HKSAR v. YU JIE

CACC 33/2022

[2022] HKCA 1592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 33 OF 2022

(ON APPEAL FROM DCCC NO 579 OF 2020)

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J U D G M E N T

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1.  On 17 February 2022, the applicant was convicted after trial of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374, by District Court Judge Dufton (the judge). He sentenced the applicant to 15 months’ imprisonment and ordered that she be disqualified from holding or obtaining a driving licence for all classes of vehicles for two years and to attend and complete a mandatory driving improvement course prior to the end of the disqualification period. Prior to trial, the applicant had indicated that she would plead guilty to careless driving but this was not accepted by the prosecution.

2.  On 24 February 2022, the applicant filed a notice of application for leave to appeal against conviction and sentence.  On 29 March 2022, the applicant was granted bail pending her appeal.[1]  On 12 July 2022, Mr David Boyton and Mr Armond Chan, for the applicant, filed Perfected Grounds of Appeal Against Conviction and Sentence. 

3.  The complaint against the conviction is directed to the judge’s failure both in law and on the facts to consider, or show that he had considered, the evidence of Wong Ka-wai (DW4).  It is argued that the judge seemed to accept the evidence of DW4, or at least gave no reasons for rejecting it, whose evidence supported the defence case.  It is submitted that for this reason the conviction is unsafe and unsatisfactory.

4.  The complaint against the sentence primarily rests on the personal circumstances of the applicant post sentence which were not known to the judge and which may afford her additional mitigating factors. These new matters relate to the applicant’s medical condition, having contracted Covid 19 whilst in prison custody and having been diagnosed with a serious mental health condition.

The prosecution case

5.  The offence arose from a road accident that took place at about 3:25 pm on 9 January 2020 when a private vehicle driven by the applicant and a motorcycle driven by Christian Huber (PW1), with his wife, Li Shuangying (PW2), as a pillion passenger, collided on Nam Fung Road, South Island.  The road consisted of three lanes, two uphill (the first lane or the slow lane is the one closest to the pavement and the second lane or the fast lane ran parallel to the continuous double lines) and one downhill with a continuous double white line separating the lanes (the downhill lane).  On the downhill lane, there was a bus lay-by area.

6.  The prosecution case was that PW1 was riding his motorcycle uphill in the second left lane when suddenly he saw in the middle of the road a vehicle from the opposite direction making a U-turn and blocking his lane.  PW1 was unable to brake in time and collided with the vehicle.  The two vehicles came together in one of the uphill lanes.  Both PW1 and PW2 sustained injuries amounting to grievous bodily harm.

The defence case

7.  The defence case was that the applicant made the U-turn from the bus lay-by area having first checked the traffic on both sides of the road at which time she saw the motorcycle about 120 meters away travelling at a speed of about 50 km/h in the slow lane (first left lane). While making the U-turn, the motorcycle accelerated to try to pass the front of the applicant’s vehicle but was unable to do so and collided into the rear passenger door of the applicant’s vehicle.

The reasons for verdict

8.  Whilst accepting the evidence of PW1 and PW2 that the applicant’s vehicle suddenly appeared in front of them blocking their lane,^[2] the judge drew the only inference that the applicant made the U-turn from the bus lay-by area contrary to the double white lines without paying attention or sufficient attention to the traffic on the uphill lanes, resulting in the collision.  He found that the applicant’s driving 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.^[3]

9.  Relevantly, the judge found that only the injuries sustained by PW1 amounted to grievous bodily harm.  PW2’s injuries were relatively minor.  He convicted the applicant of the offence of causing grievous bodily harm to PW1 by dangerous driving.  PW1 sustained injuries to his abdominal region and pelvis for which he required surgery and long term treatment.

The appeal against conviction

10.  At the centre of this appeal is the evidence of DW4, which Mr Boyton argues supported the defence case and was relevant to the following critical issues at trial:

(1)  whether the applicant had sufficient room to make the manoeuvre “safely” and if not, whether that manoeuvre was careless or dangerous;

(2)  in which lane was PW1 travelling; and

(3)  was it PW1 who accelerated uphill in an unsuccessful attempt to avoid the applicant.^[4]

11.  PW1 testified he never changed lanes and the collision occurred in the second lane.^[5] He said he knew the speed limit was 50 km/h and that he was travelling at a speed of around 30 to 40 km/h, which he believed was the maximum speed he could go on the road because his wife was a passenger and he was going uphill.  He said he suddenly saw a vehicle in the opposite direction making a U-turn and blocking his lane.  He said the vehicle was also encroaching the first lane and the downhill lane.  On seeing the vehicle, he said, “I was wondering what that vehicle was doing in the middle of the road and laying perpendicular to the traffic.”  He first saw the vehicle at a distance of about 15 to 20 meters and tried to apply his brakes.  He did not change lanes as he did not know what the vehicle was doing.  It was therefore inevitable that a collision would take place.^[6] 

12.  PW2’s evidence was fairly general.  She testified that they were travelling in the second lane when suddenly a vehicle appeared.  She disagreed that prior to the accident they were travelling in the first lane for about 120 meters; that the accident happened in the first lane; that immediately before the collision her husband was travelling at speed over 80 km/h; and that her husband accelerated to pass through the first lane.^[7]

13.  The defence case was that prior to the collision PW1 was travelling in the first lane; on seeing the vehicle making the U-turn he accelerated to a speed of over 80 km/h; unable to drive through the first lane he failed to brake in time, causing the collision.^[8] 

14.  The applicant testified that she drove to the bus stop area intending to make a U-turn.  She saw the motorcycle at the bend of the road about 120 meters away travelling in the slow lane.  She estimated his speed to be around 50 km/h.  She believed the motorcycle was at a very safe distance away to make a U-turn.  She put on her right indicator to make her turn.  She looked and saw that the motorcycle was just passing through the bend at about 100 meters away.  She saw the motorcycle a third time when her vehicle was across the fast lane and about to enter the slow lane.  She was making a three-point turn and saw the motorcycle was still travelling at around 50 km/h in the slow lane.  She estimated the motorcycle was about 80 meters away.  She said that when she had almost finished entering the first lane and straightening up her vehicle she heard a loud bang on her left side.^[9]

15.  A feature in this case was whether the motorcycle was travelling in the first lane and on seeing the vehicle making a U-turn, accelerated and tried to get around the front of the vehicle as it was making the U-turn.  The defence called a bystander (DW4), who was in a stationary vehicle at the time.  He testified as to the position of the vehicle and motorcycle before the collision.  He saw the applicant attempting to make a U-turn with an indicator light on and that the motorcycle was travelling at a speed of about 50 to 60 km/h in the first lane.  He estimated the motorcycle was about 70 odd metres away.  He did not actually see the collision but made a report to the police after it had happened.^[10]

16.  One of the difficulties with this case was how the accident actually occurred, notwithstanding the applicant’s illegal manoeuvre in making a U-turn across double white lines.  The parties called expert evidence on this issue.  The judge’s reasons for verdict are 84 pages in length and, as is customary with this judge, he has set out in considerable detail the evidence which he has carefully analysed in determining what evidence he accepted or rejected.  He rejected the evidence of the applicant and the defence expert.  He accepted the evidence of PW1, PW2 and the prosecution expert.  He turned to consider the elements of the offence, setting out the basis of his finding that the applicant was guilty of the offence. 

17.  The complaint of the applicant is that the judge did not adequately address or resolve the issue of DW4’s evidence that he observed the motorcycle travelling in the first lane at a speed that was close to or over the speed limit.  This evidence was a critical component of the defence case.  It went to the issue as to whether the motorcycle attempted to overtake around the front of the vehicle, notwithstanding the vehicle was making a U-turn.

18.  The relevant findings of the judge in respect to this complaint were as follows:[11]   

“205. Whilst accepting the defendant may have made the U-turn from the layby/bus stop area, I have no hesitation in rejecting the defence evidence that the defendant first saw the motorcycle about 120 m away travelling in the slow lane at a normal speed of around 50km/h; that the defendant next saw the motorcycle when she started to make the U-turn at which time the motorcycle was 100 m away still in the slow lane and travelling at a speed of 50 km/h; that the defendant saw the motorcycle for a third time when she was about to enter the slow lane at which time the motorcycle was 80 m away still in the slow lane and travelling at a speed of 50 km/h; that Mr Wong Ka Wai (DW4) saw the motorcycle about 70 m away travelling in the first lane at a speed of about 50-60km/h at which time the car was just past the double white lines making a U-turn and the evidence of Ir Lo that the collision happened because the motorcycle accelerated to speeds of up to 81.5 km/h.

206 I do not find this evidence credible.  I find inherently improbable that a motorcyclist with a clear view ahead and having sufficient time not only to slow down but to stop to avoid a collision would instead accelerate to speeds of up to 81.5 km/h, 31.5 km/h over the speed limit, in an attempt to pass the front of the car thereby risking not only his life but the life of his passenger as well.”

19.  Mr Boyton submits that if the evidence of DW4 was, or may have been true then this may have undermined the prosecution case: that PW1 may have seen the applicant’s vehicle well before the collision; that PW1 may have had sufficient time to stop to avoid the collision; that PW1 may have been in the first lane; and PW1 may have accelerated to overtake around the front of the applicant’s vehicle.  He further casts doubt on the judge’s findings as to the circumstances of the accident by reference to the prosecution expert witness, Dr Tao Chi Hang (PW8), who accepted that the collision may have occurred in the first lane.[12]

20.  Accordingly, the applicant contends that the conviction may therefore have been reduced to one of “careless driving” because the judge found that the applicant’s driving was dangerous for failing to pay attention or sufficient attention to the traffic.^[13]  The applicant further submits that as the conduct was not deliberate or reckless, this may have simply been a case of careless driving, that the applicant had admitted to before her plea was taken.

21.  Mr Boyton also complains that the judge did not properly consider the reliability of the evidence of PW1 and PW2, particularly PW1, who accepted that as a result of the accident he lost consciousness as well as “my memories”.^[14]

22.  There appears to be support for the applicant’s argument that the judge failed to resolve the conflict of evidence between DW4 and PW1 in respect of the events leading up to the collision between the motorcycle and the vehicle.  It is arguable that DW4’s evidence supported the defence case, particularly the applicant’s account of what took place. However, the judge, having considered the evidence, seems to have taken an overall view that it was inherently improbable that a motorcyclist would, in these circumstances, accelerate in an attempt to pass around the front of the applicant’s vehicle.

23.  The respondent submits that in any event there is a strong case that the applicant’s driving was dangerous because she deliberately disobeyed the double white lines and created a dangerous situation on the roadway by making a U-turn.  Moreover, the respondent argues that would still be the case, even if there was justification in the complaint made by the applicant about the judge’s handling of DW4’s evidence.

24.  If it is accepted that DW4’s evidence was in conflict with the account given by PW1 and PW2 that they were in the second lane, then that raises the issue on what basis the judge could accept their evidence on this aspect of the case. 

25.  I am persuaded that the issue in relation to the evidence of DW4 is reasonably arguable but I do bear in mind the observation of the respondent that the applicant in crossing double white lines may nevertheless have constituted dangerous driving.  However, this will depended upon the particular circumstances of the case: HKSAR v Au Ling-man, Steve, unrep., CACC 104/2018, 19 December 2019, at [35].

The appeal against sentence

26.  On 17 February 2022, the judge sentenced to 15 months’ imprisonment her conviction after trial.  As he did in his reasons for verdict, the judge set out in considerable detail the reasons for the sentence imposed on the applicant.  He referred extensively to all the relevant authorities in sentencing an offender for this type of offence: Secretary for Justice v Chu Wing Ying Christine [2020] 1 HKLRD 771. 

27.  An important component of a sentence imposed upon an offender for this offence is the degree of dangerousness of the driving by the offender and the harm caused to an injured party as a result of such dangerous driving.  Whilst these factors focus on the gravity of the offence and the culpability of the offender, there may also be mitigating factors that may have a significant bearing on the ultimate sentence imposed on the offender.

28.  The applicant has filed a Notice of Motion pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221, for the Court of Appeal to receive fresh evidence that was not adduced at the trial. It is submitted that the fresh evidence will throw new light on the appropriateness of the sentence, and it is therefore critical that it be considered by the Court.  It is submitted that the evidence is credible and would have been admissible in the proceedings below and the failure to previously adduce the evidence is because it relates to matters that have arisen post sentence.

29.  It appears on the face of this material that the applicant has developed a serious mental health condition which has been exacerbated by the delay in finalising her case because of public health restrictions that have had an impact on the court proceedings.  See Secretary for Justice v Cheng Tsz Hin [2020] 1 HKLRD 1057, at [77]-[80].

30.  I am persuaded that the applicant’s appeal against sentence is reasonably arguable, which is further supported by the proposed fresh evidence to be adduced on appeal.

Conclusion

31.  It follows from what I have said that I grant the applicant leave to appeal against her conviction and sentence.

[1]  HKSAR v Yu Jie, unrep., CACC 33/2022, 29 March 2022, [2022] HKCA 460, per Zervos JA.

[2]  Appeal Bundle, 95, Reasons for Verdict, at [307].

[3]  Appeal Bundle, 96, Reasons for Verdict, at [312].

[4]  Appeal Bundle, 16, Reasons for Verdict, at [5].

[5]  Appeal Bundle, 21, Reasons for Verdict, at [23].

[6]  Appeal Bundle, 20-21, Reasons for Verdict, at [19]-[23]. 

[7]  Appeal Bundle, 22-23, Reasons for Verdict, at [27]-[31]. 

[8]  Appeal Bundle, 21, Reasons for Verdict, at [24]. 

[9]  Appeal Bundle, 35-42, Reasons for Verdict, at [75]-[105].

[10]  Appeal Bundle, 44-47, Reasons for Verdict, at [116]-[126].

[11]  Appeal Bundle, 67-68.

[12]  Appeal Bundle, 73 and 74-75, Reasons for Verdict, at [225] and [232].

[13]  Appeal Bundle, 96, Reasons for Verdict, at [312].

[14]  Appeal Bundle, 20, Reasons for Verdict, at [19].