HKSAR v. MA KUNG KIN

HCMA 147/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 147 OF 2003

(ON APPEAL FROM KCCC 8003 OF 2002)

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J U D G M E N T

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1. This is an appeal by the Appellant, Ma Kung Kin against his conviction of careless driving contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374 by Mr Ernest Lin on 16 December 2002 at Kowloon City Magistrate's Court.

2. The prosecution of the Appellant arose out of a traffic accident which occurred on 29 November 2001 when a light goods vehicle driven by him struck a 66 years old pedestrian Madam Chan Mei Wah in Tai Yau Street near the junction with Pat Tat Street resulting in the death of Madam Chan.

3. It is not in dispute that the accident occurred at around 4 to 5 pm and that the Appellant was driving his light goods vehicle along the southwest bound lane of Tai Yau Street towards Tseuk Luk Street which at that point, as appears from the photographs produced in evidence, was a relatively straight and open road. Nor is it disputed that the accident occurred after Madam Chan, who was crossing Tai Yau Street on a studded crossing, had crossed the northeast bound lane of Tai Yau Street and had stepped from a safety island in the centre of the road into the southwest bound lane. From the direction the Appellant was proceeding, just prior to the studded crossing was a yellow box sign painted on the southwest bound carriageway at a point where Pat Tat Street joined Tai Yau Street.

4. The Appellant made a statement to the police on the day of the accident in which he said that he was driving along Tai Yau Street in third gear at about 50 kph with no vehicle ahead of him. Just before he reached the junction with Pat Tin Street, he noticed a taxi stationary at the Pak Tat Street junction. He said that he saw two females and the male at the safety island in the middle of the pedestrian crossing in Tai Yau Street just beyond the junction with Pat Tat Street. They were waiting to cross the road. At that stage he was a distance of about 5 to 6 "goods van's lengths" from them.

5. Since they were all standing at the safety island and showed no sign of crossing, he did not alter his speed and he did not pay attention to them. He then drove past the junction with Pat Tat Street at the same speed (50 kph) in third gear keeping closer to the centre of the road. Only when he had driven past the junction with Pat Tat Street and reached the safety island did he see a woman on the safety island run out in front of his vehicle. At that time she was already about 2 feet in front of the offside of his vehicle. She was facing in his direction. Before he had time to brake he had hit her. He then steered to the left mounting the pavement and knocked over a post box. His vehicle continued forward. When it came to a halt, the female victim was lying unconscious in the road about 7 feet behind his driver's door. He said that she was lying about 3 "goods van's lengths" from where she had been hit.

6. The photographs before the court (Photos 1-3) showed that the victim had been carried a substantial distance from the point of impact. Although there was no oral evidence before the Magistrate to that effect, it does appear from the sketch before the court that the victim was carried approximately 22 metres from the point of impact.

7. The Magistrate found that by maintaining the same speed (which he found was too fast in the circumstances), the Appellant had driven without due care and attention and that by deciding not to pay further attention to the pedestrians waiting on the safety island, the Appellant had driven without reasonable consideration for other persons using the road.

8. The Appellant has abandoned his first ground of appeal.

9. The second ground of appeal alleges that the Magistrate erred in fact in finding that the Appellant drove too fast as he approached the studded crossing when in fact there was no or insufficient evidence and/or admissible evidence of speeding.

10. It is important to bear in mind that what the learned Magistrate found was not that the Appellant was "speeding" in the sense of exceeding the speed limit or exceeding a speed that would in other circumstances have been appropriate, but that by maintaining the same speed in approaching the crossing as he had been previously travelling which was "too fast under the circumstances", he had driven without due care and attention.

11. The "circumstances" included the fact that there were clearly visible pedestrians at the safety island who had crossed half of the road and would be likely to finish crossing the other half and who might fail to exercise proper care and might emerge suddenly. There was the fact that the Appellant was on his own admission driving closer to the centre of the road than the pavement - 3-4 feet from the centre of the road.

12. In the Notice of Appeal, the Appellant makes complaint about omissions in the Magistrate's oral findings in so far as they related to speed. The Magistrate had however expressly stated that he was only giving brief reasons orally and would give full reasons when the situation required. It is true that he only expressly referred in his oral reasons to the evidence of PW1 regarding the speed of the car. It must be borne in mind that witness's evidence as to the speed that the Appellant was travelling (50-60 kph) was not very different from the Appellant's own estimate in his statement to the police in which he said that he was travelling about 50 kph. It is clear in giving his oral Reasons for Verdict that the Magistrate was saying that the Appellant's speed exceeded what was appropriate at the time of the collision. He stated that "a reasonably prudent driver when seeing pedestrians walking across the road, reaching the pedestrian crossing, would be careful and make adjustments to his speed in order to avoid a collision."

13. I am satisfied that there was evidence from which the learned Magistrate could probably conclude that the Appellant, by maintaining his previous speed, was driving too fast in the circumstances. There was the evidence of speed from not one but three prosecution witnesses. Admittedly in so far as PW1 and PW2 estimated an actual speed, it was only their opinion and based on short observation, but their estimates were consistent with the Appellant's own estimate as to his speed. While the learned Magistrate was incorrect in using the phrase "too fast" when he said that PW1 had stated that normally he would have moved on to cross the other half of the road had he not noticed that the vehicle was coming too fast, the witness had said that he did not do so because the Appellant's vehicle was "so fast". The learned Magistrate was aware of the witness's estimate of speed was 50-60 kph and that the question of whether that was too fast was a matter for him.

14. PW2 did tell the court that even after the accident, the Appellant's vehicle was still travelling at a fast pace when it mounted the kerb and knocked down the post box. He estimated the speed at that time (i.e. after the accident at "40-50" but he did not say whether he meant kph or mph). This evidence did not relate to whether or not he witnessed the moment of impact (upon which the Magistrate found he could attach no weight), nor was it in conflict with the evidence of PW1 or PW2 (bearing in mind that the Magistrate had informed defence counsel that he had disregarded the witnesses' evidence so far as it was inconsistent with other evidence).

15. Similarly, it was in my view a fair description of PW3's evidence to suggest that PW3 was saying that the Appellant was travelling "at a fast pace". He had described the speed as "quite fast" and then later "so fast" that when he was about to cross the road, he changed his mind. The speed was such as to hurl the victim forward. Again this part of the witness's evidence was not that part that the Magistrate found unreliable (i.e. his evidence whether the victim had paused on the safety island).

16. Apart from the evidence of the three prosecution witnesses as to the Appellant's speed, the Magistrate had, as I have said, the Appellant's own estimate of his speed and 3 photographs showing the position in which the deceased was lying after the accident relative to the safety island. These photographs lend support to the Magistrate's conclusion that the Appellant by maintaining the same speed, was driving too fast in the circumstances.

17. I am satisfied that taking the evidence which related to speed into consideration in conjunction with the circumstances to which I have referred, the Magistrate was entitled to come to the conclusion which he did that, the Appellant had not acted as a reasonably prudent driver would have done in the circumstances, which would have been to adjust his speed, as he approached the pedestrian crossing.

18. Grounds 3 and 4 in the Notice of Appeal relate to the Magistrate's failure to take into account the alleged conduct of the deceased. Ground 3 is that the Magistrate erred in his analysis of the evidence in giving reasons orally when he said that it would not be necessary for him to find whether the deceased blindly walked into the on coming vehicle from the safety island. In fact what the Magistrate said was that he found that the deceased was crossing the road at a pace no quicker than a normal person and he did not find it necessary to make a finding whether the victim did pause at the safety island. There was nothing wrong in the Magistrate taking that view. As this was not a personal injury case, the court was not concerned with issue of causation. The issue was not whether the deceased was negligent but the manner of the Appellant's driving on that stretch of road. The Magistrate was concerned whether the circumstances were such that the Appellant should have been on his guard against the possibility that pedestrians might behave unpredictably. On the Appellant's own account, he did not alter his speed further, and had paid no attention to pedestrians on the safety island after he had first seen them on the safety island before he had crossed the junction with Pat Tat Street.

19. Ground 4 is a similar ground and is based on the Magistrate's refusal to place any reliance on that part of PW2's evidence in which he said that the deceased had walked out without stopping and without looking. The witness had earlier in his evidence said that he had not seen the accident. While the Magistrate was entitled to disregard that part of PW2's evidence in view of his contradiction as to whether or not he had seen the impact, even if he had accepted that the deceased had walked out into the road without looking, it was clear that he did not regard that as absolving the Appellant who had failed to pay attention to the pedestrians on the traffic island after first observing them.

20. Ground 5 of the Grounds of Appeal relates to the reference by the Magistrate to the provisions of the Road Users Code in his findings. While in the Grounds of Appeal the Appellant argues that by referring to the provisions of the Road Users Code without inviting submissions from the defence, the Magistrate was guilty of a material irregularity and/or unfairness, in argument, Mr Pannu for the Appellant has expanded this ground to suggest that the Magistrate by referring to the provisions of the Code and not warning himself that the provisions of the Code were simply factors to be considered but not conclusive evidence of careless driving, regarded the provisions of the Code as presumptive evidence of guilt of careless driving.

21. I do not consider that either criticism of the Magistrate is valid. The provisions of the Code to which the Magistrate referred contained matters which are self-evident and common sense. There was no need in such circumstances for a court to invite submissions from the defence on them.

22. It is clear from his findings that the Magistrate did not consider that simply because the Appellant had been in breach of particular provisions of the Road Users Code, he was guilty of careless driving. He expressly and correctly stated the provisions of s. 38(2) of the Road Traffic Ordinance, Cap. 374 and reminded himself that the law demands only prudence but not perfection. He found that the Appellant had been guilty of careless driving because firstly he maintained his previous speed which was too fast in the circumstances and secondly, he had paid no attention to the pedestrians on the safety island after he had first noticed them before entering the junction.

23. Ground 6 of the Grounds of Appeal alleges that the Magistrate erred in interpreting the words of the Defendant as having chosen not to pay attention to the pedestrians as they showed no sign of crossing the road. It was argued by Mr Pannu that when read in context, they meant that the Appellant had analysed the situation and had no reason to believe that a pedestrian would attempt to leave the safety island. I do not find any substance in this point. The statement of the Appellant appears to me to be unambiguous. Although he had seen the pedestrians at the safety island before entering the junction, he paid no further attention to them as he had seen them standing at the safety island. I find that the Magistrate correctly interpreted the words of the Defendant.

24. The final ground of appeal argued before me was, as I understand it that since the possibility of one of the pedestrians stepping out from the safety island was so remote, a reasonably prudent driver would not have slowed down from the speed at which the Appellant was driving or taken other precautions.

25. I have been referred to a number of cases in particular R v. Poon Shu Kee, Magistracy Appeal 417 of 1989 where a 13-year old boy ran out from behind a bus into the path of a coach driven by the appellant and was killed and a civil case Lau Shun Hing v. Ng Ching Hung (1991) HKC 179 in which the appellant had run out from the front of a maxicab into the path of the car driven by the defendant. In neither case was the driver found to be at fault. In the latter case the decision of the English Court of Appeal in Moore (an infant) v. Poyner was referred to where an infant who ran out in front of a parked coach was struck by a car. In that case Buckley LJ had said:

"It seems to me that this is a case in which there was an appreciable risk that a child might be masked by the coach and that he might run into the path of the defendant's car but the likelihood of that happening at the precise moment at which he was passing the coach was so slight that, it is not a matter which the defendant ought to have considered to require him to slow down to the extent that I have indicated."

All cases are different and the court must look at the circumstances of the particular case in question to see whether a reasonably prudent driver would have been justified in ignoring the risk of a pedestrian emerging into his path.

26. As Bewley J said in R v. Poon Shu Kee:

"There is a world of difference, in my judgment, between approaching a pedestrian crossing and a stationary bus. A driver is entitled to assume that anyone intending to cross the road will not run blindly from behind a bus, without giving thought to the presence of other traffic. Approaching a pedestrian crossing, he must expect pedestrians."

27. In the circumstances of this case, I am satisfied that the Magistrate was right in concluding that a reasonably prudent driver, having seen pedestrians at the safety island, would not as the Appellant did, have failed to slow down and have failed to pay no further attention to them.

28. I therefore dismiss the appeal.