HKSAR v. CHAN YIU SUN

HCMA 141/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 141 OF 2000

(ON APPEAL FROM WSS 15887/1999)

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J U D G M E N T

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1. The defendant was convicted after trial of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374. Against that conviction, he now appeals.

2. The facts as found by the trial special magistrate were as follows. On 10 April 1999, after the defendant pulled off his mini-bus from the terminal, he braked suddenly in order to close the driver's door which flung open. As a result, two passengers fell off their seats. The defendant elected not to give evidence as he was entitled to.

3. The grounds of appeal are that the trial special magistrate erred in law in ruling that the braking of the vehicle by the defendant was unnecessary, that a reasonable, prudent and competent driver would not have so braked and that the defendant drove without reasonable consideration for the passengers on board his mini-bus. Mr Lee, for the defendant, submitted that the test for careless driving is objective in the sense that the standard of driving demanded of a driver is an objective standard, but is also subjective in that it is the particular circumstances of the particular case that have to be examined. He referred to Simpson v. Peat [1952] 2 QB 24 in support of his proposition. That certainly is correct.

4. Mr Lee submitted that the ordinary standard of driving was not applicable to the particular circumstances of the case. He relied on the evidence of PW1 who said that the defendant braked after moving 1 to 2 feet from the terminal while PW2 said it was 10 to 15 seconds after the mini-bus had started. He therefore submitted as the mini-bus was fully loaded and had just started, it could not have reached any high speed and hence the sudden braking was unlikely to have affected the passengers. He asked me to take into account the fact that PW1 fell because she had two toes amputated and did not hold onto anything.

5. I agree with Mr Lee that the defendant could not be travelling at a high speed. But that does not mean an abrupt braking would not affect any passenger. A jerk is produced when a vehicle accelerates or decelerates. The force produced by the jerk depends on the degree of acceleration or deceleration. If a vehicle travelling slowly is brought to a standstill within a very short time or distance, it would produce a jerk similar to a vehicle travelling at a higher speed but brought to a standstill within a slightly longer time or distance. In the present case, the facts were that two passengers fell off their seats. The inference is that despite the slow speed the defendant was driving, he nevertheless braked very hard and abruptly. The trial special magistrate could not have erred with this finding of fact.

6. Such an abrupt braking must be prima facie evidence of a departure from the standard of care and skill required of a reasonable, prudent and competent driver. The issue is, as rightly submitted by Mr Lee, whether this standard should be relaxed in view of the particular circumstances, i.e. the emergency caused by the opened door. It was an emergency as the driver's door flung open. This could not be disputed. But does that justify the abrupt braking regardless of the safety of the passengers on board?

7. Mr Lee referred to a number of cases justifying departure from the ordinary standard in case of emergencies, such as light turning off on the highway or animals or children running out suddenly into the road. Each case depends on its own facts.

8. In the present case, the defendant elected not to give evidence. The evidence available was nothing but the sudden opening of the driver's door and the very abrupt braking. There is no evidence to suggest there were oncoming traffic that might be affected by the opened door. There is nothing to suggest that the defendant could not have pulled to the roadside slowly or braked less abruptly. These alternatives are not standards of perfection but are what a reasonable, prudent and competent driver would have done in the circumstances. I am therefore satisfied that the trial special magistrate was right in the test that he applied and the conclusion that he reached. The appeal must be dismissed.