HKSAR v. WONG CHUN WAI

[English Translation – 英譯本]
DCCC 54/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 54 OF 2016

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REASONS FOR VERDICT
AND
REASONS FOR SENTENCE

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Offences

1.  The defendant was charged with three offences:-

1) Causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap.374

2) Using a motor vehicle without carrying two front lamps capable of showing to the front a white light visible from a reasonable distance, contrary to regulations 89(1) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap.374A

3) Using a vehicle without a suitable apparatus for extinguishing fire which was maintained at all times in good and efficient working order, contrary to regulations 9(2)(c) and 12(2) of the Road Traffic (Safety Equipment) Regulations, Cap.374F

2.  The defendant pleaded not guilty to Charge 1.  He pleaded guilty to Charges 2 and 3.  The trial in this court concerns only Charge 1.

Prosecution case

3.  Around 9:00 p.m. on 22 June 2015, the defendant was driving a Public Light Bus SY9151^[1] along Shek Pai Street, Kwai Chung, New Territories, in the direction of Kowloon.  At that time, the weather was good and the road surface was dry^[2].  The section of road in question was lit by street lights^[3].  There were no passengers on board the Public Light Bus^[4].

4.  The accident occurred at the pedestrian crossing near lamp-post with serial no. W3580.  The crossing was controlled by traffic signals^[5]. The section of Kowloon-bound Shek Pai Street before reaching the pedestrian crossing was a downslope road with a left bend.  Bilingual road markings “SLOW” and “慢駛” were painted on the road surface^[6].  The traffic signal post and the flower bed on the right-hand side of the pedestrian crossing in question can be seen clearly by the approaching vehicular traffic from quite a distance away^[7]. The traffic signal post on the left-hand side of the pedestrian crossing can be seen by the approaching vehicular traffic as they continue to close in on the said crossing before they reach the “SLOW” road marking on Shek Pai Street^[8].

5.  When the defendant’s Public Light Bus reached the pedestrian crossing in question, a 78-year-old male pedestrian [hereinafter referred to as “the deceased”] walked off the pedestrian pavement onto the carriageway in front of the Public Light Bus from its nearside towards its offside^[9]. [Note: this is the most material issue in this case, please refer to “Case Analysis” below.]

6.  The defendant slammed on the brakes and steered right, but he was unable to stop the Public Light Bus in time, and thus knocked down the deceased^[10].  After the accident, the deceased was lying not far from the front of the Public Light Bus, and his blood had stained the road surface of Shek Pai Street^[11].  The spot where the deceased was found lying on the carriageway was 1 metre from the pedestrian pavement.  His head was closer to the front of the Public Light Bus^[12].

7.  When ambulancemen arrived at the place of the accident a few minutes later, they found the deceased unconscious, but he was still breathing and had a pulse.  He was lying on the road surface in front of the Public Light Bus on the left-hand side of Shek Pai Street, facing the pedestrian pavement on the left hand side; his head was pointing to the direction of Shek Lei Estate.  There were abrasion wounds on both his hands, his left leg was broken^[13].

8.  On the other hand, after the defendant’s Public Light Bus knocked down the deceased, it spun forward for about 2 vehicle lengths and came to a halt^[14].  Two skid marks of about 13.2 metres in length were found at the right rear tyres of the Public Light Bus and they ended at the right rear tyres; two skid marks of about 6.4 metres in length were found at the left rear tyres and they ended at the left rear tyres^[15]. The nearside front of the Public Light Bus and its nearside wind screen were damaged.  The degree of damage was very obvious, it was not minor damage^[16]. The bloodstain at the scene was about 6.4 metres from the nearside front of the Public Light Bus^[17]. The deceased was about 1.65 metres in height^[18].  The damage on the windscreen on the defendant’s nearside was approximately 1.7 metres from the ground^[19].

9.  At the scene, the defendant indicated to the investigating officer that he was driving at roughly 40km/h at the material time.  When he drove near the pedestrian crossing in question, he suddenly saw the deceased “walking from the left to the right” where his vehicle was heading.  The defendant slowed down and sounded the horn, but still could not avoid the deceased.  Eventually, the impact had “bounced away” the deceased.  Furthermore, defendant reiterated to another investigating officer that he was driving at approximately 40km/h at the material time.  When he was near the light signals, he saw that the lights were green, and the deceased was walking on the pedestrian pavement on the left hand side at a distance of about 15 metres from the Public Light Bus.  The deceased suddenly walked out onto the pedestrian crossing from the left to the right without paying any attention to the traffic conditions at the time.  The defendant thus steered right in an attempt to avoid the deceased.  However, the nearside front of the vehicle still knocked down the deceased, and resulted in the accident.  The defendant indicated that he had sounded the horn at the material time, but the deceased still got knocked down between the first and second yellow stripe of the pedestrian crossing.

10.  The deceased was sent to Princess Margaret Hospital for resuscitation.  The doctor at the Accident and Emergency Department found the deceased unconscious with sluggish response of the left pupil.  He suffered multiple severe injuries, including those on the left side of his face and those on the left lateral side of his chest.  Gross deformity and severe lacerations were found in his left lower leg.  Multiple left rib fractures as well as fractures of pubic rami and pelvis were also found.  The deceased was then sent to the Intensive Care Unit and he was found to have suffered severe traumatic brain injuries and multiple fractures, including but not limited to minor pneumothorax and contusion on the left chest wall, fractures of 1^st to 11^th ribs on the left, minor haematoma and comparatively active blood stasis of the left pelvis, left superior and inferior pubic rami fractures, right ilium fracture, left tibial-fibular shaft fractures and dislocation^[20]. The deceased was certified dead on the night of 23 June 2015^[21].  The direct cause of death was severe head trauma^[22].

11.  On 25 June 2015, in the presence of the defendant, a technician downloaded the vehicle speed data of the Public Light Bus from its speed display unit.  The file was then opened in a portable computer with the relevant software so as to allow the police to read the data.  The data indicated that, 5 seconds before the accident, the defendant was driving at approximately 70km/h.

12.  On the morning of 6 July 2015, the defendant was arrested by the police for the offence of causing death by dangerous driving.  Under caution^[23], the defendant indicated that at the material time, he was driving at approximately 60 to 70km/h.  When he was about 30 metres from the light signals in question, he saw the light signals changing from red to green, thus he continued at the same speed in the direction of Kowloon; he also paid attention to the conditions at the pedestrian pavement on his offside.  The Defendant explained that, as there was a flower bed over there, it was relatively difficult to have a clear view, thus it was his habit to look first to the pedestrian pavement on his offside before looking to that on his nearside. Defendant indicated that he knew the speed limit at that stretch of road was 50km/h^[24]. He explained the reason for maintaining the speed between 60 to 70km/h was “because (I) was travelling downslope and the stretch of the road beyond the traffic signals ahead was going to be upslope; at the time I saw that the lights were green, therefore I did not slow down”^[25].  The defendant said that when the Public Light Bus got to approximately 15 metres before the pedestrian crossing, at the pedestrian pavement on his nearside, he saw the deceased, who had his back towards the defendant, facing and “walking towards Kowloon, suddenly turned to the right and walked out onto the carriageway.  At that time, seeing the pedestrian with his head down, I thus braked at once and sounded the horn.  At that time, seeing the pedestrian continue to walk forward with his head down, I thus steered right to avoid the pedestrian, but the nearside front of the vehicle still knocked down the pedestrian”^[26].

13.  Dr. Tam Yiu Yan, a witness for prosecution, pointed out that the speed of the Public Light Bus at the beginning of the skid marks was 49km+/-5km per hour.

Defence Case

14.  The defendant has no previous criminal convictions.  He elected not to give evidence nor call any witnesses.

Case Analysis

15.  The burden of proof is on the prosecution to prove beyond reasonable doubt that the defendant had committed the offence as specified in Charge 1. Otherwise, the court must enter a not guilty verdict in respect of the defendant.  The defendant has no criminal conviction recorded against him previously, which indicates that he had no propensity to commit any criminal offences, and that adds to the credibility of the statements he made under caution or otherwise.  As there is no dispute concerning the ordinances and laws applicable to Charge 1, I do not intend to go into details in this regard.  I bear in mind that “res ipsa loquitur” is not applicable in any criminal cases.

16.  Taking into account all the objective evidence, I am inclined to make a finding of fact beyond reasonable doubt, that is, at the material time, instead of walking in front of the Public Light Bus from its nearside to its offside, the deceased walked in front of the Public Light Bus from its offside towards the pedestrian pavement on its nearside.  The objective evidence I referred to includes: 1. The nearside front of the Public Light Bus was quite seriously damaged.  2. Most of the severe injuries the deceased suffered were on the left side of his body, for example, his 1^st to 11^th ribs were all broken.  3. The left lower leg bones (rather than the right lower leg bones) of the deceased were severely fractured, and the fractures were just at the same height as the front bumper of defendant’s Public Light Bus.

17.  I am of the view that, when a vehicle knocks down a pedestrian at high speed, the more severe injuries would appear at the point of impact with the vehicle; one would be able to distinguish the obvious difference between such injuries and injuries from ground impact.  In this case, it can be certain that the deceased was hit on the left side of his body.  Therefore, it cannot be the case that, as alleged by the defendant, the deceased walked in front of the defendant’s Public Light Bus from its nearside towards its offside at the material time.  If what the defendant alleged is correct, then the more severe injuries the deceased suffered should appear on the right side of his body.  Furthermore, when paramedics arrived at the scene, they also discovered that the deceased was facing the left hand side.  Of course, the deceased’s body could have turned subsequent to the vehicular impact.  However, the fact that paramedics discovered the deceased facing the left hand side is a piece of objective evidence in support of the conclusion that when the vehicular impact occurred, the deceased was facing the pedestrian pavement next to the nearside front of defendant’s Public Light Bus.

18.  In addition, the objective evidence indicates that the section of Kowloon-bound Shek Pai Street before the pedestrian crossing in question was indeed a relatively long stretch of downslope carriageway with a left bend, it then became upslope after the pedestrian crossing.  This piece of evidence strongly supported the reason given by defendant under caution for not slowing down.  Dr. Tam, the expert witness for prosecution, pointed out that when the braking system of defendant’s Public Light Bus locked the rear tyres, the vehicle was travelling at a speed of 44 to 54 km/h.  It took about 2 seconds for the vehicle to come to a halt.  On the other hand, data collected from the vehicle’s speed recording device indicated that, 5 seconds prior to the accident, the defendant was driving at a speed of approximately 70km/h.  Subsequently, there was a sudden and substantial reduction in speed.  This piece of evidence is very much consistent with Dr. Tam’s evidence.  I am of the view that, 5 seconds prior to the accident, the defendant was driving at approximately 70 km/h; it took him 3 seconds to reduce the speed from 70km/h to about 44 to 54km/h, and then the braking system managed to lock the rear tyres and bring the Public Light Bus to a halt approximately 2 seconds later.

19.  The defendant had no previous criminal convictions.  Taking into account of the above evidence, I am inclined to make a finding of facts beyond reasonable doubt, that is, at the material time, the defendant followed his habit of paying attention first to the conditions at the area with the flower bed on the right side of the pedestrian crossing.  As he knew that the stretch of road beyond the pedestrian crossing would become upslope, he thus maintained a speed of approximately 70km/h when he dashed towards the pedestrian crossing, during which he discovered the deceased walking on the pedestrian crossing from his offside towards his nearside in front of his vehicle.  The defendant was unable to stop the vehicle or avoid the deceased in time, and that resulted in this fatal accident.  The court does not rule out a guilty verdict beyond reasonable doubt.

20.  However, in the admitted facts, prosecution has admitted that the deceased stepped onto the carriageway in front of the Public Light Bus from its nearside towards its offside^[27]. Thus, no matter how inconsistent the evidence before me was with this piece of admitted facts or even to the extent that they contradict one another, I have no jurisdiction to make a finding of facts contrary to or in departure from the admitted facts.  On the basis of this piece of admitted facts, and only because of this piece of admitted facts, I am unable to, beyond any reasonable doubt, reject the proposition that when the defendant was very close to the pedestrian crossing, the deceased suddenly turned right and walked off the pedestrian pavement in front of the defendant’s Public Light Bus on its nearside onto the pedestrian crossing, and thus it did not matter if the defendant’s Public Light Bus was within or without the speed limit, or how careful and prudent the defendant was, this accident would be unavoidable.

Conclusion

21.  I am tremendously saddened by the passing of an innocent pedestrian as a result of the accident in this case, and I offer my deepest condolences to his relatives and friends.

22.  I find that the prosecution has failed to prove the defendant’s driving fell far below the standard expected of a competent and careful driver.  The defendant is found not guilty of Charge 1, which is dismissed.  I find the defendant guilty of Charges 2 and 3 on his own plea and he is fined $400 on each of these two charges.