HKSAR v. LEE WANG HEI

[English Translation – 英譯本]

DCCC 78/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 70 OF 2016

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REASONS FOR VERDICT

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Charge

1.  The defendant pleaded not guilty to one charge of causing grievous bodily harm by dangerous driving.

Overview of the case

2.  At the time of the incident, the defendant was 21 years old and he was holding a probationary driving licence, commonly known as a “P” plate.

3.  Sometime after ten on the night of 9 July 2016, the defendant was driving a private car TF8758 and rammed into a tree on Wang Lok Street, Yuen Long.  He and Mr Chau, the only passenger on board, were both injured.  Both of them suffered from severe injuries and the car was also seriously damaged.  The defendant was hospitalized for 8 days before being discharged while Chau was required to be hospitalized for 103 days before being discharged, and he needed to receive follow-up treatment.

4.  The defendant’s car rammed into a tree on a straight road after travelling past a slight bend to the left.  The prosecution relied on what the defendant had told PC53706 afterwards that he was driving at a speed of 100kph just before ramming into the tree, but the speed limit for the section of road concerned was only 50kph. 

5.  The Prosecution submitted that the fact that the defendant, just a “P” plate holder, drove considerably in excess of the speed limit on a road with a slight bend could be regarded as dangerous driving, and it had resulted in an accident causing grievous bodily harm to the passenger, Mr Chau.  However, as there was no traffic accident investigation expert to give evidence on the speed of the car, the prosecution only relied on the alleged admission obtained from the defendant by PC53706 when he questioned the defendant before cautioning him. Later on, the police officer administered a caution to the defendant who then said nothing further.

6.  The defendant was also questioned by another police officer PC62, who also failed to caution him, before he was questioned by PC53706.  The defendant told PC62 that he saw a black object on the road, therefore he swerved to the left to avoid it and rammed into a tree.  

7.  The defence submitted that the defendant’s replies or admissions made to both police officers before he was cautioned should not be admitted as evidence.

8.  The court adopted the alternative procedure to deal with the dispute relating to the statements and ruled in the end that the defendant’s reply made to PC62 was admissible, but his reply to PC53706 at the scene and the signed post-recorded statement (PP9) made later on was inadmissible.

9.  Under the above circumstances, the prosecution had no other evidence to prove the cause of the accident, I found that there was no case to answer in respect of the charge of causing grievous bodily harm by dangerous driving (or the charge of careless driving necessarily included or the implied charge of speeding) against the defendant. 

Prosecution case

10.  The prosecution called PW1 (PC62) and PW2 (PC53706) to give evidence.  The prosecution produced exhibits P1 to P8, in addition to the defendant’s post-recorded notebook statement made by PC53706 (provisional exhibits PP9). However, after the alternative procedure, PP9 became inadmissible and was returned to the prosecution.    

Injuries of the defendant and Chau

11.  In this accident, the defendant sustained abrasions on his neck and laceration on his lower jaw. However, his main injury was on his right knee and that was diagnosed as a comminuted fracture (see para 8 on page 5 of the admitted facts and the medical reports P4 and P6).  The defendant needed to be hospitalized for 8 days until 16 July 2016 before being discharged.

12.  Mr Chau, the passenger in the front seat, was even more seriously injured.  His injuries were mainly to his head, face and lungs.  He needed to undergo more than one operation and was hospitalized for 103 days in total until 20 October 2016 before being discharged.  He has to receive follow-up treatment afterwards (see para 4 of admitted facts P5 and medical reports P3 and P8).  The updated progress for Chau’s rehabilitation was unknown.

PW1 (PC62)

13.  Around 10:36 pm on 9 July 2016, PC62 arrived at the scene of the accident and saw TF8758 lying on the road horizontally.  The car had rammed into a tree on the side of the road and was seriously damaged (see photo book P2).  PC62 saw firemen trying to save and release the passenger trapped at the front seat, while the driver of the private car (namely the defendant) had already been put in an ambulance.

14.  PC62 got into the ambulance to question the defendant. An ambulanceman was putting a neck brace on the defendant who would then be given a head-neck fixator. The defendant complained of neck pain while the ambulanceman also said the defendant had hurt his neck.  However, PC62 had not paid attention to the defendant’s injuries.  It was not obvious to him that the defendant was heavily injured.  He questioned the defendant without cautioning him.  The defendant said that he was travelling along a road (namely Wang Lok Street) in a direction (namely in the direction of a sewage treatment plant) until he reached the above address where he saw a black object, he then swerved to the left to avoid a collision and rammed into a tree.

15.  PC62 said the defendant was not expressing himself fluently at that time.  It looked like he was lacking strength, but he was talking in complete sentences.  The said police officer said the defendant looked like he was in pain and scared.

16.  PC62 denied that he had asked the defendant a leading question as to whether he had swerved to the left, lost control and rammed into a tree.

17.  PC62 gave the defendant an alcohol test and the reading was zero.  

18.  PC62 said he questioned the defendant at the scene for preliminary investigation.  He was attached to the traffic control team and the actual investigation was to be carried out by the traffic accident investigation team.  PC62 said he did not pass on what he had gathered from the questioning to the traffic accident investigation team.

PW2（PC53706）

19.  PC53706 was attached to the traffic accident investigation team.  Upon arriving at the scene, he then carried out inspections, took photos, drew maps and measured distances.

20.  PC53706 knew that PC62 had already questioned the driver (namely the defendant).  Later on, PC53706 also got into the ambulance to question the defendant.  He did not pay attention to the defendant’s injuries but he felt that the defendant was conscious. Without administering a caution, he asked the defendant if he was the driver of the car. The defendant answered, “Yes”. PC53706 asked the defendant what had happened. The defendant said he was driving up to the aforesaid address where he saw a dog running out. The police officer asked the defendant from where the dog ran out. The defendant said the dog ran out from right to left. The police officer asked the defendant in what direction he was travelling. The defendant said he was not sure but he never said he was travelling in the direction of Tai Tseng Wai. The police officer asked the defendant at what speed he was travelling, the defendant said “100”.  The police officer asked how the defendant did it, the defendant said he swerved to the left and rammed into a tree. It was only then that PC53706 cautioned the defendant for the offence of causing grievous bodily harm by dangerous driving.  Under caution, the defendant did not make any further reply.  

21.  The defendant was first sent to Pok Oi Hospital (typographical error) and then transferred to Tuen Mun Hospital.  At Tuen Mun Hospital, PC53706 made a post-record of the questioning at the scene in his notebook from page 2 to 4.  At that time, the defendant was lying on an adjustable bed of the Accident and Emergency Unit.  PC53706 said he had read to the defendant the contents of the post-record in his notebook and shown the same to the defendant.  He said that the defendant put down the character “Lee” as his signature on page 4 after reading the notebook.     

Special issue hearing

22.  The defence opposed the introduction of the evidence on the enquiries made at the scene by PC62 and PC53706 by the prosecution because at that time the seriously injured defendant was not fit for questioning, and both police officers failed to caution the defendant before questioning him.  The defence also said that the defendant’s answers were incorrectly repeated.

23.  The defence submitted that PC53706 did not caution the defendant at the scene, he only cautioned him at Tuen Mun Hospital. 

24.  The court adopted the alternative procedure to deal with the dispute concerning the statements.

25.  Defence counsel made half-way submissions in respect of the special issue, stating that both police officers confirmed they had questioned the defendant before cautioning him, as a result they had breached the rules of questioning suspects.  Counsel said it would be unfair to the defendant if the court ruled the evidence in question admissible.

26.  I took the view that what the defence counsel had said was only to be considered by the court at the end of the special issue hearing.  Accordingly, I ruled that there was a prima facie case on the special issue.

The defendant gave evidence on special issue

27.  The defendant elected to give evidence on the special issue.

28.  The defendant is now 22 years of age.  At the time of the case, he was aged 21 and was educated up to Form 6 (typographical error).  The admitted facts show that the defendant has no previous criminal record or traffic record. 

29.  The defendant said he was in a lot of pain and unwell after the accident, and he felt like throwing up too.  PC62 came to question the defendant first.  In reply, the defendant said, “Something black was going past”.  He then swerved to the left and a crash resulted.  PC62 asked him if he had travelled in the direction of the sewage treatment plant, swerved to the left, lost control and rammed into a tree.  The defendant said “Yes” in answer to the questions one after another. 

30.  Later, PC53706 also boarded the ambulance to ask the defendant how the incident took place.  In reply the defendant said, “Something was going past, it’s black”. He then swerved to the left and rammed into a tree.  PC53706 asked the defendant whether it was a cat, cow, sheep, deer or dog.  The defendant answered that it was a dog.  The police officer asked the defendant from where to where the dog was running.  The defendant answered that the dog was running from right to left.  The police officer also asked at what speed the defendant was driving.  The defendant said, “Probably not exceeding 100”.  The police officer told the defendant to think clearly.  The defendant did not give any further response.  A little while later, the police officer also alighted the ambulance.

31.  At Tuen Mun Hospital, the defendant was lying on an adjustable bed.  PC53706 came over to caution the defendant only then and told him to sign in the notebook. However, the police officer had neither explained nor read out the contents of the notebook, he only told the defendant to read it.  The defendant said he was not himself at that time and he was not in the mood to read it either.  He only took over the notebook and turned the pages without reading the contents carefully.  He thought that it was a document about the accident.  As the police officer told him to sign it, he signed with the character “Lee” on page 4.

32.  The defendant said neither PC62 nor PC53706 had cautioned him at the scene.  He did not know he had the right to remain silent.  He thought that he must answer whatever the police officers had asked.  He said he was feeling so unwell that he did not want to be bothered by others.  He said if he had known that he had the right to refuse to be questioned, he would have refused to answer.

Final submissions on special issue

33.  Both prosecution and defence prepared submissions in writing and elaborated in court. 

34.  Prosecution counsel admitted that both police officers did question the defendant before cautioning him and obtained responses from him.

35.  Prosecution counsel said what PC62 did was only a preliminary investigation while the defendant’s response was neutral.  If the court referred to the evidence, it would not occasion any risk of prejudice to the defendant.

36.  In respect of PC53706, prosecution counsel said that it was just the officer’s momentary omission, and he did not breach the rules on purpose.

37.  Defence counsel submitted that even if both police officers did not breach the rules for questioning suspects on purpose, they indeed had questioned the defendant before cautioning him.  At that time, both police officers already had a reasonable suspicion that the defendant had been speeding, driving carelessly or even dangerously.

38.  Defence counsel submitted that even though the investigation made by PC62 was just preliminary and could not be regarded as prejudicial evidence against the defendant; however, together with other facts of the case, the jury might draw an adverse inference against the defendant.  Hence, counsel opposed the introduction of such evidence by the prosecution.  As far as PC53706 was concerned, defence counsel said the police officer, before questioning the defendant, already had a reasonable suspicion that the defendant had been speeding, driving carelessly or even dangerously.  He questioned the defendant on the speed he was travelling at without a caution and obtained a response from him.  Now the prosecution was relying on that uncautioned response made by the defendant in the prosecution against him.  Counsel submitted that if the court made reference to such evidence this would occasion grave unfairness to the defendant.

39.  Counsel further submitted that both police officers did not give due consideration to the physical and mental conditions of the defendant.  Counsel submitted that the defendant was not fit for questioning at that time.

40.  Finally, counsel submitted that both police officers had repeated the answers of the defendant inaccurately.  Hence, the court should not admit such unreliable evidence.

Ruling on special issue

41.  I ruled that the testimonies of both PC62 and the defendant were reliable.  What PC53706 had said was mostly correct.  I am satisfied that PC53706 had only cautioned the defendant after questioning him for a while at the scene.  It might probably have been due to the fact that the defendant was feeling scared and pain at that time that he thought the police officer only cautioned him at Tuen Mun Hospital.  However, I do not believe PC53706 had read the contents of PP9 to the defendant at Tuen Mun Hospital.  I am satisfied, just as the defendant had said, that the police officer only asked the defendant to take a look of the notebook.  However, as the defendant was physically and mentally unwell, he thought that it was just an ordinary document and believed he had to go along with the instruction of the police officer.  Without reading the contents of the notebook carefully, he signed with the character “Lee” in the notebook.

42.  PP9 is just a post-recorded statement containing PC53706’s questioning of the defendant before he was cautioned at the scene.  This post-record is not quite correct. This is because when PC53706 was writing it, he had added his own order and interpretation of certain matters.  The police officer was not making up the contents but he had added his own explanation on certain matters saying the defendant was travelling in the direction of Tai Tseng Wai.  In fact, the defendant had never said so.

43.  PC62 and PC53706 have been working as police officers for many years and they are well aware of the rules for questioning suspects.  Both police officers admitted they had a reasonable suspicion that the defendant was speeding, driving carelessly or even dangerously.  However, PC62 considered what he had been doing was just a preliminary investigation, therefore he did not caution the defendant.  On the other hand, PC53706 said that it was his momentary omission that he failed to caution the defendant.

44.  The investigation of the defendant by PC62 was indeed preliminary.  He had only asked about neutral matters which would not have incriminated the defendant. Therefore, I am of the view that even if the court makes reference to such evidence, it will not occasion unfairness to the defendant who was not cautioned by the police officer.

45.  On the contrary, PC53706’s questioning of the defendant was relevant.  He was asking at what speed the defendant was travelling.  The defendant allegedly answered, “100”, namely 100kph.  It amounted to a confession which would directly incriminate the defendant.  The prosecution also relied on this piece of evidence in the present prosecution against the defendant for the offence of causing grievous bodily harm by dangerous driving. 

46.  At the time of the incident, the defendant, who was just 21 years old, had little experience of life, and had no previous criminal record or traffic record.  He might not be aware of his right to remain silent when he was questioned by the police officers.

47.  I am satisfied that the defendant’s injuries were not mild at that time and he was feeling rather sick.  He really did not want to respond to the questioning of both police officers.  He only thought that he was obliged to answer the questions put by the police officers.    

48.  In fact, after PC53706 had cautioned the defendant, he indeed said nothing further. This is capable of corroborating the defendant’s assertion that if he had known he has the right of silence, he would have refused to answer the questions of both police officers. 

49.  As PC53706 had questioned the defendant before cautioning him, whether it was intentional or not, he did not follow the rules on questioning suspects by letting the defendant know it was his right to remain silent. It was under these circumstances that the police officer obtained some incriminating answers upon questioning the defendant.  I am of the view that if this piece of evidence is admitted, it will occasion unfairness to the defendant.  Therefore, I exclude the defendant’s admission to PC53706 made at the scene as well as the defendant’s post-recorded notebook statement made at Tuen Mun Hospital later on.  There are no additions made to the contents of this statement, it is only a post-record of the inappropriate questioning at the scene.   

Half-way submissions

50.  At the end of the prosecution case, the defence submitted that there was no evidence from the prosecution to prove the defendant was speeding and it would be difficult to prove the defendant was driving carelessly or dangerously.  Defence counsel submitted that although the car in the accident was seriously damaged and both the defendant and his passenger were severely injured, that could not show whether there was anything wrong with the defendant’s driving.  Counsel referred to the case of Lam Chi Fat [2012] 1 HKLRD 961, paragraph 32 where the Court of Appeal said, “The accident in the present case led to extremely serious consequences, including death to Ms Kwok, in addition to injuries to numerous passers-by and serious damage to property.  However, in deciding whether the applicant was guilty of dangerous driving, the court must base its consideration on his way of driving rather than the consequences of the accident.”

51.  Defence counsel submitted that in view of the evidence currently available, there was no case for the defendant to answer on any of the charges. 

52.  The prosecution agreed that there was no evidence in the case that the defendant was speeding, however, given the fact that the car was seriously damaged and people were badly injured, the court might take the view that the defendant was driving poorly.  Even though it was not dangerous driving, it would amount to careless driving where the defendant was not driving at a speed appropriate to the road conditions.   The prosecution submitted that there was a case for the defendant to answer. 

Verdict

53.  This case is indeed a serious traffic accident where the car involved was seriously damaged.  The defendant being the driver and his passenger, Mr Chau, in the front seat, were both severely injured.  However, there is no evidence in this case to show the defendant was speeding.  Relying solely on the serious consequences of the accident, it is difficult to decide whether the defendant was driving at a speed appropriate to the road conditions or the accident was a result of his poor driving. There were a few probable causes of the accident. It might have been the fault of the defendant or other external factors.  In fact, the defendant did offer an explanation to PC62.  He said he saw something black appearing on the road and so he needed to swerve to the left to avoid it and as a result rammed into a tree.

54.  In light of the evidence currently available, I am of the view that it is difficult for a reasonable jury to find beyond all reasonable doubt that the defendant was driving too fast for the road conditions or he was driving in excess of the speed limit or carelessly or even dangerously.  Hence, I find that there is no case for the defendant to answer on any of the charges mentioned above.