THE QUEEN v. TANG KWONG WING

No. 241 of 1988

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H E A D N O T E

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Careless driving - appellant driving while still in driver's seat at end of journey, although not intending to continue.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 241 OF 1988

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J U D G M E N T

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1. The appellant was convicted of careless driving by Mr Eaton at North Wowloon Magistrates Court.

2. On the 24th December, 1986, at about 12.55 a.m., PC22670 was on duty in uniform with another police Officer outside the Miramar Hotel. They were posted there to deal with any trouble that might occur at the DEJA VU disco. Suddenly he heard the noise of a car engine revving noisily on his right and, looking in that direction, he saw the appellant's car mount the pavement and come straight towards him. He tried to avoid it by stepping backwards, but it struck his left knee and he fell onto the wooden signboard outside the disco. The car stopped on the pavement.

3. PC10472, of the Accident investigation Squad, said the appellant told him he had stopped his car in the lay-by outside the Miramar Hotel, and was about to get out of it, when the cur suddenly dashed forward and mounted the pavement.

4. This officer also gave evidence that the appellant's car had automatic transmission and that, when he arrived the gear lever was in the parking position. Asked whether the appellant had told him that he thought it was because of a mechanical defect that the car dashed forward, he said "I don't remember that".

5. After the accident the car was examined by Mr Oakley, a Motor Vehicle Examiner, and his report was admitted under Section 65C of the Criminal Procedure Ordinance, Under the heading "Mechanical defects", the report reads "None apparent".

6. The evidence for the defence may be summarised as follows:-

(a)     After dinner the appellant drove his vintage 1972 Mercedes-Benz to the DRJA VU disco in Kimberley Road. When he arrived, his wife and the manager were waiting on the pavement to take him down to the disco.

(b)     He drove into the lay-by outside the Miramar Hotel. He stopped the car, pushed the gear lever from D to P and switched off the lights, but left the engine running.

(c)     The disco provided parking service. One of the attendant opened the front passenger door of the appellant's car to allow his 18 year old girl passenger to alight. The attendant closed the door.

(d)     Another attendant was waiting on the off side of the car, waiting for the appellant to get out. He opened the driver's door, which was held by the parking attendant, and put his right leg out. The moment his foot touched the ground the car suddenly dashed forward and he put his leg back inside. He tried without success to stop the car. It mounted the pavement before the appellant eventually braked to a halt. The engine was still running. When the car had stopped completely, the apppellant switched off the ignition.

(e)     He got out and saw the damage to his nearside front bumper. He saw the signboard lying on the ground and he saw the injures policeman, to whom he apologised.

(f)     Asked if he had offered any explanation, the appellant said that, looking back, he remembered that, after his girl passenger got out, the attendant shut the door, but did not close it properly, so he leaned over to do it himself. He was wearing a double-breasted suit and he thought it might have caught the gear lever. He said this was the explanation he gave he gave the police. The only other possibility he could think of was that there was something wrong with the gearbox. He said he did not suggest that to the police.

( g )     The appellant said he had bought the car about two months before the accident and it was then in good condition. After the accident he had had it rebuilt and resprayed. The garage told him there was something wrong with the gearbox but he did not know what it was.

(h)     Mr. Andrew Lam Ping-chen, a solicitor, said he was following the appellant in his own car and stopped behind him in the lay-by. He saw the parking attendant approach the car and the appellant's right leg emerge from the car. All of a sudden the car suddenly dashed forward. He said that, when the car dashed forward, the appellant was in the driver seat and the door was closed.

(i)     The final witness was Mr Leslie Sims, the manager of the disco, who said he raw the appellant's car dash forward as the appellant was about to get out of it. He himself was obliged to jump to one side.

7. Having regard to the Motor Vehicle Examiner's report, and the lack of evidence from the defence on the point the magistrate was unable to accept the possibility of a gearbox defect.

8. Nor did he accept the defendant's unlikely suggestion that his jacket might have caught in the gear lever. He noted that neither possibility could be reconciled with the noise of the revving engine heard by PC22670.

9. The magistrate did, however, apparently accept that the defendant had placed one foot on the ground, preparatory to getting out of the car and handing it over to the parking attendant.

10. The main issue before the magistrate and on appeal, was whether the defendant was 'driving'. Counsel for the appellant has cited several authorities in support of the proposition that, as the appellant did not intend to continue his journey after stopping the car in the lay-by, he was not "driving" when it subsequently moved forward.

11. In particular he relied on R. v. MacDonagn⁽¹⁾ in which the court held:

"allowing the appeal, that, the essence of driving was the use of the driver's controls in order to direct the movement, however the movement was produced, and that, although the word 'drive' was to be given a wide meaning, it did not include activities which could not be said to be driving a motor vehicle in any ordinary use of he word in English; that there had to be a distinction between driving a car and pushing it; that the ordinary meaning of 'drive' could not extend to the appellant who was not in the car; had both feet on the road and was making no use of the controls apart from an occasional adjustment of the steering wheel."

12. That principle was applied in Blayney v. Knight(2). In that case the heaednote reads.

"The driver of a car, which had automatic transmission and was owned by him and used as a taxi, left it in a road with the engine running, the driver's door open; the control lever in "drive" and the handbrake on, while he went to the door of a club to collect a fare. The defendant, who came out of the club and saw two of his friends sitting in the car on the back seat; went to join them having tried unsuccessfully to open the rear door, he sat in the driver's seat. The driver returned to the car, attempted to remove the defendant and struggled with him. During the struggle the defendant's foot accidentally depressed the accelerator, causing the car to move off suddenly the defendant did not intend to drive but the driver was thrown to the ground and the car ran over his legs. The defendant was charged with various offences including driving the car contrary to section 6(1) of the Road Traffic Act 1972, or being in charge contrary to section 6(2) of the Act of 1972 and taking the car without consent, contrary to section 12(1) of the Theft Act 1966. The justices were of opinion that the defendant was not, at the time of the alleged offences, in a position to have sufficient control over the movement and direction of the vehicle as would constitute driving, and they, therefore, dismissed all the informations.

On appeal by the prosecutor. Held, dismissing the appeal, (1) that a person sitting in the driving seat of a vehicle not intending to drive or exercise control over it, who accidentally depressed the accelerator and thus caused the vehicle to move, could not be said to be driving in any normal use of the word."

13. The crucial words, so far as the present case is concerned, are 'exercise control'. What counsel has overlooked, with respect, is that the appellant had been driving and, although not intending to continue, was still in control of the vehicle,

14. In Edkins v. Knowles(3), Griffiths, J. (as he then was) giving the Judgment of the court of Appeal summarised the effect of earlier decisions at p. 755:-

"The vehicle does not have to be in motion; there will always be a brief interval of time after the vehicle has been brought to rest and before the motorist has completed those operations necessarily connected with driving, such as applying the handbrake, switching off the ignition and securing his vehicle, during which he must still be considered to be driving".

The magistrate concluded his complehensive and very helpful Statement of Findings thus:

"In the circumstances I was unable to accept the Appellant explanation of the cause of the accident. At the time of the accident the Appellant was in the driving seat of his car with the engine switched on, and was in control of the car and I was satisfied beyond all reasonable doubt that movement of the car was caused by an act of carelessness on his part.

15. It is not known how the appellant managed to put the car into gear and to press the accelerator; he certainly did not intend to do so. That, however, is immaterial. He was still in control of the vehicle, and 'driving', when it happened.

16. The magistrate came to the correct conclusion and rightly convicted the appellant. The appeal in dismissed.

(1)[1974] RTR 372

(2) [1975] RTR 279

(3) [1973] Q.B.D. 748