HKSAR v. LAM YING YU

DCCC 291/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 291 OF 2012

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REASONS FOR VERDICT

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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. She admitted to driving carelessly but has denied dangerous driving.

2. Overview

  A video recording showing the collision and the events leading up to the collision was captured on a car camera mounted on PW4’s taxi travelling behind the defendant’s car. 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 at a junction she collided with a taxi driven by PW1 which in turn was thrust sideways hitting three road side workers killing one of them and injuring the other two. PW1 also sustained some injuries.

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

  At approximately 9.30 am on 21 September 2011 the defendant drove a private car (a Mercedes Benz) along Morrison Hill Road southbound towards Queen’s Road East. PW1 drove his taxi along Morrison Hill Road eastbound towards Sports Road. The southbound and eastbound roads crossed each other at a junction.

5. PW1 was driving along the road which crossed ahead of the defendant’s Benz crossing from the defendant’s right across to the left. There were no stop or give-way signs on PW1’s lane. PW1 had the right of way.

6.  At the junction on the southbound lane were double white lines.  The defendant was mandated to stop by the stop signs and road markings at and before crossing the junction. 

7.  The defendant failed to stop at the junction.  As a result of her failure to stop the front of the Benz collided with the rear nearside of PW1’s taxi within the yellow box junction.  PW1’s taxi was as a consequence shunted sideways onto a nearby safety island where three road repairers were working.  The taxi struck the three workers on the safety island, injuring two and killing one of them.

8.  The force of the impact was substantial. The taxi was airborne for a short while (eye-witnesses PW4, PW6 and the video recording P11.)  The damage to both vehicles, especially PW1’s taxi was significant (photos P8 & P9.)

9.  The defence case in summary

  The defendant’s case is that she did not see the stop signs or markings on the road. She therefore did not stop. She does not know why she was unable to see the road signs or markings informing her to stop.

10. The defendant knew she was approaching a junction and that cars may be approaching from her right. She looked to the right (the road where PW1 was travelling from) she saw there were no cars, she looked ahead and also saw no cars, she therefore accelerated a little to continue to drive straight ahead intending to cross the junction. Suddenly at the junction, she saw Pw1’s taxi on her right, she applied her brakes but that failed to stop the collision.

11.  The Issues

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

12.  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.

13. 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.

14.  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. 

15.  In Lam above the court went on to state at paragraph 33:-

“Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way of driving. Evidence that supports the charge of dangerous driving may include:

…… (2) Non-compliance with traffic signs, such as driving through a police road block; “jumping a red light”; failure to stop in front of a “zebra crossing” to give way to pedestrians; ignoring pedestrian stud crossing and driving past at high speed; driving into a “No entry” section of road; speeding at double white lines, etc.

……..”

16.  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. 

17.  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.

18. The scene

  The southbound road of Morrison Hill Road was the lane to Queen’s Road East. The eastbound section was the lane to Sports Road. Where these two roads crossed was the junction where the collision occurred. The speed limit was 50 km/h.

19. The southbound lane (the lane the defendant’s was driving upon)

  Upon the approach and immediately preceding the junction on the southbound road there are two inverted triangles giving a warning to drivers of a hazard ahead. One is on the right hand side when the vehicle enters the single lane (exhibit P5 photo 20 & P11 photo 2). The second is located below a white sign in P5 photos 20-24, P8 photos 7 & 8. These were placed at a distance well before the junction.

20. Hatched markings were on either side of the southbound lane directing the traffic forward. The single lane narrowed noticeably from when a vehicle enters the single lane to when it reaches the stop sign. This gives the effect of channelling or funnelling the vehicle up to the stop signs.

21.  The single lane road was governed by two traffic stop signs prominently displayed at the junction on each side of the road and an ahead only sign (see exhibit P5 photo 1, 2 & 3, exhibit P8 photo 5, 7 & 8).

22.  Displayed and written in large white words and characters were road markings in English and Chinese stating STOP.  Continuous double white lines appear across the road just before the junction from one side of the lane to the other (exhibit P5 photo 22, 23, 26, 27).  

23.  The east bound lane

  The eastbound road headed towards Happy Valley or more precisely, Sports Road from the Wanchai direction. There were no stop or give-way signals on the eastbound road of Morrison Hill (see exhibit P5 photo 11, 12, 13 & 14). Traffic on this road (PW1) had the right of way to that of the traffic on the southbound road (the defendant).

24. The evidence and witnesses

  The majority of the prosecution case was not disputed. Most of the witnesses (including the injured persons) evidence was admitted under s.65B.

25. There was no definitive evidence of what speed the defendant was travelling at when she was travelling in the southbound lane of Morrison Hill Road. PW4, a taxi driver with over 30 years experience estimated the speed of the defendant to be between 40 - 45 km/h.

26.  PW1 the taxi whom the defendant collided with, was only able to say that the defendant was travelling very fast but was unable to say at what speed she was travelling.  However, there was no reduction in her speed.  

27.  The defendant’s statements to the police at the scene and voir dire

  Police officers arrived at the scene shortly after the accident. Two police officers PW7 and PW9 made enquiries from the defendant as to what happened. PW7 was the first officer to arrive at the scene. He asked the defendant “how did the accident happen?” The defendant replied “when I reached here I stopped for awhile and looked ahead but I did not notice that there was vehicle on my right I then started off again and the collision occurred.”

28. Later not knowing what the defendant had told PW7, PW9 asked the defendant how the accident occurred. The defendant replied that she was travelling along Canal Road flyover coming down. When she reached the location of the accident she stopped for a moment but she did look to the right as she saw there were no vehicles ahead of her therefore she started off once she started off she rammed into the rear of the taxi and the taxi bounced off.

29.  The defendant denied making any statements as alleged by the police officers (PW7 and PW9) at the scene.  The defendant denied she had told the police that she had stopped at the junction.  She stated that those statements allegedly said by her were fabricated by the police officers. 

30.  A voir dire was held as the defendant challenged the admissibility of the statements she made to the police officers PW7 And PW9. Although voluntariness of the statements was not challenged, Mr Peter Duncan SC for the defendant asked the court to exercise its judicial discretion to exclude the statements into evidence on the grounds of unfairness. 

31.  Mr Duncan SC submitted that the defendant was not cautioned prior to the police making enquiries as the defendant should have been.  Due to the defendant’s mental state of being frightened after the accident she was emotionally unstable and therefore it was unfair for such evidence to be used against the defendant.  Further the defendant was not asked nor did she sign any acknowledgment of what she was alleged to have said to PW7 and PW9. 

32.  I found that there was nothing to suggest that the police officers had reasonable grounds to suspect that the defendant had committed an offence.  There was no need to caution the defendant.  The investigation was at an early stage and the officers were in full compliance with the Rules & Directions for the Questioning of Suspects and the Taking of Statements (the Rules).  The police officers were entitled to and were duty bound to question the defendant and PW1 (and others) to obtain information as to the cause of the collision.  In any event the absence of a caution, the defendant’s emotional well being and not signing an acknowledgment of her statements were no grounds for me to exercise my judicial discretion to exclude the statements on the grounds of unfairness to the defendant. 

33.  I found that, if such statements were made by the defendant, they were made voluntarily and were admissible.  

34.  I was satisfied beyond a reasonable doubt after hearing evidence in the general issue of the trial that the defendant did in fact make those statements to the police officers.  I found the officers to be honest and reliable witnesses.  They went to the scene immediately after the accident and as their duty required they enquired from the defendant as to what happened with respect and courtesy.  The defendant as stated by the officers was co-operative, calm, lucid and coherent in her reply. 

35.  The defendant’s evidence

  The defendant elected to give evidence. The defendant is 40 years old. She has a clear criminal record. She was born in China and came to Hong Kong when she was 8 years old. She was educated up to form 3 in Hong Kong and thereafter educated in Japan and United Kingdom. She became a full time investor in the securities market from about 1997 to 2009. In August 2011 in Hong Kong, she was declared a bankrupt as a result of her investing activities. It was alleged by the defendant that a broker had misused her account losing some HK$28 million.

36. She had lived in Happy Valley near to the scene of the accident at Leighton Hill for approximately 4 years. Roughly two weeks before the accident she moved to live with her grandmother in Sham Tseng, New Territtories.

37.  She has held a driving licence for 13 years. She was used to being driven around by a chauffeur.  At that time of this accident she no longer engaged a driver as she was in financial constraints. 

38.  On the day of the accident she had borrowed her friend’s Benz to drive into town from Sham Tseng for a meeting in Star Street, off Queen’s Road East, in Wanchai.  She had driven through the Cross Harbour Tunnel. She went down the flyover into Canal Street then onto the southbound Morrison Hill Road.  She was however not aware of the road names prior to this accident. 

39.  The defendant identified herself and the Benz she was driving at the material time in the DVD video recording of the collision (exhibit P11).  From the DVD three still print outs were adduced into evidence (exhibits P11(1-3)). 

40.  On being shown the print outs by her counsel Mr Duncan SC, the defendant described her route towards the junction where the collision occurred.  She said P11(1) showed her approach to the traffic lights before she chose the southbound lane to go to Queen’s Road East.  P11(2) showed her Benz along the southbound land towards the junction with no signs of her break lights on.  P11(3) showed the Benz at the junction with its break lights on. Within that still print the front of the taxi is seen at the right of the defendant at the junction. 

41.  The defendant described the steps she took as she drove along Morrison Hill Road southbound towards the junction.  She testified in examination in chief as follows:-

“I looked ahead there was no vehicle ahead of me. Then I looked right and I saw very clearly there was no vehicle on my right. Then I felt safe because the road condition was safe so I accelerated. Then, all of a sudden I saw the emergence of the front of the taxi. Then I was a bit shocked I was wondering why the front of another vehicle was coming out. At that time I couldn’t move both my feet as I didn’t expect any vehicle coming out. Then I immediately and slowly braked. I’ve applied my brake before colliding with the taxi but my car didn’t stop in time and then came the collision.”

42.  The defendant was asked and she replied to her counsel Mr Duncan SC the following: -

Question:- “before u applied the brakes had you seen the stop sign?”

Answer :-“no I only concentrated on the condition of the road itself.”

  The defendant went on to say that before she braked she did not see the stop signs or the words painted on the road with the words STOP.

Question:- “are u able to say why u are not able to see those stop signs?”

Answer :- “I cannot give an explanation as to why I didn’t see them I can only say my focus and attention was on the condition of the road. No vehicle ahead and no vehicle on the side so it was safe at that time.”

43. In cross-examination by Mr Paul Chau counsel-on-fiat, it was put to the defendant if she was paying a proper look-out she could not have failed to see the stop signs or the stop road markings painted on the road. The defendant replied :

“I looked ahead, straight ahead, no vehicle was straight ahead and looked to the side (right) briefly there was no vehicle and straight ahead no vehicle so I accelerated a bit. ”

  She went on to say she did not see the double white lines on the road at the junction. She explained her sight was concentrated directly ahead in front of her where there were no vehicles.

44. Whilst giving her answer to these questions by Mr Chau, the defendant demonstrated what she meant by looking straight ahead. I noted that she lifted her head looked ahead with her eyes at all times above her shoulders fixed to the direction forward and ahead.

45. It was the defendant’s evidence that she had never driven on this stretch of road before but that she had been driven on this stretch of road by somebody else. At the time, she was not in a good mood and was “disturbed” as a result of her financial problems and her being adjudicated bankrupt less than one month before in August 2011.

46.  Submissions

  I have taken into account all the submissions made by both Mr Phil Chau and Mr Peter Duncan SC leading Mr Wilson Chan. I shall not reiterate those submissions. 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.

47. Mr Chau submits that the defendant was driving dangerously such that it was obvious to a careful and competent driver that driving in the way she did would be dangerous.

48.  The principal submission by Mr Duncan SC is that the defendant’s driving only amounted to careless driving as this was a momentary lack of concentration by the defendant which led to tragic circumstances. 

49.  Analysis

Not keeping a lookout

  The defendant had an unobstructed view of the southbound Morrison Hill Road and the approach to the junction. The weather was fine and the visibility was good. The road surface was dry.

50. The stop signs and the road markings were prominently displayed. There was nothing obstructing or blocking the stop signs on the side of the road at the junction or covering the markings on the road when the defendant was approaching the junction. There were no obstructions or obstacles on approach along the route the defendant took towards the junction. There was no vehicular traffic travelling in front of the defendant. The location where the accident happened was straight and level. There was a reasonably lengthy straight route approaching the junction. There was a clear line of vision.

51.  Why then was the defendant unable to see the stop signs or road markings?  The defendant was unable to give an explanation save that she repeated in evidence on numerous occasions that she was looking ahead (as demonstrated in paragraphs 41 - 43 above), focusing on the road conditions ahead. 

52.  On the defendant’s evidence and as was demonstrated by her I found that if her account, was correct she was driving with tunnel vision.  Her eyes were fixed at looking straight ahead above her shoulder height and beyond her car.  All she was able to see was that there were no cars ahead of her across the junction.  She clearly did not look anywhere else.  If the defendant had paid a proper lookout, she would have had a clear sight of the road signs and/or road markings.  I was satisfied that on her account she was not keeping a proper look out at all to any of the road traffic signs and traffic regulations that governed the traffic on the road she was travelling upon. 

53.  There was no evidence of any deficiency of the defendant’s eye-sight.  There was nothing obstructing her view of the stop signs or road markings.  I found it wholly inexplicable or inconceivable that the defendant or any competent and careful driver could have failed to notice any of the road signs or markings mandating all vehicles to stop at the junction. 

54.  For the defendant to have failed to have seen any of the stop road signs and or markings on the road commanding her to stop I was satisfied that she did not pay careful or any attention to or keep a proper lookout on her approach to the junction. 

55.  A competent and careful driver would have kept a constant lookout for road signs and for traffic regulations and would have seen the road signs and traffic regulations.  The defendant failed to do so which rendered her driving far below what was expected of a careful and competent driver.  It would be obvious to a competent and careful driver that driving in the way the defendant did would be dangerous. 

56.  Acceleration into the junction

  It was the defendant’s evidence that she knew she was approaching a junction ahead of her with the possibility of cars crossing in front of her from her right to the left. She said upon seeing there were no cars on her right or ahead she accelerated into the junction as she thought it was safe to do so.

57. In the Road Users code (the code) for junctions drivers are reminded to “Approach junctions with great care. Consider your road position and your speed. Drive on only when it is safe to do so and that you will not block the junction…”(Page 66.) The defendant’s act of accelerating into the junction was not with great care, she did not consider the road position or her speed.

58.  Stop and Give Way Junctions are mentioned on page 70 of the code.  Clear directions are given. “The “stop” sign and road markings- you must stop at the line even if there is no traffic on the major road.  Wait for a gap in the traffic before you move off.”  The give-way sign and road markings – “you must give way at the line to traffic on the major road.  Stop if necessary. 

59.  The stop and give way signs are used at junctions when the view of the junction may be restricted or any event to inform the driver that he is about to merge with traffic at the junction and to drive with care and to reduce speed so as to wait or stop at the junction.  This must be common-driving sense even if there were no give-way or stop signs on approach to a junction.  

60.  The fact that the defendant accelerated into a junction knowing that traffic may be coming on her right, is driving which falls 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 way would be dangerous. 

61.  The defendant was not caution. She did not attempt to stop or even slow down her Benz before the junction with the eastbound Morrison Hill Road.  It was only when it was too late that the defendant applied the brakes to her vehicle.  She only applied her brakes as a result of the approach of the taxi.  The defendant took no precautions until it was too late. 

62.  At this junction even if there were no cars approaching from the defendant’s right she was mandated to stop at the double white lines.  Only after stopping at the white lines and seeing there was no traffic approaching should she have moved off at a slow speed. 

63.  It was the defendant’s evidence that she was emotionally unstable, she was not in a good mood.  The Code’s advice at page 36 is “do not drive if you are tired, unwell or emotionally upset- if you must drive then keep your speed down and give yourself more time to react.”  This was a situation where the defendant on her own evidence said she was not familiar with the road and seldom drove despite having her driving licence for 13 years.  She should have taken more care and attention on the road she was driving upon so there would be more time to react, rather than accelerate into the junction leaving her with little or no time to react. 

64.  Ignoring the stop signs

Another possible scenario, although not advanced by the prosecution in its case against the defendant, is that the defendant knew of the stop signs but simply ignored it.

65. The defendant said she saw no vehicles approaching from her right and there were no vehicles ahead as the road was clear she therefore proceeded to cross the junction without stopping as she thought it was safe to do so.

66.  Immediately after the accident when the police officers had made enquiries of the defendant she had told them she had stopped at the stop sign.  As is evidenced by the video what she told the police that she stopped was a lie.  I was satisfied she lied to the police to extricate herself from responsibility that she had caused the collision and her failure to abide by the road signs. 

67.  At this trial the defendant was clearly unable to rely on her lie that she had stopped at the junction as the video recording showed clearly she did not stop.  The video footage left no other option open to the defendant but to change her original account to the police that she had stopped, to one admitting that she did not stop.  

68.  I was satisfied that as the stop signs, the road signs and the hatchings were so prominent and the fact that that the defendant knew this was a cross junction the defendant did know that she was required to stop.  I rejected her evidence that she did not see or know of the stop signs prior to the collision. 

69.  I was satisfied by the defendant’s answer to the police telling them that she had stopped at the junction was because she knew that she was required to stop at this junction when she was approaching the junction. 

70.  On all the evidence before me I was satisfied that the defendant had accelerated towards the junction as she assumed there were no cars approaching from her right to the junction.  Seeing there were no vehicles ahead of her she knowingly ignored the stop signs and accelerated towards the junction without slowing down or stopping. 

71.  On the above scenario, as the defendant knowingly failed to abide by the stop sign, the manner of the defendant’s driving fell far below what is expected of a careful and competent driver, and that by doing so it would be obvious to a competent and careful driver that driving in that way would be dangerous.

72.  Conclusion

  This was not careless driving as submitted by Mr Duncan SC. 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 one road worker and injuring two others, as well as PW1, as she knowingly failed to stop and comply with the road traffic sign and markings that mandated her to stop at the double white lines of the junction.

73. If, however, I am incorrect in my finding, I was satisfied that the defendant’s failure to see or notice the stop signs or road markings mandating her to stop fell far below what was expected of a competent and careful driver and it was obvious to a competent and careful driver that driving in that way would be dangerous.

74.  The defendant is convicted of the charge accordingly.