THE QUEEN v. CHU CHEUK KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1063 OF 1985

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BETWEEN

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JUDGMENT

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1. The Appellant was convicted of Reckless Driving contrary to section 37(1)(b) of the Road Traffic Ordinance. He was fined $1,500 and disqualified from holding and obtaining a driving licence for three months. His appeal is against conviction only.

2. He was charged following a traffic accident at the intersection of Hennessy Road and Percival Street at about 2 p.m. on 6.2.85. Hennessy Road had six lanes for motor traffic and two sets of tram tracks. On the eastbound carriageway there were two straight-ahead lanes, a turn-right lane and a set of tram tracks. On the westbound carriageway there were three straight-ahead lanes and a set of tram tracks. The two sets of tram tracks were between the two motor vehicle carriageways. Traffic lights regulated the flow of traffic. The relevant phase sequence of the lights was: 29 seconds of green simultaneously for both eastbound and westbound traffic; a further 18 seconds of green for eastbound during which westbound had 3 seconds of amber followed by 15 seconds of red. Eastbound traffic in the turn-right lane could turn right into Percival Street throughout the whole of the 47 second eastbound green phase but during the last 15 seconds of that phase that turning traffic had exclusive use of the westbound carriage-way to complete the turn into Percival Street. There was a pedestrian crossing on the western end of the intersection. Its use too was regulated by traffic lights. Pedestrians crossing from the southern side of Hennessy Road faced a red light throughout the whole of the green phase enjoyed by eastbound traffic. Thus, when the westbound traffic was halted by a red light and traffic turning right into Pertival. Street had right of way pedestrians on the southern side faced a red light at a time when, although they could not safely cross the whole of Hennessy Road, they could safely cross the westbound carriage-way if, as appears to have been the position at the material time, there was no traffic turning left into Hennessy Road from Percival Street.

3. The accident occurred whislt the Appellant, was driving his van along the Westbound carriageway. Whilst crossing the intersection he collided with a taxi turning right from the eastbound carriageway into Percival Street. According to an unchallenged part of the learned magistrate's findings, the van --

"clipped the left front corner of the taxi careered diagonally across the intersection; hit the pedestrian barrier on the corner; swerved right and continued in his original westerly direction, along the near lane eventually coming to a stop outside the Crocodile Department Store some distance from the intersection."

4. At some stage, after colliding with the taxi, the van knocked a pedestrian to the pavement adjacent to the pedestrian crossing."

5. Three eye-witnesses were called to give evidence on behalf of the prosecution. One was the driver of the taxi. He said that he was on the eastbound carriageway halted by a red light with four trams and another taxi in front of him in the turn-right lane. When the eastbound light changed to green the four trams moved off to proceed straight ahead followed by the taxi which turned right into Percival Street. He followed immediately behind that taxi with about "a vehicle space" separating them. Both his taxi and the taxi in front had diesel engines so he estimated its speed across the third lane of the westbound carriageway at 10-11 m.p.h. It successfully completed its turn but he had to stop "in the middle of the yellow box" in order to avoid colliding with the van. He estimated the approach speed of the van at 40-50 m.p.h. and its distance from him when he stopped was "about two to three vehicle spaces". There were no other vehicles on the westbound carriageway at the time. After colliding with his taxi the van "slipped into the railing surrounding the pedestrian crossing, bent it at a right angle and continued on for another four or five shop spaces before coming to a stop". In cross-examination he said that the van was straddling the two inner lanes when he first saw it and disagreed with the suggestion that it was at all times in the outermost lane and with the further suggestion that it did not exceed 30 m.p.h. He also said that although there had been occasional rain in the morning of that day the road surface at the time was dry.

6. Another eye-witness was a pedestrian who said she was in the third row of a group of pedestrians waiting for the lights to change in their favour so that they could cross from south to north across the pedestrian crossing at the western end of the intersection. She said that she noticed that "all vehicles on both sides of the road had stopped", that the people in front of her moved off and that she followed. As she began to move she heard a bang to her right and then saw a van coming very fast and collide with an iron railing on her right hand side as it drove towards the group of pedestrians. She saw the van eventually stop a few shop spaces beyond where she was. She heard a braking noise as it came to a stop.

7. The third eye-witness was the pedestrian who was knocked down and injured. He said that he was on the pavement on the southern side of Hennessy Road waiting for the traffic light to change from red so he could cross the road. He said that "a while later /he/ heard a sound of bang' coming from his right-hand side. He looked to his right hand saw the van swerve towards the pedestrians after hitting a taxi. He was knocked unconscious.

8. The prosecution also called three police officers who went to the scene after the accident. The first was an officer who was on duty nearby who responded. for a call to help the injured pedestrian In cross-examination he said that the weather at the time was "dull, not yet rained". The second was an officer attached to the Traffic Section who came upon the scene within a couple of minutes of the accident. He said in cross-examination that the road surface was "dry and smooth". The third was an officer from the Traffic Investigation Section who arrived at the scene 16 minutes after the second officer. He checked the traffic lights and found them all to be operating normally. His sketch showed the taxi with its rear just clear of the tram tracks on the westbound carriageway and with the front in the second lane. In cross-examination he said that when he arrived "it rained heavily"; that he found no brake marks; that both the van and the taxi sustained minor damage to the "right front"; that about one-third of the taxi was across the second lane "at an angle"; and that the taxi driver would have had a clear view for about 50 metres eastwards along the westbound carriageway from his position in the driver's seat at the point of impact.

9. A traffic engineer gave evidence regarding the colour sequences of the traffic lights. The effect of his evidence-in-chief has already been related. In cross-examination he said that in a 29 second phase of green light about 26 vehicles could proceed past traffic lights on "a two-lane straight ahead" carriageway.

10. The van was given a road test two days after the accident by a motor vehicle inspector. He found no defect which could have been a contributing cause of the accident.

11. The Appellant gave evidence and called a witness. The Appellant said that he drove the van westbound towards the intersection in the "third lane" at approximately 30 m.p.h. There were no westbound vehicles either in front of him or to his left in the other two lanes. His traffic light was green throughout the whole period of his approach once it came into view. As he was entering the intersection a taxi suddenly appeared in front of him about 10 feet away making a right turn from the eastbound carriageway. The taxi ran into his offside door. He said that the road was wet and slippery at the time and for that reason his vehicle became difficult to control and bring safely to a halt after the collision. In cross-examination he estimated the speed of the taxi at 10 m.p.h. and gave the following response to a suggestion that he "failed to take notice of traffic turning right from the road junction':-

"Yes -- because I was using major road. When minor road turnign it has to give way to me."

He said that he was familiar with the light sequence at the intersection and that he knew that there was a pedestrian crossing at the western end.

12. His witness was his brother who said he was travelling in the van sitting beside the Appellant as the only passenger. He said that the vans speed was "near 30 m.p.h.", that there was no vehicle in the yellow box of the intersection as the van approached it and that when the van was about half way through the box a taxi "rammed into the van".

13. For reasons which were so sound as to be unassailable the learned magistrate found that both the Appellant and his brother lied when they said that the brother was beside the Appellant in the van during the incident. She found that the taxi driver was a credible and trustworthy witness and rejected the defence evidence to the extent that it was in conflict with his. Her findings, insofar as, they are relevant to this appeal, were as follows:-

"2. That Appellant approached the Hennessy Road (west bound) junction with     Percival Street at a speed too high for safety taking into account the traffic conditions; the phase of the traffic lights and the proximity of pedestrians.

3. That Appellant failed to pay attention to the traffic conditiosn on the east bound carriageway despite knowing that traffic could turn right from the carriageway into Percival Street.

4. That at the time Appellant approached the junction the pedestrians had started to move on the crossing opposite indicating that his green light phase had already ceased, or was in the process of changing.

5. That Appellant's van collided with a taxi ... which had been forced to stop because of Appellant's high speed approach.

6.That in driving as he did the Appellant deliberately ignored the obligation on him to drive with due care and attention or was indifferent as to whether or not he did so and the possible consequences resultant upon his actions.

That in all the circumstances Appellant's manner of driving was reckless."

14. The Appellant's first ground of appeal attacks the finding regarding the speed of the van as it entered the intersection. In support of this ground it was submitted that that the learned magistrate "failed to take into account that the road was wet and slippery, was too ready to accept as reliable the taxi driver's estimates of the speed of the van and overlooked the fact that the taxi suffered only minor damage".

15. The only direct evidence that the road was wet and slippery came from the Appellant. His brother said that the road was wet and slippery after the accident. Credible witnesses gave evidence to the effect that, although there had been showers earlier in the day, it was not raining at the time of the accident and the road surface was not wet. The learned magistrate took account of the evidence that there was no drying sun and concluded that the "dry and smooth" description of the surface meant that "the road surface may have been drained of pooled water and merely damp. The Appellant submitted that the evidence of a braking noise coupled with the absence of skid marks indicated that the road surface must have been wet and slippery. The evidence regarding the braking noise was that it was heard after the van had collided with the taxi, the metal railing and the pedestrian. The failure of a vehicle making an unspecified braking noise to leave an indelible mark on a damp road surface after overcoming those impediments to its momentum is neither surprising nor inconsistent with a finding that the van was travelling at an unsafe speed when it entered the intersection.

16. The fact that the damage to the taxi was minor does not weaken the validity of the finding. The learned magistrate's reasoning was that a vehicle travelling at a safe speed would not have followed the erratic course of the van as a result of such a glancing blow.

17. The learned magistrate accepted the taxi driver's estimate of the speed of the van because he was an experienced driver whose evidence was given "carefully, thoughtfully and free from embellishment". To the extent that his evidence put the speed of the van in excess of 30 m.p.h. it was supported by the other evidence which indicated that it could not be stopped within the confines of the intersection.

18. It was submitted that since the taxi driver had a clear view eastwards along the westbound carriage way for 50 metres he could not have been paying attention to oncoming traffic if he did not see the van until it was some two to three vehicle spaces away. This sub-mission overlooks the evidence that the taxi driver moved off following the movement forward of four trams and the movement to the right of another taxi. He would not have had a 50 metre view throughout the whole arc of his turn from traffic light to point of impact. The further submission that he had insufficient time to make an accurate assessment of speed has force but the learned magistrate did not find that that was the actual speed. As already mentioned, to the extent that his estimate was of a speed above 30 m.p.h. it was supported by other evidence.

19. Another subsidiary argument supporting this ground was that the evidence of the taxi driver and the traffic engineer indicated that the van entered the interesection on the green light. Since only four trams and a taxi had passed the lights before the taxi driver and since 26 vehicles could proceed during the 29 second phase when both eastbound and westbound lights were green, therefore, so the argument ran, the westbound light must have been green. The traffic engineer obviously meant motor vehicles, not slow moving trams, and he referred to the traffic carried by two straight-ahead lanes. It did not necessarily follow that the van entered the intersection on the green light. More importantly, however, bearing in mind the onus and standard of proof, it did not necessarily follow that he entered on either the amber or the red. The finding in relation to the phase of the lights is attacked in the next ground of appeal.

20. In his second ground of appeal the Appellant contends that "the learned magistrate erred in finding that the green light phase had already ceased or was in the process of changing".

21. The learned magistrate made this finding on the basis of a finding of primary fact that the pedestrians on the southern side of the Hennessy Road pedestrian crossing had already begun to move before the van entered the intersection. The Appellant submits that the primary fact does not necessarily support the conclusion that the westbound green had changed because "pedestrians might start to cross the road even if the pedestrian light is red". There is merit in this submission. As pointed out earlier, pedestrians could cross the westbound carriageway of Hennessy Road in safety even when the pedestrian light was red and the westbound light was green. Consequently a movement by the pedestrians was not a sure indication of either an actual or imminent change from green on the westbound carriageway. The Appellant's attack on that finding must therefore succeed.

22. The remaining grounds of appeal attack the finding that the ingredient of recklessness was proved.

23. The Appellant's contention that the learned magistrate directed herself in accordance with the law as it stood after the decision in R. v. Murphy⁽¹⁾ is well-founded. The definition of "reckless" provided by Murphy was:-

"A driver is guilty of driving recklessly if he deliberately disregards the obligation to drive with due care and attention or is indifferent whether or not he does so and thereby creates a risk of an accident which a driver driving with due care and attention would not create."

That direction was held to be defective in R. v. Lawrence ⁽²⁾ . In that case the House of Lords held that

"an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and, second, that in driving in that manner the defendant did so without having given any thought to the. possibility of there being any such risk or, having recognised that there was some risk involved, had none the less gone on to take it. "

 

24. If the learned magistrate had found that the Appellant entered the intersection while the westbound light was green and directed herself in accordance with Lawrence, would she have necessarily found the element of recklessness proved?

25. On the evidence which she accepted the Appellant approached the intersection straddling the two inner lanes. He had a clear view straight ahead for 50 metres before reaching the point where he collided with the taxi. He said that he did not see the taxi which turned across the westbound carriageway about "a vehicle space" in front of the taxi with which he collided. That he did fail to see either vehicle is consistent with the description of the accident which the learned magistrate accepted. The irresistible inference from his failure to see those two vehicles and his failure to veer slightly to his left to be completely within the innermost lane on sighting the taxi is that he was not looking straight ahead as he approached and entered the intersection. If a driver approaches and enters a "yellow box" intersection at a speed in excess of 30 m.p.h. with knowledge that traffic may be turning and pedestrians may be crossing and fails to look straight ahead so that he can see the traffic lights on the other side of the intersection; so that he can see any traffic which may be turning; and so that he can see any pedestrians who may be crossing, is driving in such a manner as to create an obvious and serious risk of causing physical injury to pedestrians who might happen to be using the pedestrian crossing and of doing substantial damage to motor vehicles which might happen to be turning across the westbound carriageway. On the evidence which the learned magistrate accepted that is the only inference which can be drawn about the Appellant's manner of driving.

26. Thus, whether or not the light was green when the Appellant entered the intersection, the learned magistrate would have had to find that the actus reus of reckless driving had been proved.

27. With regard to proof of mens rea, Lord Diplock said in Lawrence⁽²⁾:-

"If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference."

28. The Appellant's "explanation" of how the accident occurred was not accepted. There was no evidence to displace the inference arising from his proved manner of driving that he was in one or other of the two states of mind which constitute the mens rea element of the offence. Consequently, the learned magistrate properly directed would have been duty bound to convict him. His appeal must therefore be dismissed.

(1)    [1980] Q.B. 434.

(2)    [1981] 1 All E.R. 974, 982.