THE QUEEN v. LIN WING CHUNG

Headnote

        Careless driving - fatal accident - imprisonment not appropriate for first offender Where gravamen of offence is travelling too close behind vehicle ahead.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 811 OF 1985

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BETWEEN

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JUDGMENT

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1. The appellant pleaded guilty to careless driving. He was sentenced to two months imprisonment, disqualified from driving for two years and ordered to be retested. He was also ordered to pay $500 costs.

2. The charge arose out of a horrific accident on the Tuen Mun highway, in which two lives were lost. The victims were travelling towards Kowloon in the centre lane of the three-lane carriageway in their 1500 cc Datsun with their children. Apparently the nuts securing the nearside rear wheel became loose, resulting in the loss of the wheel.

3. The children were standing at the side of the road while their parents went about the business of changing the wheel. At this point the victims were struck by the appellant's car, a Toyota Crown, which was also travelling towards Kowloon and in the same lane. They died almost immediately. The Toyota also collided violently with the rear of the Datsun, which was propelled a considerable distance by the force of the impact. It was a strainght stretch of road. The weather was fine and the road surface was dry. The appellant's car was found to have no mechanical defects.

4. It was the second day of the Lunar New Year and the appellant, who is a factory manager living in Tuen Mun, was driving his family to visit relatives. He told the police that he had been following a goods vehicle at a distance of one and a half car lengths at a speed of about 45 m.p.h. The roods vehicle moved into the near side lane and it was only then that the appellant saw the stationary Datsun. He braked, but there was insufficient time to take evasive action before the collision.

5. The sketch plan of the accident shows skid marks 26 and 21.6 metres long, which were made by the appellant's car and which pass on either side of the fallen wheel. Just past the wheel there are scratch marks on the road, presumably made by the hub of the Datsun. The Toyota came to rest diagonally across the centre and nearside lanes, approximately six metres beyond the fallen wheel. On the ground in front of the Toyota are bloodstains and an area of broken glass. The Datsun itself finished in the same lane, but 48 metres from the bloodstains, which is the probable point of impact.

6. The distance from the scratch mark to the Datsun was 56 metres, which the magistrate has taken as the distance that the victims' car was propelled. I think this is wrong. It seems more likely that the scratch mark was made as the wheel fell off and before the Datsun came to a halt. I will proceed on the basis, therefore, that the impact knocked the Datsun 48 metres down the road.

7. The magistrate took the view that it made no difference, so far as sentence was concerned, whether or not the goods vehicle existed. The victims' children did not see it, but presumably the magistrate was appalled at the prospect of calling them as witnesses and understandably so.

8. He concluded that the evidence indicated that the Toyota was going so fast - greatly in excess of 45 m.p.h. - that it made no difference that the appellant's view of the stationary Datsun was obscured by another vehicle until the last moment.

9. In paragraph two of his statement of findings the magistrate observes, "It was agreed that immediately prior to the accident the defendant's vehicle had been following a two tons goods vehicle for some 200 feet at a distance of 1½ car length at a speed of 45 m.p.h. ½ car length is between 15 and 18 feet. According to the Highway Code the overall stopping distance under the best of conditions at a speed of 45 m.p.h. would be in the region of 100 feet. If his story were true, he was driving much too close to the preceding vehicle and would never have been able to stop in time in case of an emergency."

10. I have no quarrel with the last sentence, but the magistrate is incorrect when he gives 100 feet as the overall stopping distance. That is the stopping distance after the brakes have been applied. To this must be added the thinking distance, which is 45 feet at 45 m.p.h. His longer skid mark was 26.1 metres or 86 feet. Making allowance for the foreshortening of the stopping distance by the collision, but bearing in mind that the Toyota stopped almost at the point of impact and that the appellant suffered only slight injury, it seems to me that that evidence is not inconsistent with a speed of 45 m.p.h.

11. The magistrate then says, 'All this means, if the defendant was doing 45 m.p.h. on a dry, straight road, with good brakes, as was the case, he would have been able to take some evasive action. Such evasive action would probably have not been enough to avoid an accident, but it just could not have been an accident of such magnitude.'.

12. Thus the magistrate apparently accepts that, even at 45 m.p.h., a collision was inevitable. Assuming the presence of a lorry approximately 20 feet long - as I think I must - and a 18-20 feet gap to the appellant's car, the brake marks and the thinking distance show, I agree, that a collision was inevitable.

13. The crucial part of the magistrate's reasoning now follows: "In spite of the braking and the impact on the bodies and the vehicle, we have a situation where the victims' vehicle which had broken down and was resting only on three wheels and hence could not easily have been pushed forward ..... was still pushed for a distance of some 58 metres (190 feet approximately), calculated from the beginning of the scratch mark. The victims' vehicle and the defendant's vehicle were both very severely damaged ..... The damage to the vehicles and more specifically the damage to the victims' vehicle coupled with the scratch marks made by the spare wheel on the hub of the victims' vehicle ..... are very significant in the matter of the likely speed of the defendant's vehicle. Assuming the defendant was following a 2 ton goods vehicle at 1½ car's length as he said he was, then in my view he was following it, not at 45 m.p.h. but at a considerably higher speed."

14. I have already indicated that 58 metres should read 48 metres. Nevertheless, on the face of it, that is a considerable distance. Yet the magistrate makes no reference to the fact that there is no scratch mark on the road beyond the point of impact. The inference is that the Datsun was propelled those 48 metres on three wheels. It is not known if the car was in neutral, or if the handbrake was off, but I think it is quite likely that the former at least was the case. If so, and bearing in mind that the photographs show the road to be slightly downhill at that point, it is possible that considerably less force was needed to push the Datsun 48 metres than the magistrate was prepared to accept.

15. The magistrate concedes that, if he is wrong in his conclusion that the defendant was driving at considerably more than 45 m.p.h., a custodial sentence would be unjustified in the light of the defendant's good character and previous driving record. In my judgment the magistrate was guilty of speculation. Any doubt should have been resolved in the appellant's favour. As I have attempted to show, the likelihood of the matter is that his speed was not greatly, if at all, in excess of 45 m.p.h.

16. Quite apart from such considerations, if the prosecution had taken the view that the evidence warranted such a conclusion, it would have been their duty to charge the defendant with reckless driving causing death, contrary to section 36 of the Road Traffic Ordinance. They chose not to do so, and I think the magistrate should have accepted that decision.

17. In Mak Kau v. R.⁽¹⁾ Briggs CJ allowed an appeal by a public light bus driver who had run down and killed a pedestrian on a driving crossing. He was convicted of dangerous driving causing death and sentenced to three months imprisonment. Substituting a fine for the prison sentence, the judge agreed with counsel's suggestion "that this offence can be divided into two separate categories. One, where the accident is caused by an error of judgment or foolishness and, two, where the accident is caused by the deliberate taking of a risk or driving in an irresponsible manner ..... only for an offence coming within the second category should a custodial sentence be imposed."

18. The circumstances justifying imprisonment on conviction for careless driving are considered by Blair-Kerr, J. in Chan Kwai-lai v. R. ⁽²⁾. In that case the appellant, who had previous convictions for motoring offences, had killed a woman on a stud crossing in Leighton Road, when driving a private car at a speed of 55 m.p.h. at 2.30 p.m. That speed was not disputed by the appellant.

19. The judge held firstly that it was not irrelevant to sentence on such a charge that someone had been killed. He took the view that it was a very bad case of careless driving, in which the magistrate had been justified in imposing the maximum sentence of three months imprisonment.

20. Tragic though the facts of the present case are, 45 m.p.h. on the Tuen Mun highway is a far cry from 55 m.p.h. approaching a pedestrian crossing in Leighton Road. The essence of the careless driving in this case was the appellant's failure to drive in such a manner as to ensure that he could stop in an emergency. This was not deliberate risk-taking.

21. I am satisfied - and the magistrate concedes as much - that that speed does not merit a sentence of imprisonment. I consider the proper penalty to be a fine of $1,500.

22. I also think the disqualification period is excessive and reduce it to 12 months. The order for costs will stand.

23. The appeal is allowed and the sentence varied accordingly.

(1)    1977 HKLR 39

(2)    1968 HKLR 31