HKSAR v. CHEUNG YIK WAH

HCMA162/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.162 OF 1999

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J U D G M E N T

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1. The Appellant was convicted of reckless driving causing death and failing to stop after an accident where personal injury had been caused on 21st December 1998. On 6th January 1999, he was sentenced to three months' imprisonment in respect of the first charge and one month's imprisonment on the second charge, the sentences to run consecutively.

2. On 22nd April 1998, on an unnamed road linking Waterloo Road with the West Kowloon Expressway, the Appellant was driving towards the tunnel booths on the West Kowloon Expressway leading to Hong Kong Island and approaching the West Kowloon Expressway on the link road. There is no dispute that the link road which is a partially elevated roadway and the Expressway itself are areas to which pedestrians are forbidden, there is no provision for pedestrian passage, and the presence of pedestrians on the road is a very unusual circumstance. The speed limit on the link road approaching the Expressway was 50 kph. Just prior to the point where the link road joins the Expressway, another link road converges with it. Therefore, two separate roads converge into two lanes of traffic which then merge with the West Kowloon Expressway.

3. The first witness for the prosecution, who drove over the bridge leading to the Expressway, which was one of the converging link roads, testified that as he came down the link road approaching the Expressway, there was a car being driven in front of him. At the point where the link roads join the West Kowloon Expressway, he saw three men commenced to cross the road which would be to cross the two lanes of the converging link roads and then proceed onto the West Kowloon Expressway. They were later found to be visitors from the Mainland who were clearly unaware of where they should have been and where they should not have been. He said that they dashed out onto the road and that the car in front of him struck one of the men, that was the man who subsequently died. This witness said that the Appellant's vehicle did not stop but proceeded to merge with West Kowloon Expressway, going to the very right hand lane of that road. He said he gave chase, pressed his horn and flashed his lights, drove in front of it and made it stop by blocking its way. He said that his vehicle reached a speed of 120 kph as he chased and passed the Appellant's vehicle. A further witness, who was the driver from another vehicle approaching the Expressway on the link road said that he saw the Appellant's car approaching the entrance to the Expressway. He saw three persons walking across the link road onto the Expressway; they had walked across the first lane to the second lane and that they stopped between the lanes. At that point, the Appellant's vehicle swerved to the right a little bit. It is to be noted that the Appellant's vehicle was in the right hand lane of the link road and to swerve to the right would take him across a painted strip on the road into the first lane of the Expressway. This witness said two of the three men were hesitant as to whether to stay still or to run, and one of them ran. At that point, he was struck by the Appellant's vehicle.

4. A police office who arrived on the scene spoke to the Appellant who said that he was driving at a speed of about 80 kph, that he braked and swerved to the right, but the pedestrian continued to rush out onto the road; that he fell an impact on the near side front of his vehicle; that the windscreen and rear-view mirror were damaged on his car. A fragment of debris entered his eyes, he closed his eyes and braked to bring his car to a stop near the entrance of the West Harbour Tunnel. This witness did not notice any injury on the Appellant, but by consent, a medical report of the Appellant in respect of a medical examination on the day after the accident was adduced. That medical report stated there was mild tenderness and swelling around the left eyebrow and that a small conjunctival haemorrhage was noted. It was the opinion of the Doctor, which was not contested, that it was likely that he had lost his ability to see for a short period of time after the impact.

5. The perfected grounds of appeal against conviction complain that the Magistrate was not clear in her findings that the inferences she drew from facts were either vague, misconceived or wrong inasmuch as they were not the only inference that could properly be drawn; that inconsistency were not reconciled; the testimony supporting the case for the Appellant was ignored; that the test the Magistrate applied in her finding that the behaviour of the Appellant was reckless, wrongly took into account various matters; that the charge on the indictment was not considered separately; and other matters which I need not illuminate.

6. At the end of the day, the main concern expressed by Mr Jenkyn Jones in respect of this case was that the Magistrate, having heard the witnesses for the prosecution and the Appellant, wrongly assumed from the speed of the Appellant before and then after the accident and the fact that death occurred were matters from which she was entitled to infer that the Appellant had been reckless. In all the circumstances, he said that there is a reasonable doubt that the behaviour of the Appellant was reckless in the circumstances of this incident.

7. The test of recklessness is set out in R. v. Lawrence [1982] AC 510 where Lord Diplocks said at p.526 :-

"In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things : first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it."

In this case, therefore, the Magistrate had to be sure that the manner of the driving of the Appellant was as to create an obvious and serious risk of causing physical injury to some other person. The circumstances were that the Appellant was approaching the intersection of the link road upon which he was travelling with the Western Crossing Expressway. There were varying estimations as to his speed, but it seems very probable that it was in the vicinity of 70 kph on a road which had a speed limit of 50 kph. Whilst that was a higher speed than was permitted by law, he was doing so in company with other vehicles, in particular, that of the first prosecution witness who was travelling some three vehicle lengths behind him and must have been travelling at approximately the same speed. As the Appellant moved down the link road to the Expressway, the three pedestrians moved from the left hand side of the road to cross the first lane to stop at the division between the first and second lanes. The Appellant swerved a little bit to the right, but to have done more would have been to swerve into the first lane of the Expressway across a hatched painted area on the road which prohibited such an action.

8. The deceased dashed forward and ran into the car driven by the Appellant. The proposition which must be considered is whether the speed and the evasive action taken by the Appellant, followed as he was by PW1, a short distance behind, was a manner of driving such as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road. I am of the view that it was not. I am satisfied that there was ample evidence that such manner of driving was careless, a position which the Appellant has conceded. I do not accept that there was sufficient and clear evidence in all the circumstances to find that the Appellant was reckless.

9. In respect of the second count, the Appellant continued on for a considerable period of time along the road, he said in circumstances where his eye had been affected by debris. There was a medical report to the effect of a swelling to his eye and some conjuctival haemorrhage on the day following the accident. That was evidence of his condition on 23rd April. The Magistrate did not believe the Appellant in his evidence as to why he did not stop nearer to the accident. There was clear evidence which the Magistrate accepted : that the first prosecution witness chased after the Appellant and that he stopped him by stopping his car in front of the Appellant's vehicle. I am satisfied that the Magistrate properly considered the elements of the offence relating to the failure to stop and I am satisfied that this conviction must stand.

10. I have considered all that was addressed to me in respect of sentence and having allowed the appeal in respect of the first charge, I substitute the conviction for reckless driving causing death with one of careless driving, the penalty is set aside and a fine of $3,000 is imposed in lieu thereof. In respect of the charge of failing to stop after an accident, I am concerned that one of the aggravating features found by the Magistrate was that the Appellant increased his speed from 80 kph to 120 kph in an attempt to escape from the scene. The evidence from PW1 was that he accelerated his car to a speed of 120 kph in catching up with and passing the Appellant to place himself in a position to then stop the Appellant. I am not satisfied that the Appellant achieved that speed, nor it would be logical that he did so if that was the speed necessary for PW1 to pass and pull in front of the Appellant. Nor was the fact the Appellant was stopped by PW1 an aggravating feature. The fact of failing to stop is the commission of the offence and these other matters do not aggravate it .

11. I am satisfied that in the absence of these aggravating features an immediate custodial sentence is not appropriate. The appeal against sentence is allowed and the sentence of imprisonment is set aside, and a fine of $5,000 is imposed in lieu thereof.