the Deceased on the road. 

18.  The site of incident is a straight road without pedestrian crossing nearby.  It was late at night and the traffic was light.  I must say in the normal circumstances no one would expect to find a person lying on the road. In the circumstances, I find the defendant’s mere failure to pay attention to the traffic condition in the circumstances of this case without any contravention of traffic regulation, speeding etc, does not amount to dangerous driving.  Therefore, I find the defendant not guilty of dangerous driving. 

19.  That said, given the Deceased’s presence on the road at the material time, which was a substantial target, and had the defendant been attentive to spot the presence of the Deceased, the accident might have been avoided.  The defendant’s failure to observe the Deceased and take remedial action to avoid the collision is clear evidence that his standard of driving fell below the objective standard expected of a competent and careful driver.  I am therefore satisfied beyond reasonable doubt that the defendant had been driving carelessly at the material time.  I therefore convict him of careless driving pursuant to sections 36(10) and 38 of the Road Traffic Ordinance.