HKSAR v. YEUNG CHUNG LIM

DCCC 768/2019

[2020] HKDC 892

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 768 OF 2019

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REASONS FOR VERDICT

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The Charge

1.  The defendant faces one charge of Causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.  The Particulars of Offence allege that the defendant, on 10 February 2019, at an unnamed road near Lamppost No GE0855, Nam Wa Po, Tai Po, New Territories, in Hong Kong, caused the death of Chan Siu Tin, by driving a motor vehicle, namely, a special purpose vehicle bearing registration mark UM8803, on a road dangerously.  He pleads not guilty to the Charge.

The Accident

2.  From the Admitted Facts (P 1) and the way the defence presented its case, it is not in dispute that the vehicle involved in this case was a special purpose vehicle bearing registration mark UM8803.  It was fitted with an elevating work platform (EWP).  This EWP was capable of being raised and lowered.  A driver must be in possession of a driving licence with code 21 endorsed by the Transport Department before he could drive such a vehicle.

3.  UM8803 was owned by Cheong Wan Construction Company Limited (Cheong Wan), the employer of the defendant.  The defendant was employed since March 2018.  Through his employer the defendant obtained his code 21 endorsement about 1 month later.  Since then, he had been the driver of this vehicle until the date of the accident.

4.  At the times material to this case UM8803 was hired out by Cheong Wan to a company called Ching Tak Wong Engineering Limited to perform streetlight cleaning work from 5 February 2019.  Cheong Wan was required to supply the operator of the vehicle and the EWP, ie the defendant.  The cleaning worker Mr Chan Siu Tin (the deceased) was not an employee of Cheong Wan and there is no evidence as to what training, if any, the deceased had received in performing streetlight cleaning work.

5.  At shortly after 11 pm on 10 February 2019 a traffic accident occurred near Lamppost number GE0855, Nam Wa Po, Tai Po, New Territories.  At the time the defendant and the deceased were engaged in cleaning the streetlights in the vicinity.  The defendant was the driver of UM8803 while the deceased was responsible for carrying out the cleaning process onboard the EWP.

6.  After having finished cleaning the streetlight at Lamppost GE0856, the defendant drove off and proceeded towards Lamppost GE0855 with the deceased still being carried on the EWP.  In the process, the EWP hit against 3 electric overhead cables (belonging to CLP Power HK Limited (CLP)) which were hanging across the road, causing the EWP to be deformed and serious head and neck injuries to the deceased.  The deceased was sent to hospital but was certified dead soon afterwards, at 1:04 am.  The cause of death was “Traumatic head and neck injury”, which could only have resulted from the accident.  The defendant was arrested for the offence on 18 March 2019.

7.  According to the measurements made at the scene by the police and the staff of the CLP, the height of the streetlights were 8 meters above ground level, the distance between the 2 Lampposts concerned was 38.6 meters.  The overhead cables were 26 meters away from Lamppost GE0856.  The height of the overhead cables were about 6.4 meters above ground level (P 4 paragraphs 5.3 to 5.5 and P 8)

8.  The overall dimensions of the EWP measured 7.8 meters in length and 2.1 meters in width.  The overall height of the EWP, with the work platform lowered to the cradle position (ie the lowest position), was about 3.9 meters (P 4 paragraph 5.9.3)

9.  These measurements clearly indicated that at the time of the accident, the defendant was driving UM8803 with the EWP not retracted to its cradle (lowest) position, but carrying the deceased at a height of at least 6.4 meters above ground level.  The vehicle had moved with the EWP in that position for at least 26 meters before the EWP hit the overhead cables.  Had the EWP been lowered to its cradle position, the platform would not have hit the overhead cables and the accident could have been avoided.

10.  At the material time although it was night time the road was lit with street lamps.  The weather was fine and the road surface dry and in good condition.

The Issue

11.  Given the undisputed facts mentioned above, the only issue falls to be decided is whether the driving manner of the defendant at the time of the accident amounted to dangerous driving.

Prosecution’s Case

12.  Prosecution called 10 witnesses and presented a total of 16 exhibits. Most of the evidence is not in dispute by the defence.

13.  PWs 1-5 were police officers responsible for the investigation of this accident.  There were conversations between some of the officers and the defendant at the scene.  These were statements made by the defendant without caution.  The defence does not dispute the voluntariness but challenges their accuracy.

14.  According to PW1 Sgt 49520, the defendant told him that after each lamp was cleaned the deceased would give a signal by saying “OK to move” and then the defendant would start the vehicle and move forward.  After reaching the location near Lamppost GE0855 he heard the deceased shouting.  He saw the deceased had been injured on the platform and helped him down.  He did not remember the speed he was travelling at the time but it had been very slow.

15.  According to PW2 PC 11630, the defendant told him that it was the second day he and the deceased worked together to clean streetlights.  After completing the cleaning of Lamppost GE0856, the deceased signalled him to move forward by using a red brush.  The defendant claimed that he had seen in the rear offside mirror the EWP had already been lowered before he drove forward towards Lamppost GE0855.  Whilst driving he heard the deceased shouting.  During closing submissions Mr Boyton clarified that the defence only challenged the part of PW2’s evidence relating to the defendant claiming that he had seen the position of the EWP through the rear offside mirror.  PW2 stated that during investigation he had sat on the driver’s seat and could see the EWP at the cradle position through this mirror.  He had also found a red brush (P 7) at the scene as shown in his sketch (P 8).  During cross-examination, he said he made a record of what the defendant had said a few hours later after he returned to the police station.  He agreed he had not shown the written record to the defendant for confirmation but denied he had not recorded the defendant’s words accurately.

16.  PW3 obtained CCTV footage (P 11 and P 12) from the home of a nearby resident, one Mr Leung.  PW6 Mr Chu Kam Shun Barry, also a nearby resident, happened to drive pass UM8803 when the accident occurred.  He also supplied the video footage (P 9 and P 10) captured by the dashcam of his vehicle.  The contents of these pieces of footage supported the manner in which the accident occurred as described above.

17.  PW7 Mr Chan Yau Keung was the senior mechanical engineer who conducted an examination on UM8803 after the accident.  He was called as an expert in mechanical engineering.  He submitted his expert report (P 13B) and adopted its contents as his evidence.  So far as relevant to the issue in this case, his evidence revealed the following:-

(a)   The operation of the EWP was driven by hydraulic power which was actuated by the engine of the lorry by means of a power take-off control (paragraph 6.1);

(b)   There was a power take-off lever next to the driving wheel. The function of this lever was to take-off the power from the lorry engine to the hydraulic system of the EWP. Pulling up the lever was to engage the power from the lorry engine to the hydraulic system whereas pushing down the lever was to disengage the power from the lorry engine to the hydraulic system (paragraph 6.4).

(c)   There were 2 control devices to control the movement of the EWP, namely platform control and chassis control. They could be interchanged by an oil diverting knob which was located beside the chassis control (paragraph 6.5);

(d)   At the time of the testing, the power take-off lever functioned properly (paragraph 7.2). The simulating test results showed that the lorry could be moved in forward and reverse directions when the EWP was in the elevated position. When the power take-off lever was pushed down to actuate the drive system of the lorry, the EWP could not be operated by the chassis control (paragraph 8.2); and

(e)   At the time of the accident, the EWP had been raised to a certain height above the ground and the power take-off lever had been turned to disengaged position such that the lorry was driven to move forward. Under this circumstance, both the platform control and the chassis control were disabled. When the EWP was driven toward the overhead cables, the deceased on the work platform was not able to lower the platform. As a result, the EWP struck the overhead cables and was then damaged and deformed. The deceased was trapped in the deformed work platform (paragraph 9.3).

18.  A substantial part of this expert report, and also other evidence called by the prosecution, dealt with the technical aspects of the safe operation of the EWP when it was to be deployed, in particular the requirements relating to the 4 outriggers and the safety measures associated therewith.  Such evidence was concerned with the operation of the EWP while the vehicle was stationary.  The issue in the present case is concerned with the driving manner of the defendant.  Mr Mitchell argued that since there was evidence to suggest that some of the safety devices and the warning systems were apparently not functioning properly at the time of the accident, the defendant should have been more vigilant when operating the machine.  In this respect, I agree with the submissions by Mr Boyton that such evidence is simply irrelevant.

19.  PW8 Mr Choy Wai Tim Felix was the representative of CLP and PW9 Ms Hui Ka Man Amy was the Occupational Safety Officer of the Labour Department investigating this accident.  PW9 also presented her investigation report on the case (P 4).  She presented some of the measurements as mentioned in paragraphs 7 and 8 above.  She also stated that the Labour Department issued “Guidance Notes on Safe Use of Power-operated Elevating Platforms” (P 4A and P 4B).  Paragraph 8.4 of the Notes stated that before operating a chassis-mounted power-operated elevating work platform (which the EWP involved in this case was one), the operator should ensure that (a) the machine should not be moved or transported with workers on it; and (b) the work platform should be lowered to the cradle position before it is moved.  There was no controversy in relation to the evidence of these 2 PWs.

20.  PW10 Mr Lam Yat Ho was the manager of Cheong Wan, the employer of the defendant.  His evidence is subjected to strong challenges by the defence.  He stated that he was the manager of Cheong Wan, which was owned by his wife.  He himself possessed a driving licence endorsed with code 21, and was qualified to drive the special purpose vehicle involved in this case.  In fact, before the defendant was employed, he had driven UM8803 himself.

21.  He testified that before the defendant obtained the code 21 endorsement, he had provided the defendant with training on how to operate the EWP.  He had supplied the defendant with copies of “Notes on the Elevating Work Platform Vehicle Training/Specific Safety Training Course” (P 16-1), “Code of Practice” (P 16-2) and “Guidance Notes on Safety at Work and Guidance Notes on Use of Elevating Work Platforms” (P 16-3) of Cheong Wan (English translations being P 16A-1 to 3).  He had also provided a photocopy of the Guidance Notes issued by the Labour Department (P 4B) to the defendant.  The training he provided to the defendant involved a practical test, requiring the defendant to demonstrate that he was able to operate the EWP safely and correctly.  He said that on 5 February 2019, the first day of lease of UM8803 by Ching Tak Wong, he had attended the place of work and reminded the defendant of, inter alia, the safety requirements in operating the EWP.

22.  In cross-examination, he said he did not know the monitoring device of the power take-off control installed in the driving cabin above the power take-off lever.  He said it looked like a timer.  He said the risk assessment of the streetlight cleaning work was the responsibility of the contractor, not Cheong Wan.  As to the on-site risk assessment, it was the responsibility of the driver, ie, the defendant in this case.  He denied he was aware that some of the safety features and warning systems of UM8803 were not functioning properly at the time of the accident.  He further denied the suggestions by the defence that he did not provide sufficient training to the defendant on the safe operation of the EWP, that in order to save time in the operation of the EWP, he specifically told the defendant that there was no need to deploy the outriggers and that it was proper to drive the vehicle with workmen still being carried on the work platform.

Defence Case

23.  At the close of the Prosecution case, there was no halfway submission by the defence.  I ruled that the prosecution has established a prima facie case for the defendant to answer.  I was informed by Mr Boyton that the defendant elected not to testify and call no other evidence.

Relevant legal principles

24.  A person drives dangerously in terms of section 36(4) of the Road Traffic Ordinance, Cap 374, 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.

25.  Section 36(7) sets out the circumstances that should be taken into account in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case, including:-

(a)  the nature, condition and use of the road concerned at the material time;

(b)  the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c)  the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.

26.  Section 36 sets out a wholly objective test (see HKSAR v Lam Chi Fat, unrep CACC 89/2011, paragraph 39).  The CA in Lam Chi Fat quoted Lord Woolf CJ in AG’s Reference (no 4 of 2000) RTR 415 at 425 where His Lordship stated that whether the driver intends to drive dangerously is not relevant to any assessment as to whether the driving was dangerous.

Analysis

27.  I direct myself that the burden of proof is on the prosecution.  It is for the prosecution to prove each element of the offence against the defendant beyond reasonable doubt.  The defendant bears no burden of proof. He is not required to prove his innocence.

28.  The defendant elects not to give evidence.  It is his right and no adverse inference would be drawn against him.  However, this means that there is no evidence to undermine, contradict or explain the evidence presented by the prosecution (Li Defan v HKSAR (2002) 5 HKCFAR 320).

29.  The prosecution submits that the defendant’s driving manner amounted to dangerous driving for 2 reasons (Prosecution’s Opening paragraph 20).  First, he drove the vehicle with a person on the platform particularly where the platform is in a raised position. In doing so, he had totally disregarded the training given to him during which materials provided explicitly set out the dangers of driving in this way.  Second, he had failed to follow the guidance notes which pointed out the necessity of keeping a safe distance from overhead cables.

30.  Although the defendant did not give evidence, it is clear from the way the defence was put, and summarized by Mr Boyton in his final submissions, that the defence case is that the defendant had not received proper training so that he was not aware of the contents of the relevant guidance notes, and that the danger of the overhead cables was not obviously apparent and would have been outside the comprehension of any competent driver.

31.  I have no difficulty in accepting the evidence of PW2.  As the investigating officer of this case, he had a duty to make proper records of the materials he had received in relation to the accident, including what the defendant had told him at the scene.  This he had done, albeit a few hours afterwards.  He had even mounted the driver’s seat to look at the rear offside mirror, obviously to verify the defendant’s assertion that the latter had seen the EWP had been lowered before driving off from Lamppost GE0856.  I have no reason to doubt his reliability in this respect.  I find that the defendant had told PW2 at the scene that he had seen the rear offside mirror and noticed the EWP had been lowered before driving off.  This demonstrated that the defendant was aware of the guideline that the vehicle should not be driven when the EWP was not lowered to its lowest position.

32.  PW10 stated that he had provided training in the safe use of the EWP and supplied copies of the relevant guidance notes, both from his company and the Labour Department, to the defendant.  It is obvious that his evidence would have important bearing on the interests of Cheong Wan, the owner of the vehicle and the employer of the defendant. Cheong Wan, the company owned by PW10’s wife, and perhaps PW10 himself also, would be exposed to civil liability if the defendant was not given proper training and supervision in the course of driving the vehicle and operating the EWP as an employee of Cheong Wan.  I have strong reservation as to PW10’s claim that he had no idea of the apparent unsatisfactory conditions of the safety features and associated monitors of the vehicle when the accident occurred.  I cannot accept that, as a qualified driver of UM8803 who provided training to the defendant, he was not aware of the nature of the monitoring device installed next to the power take-off lever. I do not accept his evidence as to what training he had provided to the defendant in assisting the defendant to obtain the code 21 endorsement.

33.  Having said that, the defendant had indeed obtained the code 21 endorsement.  He had been driving UM8803, and thus operating the EWP, for almost 1 year prior to the accident.  He must have been aware that there were in place special requirements in operating a machine such as the one involved in this case.  He must have been aware that when the vehicle was in motion, the hydraulic power controlling the work platform would be disengaged, so that it could not be lifted or lowered.  Further, the least he would have been made aware of would be the guidance notes issued by his employer (P 16) and the Labour Department (P 4B).  No cost or training would be required in providing such materials to the defendant.  I accept that PW10 had provided copies of these documents to the defendant when the defendant took up the employment to drive UM8803.  I do not accept the assertion by the defence that the defendant only followed the verbal instructions given to him by PW10 as to how the EWP should be operated and nothing else.  I do not accept the assertion by the defence that PW10 had told the defendant it was proper to drive the vehicle with workmen still being carried in the work platform.

34.  So far as P 4B is concerned, most of the contents were concerned with the technical aspects relating to the safe operation of the EWP.  However, paragraph 8.4 is just stating the obvious, reminding drivers operating similar machines of the obvious danger of driving the vehicle while a worker was being carried on the work platform.  Any prudent driver would have been aware of the danger posed to the worker under such circumstances.  I am satisfied that the defendant was aware of the contents of this guideline.

35.  The location where the accident occurred was an unnamed road near Nam Wa Po in the New Territories, a village with low-rise residential structures (see P 6 photos 31-33). Common sense suggests that the presence of overhead cables is not completely out of the question.  The defendant had been tasked to drive the vehicle to perform streetlight cleaning work.  He claimed that it was the second day of work when the accident occurred.  I cannot accept the submission by the defence that it would have been outside the comprehension of any competent driver of the danger posed by the presence of such overhead cables.  It might not be obvious to the defendant as he was driving the vehicle at 11 pm at night, with only the streetlights to assist him in his risk assessment of the surroundings.

Finding

36.  I am satisfied that the evidence in this case established that the special purpose vehicle UM8803 involved in this case was a vehicle with an EWP mounted on its chassis.  The accident occurred at shortly after 11 pm.  It was dark with only the streetlight assisting the defendant in his assessment of the surroundings.  At the time of the accident the defendant was the driver of the vehicle and the deceased the cleaner working on the platform.  They were engaged in street light cleaning work.  After having finished cleaning the light at Lamppost GE0856, the defendant drove off towards Lamppost GE0855, with the work platform still at a height of over 6.4 meters above ground level and the deceased onboard.  The defendant was not aware of the presence of the overhead cables, causing the work platform to hit the overhead cables, resulting in the deceased receiving fatal injury.  The defendant was aware of the Guidance Notes issued by Cheong Wan and the Labour Department.  Such driving manner of the defendant falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

37.  Further, given that the test to be applied is an objective one, it does not matter what the defendant had been taught in the way he should operate the vehicle and the EWP safely and properly.  I am satisfied that even if the defendant was not apprised of the Guidance Notes, the danger posed by his driving manner was so obvious that it falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

Verdict

38.  For the above reasons, I find that the prosecution has proved its case against the defendant beyond reasonable doubt.  I find the defendant guilty of the Charge of Causing death by dangerous driving.