HKSAR v. CHEUNG HANG KEI

DCCC 785/2018

[2020] HKDC 13

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO. 785 OF 2018

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty to one charge of causing grievous bodily harm by dangerous driving but indicated his guilty plea to a charge of careless driving.  The prosecution did not accept the said guilty plea and the case proceeded to trial. 

2.  The prosecution alleged that on 12 February 2018, outside Hong Kong Gold Coast Phase 1, Castle Peak Road, Castle Peak Bay, Tuen Mun, New Territories, the defendant caused grievous bodily harm to Madam Fong Nga Peggy (“the victim”) by driving a private car bearing registration mark VA4757 on the road dangerously. 

3.  It was common ground that on the material day at about 1935 hours a traffic accident occurred at the abovementioned location involving VA4757 and another private car bearing registration mark HD3298 driven by Mr Ngai Chi-ho Tony (“PW1”).  At the time of the accident, PW1’s wife, that is the victim, and their son were on board of HD3298 occupying the offside rear passenger seat and front passenger seat respectively. 

4.  The main issue in dispute was the defendant’s driving manner, whether he was driving dangerously.

Prosecution Case

5.  The prosecution called two prosecution witnesses and produced in evidence Exhibits P1 to P8A to substantiate the case. 

6.  The material section of the Castle Peak Road (“the road”) had two lanes in each direction.  The speed limit was 50 km/hr.  The exit of the Gold Coast Carpark (hereinafter referred to as “the Exit”) formed a T-junction with the Castle Peak Road Tuen Mun-bound (“the junction”).  There were stop lines and a stop marking on the ground of the exit leading to the junction.  There were also yellow box markings at the junction.  The road Tuen Mun-bound leading to the junction was a left bend.  There were a number of signs warning the drivers of the left band and the junction ahead including: -

(a) a signpost indicating “100 m - Mild Left Bend” on the nearside, at 100 metres before the left bend (“1st signpost”);

(b) a signpost indicating “Mild Left Bend - Reduce Speed Now” on the nearside (“2nd signpost”);

(c) a signpost indicating “Junction Ahead - Reduce Speed Now” on the offside (“3rd signpost”);

(d) another “Junction Ahead - Reduce Speed Now” on the nearside (“4th signpost”) at the location where the left bend had just ended; and

(e) two “Slow” markings on the ground, the last one being the location where the left bend had just ended. The distance between the last “Slow” marking and the junction was about 33 metres.

7.  In summary, the prosecution case is that at the material time, the weather was fine; the road surface was dry and in good repair; the road was well lit; the traffic condition was normal.  

8.  VA4757 was travelling on the road Tuen Mun-bound leading to the junction.  PW1 stopped HD3298 at the “stop” marking of the exit and intended to turn right to join the road Tsuen Wan-bound.  After making sure that there was no oncoming traffic from his right, PW1 proceeded to enter the yellow box markings at the junction and during the course of which VA4757 hit the offside rear of HD3298 which caused HD3298 to spin around. 

9.  As a result of the accident, both vehicles were damaged and the victim sustained injuries.  She was then conveyed to the Tuen Mun Hospital for treatment and suffered the following injuries: -

a) Right chest wall injury and head injury;

b) Tenderness over right forehead and right chest wall; and

c) Fractures of the right 4^th to 11^th ribs.

She was confined to hospital for two days and was discharged on 14 February 2018. In May 2018, she was seen by a doctor and a chest X-ray showed that her ribs were healed without complications. She had infrequent discomfort over fractured sides only and was treated with analgesics. She was discharged without further follow up.

10.  PC8567 (“PW2”) was the police officer who attended the scene of the accident for an investigation.  He took 32 photographs (Exhibit P2) and some measurements of the scene.  No skid mark on the road Tuen Mun-bound at or near the point of impact was found.  On 11 June 2018, he took another set of 11 photographs (Exhibit P3) and drew a not-to-scale sketch (Exhibit P1) of the scene.

11.  At the close of the prosecution case, the defence made a no case to answer submission.  After careful consideration of the evidence and submissions, I ruled that there was a case to answer in respect of the charge against the defendant.

Defence Case

12.  The defendant understood his right and elected not to give evidence.  No adverse inference could be drawn against the defendant for exercising his right.

13.  Two defence witnesses were called to give evidence on behalf of the defendant. 

14.  Miss Lau Yu-ting (“DW1”) is the defendant’s girlfriend.  Her evidence mainly showed that they started going out with each other about 3 years ago and had been living together for 2 years.  She got her driving licence this year. At the material time, she was the front seat passenger of VA4757 driven by the defendant.  They departed from Tsuen Wan and were on their way to Tuen Mun for dinner.  During the journey, she was playing games on her mobile phone and did not feel that the defendant was skidding.  Prior to the accident, she felt the abrupt braking of VA4757 and took a look to the front.  She saw a car stopping in the yellow box markings and the defendant swerved to the left to avoid collision with that car.  She got abrasions on her leg and arm as a result of the accident. 

15.  Mr Wong Ping-wong (“DW2”) is an expert in traffic accident and reconstruction.  His expertise was not in dispute.  His evidence mainly showed that the defendant was travelling at 65 km/h, plus or minus 7 km/h at the time of collision.  His views on the frames depicted in Exhibit P7 were mainly that the defendant’s braking of VA4757 was effective after the collision, that is, when the braking light was on.  The footage retrieved from the car cam recorder of VA4757 (Exhibit P6) could not assist him in finding out as to when the braking of VA4757 took place.  However, it did give an indication that VA4757 had not been under heavy braking at the distance of 30-odd metres prior to the collision.

Analysis of evidence

16.  I remind myself that the burden is on the prosecution to prove beyond reasonable doubt all the elements of the offence throughout.  The defendant has a clear criminal record.  I direct myself that his propensity to commit the offence is lower.  As defined in section 37(4) of the Road Traffic Ordinance: -

“A person is to be regarded as driving dangerously within the meaning of subsection (1) if—

(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.”.

17.  In determining what would be expected or obvious to a competent and careful driver, the court should have regard to the circumstances set out in section 37(7), such as the nature and condition and use of the road; the amount of traffic and the circumstances of which the defendant could be expected to be aware and any circumstances shown to have been within his knowledge. 

18.  The test is an objective one.  Specific intention to drive dangerously and the consequences of the accident are irrelevant to the determination of the defendant’s driving manner.  The doctrine of res ipsa loquitur cannot be relied upon by the prosecution.

19.  The nature of the contents of the defendant’s record of interview (Exhibit P5) is, in my view, one of mixed statements.  I bear in mind the principles set out in R v Sharp when considering the contents.

20.  I have carefully considered all the evidence and submissions made by both the prosecution and the defence.

21.  After carefully reviewing the footage of P6 I note the following: -

(i) At 07:34:48: a white vehicle which was originally travelling in the right lane at some distance ahead of VA4757 changed to the left lane. There was a straight white arrow with the meaning “Ahead only in this lane” marking on the ground of the right lane in front of VA4757;

(ii) At 07:34:49: the white vehicle was still travelling in the left lane and ahead of VA4757 in the right lane. VA4757 drove past the 1st signpost on the nearside and then over another white “Ahead only in this lane” arrow marking on the right lane before reaching the pedestrian crossings with traffic lights;

(iii) At 07:34:50: VA4757 drove through the pedestrian crossings controlled by traffic lights and then over a white “Turn right in this lane” arrow marking on the right lane (the 1^st right turn arrow);

(iv) At 07:34:51-52: VA4757 still travelling in the right lane drove past the 2nd signpost on the nearside and over the 1st “Slow” marking on the right lane and caught up with the white vehicle travelling in the left lane. The white vehicle slowed down with its brake light on;

(v) At 07:34:53-54: the defendant started to steer left to overtake the white vehicle and drove over another white “Turn right in this lane” arrow marking on the right lane. whilst changing to the left lane;

(vi) At 07:34:55: the defendant completed lane change and positioned VA4757 in the centre of the left lane;

(vii) At 07:34:56: The defendant drove past the 4^th signpost on the nearside and also over the 2^nd “Slow” marking which was the last “Slow” marking on the ground. The front of HD3298 including its front wheels stopping on the longitudinal boundary, that is, the boundary closest to the white “Stop” lines at the Exit, of the yellow box markings. According to the 4^th signpost, the lane in which the defendant travelled had the priority to travel through the junction;

(viii)At 07:34:57: VA4757 collided with the rear offside of HD3298;

(ix) the white vehicle was the only vehicle seen travelling in the same direction in front or ahead of the defendant’s vehicle.

22.  It is admitted by the defence that when the front of HD3298 entered the junction, VA4757 had not yet passed the last “Slow” marking at 33 metres away from the junction.  If the defendant was driving at 50 km/hr, that is within the speed limit, the estimated stopping distance of VA4757 was 26.5 metres.  As the available distance of 33 metres was longer than the said estimated stopping distance, if the defendant had driven within the speed limit, perceived the danger of hitting HD3298 and decided to apply hard braking when it reached the last “Slow” marking, the accident would likely be avoidable.

23.  The prosecution’s stance is that sufficient evidence has been adduced to show that the defendant was driving dangerously, that is, when the defendant negotiated the left bend to which he had no clear vision; he failed to take heed of the clear warnings given by the clear road signs and road markings, drove VA4757 at a speed well above the speed limit and in doing so failed to pay attention to the traffic conditions ahead leading to the traffic accident which caused grievous bodily harm to the victim.

24.  The prosecution also contend that there is no evidence from both sides to show that the defendant had reduced speed at any stage during the journey covered by Exhibit P6 before the point of impact.  He was travelling at a constant speed of 65 km/h, plus or minus 7 km/h. 

25.  I note from PW2’s evidence that Exhibit P1 was not a to-the-scale sketch but roughly to-the-scale sketch.  There is, however, no evidence from him to quantify what he meant by “roughly”.  Also, the general layout of the road as shown in Exhibit P1 differed from the actual scenes depicted in the photos in various aspects.  For example, Exhibit P3(7) and Exhibit P6 show that, laterally, the end of the left bend seemed to align with the pointed end of the hatched traffic island marking but Exhibit P1 showed that the said pointed end was longitudinally ahead of the end of the left bend by about 1½ scale widths, about 3 metres; (ii) PW2’s testimony showed that the pedestrian crossings controlled by traffic lights were not shown in the sketch and the position of the yellow box markings was incorrectly drawn on the sketch.  Exhibit P1 is clearly, in my view, not an accurate sketch. The total of the agreed measurements covering the distance between the middle of the longitudinal boundary of the yellow box markings, that is, the boundary being closest to the Exit, and the flat end of the white arrow on the left lane as shown in Exhibit P3(6) is 72.5 metres.  There is however no evidence to show that the said distance also covered the point of impact.  In fact, according to Exhibit P6, the moment before impact, HD3298 stopped in the portion of the yellow box markings further up the road, that is, further away from the flat end of the white arrow longer than 72.5 metres.  I do not find that I can rely on Exhibit P1 to consider and assess the total distance of the journey covered by Exhibit P6 and the defendant’s speed during the journey.

26.  On the other hand, having regard to the defendant’s actions of catching up with the white vehicle, subsequently overtaking it and the slowing down of the white vehicle in between, I am of the view that, the said evidence appears to suggest that the defendant did change his speed at least at the said stages during the journey covered by Exhibit P6.  I do not find the suggestion by the prosecution that, the defendant was travelling at a constant speed throughout the journey until the point of impact to be sustainable.

27.  I note that, apart from the admitted facts that the estimated speed of VA4757 was 65 km/h, plus or minus 7 km/h at the point of impact, the only other evidence relating to the defendant’s speed came from his record of interview (“the RI”). His speed as stated in the RI was approximately 50 to 60 km/h the moment before the accident.  Apparently, the low end of the agreed estimated speed at the point of impact was 58 km/hr and fell within the range of speed admitted by the defendant in the RI.  In the absence of any evidence to the contrary, I consider the matter in its best possible light for the defendant and take 58 km/h as his speed the moment before the accident. 

28.  Speeding per se is not sufficient to establish dangerous driving, DPP v Milton [2006] R.T.R. 21.

29.  Based on Mr Wong’s opinion that the average reaction time is 0.9 seconds, the defendant applied the brake when VA4757 was 14 metres away from the point of impact if his speed was 58 km/h.  The said distance appears to tally with the defendant’s statement given in the record of interview that he did not see HD3298 until he came out of the turn when it was just a distance of one to two car lengths, approximately 5 to 10 metres. 

30.  I note from both Miss Lau’s evidence and the RI that, they were at the time travelling to Sam Shing Estate in Tuen Mun for dinner.  As the defendant was heading Tuen Mun, I find that, shortly before or after driving over the 1^st right turn arrow, that is at 07:34:51, the defendant should realize that he had to change to the left lane for his journey.

31.  As mentioned earlier, between 07:34:51 and 07:34:52, the white vehicle slowed down as evidenced by the illumination of its brake lights.  At the time, VA4757 and the white vehicle were almost travelling parallel to each other, no other vehicle was seen travelling in the same direction in front of and/or ahead of the white vehicle and VA4757 throughout the footage.  When the defendant drove over the 1^st “Slow” marking, his visibility could cover quite a long stretch of the road ahead, including a section beyond the 3^rd lamppost on his offside front, that is more than the total distance of the spacing between three lampposts (see Exhibit P6 and Exhibit P3(4-6)) and part of the “Mild left bend” area opposite the 3^rd lamppost in Exhibit P3(6).  In view of the road being clear far enough ahead and behind for the purpose of overtaking and the visibility being good, I do not find that it was unreasonable and unsafe in the circumstances for the defendant to overtake the white vehicle to change to the left lane, and, because of the overtaking, the defendant could not reduce his speed in accordance with the warnings given by the 2^nd signpost and the 1^st “Slow” marking. To maintain a far enough distance from the white vehicle behind for safety, he could not and should not, in my view, reduce his speed immediately after the lane change.  

32.  The defendant completed the lane change and positioned his car in the centre of the left lane at about 07:34:55. At this point in time, VA4757 was near the end of the bend.  HD3298 was before the “Stop” marking at the exit. It can be seen in Exhibit P3(7) and Exhibit P6 that, there were guardrails along the pavements on the nearside of the lane leading to the Exit which, in my view, could somehow affect the defendant’s view of the traffic at the Exit. I find the defendant’s claim in the RI to the effect that he did not see HD3298 until too late credible.  As he did not notice HD3298 at the exit, his level of attention on the traffic emerging from the exit and his speed could thereby be affected. 

33.  Further, it was the defendant’s understanding at the time that he was travelling on the major road (see Exhibit P5).  This appears to suggest that he had the understanding of the priority to travel through the junction consistent with the symbol of the 4^th Signpost.  I find that, as he did not notice HD3298 at the Exit, his level of attention on the traffic emerging from the Exit could further be affected by the said understanding. 

34.  As analyzed above and taking into account the collision took place within 2 seconds at about 07:34:57, which included the reaction time of 0.9 seconds, I agree with the defence submissions and find that the only reasonable and irresistible inference to be drawn from the evidence before me is that the defendant had a momentary lapse of attention.  Although he was travelling over the speed limit the moment before the accident, I do not consider 58 km/h to be greatly excessive.  Undoubtedly, he should reduce his speed in accordance with the warnings given by the last “Slow” marking.  However, as analyzed earlier, I do find that his failure to reduce speed at the last “Slow” marking was due to his momentary lapse of attention.

35.  In light of my analysis, I do not find that the evidence before me can establish that the overall driving manner of the defendant constituted dangerous driving.  I find that as a level of driving, he did drive without due care and attention or without reasonable consideration for other persons using the road.  On the evidence before me, I am satisfied beyond a reasonable doubt that the defendant has committed the offence of careless driving in relation to his driving in respect of the accident.  I do not find him guilty of causing grievous bodily harm by dangerous driving but I do find him guilty of careless driving.