TSUI HUNG WING v. THE QUEEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 553 of 1990

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BETWEEN

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JUDGMENT

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1. On the 13th March 1990, the appellant was convicted in the Magistrates Court at Shatin on two charges: -

2. The main witness for the Crown whose evidence was accepted by the magistrate was Senior Inspector, David Longbottom. He testified that on the 22nd February 1990, he was in uniform on motorcycle patrol in Tolo Highway just coming out of Tai Po and he gave the registration of his vehicle as AM7960. He testified that at 17:15 hours, he was just passing the marine base heading towards Shatin, he swerved from middle to outside lane and increased his speed to 100 km.p.h. which was the legal limit for that section. He testified that the road was wet, there having been a thunderstorm two hours earlier. He had his lights on because the area was fairly illuminated. While in outside lane, he looked into his rear mirror and saw a red Civic Honda private car following closely behind him. He looked over his shoulder and found the gap being about 10 metres. The registration mark of that car was DR9430. He was still travelling at 100 km.p.h., he touched his brake and allowed the motorcycle to slow down slightly. He then looked over his shoulder again and found the gap was about 5 metres. He increased his speed back to 100 km.p.h. The gap between the cycle and the private car resumed to about 10 metres. The car continued to follow him with this gap between them for about 1 Itm. He took one last look over his shoulder and found the car still there about 10 metres behind him. He switched on the rear blue light of his motorcycle and indicated for the car driver to pull over to the hard shoulder. The car pulled over and he parked his cycle behind it.  He then went to the driver of the car and had a conversation with the driver.

3. Later he said "during that distance of more than 1 km. DR9430 maintained same speed behind my cycle at 100 km.p.h. He was following me too closely, the minimum distance between vehicles at 100 km.p.h. should be 50 metres, i.e. 1 metre gap for every 2 km.p.h. of speed." When it wasput to him that the road was not wet at the time of the incident, he disagreed.

4. When it was suggested to him that he knew full well that he would not be in danger even stepping on the brake, he disagreed. When asked why he put himself in danger he said that he did not endanger himself because he knew what he was then doing. And later that he only reduced his speed by 1-2 km.p.h., which was not a proper application of the brake. He agreed that he knew he was not in danger by touching the brake slightly. He denied that tire appellant's car was more than 15 metres behind him or that when he touched his brake the distance was at least 10 metres away. He also denied that his cycle was travelling at 80 km.p.h. and not 100.

5. The second prosecution witness was PC6069 who, on the same day, was on highway patrol riding his motorcycle in Tolo Highway in the direction of the Chinese University at about 6.05 p.m. He arrived on the scene after the appellant had been stopped by the first prosecution witness. He was therefore unable to say what had happened during that incident.  When it was put to him that the road was very dry at the time he denied this saying that it was a three lane section, the fast lane was dry and the other two lanes were wet and slippery.

6. The defendant elected not to give evidence and called no witness. There was therefore no evidence to contradict the evidence of the prosecution witnesses except the discrepancy between Senior Inspector Lonybottom and the DPC concerning whether the fast lane was wet at the time.

7. The learned magistrate in his judgment simply says :-

"I accept the evidence from PW1 being honest and reliable. I am satisfied beyond all reasonable doubts that defendant did drive in a manner without reasonable consideration to other user of the road, namely Senior Inspector of Police David Longbottom. Defendant is convicted of the offence as charged."

8. Mr Poon for the appellant maintains that the judgment in respect of the A charge was too simple, there being no consideration or ruling on whether the driving of the appellant would have created any danger or inconvenience to PW1, this being his first ground of appeal. He submits that the evidence tends to show that them was no danger or inconvenience caused to PWl and that the distance between the motorcycle of PW1 and the appellant's car was about 10 metres. He relies on the Senior Inspector's answer that he knew he was not in danger by touching the brake slightly. He also refers to a part of the record where he was cross-examining PWl in respect of the stopping distances in the Road Users Code and suggested that it applies to both motorcycles and cars. To this, the witness PW1 did not agree saying that a motorcycle required a slightly longer braking distance than a private car because of the functioning of the braking system. However, the witness did agree that if both the cycle and the car were to brake at the same time, then the motorcycle would require a longer distance in which to stop. Mr Peon submits that this shows that there would have been no possibility of a collision.

9. Mr Peon relies on the case of Kit Wing Wo v. R. M.A. 268 of 1985. In his statement of findings in that case, the magistrate said that "Waterloo Road was wet and slippery on that particular day and the appellant was driving too fast and/or too close behind another vehicle commensurate with the wet road and and traffic conditions." When the matter came before Mr Justice Penlington on appeal he noted that the magistrate had not in his statement of findings found either that the appellant was driving too fast or he was too close behind another vehicle or he was doing both. That presumably was because of the use of the "and/or" combination. However the learned Judge went through the evidence and said :-

"What the magistrate appears to be saying is that the road was wet and slippery the appellant had a duty to drive at a speed and at a distance behind the car in front of him so that if that car braked suddenly he would be able to stop in time. This is certainly what the road code says and the Road Traffic Ordinance certainly provides that failure to comply with its provisions is a factor a court can take into consideration when deciding if anybody has been guilty of careless driving. There must, however, in a criminal charge be some direct evidence of negligence. The court is not entitled to simply apply the doctrine of res ipsa loquitur. That doctrine applies in civil cases but there must be some positive evidence of carelessness in a criminal prosecution unless the evidence is so strong that, in the absence of any explanation from the defendant he must have been negligent.  If there is such positive evidence then the court is entitled to say that the driver had not performed the standard of care required. In Scott v. Warren (1974) C.L.R. 117 the prosecutor appealed against dismissal of a prosecution and submitted to the Divisional Court that the defendant had a legal duty to leave between himself and the proceeding vehicle sufficient space to enable him to pull up without colliding with it in any circumstances or emergency and that if he did not and collided prima facie he was driving without due care and attention. The court dismissed the appeal and approved a dicta in Brown & Lynn v. Western SMT Co. Ltd. (1945) SC 31 that the following driver was bound so far as reasonably possible to take up such a position and to drive in such a fashion as would enable him to deal successfully with all traffic exigences reasonably to be anticipated. It seems to me that, particularly in the context of the crowded road traffic conditions in Hong Kong, a criminal court cannot say simply that if a motor-cyclist has to make an emergency stop and skids that in itself is enough evidence of carelessness. The only evidence here which might justify a finding of carelessness is that of the driver of the goods vehicle who said that his estimate of the appellant's distance between the motor-cycle and the car in front was '4-5 feet (1 police-car length)'. I do not think that is sufficient. It is true that the appellant himself in evidence did not suggest any reason for the skid apart from the wet road. Hong Kong roads do get covered in oil and rubber and when wet can become dangerous. A police motor-cyclist should be well aware of that and take suitable precautions, but it is not enough to prove only that the accident happened that neither of the other drivers were at fault and to conclude beyond reasonable doubt that the remaining participant was careless."

10. Mr Poon relies on this judgment to indicate that some positive evidence of carelessness is required.

11. Miss S. Opai, Crown Counsel, refers to the dual meaning of carelessness set out in subsection (2) of section 38 of Road Traffic Ordinance. She also refers to section 109(5) of the Road Traffic Ordinance enabling a party to rely upon a failure on the part of any person to observe any of the provisions of the Road Users Code as tending to establish or negative any liability in rspect of criminal proceeding. She refers specifically to the advice on speed and stopping distances on pages 40 and 41 of the Road Users Code. It is her contention that the appellant failed to follow the advice in that Code and that his failure to do so equates with his failure to drive in a manner which does not put him in breach of section 38(2). She emphasises that the Crown evidence accepted by the magistrate was that the raod was wet and that the appellant was travelling in the outside lane at 100 k.p.h. behind a motorcycle and only 10 metres behind and when the motorcycle slowed down he was only 5 metres behind, and when the motorcycle accelerated he remained 10 metres behind for a distance of 1 kilometre. Applying the advice set out in the Road Users Code she maintains that a gap of 10 metres between the motorcycle and a vehicle was wholly inadequate. On this basis, she submits that the magistrate reached the correct finding on the carelessness of the appellant. She submits that the appellant failed to follow the standard set out in the Road Users code (a general standard) and the travelling distance of a gap of 10 metres was sufficient for the magistrate to draw an inference of carelessness. She does not submit that there should be strict compliance with the Road Users Code but she does submit that it is a guide which the magistrate is entitled to consider.

12. In reply Mr Poon does not dispute that the magistrate was entitled to consider the Road Users Code.  Indeed he had used it himself in cross-examination of PW1. However, he says that failure to comply with the standard in the Code does not mean negligence relying on Kit Wing Wo's case (supra). He argues, however, that the magistrate did not take into account the Road Users Code in deciding this case.

13. On the use to which the Road Users Code may be put, I referred counsel to two authorities R. v. Chadwick [1975] Crim.L.R. and Magistracy Criminal Appeal No. 1373 of 1989 R. v. Ngai Man.

14. In the former, the defendant was charged with causing death by driving a motor vehicle at a speed dangerous to the public. The prosecution sought to adduce the stopping distances set out in paragraph 5 of the Highway Code as evidence from which the speed of the car could properly be deduced. Reliance was placed upon section 37(5) of the Road Traffic Act 1972 which says :-

"A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal ....) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings."

It was contended on behalf of the defence that such evidence was inadmissible as hearsay and was not rendered admissible by section 37(5) (supra) as there had been no failure to observe this particular provision of the Highway Code which relates to leaving sufficient space between a driver and the vehicle in front.

15. For the Crown, it was argued that under Regulation 16 of the Motor vehicles (Driving Licences) Regulations 1971 the test which a person is required to pass before a licence can be granted includes a provision that ".... the person taking the test is fully conversant with the contents of the Highway Code^" and therefore whether or not the prosecution were entitled to put the table of stopping distances in evidence as part of their case, they would be entitled to cross-examine the defendant thereon when and if he were called to give evidence.

16. It was held (1) that the evidence was not admissible, and (2) that although the prosecution could theoretically cross-examine on the tables, this would amount to introducing evidence which the court had ruled they could not adduce as part of their case, and which would be prejudical to the defendant. Accordingly, the prosecution should not do so.

17. In the latter case of R. v. Ngai Man, a judgment delivered by me on the 14th February 1990, again one of the issues before the Court on a charge of reckless driving causing death had been the speed at which the vehicle was travelling at the material time.   An expert witness had been called to give evidence in the Magistrate's Court of his opinion of the speed at which the vehicle was going having regard to the length of skid marks and the condition of the road surface and tyres at the relevant time. That evidence was subject to attack by counsel for the appellant in the hearing of the appeal before me and references were made to substantial discrepancies between the opinion of the expert witness and the braking distances referred to in the Road Users Code. Although Mr Coghlan for the Crown criticised Mr Hampton for relying upon theses braking distances in the Road Users Code, saying that they were not in evidence, I ruled that they were legitimate matters for examination by a magistrate hearing case of this sort. In this respect I relied upon section 109(5) of the Road Traffic ordinance which is in almost identical terms to section 37(5) of the Road Traffic Act 1972 referred to in R. v. Chadwick above. (Now incorporated in section 38 (7) of the Road Traffic Act 1988.)

18. At the time when I gave my decision in Ngai Man's case I had not been referred to and was not aware of Chadwick's case. In Ngai Man's case, I expressed concern for the fact that there was a discrepancy between the Road Users Code and the figure put forward by the prosecution witness. It could be said in that case that reliance was being placed on the Code to question the opinion of the expert whose evidence had been given in court.

19. Obviously most of what appears in the Road Users Code would be hearsay evidence if a party to proceedings were to seek to put it in evidence as evidence of fact. However, section 109(5) of the Road Traffic ordinance and its English counterpart, are not evidential provisions. They are provisions which enable a party in proceedings to rely upon the Code as tending to establish or negative any liability which is in question in those proceedings. Reliance can therefore be placed on the Code without the Code being placed in evidence before the court. If a person has failed to follow the advice set out in the Code and has failed to brake in time to prevent a collision between his car and another car, the magistrate would be entitled to consider his failure to comply with the advice in the Road Users Code because section 109(5) says so. The fact that an expert witness gives evidence of braking distance's which differ from those set out in the Code does not mean that the magistrate should disregard the Code. It still provides guidance on stoppingdistances and a substantial discrepancy between the evidence of an expert and the advice given in the Code is a legitimate matter for consideration when considering the weight to be given to the evidence of the expert.

20. In my view the question of admissibility or otherwise of the Road Users Code is not a matter which the court has to consider, because section 109(5) is not an evidential provision. Having therefore considered again the use to which a party may put the Road Users Code in the light of Chadwick's case, I still see no reason to change the view which I expressed in Ngai man's case.

21. I am aware that there is a commentary in the Criminal Law Review following the report of Chadwick's case which is in the following terms :-

                "Commentary

Whether the evidence was rightly excluded, depends on the purpose with which it was offered.  The table of stopping distances in the Highway Code might be taken to lay down a standard with which drivers are advised to comply.  If it is offered in evidence to show that the accused failed to comply with the standard and, therefore, as evidence of negligence, it is not hearsay evidence. If, on the other hand, it is offered as evidence of what is in fact the shortest 'thinking distance', 'braking distance', and 'overall stopping distance', then it is hearsay. These distances however must vary considerably according to the driver, the car and the conditions."

22. My only comment on that commentary is to reiterate that I do not consider that it would be necessary for the Code to be offered in evidence to show that the accused failed to comply with a standard. That argument would be open to the party without the Code being placed in evidence. The Road Users Code is a "Code comprising such directions as appear to (the Governor) to be proper for the guidance of persons using roads" and cannot be promulgated until it has or the proposed alterations have been approved by the Legislative Council. Once promulgated the courts may take them into account in any proceedings when deciding if a road user was at fault or not and to what extent. The Courts may do this because S. 109(5) in effect says so.

23. Having expressed my view that it is appropriate for a party to rely upon a failure to comply with the advice of the Road Users Code, I turn to the advice in the Code which would be appropriate in the present case. On page 40 of the Code, the following advice and guidance is given: -

"Never drive so fast that you cannot stop well within the distance which you can see to be clear. Go much more slowly if the road is wet or if there, is fog or mist. .... always take into account all the conditions prevailing at the time .... Leave a big enough gap between you and the vehicle in front - big enough for you to stop safely if the vehicle suddenly slows down or stops. .... On wet roads, .... the gap should be much bigger than normal. .... The safe rule is to leave your stopping distance between your vehicle and the one in front. .... If you are driving closer than your stopping distance you are taking a risk - particularly if a pedestrian was to step into the road in front of you.  The gap should never be less than your thinking distance.  On roads with faster traffic it becomes much more important to keep a safe gap.  Your stopping distance is still the only really safe gap but a reasonable rule to apply in good conditions is a gap of one metre for each 2 km/h of your speed".

24. On page 41, the stopping distances are split into two parts, those relating to the thinking distance and those relating to the braking distance.  The stopping distance is an addition of the two figures. It is stated that for a vehicle travelling at 40 km/h the thinking distance is 10 metres and the braking distance is 10 metres, making a stopping distance of 20 metres. For a vehicle travelling at 6U km/h the thinking distance is 15 metres, the braking distance is 20 metres, the stopping distance is 35 metres. For a vehicle travelling at 80 km/h, the thinking distance is 20 metres, the braking distance is 40 metres making a stopping distance of 60 metres. If the roads are wet, double the braking distance.

25. The magistrate accepted that the motorcycle and the appellant's vehicle were travelling at 100 km/h and that cannot now be disputed. Following the projections of stopping distances set out above, it would appear to follow that the thinking distance, if the vehicle were travelling at 100 km/h, would have been 25 metres and the braking distance would have been 80 metres and that this figure should be doubled if the roads are wet. These are the guiding standards provided in the Road Users Code.

26. Whether my projections of thinking and braking distances are accurate or not, it would certainly appear that the appellant in driving at 100 km/h behind the motorcyle with only a gap of 10 metres was failing by a very considerable margin to comply with the advice set out in the Road Users Code on this basis.  This case can thus be distinguished from the case before Penlington J. referred to earlier because of the much greater speed at which the appellant was driving in the present case. Although the magistrate did not specifically refer to the Road Users Code in his statement of findings, he did state that he was satisfied beyond all reasonable doubt that the defendant drove in a manner without reasonable consideration to other users of the road, namely, the Senior Inspector of Police (the officer on the motorcycle). The only basis for such a conclusion was the speed of his vehicle and the distance between his vehicle and PW1's motor cycle in front at the relevant time or period. Indeed the Senior Inspector had given evidence as to what the travelling distance should have been and it is obvious he was referring to the advice on page 40 of the code set out above.

27. On the evidence and on his findings and having regard to the Road Users Code, I am not prepared to say that the Magistrate was wrong.

28. The conviction on Charge A is also attacked on the basis that the magistrate reached the wrong conclusion on credibility.

29. I can only say that having examined all those portions of the record to which I have been referred, I can see no reason for concluding that the magistrate reached the wrong decision on credibility.  I, therefore, dismiss the appeal against the conviction on the A charge.

The B Charge

30. The particulars of the B charge were that on the 22nd February 1990 at Told Highway Kowloon-bound carriageway, beside chainage mark 25.3 km, New Territories, Hong Kong, being the driver of a vehicle, namely a private car bearing registration mark DR9430 and being suspected of haying committed an offence under the Road Traffic Ordinance,Cap. 374 he did fail immediately upon demand to give to a police officer his address.

31. The appellant relies on the ground of appeal that the learned magistrate erred in failing to give any or any sufficient consideration or any ruling on whether the appellant undrstood PW1 when PW1 asked the appellant for his address.

32. In this respect, the judgment of the learned magistrate says :-

"Mr Peon suggested that there was a lack of communication between PW1 and defendant in the demand. I reject this on the grounds that defendant, on demand, did produce his driving licence and identity card for inspection, apparently without any difficulty in comprehending PW1's imperfect Cantonese. PW1 states in evidence that he repeated such demand 4 times and handed his pen and clipboard to defendant for him to write out his address without response."

 

In his judgment, the learned magistrate says : -

 

"I find no justification in defendant's failure to give his address to PW1 on his oral demand and I am satisfied beyond all reasonable doubt that case has been proved."

33. It seems clear that the magistrate was satisfied that the appellant failed to comply with the oral demand of Pall and not that of PW2. It seems clear from the evidence that Pall's Cantonese was used with an accent and that sometimes poeple cannot fully understand it. Furthermore, the witness PW1 did not know if the other witness PW2 had asked the defendant to write out the address himself, he could not understand their conversation because it was too fast.  It is submitted on behalf of the appellant that it is quite unlikely that the appellant would have refused to give PW1 his address after PW1 had already seen his driving licence and to have noted down his other particulars. Miss Opai accepts that no reliance was placed upon the evidence of PW2 but argues that by the same token, reliance was placed on the evidence of PW1 and that he had given evidence that he instructed the other police constable to obtain from the driver his address and warned him he would be arrested if he did not supply his address.

34. Whatever may probably have been the situation at the time it is neither here nor there. The fact is that there was no evidence that what PW1 said was properly interpreted to the appellant. Furthermore, there is sortie weight in the argument that there would be no reason for him not to give his address if he had already supplied his identity card.

35. In all the circumstances, I allow the appeal against the conviction on the B charge and it is set aside and the sentence is also set aside.