HKSAR v. CHEUK PUI KUEN

DCCC 475/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 475 OF 2012

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REASONS FOR VERDICT

1.  Charge

  The defendant is charged with an offence of dangerous driving causing death, contrary to section 36(1) of the Road Traffic Ordinance Cap. 374. He admitted to driving carelessly and causing the death but has denied dangerous driving.

2.  Overview

  A video recording showing the collision with the deceased and the events leading up to the collision was captured on a car camera installed in the defendant’s light goods vehicle (LGV). The factual evidence of the collision and lead up to the collision was therefore not in dispute.

3.  As a result of the defendant failing to stop or swerve the LGV in sufficient time he collided with the pedestrian (the deceased) aged 72 years when the deceased was crossing the road ahead of the defendant on a dual carriageway.

4.  The factual events leading up to the collision and the collision

The video footage shows the LGV long before the collision travelling at slow speed then eventually at a relatively quicker speed along the southbound dual carriageway of Tsing King Road, Tsing Yi,

5.   It shows that at about 1835 hours on 27 October 2011, the LGV was travelling along the dual carriage way in the outer (fast) lane. After a mild right bend, the deceased was walking across the dual carriage way ahead of the LGV from an embankment on the left from the slow lane (near a yellow and white lit-up bollard) towards the fast lane that the defendant was travelling in. When the deceased reached the outer lane the LGV knocked him down. The deceased was hit by the off-side front of the LGV. Approximately four hours later the deceased died.

6.  The defendant sounded his horn and slammed on his brakes before knocking into the deceased but almost simultaneously the LGV slammed into the deceased. 

7.  At the time, the street lights were on.

8.  The defence case in summary

The defendant’s case as contained in his Video Recorded Interview is that he first saw the deceased about two LGV’s lengths away however he did not expect the deceased to cross to his side of the road. He saw the deceased in the slow lane but he believed the deceased was going to allow him to cross ahead of him first. He did not brake but only took his foot off the accelerator. However all of a sudden the deceased ran into his lane, he braked hard and sounded his horn but he nevertheless knocked down the deceased.

9.   The Issues

The principle issue in this case was whether the defendant was driving dangerously.

10.  One of the main questions is whether the defendant was paying a proper lookout. 

i. When should the defendant have seen the deceased?

ii. Did the defendant see the deceased at a far later time than he should have?

iii. Did the defendant have sufficient time to brake or swerve so as to avoid knocking down the deceased?

11.   The law

A person drives dangerously in terms of section 36(4) of the Road Traffic Ordinance (RTO) cap. 374, if :-

(a) the way he drives falls far below what would be expected ofa competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

12.   Section 36(7) sets out the circumstances that should be taken into account 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.

13.  Section 36 sets out a wholly objective test see Lam Chi Fat CACC89/2011 paragraph 39.  The Court in Lam quoted Lord Woolf CJ in AG’s Reference (no.4 of 2000) (R v GC) R.T.R. 415 at p.425.  Whether the driver intends to drive dangerously is not relevant to any assessment as to whether the driving was dangerous. 

14.  Section 109(5) of the RTO provides that failure on the part of any person to observe any provisions in the Road Users’ Code may be relied on by a party tending to establish any liability which is in question in the proceedings. 

15.  Proof

  It is for the prosecution to prove their case beyond all reasonable doubt. There was or is no reversal of onus on the defendant.

16.   The evidence and witnesses

Much of the prosecution case was not challenged. The facts were reduced into writing in the admitted facts adduced as PA1. The defendant admitted that his Video Recorded Interview (VRI) was made voluntarily this was adduced as P7 the video, P7 A and B the Chinese and English transcripts.

17.   The scene

  The accident occurred at the southbound of Tsing King Road near lamppost No. FB 6628, Tsing Yi, New Territories. Tsing King Road. It was a divided two-way carriageway with two lanes on each bound.

18.   There was a central embankment between the northbound and southbound carriageways. At the accident stretch, there was an additional lane to the left of the southbound leading to a slip road. There was also another embankment between the slip road and the southbound carriageway.

19.  The speed limit of the road is 50km/h.  At the material time, the road surface was dry and in good repair.  The weather was fine and the traffic flow was light.  The visibility at the scene was good.

20.  The witnesses

  The prosecution called three witnesses in support of their case. PW1 is an expert in accident reconstruction and investigation. PW2 and PW3 were the police officers who attended the scene shortly after the accident and who about four hours later conducted the VRI with the defendant.

21.   PW1 the expert in accident reconstruction and investigation was Mr Wong Tai Wai. His two reports dated 5 April and 13 July 2012 were admitted under s.65B of the Criminal Procedure Ordinance.

22.  To compile the report PW1 relied on the information contained in the video footage, the camera that took the video footage and the measurements he collected at the scene. 

23.  However more than what was contained in PW1’s reports in his oral testimony he also gave his opinion as to the speed of the LGV and distance when the defendant braked by calculating them from the skid marks left at the scene by the LGV.

24.  Video footage & video camera mounted on the defendant’s LGV

I turn to PW1’s opinion from the video footage, camera and measurements he took from the scene. From his observations of the video footage, the calculations of the frames per second of the video camera he found :-

i. the speed of the LGV to be 54 km/h just before the accident,

ii. the defendant should have seen the deceased when he was about 71 m away from the deceased and

iii. the clearest perception of the deceased was when the defendant was 57 m away from the deceased.

25. PW1 described in his report that the line of vision is the distance measured between an object and an approaching vehicle when the driver has a confirmed perception of the object.

26. PW1 said that he viewed and took from the video footage the points where the defendant would have been able to see the deceased. The first frame showing the deceased was at a distance less than 86 m depicted in Image 1 and photograph 1 of his first report. However during his testimony he amended this distance to 71 m allowing for night time vision being less than day time vision which was what 86 m was measured upon.

27. PW1 opined that when the deceased was moving on the dual carriageway and there was a “clear perception” of the deceased, the distance between the LGV and the deceased was 57 m as depicted in Image 2 and photograph 2.

28.  PW1 stated that the stopping distance assuming a reaction time of 0.9 seconds as referred to in the Road User’s Code for a speed of 54 km/h was about 30 m.  However, if the speed of the LGV was slower, say at 50 km/h then the stopping distance would be less at 26.5 m. 

29.  PW1 opined that giving these two stopping distances the defendant had time to stop his vehicle and avoid colliding with the deceased if the defendant had seen the deceased at 71 m or 57 m away.

30.  Skid marks

I now turn to PW1’s evidence and opinion derived from the skid marks left at the scene. He calculated the speed of the LGV to be 50 km/h with an allowance of 10% meaning that the speed of the LGV could either have been between 45 to 55 km/h.

31.   It was observed by PW1 that the point of impact of the LGV and the deceased was the 3^rd intermittent white line between the slow and fast lane after the double white lines.

32.  It was explained by PW1 that according to the skid marks and to the point of impact, the defendant braked too late to allow his vehicle to stop whether he was driving at 45, 50 or 54 km/h.

33.  According to the skid marks left by the LGV, PW1 calculated and drew on a copy of the scaled sketch (P3) on exhibit P14, the location the defendant applied his brakes if the LGV was going at 45, 50 and 54 km/h respectively.  The distances to the third intermittent white line (the point of impact) was 13.4 m, 14.6 m and 15.8 m away.  The breaking distance needed for 45 km/h is 22.6 m, 50 km/h is 26.5 m and 54km/h is 30 m which was far more than the defendant allowed. 

34.  In the circumstances PW1 was of the view that the defendant braked too late to be able to stop at the 3^rd intermittent white line.

35.  PW1 was of the opinion the reaction time of the defendant appeared to have been prolonged or in other words, delayed.

36.  PW2

PW2 was the officer who attended the scene of the accident. He also conducted the majority of the VRI with the defendant.

37.   He stated that about half an hour after the accident whilst at the scene he asked the defendant to point out to him where the defendant was when he first saw the deceased. The defendant then showed him the location which is depicted in the exhibit P4 photos 17, 19, 20 and 21. The black and yellow tape measure depicted in the photos was where the defendant was when he first saw the deceased. The defendant also told him that the deceased was at that time in the middle of the slow lane ahead.

38.  At the scene PW2 therefore measured the distance from the location of where the defendant first saw the deceased to the deceased location (the black and yellow tape measure in the photos to a manhole some 7 metres ahead of where the deceased was as that was the easiest point for PW2 to remember).  After lengthy clarification from PW2, PW2 said that the distance from when the defendant first saw the deceased to where the deceased was in the middle of the slow lane was about 34 metres. 

39.  PW3

  PW3 was the officer that drew a sketch (annex 1) during the VRI and asked the defendant to point out on the sketch his various locations and the deceased chronologically. The sketch was to reflect the course of the events and the situation as seen by the defendant at the time before and up to the time of collision. It was not a scaled sketch, but purely for reference of the course of events.

40.   The defence case

The defendant aged 24 years elected not to give evidence as was his right. I drew no adverse inference from the defendant’s election to remain silent. The defendant has a clear criminal and traffic record. He called no defence witnesses.

41.   The defendant’s video recorded interview

His job is of a nature of connecting electric cables. He has held a driving licence since 2006 but has only had 6 months driving experience as at the date of the accident. His licence does not have any special conditions attached such as a requirement to where spectacles.

42.   On the day of the collision he had worked from 8 am to 6 pm. At the material time he was driving from Maritime Square to Kwai Fong. On route he drove to and along Tsing King Road. While on Tsing King Road he travelled along the fast lane or outside, second lane.

43.  He said shortly after he rounded the bend he began to see a person (the deceased).  At that time the deceased was already in the slow lane, the lane on his left.  The deceased was in the middle of the slow lane walking, going to walk across (his lane) the fast lane.  He said he slowed down by not stepping on the accelerator.  He let the LGV move forward itself.  He saw the deceased stand, stop for a second on the white line between the first and second lanes hesitating whether to walk again or not.  At that time he still let his vehicle move forward slowly.  Suddenly the deceased ran out as if he wanted to compete with him, the defendant slammed on the brakes and sounded the horn [counter 54] however he knocked him down.

44.  He did not know what speed he was travelling. 

45.  The defendant clarified that when he first saw the deceased, the deceased was standing half way in the slow lane.  He believed that the distance between the deceased and the LGV was about two vehicle lengths (length of the LGV) away from him.  He pressed his foot gently on the brake. 

46.  Then the defendant said he saw the deceased standing still on the white dividing line the defendant believed he was about a vehicles length away from him.  At that time the defendant did not take any action he just let the vehicle move forward [counter 70].

47.  The defendant said when he saw the deceased in the slow lane he knew the deceased was intending to cross the road into his lane but sensed the deceased wanted to stop there (in the slow lane) so as to let the defendant go first.  The deceased stopped for a second but then suddenly rushed out.  

48.  At the time the deceased was on the white line the defendant did not think of stopping the vehicle [counter 226] he kept going straight he did not think whether the deceased would rush over into his lane [counter 233].  When the deceased was on the white lines he was about one vehicles length from him [counter 237].  At that moment he did not think about whether there was any danger [counter 245].  He was thinking about how to go to Kwai Fong and where to park.  He kept thinking about this on the way to Kwai Fong [counter 247 & 253]

49.  The defendant said from the time he first saw the deceased to the time he knocked him down was about a few seconds [counter 275].

50.  The defendant sounded his horn so late as he did not expect the deceased to rush out [counter 298].  He therefore did not change to a lower gear because he was impatient [counter 381].  He said he should have braked harder when he saw the deceased [counter 383].

51.  He seldom drove along the lane where the accident occurred.  He estimated he had driven on this lane in this direction for about 30 times in the past half year. 

52.  Approximately three to four times previously he had seen jay-walkers crossing the road.  They were youngsters of about 10 years old who ran across the road.  He had seen them at a distance but had never had an accident there before.

53.  The defendant confirmed to the officers conducting the interview that he pointed out to the officers at the scene where he was when he first saw the deceased in the middle of the slow lane, his vehicle was at a little behind the arrow.  The officers measured the distance between where the defendant was when he first saw the deceased and the deceased which was about 40 metres (this was later corrected by PW2 in his oral testimony to 34 m).

54.  Submissions

Mr Henry Ma counsel for the defendant submitted that on the defendant’s evidence this was an emergency situation. When the defendant first saw the deceased he was only a very short distance of about 34 metres from the deceased (PW2’s measurements at the scene upon what he was told by the defendant as to where the defendant first saw the deceased). At that time the deceased was already in the middle of the slow lane. An ordinary prudent driver could not have avoided the collision with the deceased when he was so close and as the deceased rushed out. As the defendant did not brake hard but only decelerated he was careless but that did not amount to dangerous driving.

55.   Mr Ma also submitted that no weight could be placed on the expert PW1’s opinion derived from the video footage or camera. It was inappropriate for the expert PW1 to rely on the accuracy of the camera recorder installed in the LGV to calculate the speed of the LGV or the distance which the defendant should have seen the deceased as there was no evidence that the camera was functioning properly and nor did PW1 know the angle of the lens when he conducted his investigation.

56.  Mr Ma produced a brand new camera recorder of the same brand and specification together with its manual, exhibit D1, to show that the angle of the lens was 140 degrees.  It was Mr Ma’s submissions that the lens would exaggerate the relative size of the object close to the camera compared to those farther away for that reason there would be a distorted view caused by the camera and any reliance placed on the recording of the camera was unreliable. 

57.  Mr Ma did not challenge PW1’s opinion and evidence derived from the skid marks.

58.  The fact that I do not mention a particular piece of evidence or submission does not mean that I have not considered it or factored it into my decision-making.

59.  Analysis

I accept that there was no evidence before me as to whether the camera recorder was functioning properly. Although the clock in the camera was not accurate I cannot come to the conclusion that the camera was malfunctioning. The wrong time may be the result of a non-setting.

60.   Significantly there was no dispute that the SD card contained the accurate video footage of the accident. I did not find that the method in which PW1 calculated the frames per second on the camera to be unreliable. I accept that there may have been a small difference in the calculation of speed of the LGV however PW1 gave his opinion on three different speeds ranging from 45 – 54 km/h which allowed for any small inaccuracies.

61.  Did the defendant keep a proper lookout

One of the main questions in this case is whether the defendant was paying a proper look out?

62.  The defendant had an unobstructed view of the road ahead of him.  The weather was fine and the visibility was good.  The road surface was dry.  

63.  The defendant gave two inconsistent accounts to PW2 as to when he first saw the deceased.  One was at a distance of about 34 metres the other at a distance of 10 metres. 

64.  At the scene he told PW2 where he was and PW2 measured it to be about 34 metres from the deceased when he first saw him.  In the VRI he said he was about two LGV lengths away which is about 10 metres (the length of the LGV is 4.8 m as per the scaled sketch P3.)

65.  The defendant then said that when he was about one vehicle’s length away the deceased was on the white lane.  That is 4.8 m away.  It was only after that did he brake. 

66.  On the defendant’s evidence both these distances were a very short distance away from the deceased when he first saw the deceased.

67.  Was the defendant paying a proper lookout if he saw the deceased at the above distance?

68.  What distance should the defendant have been able to see the deceased ?

69.  After a mild right hand bend there is a clear line of sight on the whole road ahead particularly to the left hand side where the deceased walked out onto the road from.  The deceased had walked onto the road near the yellow and white lit-up bollard on the left of the slow lane. Visibility for the defendant was clear, P3 photo (16) and Image 2 57 metres away (PW1’s report dated 5 April 2012.)

70.  On all the evidence before me, I was satisfied that I could place weight on PW1’s evidence as to the distance that the defendant should have been able to see the deceased as well as the speed the defendant was travelling.

71.  PW1 was able to pin point a location as to where the defendant should have been able to see the deceased by viewing the video footage.  PW1’s reliance on the images as shown in the video footage and the landmarks in the area provided him with a location to measure the distance.  Nothing turns on the distortion or difference in position because of the wide angle lens of the camera because PW1 used the landmarks and took the position from there.  The distortion of the lens, if any, would have made the LGV’s position closer to the deceased when in fact it should have been at further distance away. This was not detrimental to the defendant but more beneficial.  The photo exhibited as P13 shows the camera’s view (the bottom photo) and ones naked eyes (the top photo) are at the same position. 

72.  I accept PW1’s evidence on the defendant’s line of vision when viewed from the video footage.  In Image 1 the defendant should have seen the deceased from about 71 metres (not 81 m as in the image as allowance was made for night vision).  By 57 m away (Image 2) the defendant had a “clear perception” of the deceased. 

73.  On one of the defendant’s account he only saw the deceased when the deceased was two LGV lengths away, about 10 metres, this falls exceedingly short of the 71 metres and 57 metres when the defendant should have had sight of the deceased. 

74.  As to the defendant’s other account that he saw the deceased at some 34 metres away that also falls far short of the 71 and 57 metres when the defendant should have seen the deceased. 

75.  In the Road Users Code at Chapter 5. It sets out drivers need for caution for pedestrians when on or crossing a road ahead :-

“Drivers have the legal and moral responsibility to take proper care to avoid accidents with pedestrians at all times and places -- even if the pedestrian is jaywalking. Always try to give way to a pedestrian on the roadway.

On roads where there are no pavements or footpaths, pedestrians perhaps with children, may be coming towards you on your side of the road. Be on the look-out and keep your speed down and be prepared to stop. Give pedestrians walking on the roadway plenty of room.

As people grow older, their reaction times become longer and the likelihood of inattention increases together with a general physical or mental deterioration. The elderly may not judge speeds very well or notice approaching traffic and may step on to the road unexpectedly. Give them plenty of time to cross the road.

76.  I accept the defendant would not have known the age of the pedestrian who was crossing, however despite the pedestrian (the deceased) jaywalking, the defendant should have given way and stopped or at the very least slowed down to such a speed so as to avoid to the deceased who was a pedestrian crossing the road.  In the defendant’s experience of driving on this road the defendant knew that youngsters ran across the road and should have been prepared for the same when he saw a pedestrian on the road. 

77.  If the defendant had paid a proper lookout, was concentrating and paid attention to the road condition ahead he should have noticed the presence of the deceased well in advance of 10 or 34 metres.  

78.  The defendant should have slowed down and be prepared to have stopped his LGV.  Despite seeing the pedestrian on the dual carriageway where it was not a pedestrian crossing and at that time intending to cross the road, surprisingly the defendant did not even think that there was any danger.  The defendant was at that material time incorrectly not thinking about the pedestrian on the road but was thinking about his route to Kwai Fong and where to park.

79.  If the defendant had paid attention to the pedestrian and anticipated that the pedestrian would have continued to cross the road, the defendant could have applied his brakes in time and the collision of the deceased would have been avoided. 

80.  Further if the defendant had seen the deceased when he was about 57 m away and not when he was only 34 m or 10 m away he could have applied his brakes to stop in time or swerved behind the deceased and the collision with the deceased could have been avoided.

81.  The defendant was not paying a proper lookout as he saw the deceased when it was far too late.  As a consequence of his belated reactions almost as soon as he applied his horn and brakes he inevitably knocked down of the deceased. 

82.  The defendant’s driving fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that manner would be dangerous.

83.  PW1’s opinion derived on the skid marks that the defendant braked too late was unchallenged.  From the skid marks left at the scene whether the defendant was driving at 45, 50 or 54 km/h the defendant braked too late.  

84.  The defendant did not allow sufficient time for him to stop the LGV before it collided with the deceased.  The distances which the defendant applied his brakes to where the deceased was knocked down were either, 13.4 m at 45 km/h, 14.6 m at 50 km/h and 15.8 m at 54 km/h.  This again fell far short of the 57 metres when the defendant should have seen the deceased clearly and braked.  In any event the defendant’s account that he braked at about one LGV length away (4.8m) is wholly incorrect. 

85.  When the defendant saw the deceased and braked it was too late.  His lookout and driving manner, fell far below what was expected of a competent and careful driver and it would have been obvious to a competent and careful driver that the defendant was driving dangerously. 

86.  Conclusion

I was satisfied on all the evidence before me that the prosecution had proved beyond all reasonable doubt that the defendant drove dangerously causing the unnecessary death of the deceased.

87.   The defendant is convicted of the charge accordingly.