HKSAR v. WONG YUI ON

HCMA 801/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 801 OF 2010

(ON APPEAL FROM STCC 6995/2009)

____________

BETWEEN

____________

_______________

J U D G M E N T

_______________

1.  The appellant appeals against his conviction for dangerous driving by Ms L K Loh at Shatin Magistrates’ Court on 17 August 2010 for which he was sentenced to 4 months’ imprisonment and disqualified from driving for 6 months. He was ordered to attend and complete the Driving Improvement Course. He does not appeal against sentence and he has now served the term in prison.

2.  The appellant declined the opportunity before the magistrate to seek legal assistance and acted in person.  He has acted in person in this appeal.  He has submitted some detailed grounds of appeal dated 12 December 2010 which run to 11 pages in translation to English.  They are substantially in the form of a statement of his case and represented his arguments as to why the conviction should be quashed in the circumstances.

3.  On the morning of 9 July 2009, a police officer PW1 on motorcycle patrol on Tate’s Cairn Highway came up behind a LGV being driven by the appellant.  PW1 was in the offside lane and the LGV was in the nearside.  PW1 suspected from the flattish looking tyres that it was overloaded.  According to PW1’s evidence, he immediately illuminated his flashing red and blue beacons to signal his presence.  As he drove abreast with the LGV, he used his loudhailer to attract the attention of the appellant.  The LGV suddenly slowed but there was no other response.  Even after further use of the loudhailer the appellant did not respond.  PW1 signalled to the appellant by waving his arm at him in a manner instructing him to follow. 

4.  I note that these aspects of the case were and remain substantially in dispute by the appellant.

5.  However, it is not an issue that PW1 pulled some way ahead of the LGV and came to halt on a hatched area of the highway, adjacent to a slip road exit.  He propped his motorcycle on the stand.  The blue beacon was still illuminated. 

6.  PW1’s evidence was that he turned and raised his arm to signal to the appellant to stop but in fact the LGV was driven by the appellant to the position of the officer standing next to his motorcycle and it rammed into him.  PW1 was thrown up into the air and then fell onto the ground suffering injuries.

7.  According to the magistrate’s description of the evidence, most of this incident had been seen by an independent witness PW2, Simon Gareth Blore, who was driving along the highway in the same direction.  He saw the police motorcycle ahead of him alongside the LGV, the police officer seeking to make eye contact with the driver and giving a hand signal.  A little further along the highway PW2 saw the LGV move towards the slip road as if to leave the highway.  At the same time he saw the police officer and the motorcycle on the hatched area actually as the officer was alighting.  This was immediately before the officer made his further signal to the appellant to stop. 

8.  PW2 then saw the LGV swerve back towards the highway from the slip road and collide with PW1, throwing him into the air and hitting his motorcycle.

9.  In an interview which was admitted in to the evidence without objection, the appellant said that he was intending to take the slip road on the left, that he had seen the red and blue flashing lights of the police motorcycle, that he thought there was something wrong with his vehicle; but he continued driving because the police officer did not make any signal.  He noticed that the police motorcycle had moved into the hatched area from the slow lane and stopped; and, he told the police in interview, that he noticed that the police officer extended his left arm, not horizontally but half bent.  He said that he checked the traffic around him, there was nothing behind and nothing in front apart from the police motorcycle.  He said (answer 16) that the motorcycle never left his sight, “I looked at it all along”.  The appellant told the police that he subconsciously turned or swerved his vehicle to the right into the hatched area where the motorcycle had stopped.  He said that he continued to drive towards the officer even when the officer extended his hand and because he was nervous and was wondering whether and why the officer was calling on him to stop, “I … did not think of stepping on the brake”.  When he got close to the motorcycle, he braked but he then crashed into it. 

10.  PW3, a police sergeant who arrived at the scene, found the motorcycle lying on its side, its blue beacon was still switched on. The appellant told PW3, by way of an explanation, that he had seen PW1 wave him over and that he had driven over, but his mind had suddenly gone blank.  He became aware that the police officer was in front of him but he could not stop in time. 

11.  The appellant also told another officer, PW4, that PW1 had signalled to him to stop at the hatched area. 

12.  Sketches and photographs of the scene which made the position rather clearer were admitted at the trial. 

13.  An examination of the LGV showed its brakes and tyres to be in proper condition and working order.  It had no cargo.  An expert report on a reconstruction of the incident, Exh P4, was admitted.  There were skid marks on the road surface which enabled the expert to say that the speed of the LGV at the time the appellant braked shortly before the collision was 38 km/h. 

14.  The prosecution case was simply that the appellant had had ample opportunity to see the police officer calling upon him to slow down and stop and to see where the officer had himself stopped, particularly as his motorcycle had its blue beacon still flashing; the appellant never lost sight of PW1; nevertheless he had simply driven from the nearside lane of the highway into the slip road and had then swerved back onto the hatched area and ploughed into the officer and his motorcycle.  This, the prosecution said, amounted to dangerous driving and the magistrate agreed.

15.  The appellant testified that he saw PW1 in front of him on the highway but that the officer had then pulled ahead.  The appellant said that he drove to the left to take the slip road of the highway and did not notice any hand signal from PW1.  He said he did see the officer moved to the hatched area and stopped and raised his arm.  But at that time he was only about 30 metres away and was travelling at 60 km/h since there was no other traffic.  He sensed that the officer was intercepting him and he became nervous.  Suddenly his brain was blank and when he came to, he found that the front of his LGV was already at the motorcycle and the collision with PW1 was taking place.  He did not feel that he applied the brakes.

This appeal

16.  In this appeal the appellant has concentrated on issues of whether or not the police officer has signalled him properly or at all, on whether as he claimed, he used his loudhailer, and on differences which the appellant said occurred in the evidence between the descriptions given by PW1 and PW2 on PW1’s signals. 

17.  He has demonstrated what he says were those differences in court today. He has also set out in detail, in his written argument, the positions of the vehicles involved in this matter at various points, the speed at which he says he was driving, the distance which he says he would have covered at that speed, and the effect of his calculations on the reliability of PW1 and PW2.  The effect of his submissions is to say that the description of events given by PW1 and PW2 could not have occurred in the time that was available. 

18.  He has expanded on those arguments in submissions today.  The appellant seeks to break the incident into three parts.  Firstly, what happened when the police officer overtook him at Chainage 17.2; secondly, what happened when PW2 was at Chainage 16.8; and thirdly, what happened at the hatched area where the collision took place. 

19.  The appellant says today that although he disputes the events of the 1^st and 2^nd parts, with regard to the 3^rd part, the collision, he has no dispute. 

20.  Of course, it is that part which is central to the allegation of dangerous driving.  In the circumstances it can be said that there was little, if any dispute, as to the facts of that aspect to the case. 

21.  The magistrate found PW1, PW2 and the other witnesses to be credible witnesses generally and as to the collision itself.  In my judgment there is no sound basis to think that she may have been wrong in coming to such a conclusion. 

22.  The appellant submits that PW1 did not properly follow the police general orders on the interception of vehicles by traffic officers which required him to stop behind the vehicle he was intercepting, having attracted attention by the use of lights and loudhailer. 

23.  I have considered that, as did the learned magistrate; but I am satisfied that this is not a material consideration in all the circumstances. The collision occurred after the officer had stopped in a prominent position on the highway. 

24.  In his interview of answer 12, the appellant said he had seen PW1 alongside him before PW1 was ahead and he described the LGV moving from the left side to the nearside and then swerving to the hatched area in a manner broadly consistent with PW2’s account.  The appellant suggested he was acting subconsciously until it was too late to avoid the collision. 

25.  It is clear on the evidence that was before the magistrate, which is reflected in her comprehensive Statement of Findings, that PW1 had given ample opportunity to the appellant to see him and to respond to his directions from the time he first drove alongside him with his red and blue beacons flashing, to the time he parked on the hatched area with his blue beacon flashing.  PW1 and his motorcycle were always within the line of sight of the appellant, but the appellant simply failed to heed or respond to their presence, or to the directions which he was being given.  He had swerved off the slip road which he had entered and rammed into PW1.

26.  For the appellant to say, as he did at trial, and as he now repeats, simply that his mind went blank, is not an adequate response.  He has never suggested any medical reason why he might have behaved in such a fashion. Indeed in his interview and in his evidence, the appellant said that he was mentally and physically fit.  In effect he put it down to being nervous at the prospect of being intercepted by the police officer.  However, the tenor of his own description of what happened is that he was acting consciously and noticing the various events which he described in detail, but without paying proper regard to the position of PW1 and his motorcycle, illuminated as it was by an emergency light.  He knew that the motorcycle had stopped and where it had stopped.  Nevertheless, he swerved into it from the slip road, colliding with both PW1 and the motorcycle.

27.  I am satisfied that although the appellant has laid much emphasis on the signals which he says were not given by PW1 at certain points, these matters are not, I judge, relevant to the quality of the appellant’s own driving at the time of the collision. 

28.  In my judgment the only conclusion that one can come to is that which the magistrate reached, namely, that the standard of his driving fell far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that manner would be dangerous. 

29.  It follows that the appellant was driving dangerously at the material time and was properly convicted.  This appeal against conviction must be dismissed.