HKSAR v. HUSSAIN TAHIR

HCMA 280/2022

[2023] HKCFI 1508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 280 OF 2022

(ON APPEAL FROM KCS 28389/2021)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted after trial of one count of dangerous driving contrary to section 37 (1) of the Road Traffic Ordinance, Cap 374. He now appeals against his conviction only.

Introduction

2.  The appellant was driving his light goods vehicle along a straight road in Ngau Tau Kok, it was a two-way two-lane stretch of road. The accident location was a non-signaling pedestrian crossing with a safety Island in the middle-of-the-road between the four lanes. The distance between the safety island and the other side of the road and pavement was 9 m. It was late morning, the weather was fine, traffic flow was normal and the prescribed speed limit there was 50 km/h.

3.  The appellant was driving westbound whilst the victim, PW1, was walking across the road using the pedestrian crossing. As she crossed the westbound lane and just before she reached the pavement, the appellant’s vehicle nearside front hit her and she fell to the pavement.

4.  She was sent to hospital but discharged on the same day. Her injuries were not very serious. After she fell to the ground, the appellant did stop his vehicle and pull over some distance ahead. He alighted from his vehicle but did not approach the victim. PW2, was the police officer who attended the scene, spoke to both the victim as well as the appellant and confirmed the identity of the appellant.

The Law

5.  Dangerous driving is defined by s37(4) of the Road Traffic Ordinance, Cap 374 as:

“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.”

The factors to be considered when determining s37(4)(a) and (b) are found in s37(7):

“(7) For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including—

(a) the nature, condition and use of the road concerned at the material time;

(b) the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.”

The nature and manner of a person’s driving of a motor vehicle is determined by an objective assessment of the facts and circumstances.

The Prosecution’s Case

6.  The prosecution called two witnesses, the victim and the attending police officer at the scene. The admitted facts, Exhibit P1 included the unchallenged fact that the appellant was driving a light goods vehicle along the material road at 1150 in the morning on 17 April 2021. The admitted facts include the 14 photographs taken at the scene after the incident which depicts the road.

7.  There is also a sketch prepared but not to scale which pinpoints the appellant’s vehicle where he stopped after the incident. It also includes the fact the appellant had a clear record in Hong Kong at the time of the incident.

8.  The victim was crossing the road to make her way to the MTR station. She crossed at a pedestrian crossing but it had no signals for either vehicles or pedestrians. There was a safety island between the two lanes. She crossed over and stood at the safety island and looked to her left. She saw only the appellant’s light goods vehicle and it was about two bus lengths away. She then stepped out and continued to walk to the opposite side of the road. She had almost stepped onto the pavement when she was struck by the vehicle and fell to the ground.

9.  She saw that the appellant’s vehicle had driven on but stopped about 10 m away. She saw a man get out from the driver’s side. She was the only person on the safety island at the time. When she walked across the road, she did not hear any horn sounds.

10.  The prosecution’s case was that the appellant’s driving fell far below what would be expected from a competent and careful driver; it would be obvious that driving in that way would be dangerous. It meant he either did not notice a pedestrian crossing the road or that his driving manner was so inattentive that he failed to pay attention to the pedestrian crossing the road in front of him and not having made it all the way across to the pavement when he reached her.

The Defence Case

11.  The appellant elected not to give evidence which was his right. He did not call any witnesses. The defence case put to PW1, the victim was that there was in fact a taxi in front of the appellant’s vehicle in the other lane and that she had rushed across the road from the safety island to beat the taxi. She disagreed. The defence case was that there was no collision because when she was rushing across the road to avoid the taxi she fell on the ground having lost her balance or tripped up.

12.  Essentially, the defence were alleging that her injuries were self-inflicted because she fell over. Her fall had nothing to do with the appellant and in particular, his vehicle did not come in contact with her body. He only stopped his vehicle when he saw her fall over to help her. The issue at the trial was whether or not the victim was credible and whether or not the vehicle had hit her.

Grounds of Appeal

13.  The first ground of appeal was that the magistrate had erred in finding the victim, PW1, a credible witness. To support this ground the appellant argued that there were inconsistencies in her evidence relating to injuries suffered. There was an inconsistency as to where on her body the vehicle hit her; whether it was her right side of her body or her left upper arm. It was suggested she had a criminal record which she was not keen to agree to which affected her credibility.

14.  The second ground of appeal was that the magistrate erred by failing to consider whether the victim, PW1, was negligent and walked out onto the road without ensuring it was safe to cross the road; she did not look properly.

15.  The third ground of appeal was an alternative to grounds 1 and 2; the magistrate erred in failing to consider an alternative charge of careless driving instead of dangerous driving. The evidence did not support a dangerous driving conviction.

16.  The fourth ground of appeal was that there was a lurking doubt.

Summary of Findings

17.  The magistrate very thoroughly considered the evidence of PW1 and PW2. He recognised the prosecution’s burden of proof and what standard of proof was required. He recognised the fact that the appellant had no previous convictions and warned himself accordingly. He analysed the evidence as well as the submissions put forward by the defence.

18.  The magistrate identified the sole issue in this case; whether or not the appellant’s vehicle struck the victim. Therefore, the credibility of the victim was considered at length. The appellant elected not to give evidence and the magistrate warned himself accordingly that it was the appellant’s right and it should not be held against him in any way.

19.  Inconsistencies were considered carefully. There was only one witness who could say what happened and that was the victim herself. There was no other eyewitness or independent evidence. Much was made of the inconsistencies between her oral evidence as to injuries she suffered and what she told the police officer at the scene as well as what is written on a doctor’s report. That doctor’s report was not produced in evidence nor was any doctor called.

20.  What is clear is that most injuries were as a result of her falling on her right side of her body. The left side of her body had come into contact with the vehicle which caused her to fall towards the right. Her right buttock landed on the ground, her right knee was bleeding, her right wrist was bruised and right upper arm was swollen. Her left ankle was also swollen. These were the injuries that she described in court. She also said it happened very fast. She saw the appellant’s vehicle but thought she had enough room and time to walk across the road.

21.  Her explanation in court was that although her left arm had been hit by the vehicle passing to her left, most of her injuries were sustained when she fell onto the ground which meant, her focus was on her right arm and hand. She did not realise her right knee was bleeding until later because she was wearing long trousers. The bruising to her right buttock was more prominent and painful the following day.

22.  The magistrate considered her evidence and did not find her unreliable; he found her consistent throughout her evidence in chief and in cross examination. He considered discrepancies highlighted by the defence as minor and not material. None were so serious that they affected her credibility and reliability. He concluded by finding her account of how the accident happened to be accurate, reliable and true. Despite her previous convictions which were not related to offences of dishonesty, they nor the questions pertaining to them in cross examination affected his finding on her credibility.

23.  There was an explanation given to the attending police officer, PW2 by the appellant at the scene. The appellant spoke to the officer in English but the officer’s English was not of a high standard. The magistrate observed the witness and found he was not entirely confident in repeating what he thought the appellant had said at the scene. As a result, the magistrate decided to place no weight on this part of this witness’s evidence because there appeared to be language communication problems.

24.  With the finding that the victim was credible and truthful, the magistrate concluded that she was struck on the left by the left front part of the appellant’s vehicle which caused her to fall to her right. The magistrate then went on to consider whether the facts proven and accepted were enough to prove beyond reasonable doubt that the appellant had driven dangerously. He considered the definition in the Ordinance and set it out in his statement of findings.

25.  The suggestion from the defence that there was a taxi in front of the appellant’s vehicle in the adjacent lane which caused the victim to hurry across the road and as a result, slip and fall over before reaching the pavement was rejected by the court as being baseless.

26.  It was recognised that it would have been more prudent if the victim had not crossed from the safety island with the appellant’s vehicle some two bus lengths away but the magistrate recognised that that did not mean the appellant had not driven either dangerously or carelessly at the material time. From the evidence accepted, the magistrate found there was no other vehicle between the victim and the appellants light goods vehicle as suggested.

27.  The road was straight, it was late morning so very bright and if the appellant had paid the necessary attention and been a cautious driver, he must have noticed her, a sole pedestrian at the safety island area, and noticed her begin to cross the road. The magistrate drew the only irresistible inference that he could draw which was the appellant had either neglected the fact that a pedestrian was crossing the road in front of him, or that his driving manner was so inattentive that he failed to pay attention to her already crossing the road in front of him.

28.  He found the driving manner of the appellant fell far below that of a competent and careful driver and concluded that it would be obvious to a competent and careful driver that the appellant’s driving manner was dangerous. He found all elements of the offence proved beyond reasonable doubt and convicted the appellant as charged.

The Appellant’s Submissions and The Respondent’s Reply

29.  The respondent’s reply includes the observation that the appellant admitted he stopped his vehicle just ahead of the victim. It was suggested in closing submissions by defence counsel that he stopped to help her not because he had hit her. However, it was observed that the appellant alighted but did not go to her aid or assistance. Why stop to help if he did not go to her aid? The only reasonable inference is that he stopped because he knew he had hit her.

30.  Another observation from the respondent is that much of the defence case was advanced again in the grounds of appeal. It was submitted that there was a taxi in the first lane ahead of the appellant’s vehicle or alternatively the appellant momentarily lost concentration which does not mean he drove dangerously. These submissions are without foundation supported by any evidence.

31.  The appellant chose not to give evidence. What it means is that compelling inferences remained unanswered and there is no evidence from the defence to undermine, contradict or explain the prosecution’s evidence. It is not the court’s task when considering facts put before it to imagine possible defences when no evidence has been called.

32.  For Ground 1, the appellant has set out in his perfected grounds of appeal all the contradictions relating to where the victim said she was hit and what injuries she sustained. The contradictions were described as material and manifestly gross. This is why she should not have been considered credible.

33.  The respondents reply deals with this ground succinctly. The inconsistencies were not material and had reasonable explanations. The undisputed fact is she fell as she reached the pavement and her most serious injuries were those sustained from the fall itself and not from where she was hit upon impact. The victim herself said where she was hit was not injured but it was the impact that caused her to fall and suffer injuries.

34.  For Ground 2, the appellant submits the magistrate should have found her more culpable and reckless; her actions did not give the appellant enough time to avoid a collision. This means the appellant should not have been found guilty of dangerous driving or careless driving.

35.  The respondent’s reply is that the victim looked to her left and only saw the appellant’s vehicle. She was not jaywalking. If she could see him, then he must have seen her. It was a straight road. He should have adjusted his driving speed and manner approaching a legitimate safety island and pedestrian crossing. All drivers should pay attention to safety islands and pedestrian crossings upon approach.

36.  Extracts from the road users code and codes of practice have been reproduced in submissions for my perusal and consideration. It is submitted the appellant should have seen her crossing and slowed down. Moreover, he stopped some 10 m after the safety island.

37.  For Ground 3, which was an alternative to grounds 1 and 2; the appellant should have been convicted of careless driving instead of dangerous driving, the appellant relies on his submissions that the victim took a risk and crossed negligently when it was not safe to cross. There was no evidence the appellant was speeding. The injuries suffered were minor. And clearly the point of impact was not serious judging from the injuries. It was also submitted the magistrate did not take into account perhaps a momentary lapse of concentration on the appellant’s part. The submissions also apply to Ground 4.

38.  The respondent repeats the magistrate’s findings of the facts that constituted dangerous driving. If the appellant was paying attention to the road in front of him, then he must have seen the victim crossing the road. The magistrate’s finding that there was a collision between the vehicle and the victim led to the only irresistible inference that either the appellant was not paying attention, was so inattentive that he failed to concentrate on the victim in front of him or that he did not notice her.

Conclusion

39.  The function of an appellate court hearing a magistracy appeal is to conduct a rehearing in order to determine whether it is satisfied beyond reasonable doubt of the guilt of the appellant. The appellate court will only depart from a magistrate’s determination of a witness’s credibility if it is plainly wrong. The appellate court should determine objectively whether the magistrate’ findings are not reasonable, cannot be explained or not justified.

40.  The thrust of the appellant’s case was that the victim was not credible and that there was insufficient evidence to convict him of either dangerous driving or careless driving. The entire case turned solely on the credibility of the victim.

41.  The magistrate carefully assessed all of the evidence and gave good reasons for what evidence he accepted and what evidence he placed no weight upon. The magistrate was fully aware of the facts in issue and the conflict of evidence. Nevertheless, he came to the conclusion that the victim was telling the truth and was satisfied that the prosecution had proved their case.

42.  He was satisfied that according to the definition of dangerous driving as set out in the Ordinance, this appellant’s driving manner fell far below what would be expected of a competent and careful driver and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.

43.  What way? Not paying enough attention to the road ahead of him especially when the conditions were such that the appellant must have seen the victim crossing the road from the safety island; either he misjudged his speed and her distance or he did not see her. In either scenario, the magistrate was entitled to find driving in that manner fell far below what would be expected of a competent and careful driver. I find no fault with his application of the facts he found proved to the definition of dangerous driving.

44.  There is evidence for the learning magistrate to come to the conclusion on credibility and on the facts as he did. He gave good and valid reasons. His determination was not in any way plainly wrong. I see no basis to interfere with his determination of the victim’s credibility nor his findings of facts.

45.  There are no merits in any grounds and the appeal against conviction must be dismissed.