HKSAR v. CHUNG NGAN FA

DCCC 1093/2020

[2021] HKDC 1348

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1093 OF 2020

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REASONS FOR VERDICT

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1.  The defendant is charged with one count of causing grievous bodily harm by dangerous driving, contrary to Section 36A of the Road Traffic Ordinance, Cap 374., Laws of Hong Kong (Charge 1)  and one count of driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit contrary to Section 39A(1)  of the Road Traffic Ordinance, Cap 374., Laws of Hong Kong (Charge 2). She pleaded not guilty to Charge 1 and guilty to Charge 2. Defendant indicated that she intended to plead guilty to careless driving but her plea was not accepted by the prosecution.

2.  On 16 May 2020 at around 0202 hours, defendant drove a private car travelling along the southbound lane of Sha Tau Kok Road, Wo Hang, in the direction to Fanling when her vehicle collided with Madam Ng whom at that time was pushing a trolley walking on the carriageway along the same direction where the defendant’s vehicle was moving.

Admitted Facts

3.  Most of the facts were admitted pursuant to Section 65C of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong:-

(1)  Sha Tau Kok Road, Wo Hang, is a two-way carriageway with one northbound lane and one southbound lane. The accident took place in the southbound lane in the direction of Fanling (“the accident location”), and there is no traffic light control at the accident location.

(2)  At the time of the accident the weather was fine. The road surface was dry and in good repair. The traffic was low. A speed limit of 50 kilometres per hour is imposed. The road was dimly lit with streetlights and the vicinity of the accident location was in the shadow of trees.

(3)  On 16 May at around 0202 hours, a private car bearing the registration number SN995 (hereinafter referred as “the O/V”)  was travelling along the Sha Tau Kok Road, Wo Hang southbound (“the carriageway”). Madam Ng was walking in the same direction on the pavement of the carriageway pushing a trolley. When she came across a fire hydrant blocking the pavement she moved into the carriageway with her trolley and thereafter pushed the trolley on the carriageway. As she was pushing the trolley on the carriageway O/V’s nearside front collided with her. O/V drove forward for another 10 seconds before returning to the accident location. The case was reported.

(4)  PC20073 arrived at the accident location at 0216 hours on 16 May 2020. He saw Madam Ng accompanied by her son sitting at the road receiving first aid by ambulance. A trolley was found next to her. She was later conveyed to the Prince of Wales Hospital.

(5)  At about 0202 hours, alcohol screening breath test was conducted by PC2073 with defendant at the scene with a result of 60 milligrams per 100 millilitres. Defendant was subsequently arrested for driving a motor vehicle with alcohol concentration in breath above the prescribed limit. Under caution, she admitted that she had drank two to three cans of beer. A further test was conducted by another officer at about 0310 hours at the scene and the result is 53 milligrams per 100 millilitres which was over the prescribed limit of 20 milligrams per 100 millilitres.

(6)  Defendant was later brought back to Sha Tau Kok Division Police Station and she was arrested for the offence of dangerous driving causing grievous bodily harm.

(7)  Madam Ng attended the Prince of Wales Hospital A&E Department at 0249 hours on 16 May 2020. Medical examination revealed that she suffered from traumatic rupture of the spleen, nasal laceration, small acute subdural hematoma and scalp hematoma, multiple fractures affecting the right lower limb including an open fracture of the right distal femur shaft, right ankle syndesmosis injury and Lisfranc fracture dislocation affecting the right second to fifth metatarsals. She was transferred to ICU for close monitoring and was subsequently transferred to Tai Po Hospital on 2 June 2020 for further rehabilitation. Madam Ng was discharged from Tai Po Hospital on 20 June 2020. Medical examination revealed satisfactory recovery progress. She was able to walk unaided at home but required the aid of a wheelchair to mobilise for a longer distance. She has been referred for further physiotherapy training and occupational therapy work rehabilitation.

(8)  SPC47560 arrived at the accident scene at 0210 on 16 May 2020. He seized the O/V’s camcorder together with the SD card. Three video files contained in SD card which captured the course of the accident was burnt onto a DVD and analysed by the Forensic Scientist Dr Tsang Cheuk Nam. Dr Tsang determined that the average speed of the O/V before the collision was about 56 plus or minus 6 kilometres per hour.

(9)  The O/V had been brought by the police to the Tai Lam Chung Vehicle Examination Centre and was inspected on 18 May 2020. Apart from the damages arising from the accident, no defect was found.

Evidence

4.  The prosecution called three witnesses.  They are Madam Ng, SPC47560 and Dr Tsang.  Madam Ng recalled on the day in question she was walking on the pavement pushing a trolley.  When she came across a fire hydrant, as shown in photo album Exhibit P8B photo No 35, blocking her way, she decided to move to the carriageway and walk by the kerb.  She said she walked for about 4 metres before she was hit.  She later clarified that her right side was hit after she walked past the village postal box as depicted in photo No 39.  She agreed under cross-examination that she did not wear any reflective jacket nor was there any light on herself and the trolley.  She was wearing a white T-shirt and she accepted it was very dark there.  As to her recovery, she said that she felt a bit painful when walking and she is still receiving physiotherapy treatment.

5.  SPC47560 prepared two sketches.  He also attended the scene on different occasions to take photographs and measurements.  The first sketch, Exhibit P7, was made on 3 June 2020.  SPC47560 said that that was not a detailed sketch and it was simply made to assist the forensic scientist to determine the speed of the O/V.  The second sketch, Exhibit P7A which was made on 12 September 2021, contained various measurements.  As shown in P7A, the distance between the fire hydrant and the location where Madam Ng was hit was 7 to 8 metres.  SPC47560 also explained in between that distance the bamboo trees growing along the southbound carriageway obstruct the lighting emerging from the lamppost EA9236 and hence created a shade on the road surface.  The shading covered both the southbound and the northbound lanes.  The length of the shade was about 40 metres long.  The distance between where the shading disappeared and the accident location was about 21 metres.  He described the lighting from the lamppost EA9237 was affected in that shading area.

6.  SPC47560 said that under caution defendant replied the following:-

“I do not remember the speed at which I travelled at that time. Going towards the direction of Fanling the location of the old lady was particularly dark. When she was seen it was very close, approximately several feets only. When could steer away could not respond in time and the nearside front of the vehicle hit her. When I had collected my thoughts already gone past and returned, stopped.”

7.  Dr Tsang explained as to the calculation of speed in both distance and time which would both create uncertainties due to deviations and accuracy of the measurements.  The Government laboratory would generally provide a 10 per cent correction to take into account these uncertainties and hence the average speed of the O/V that he estimated will fall into the range between 50 and 62 kilometres per hour.

8.  Three video files, Exhibit P5, were played in court.  One video file, Exhibit 1A, depicted the view observing from the front side of the O/V and another one showing the rear side.  The remaining file was a continuation of Exhibit 1A after the accident. 

9.  After the close of the prosecution case I found that there is a case to answer on Charge 1.  Defendant elected not to give evidence or call any defence witness. 

Verdict

10.  I bear in mind that the prosecution bears the burden of proof and the standard is beyond reasonable doubt.  Defendant has no duty to prove anything. Defendant has a clear record.  I will give myself a good character direction regarding propensity.  I have considered all the oral and written submissions by counsel for the prosecution and the defence. 

11.  It is not disputed that Madam Ng suffered grievous bodily harm as a result of a collision with defendant’s vehicle and that is so I find.  The only issue is whether the prosecution can prove that the defendant was driving dangerously or carelessly as counsel for the defence submitted.  I am prepared to accept that the defendant was driving at an average speed of 50 kilometres per hour, hence within the speed limit at the time of the accident. 

12.  Section 36A(1)  of the Road Traffic Ordinance, Cap 374, provides that “A person who causes grievous bodily harm to another person by driving a motor vehicle on the road dangerously commits an offence”.  Section 30A(10)  of the Road Traffic Ordinance states that:-

“A person is to be regarded as driving dangerously within the meaning of sub-section (1)  if-

(a)  The way he or she 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 and driving in that way would be dangerous.”

Section 30A(13)  further provides that:-

“In determining what would be expected of or obvious to a competent and careful driver in a particular case, regard must be had to all the circumstances of the case including-

(a)  The nature, condition and the 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 of 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 at any circumstances including the physical condition of the accused shown to have been within the knowledge of the accused.”

13.  In HKSAR v Lam Chi Fat [2012] HKLRD 968, the Court of Appeal stated that:-

“Whether a person’s ways of driving is a matter to be decided objectively but the elements of the offence do not include any specific intent to drive dangerously. Dangerous driving is a conclusion which must be drawn on the basis of the facts related to the way of driving. It is for the prosecution to adduce sufficient evidence to establish the particular driving acts of the defendant fall far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that the defendant’s driving in that way would be dangerous”.

14.  The driving acts that the prosecution alleged that were dangerous are:-

(1)  Driving under the influence of alcohol; and

(2)  Driving at an excessive speed.

The entire incident was captured by the camcorder installed on the O/V. The defendant started the O/V at the time counter 02:00:22 as shown in the real camera making a 90 degrees turn from the sidewalk into the subject carriageway at time counter 02:02:12. At counter 02:02:28, Madam Ng who was wearing a white T-shirt was barely visible in front of the O/V. In the counter 02:02:29, Madam Ng was hit on the back by the O/V. It is accepted that evidence that the defendant had consumed alcohol is admissible if it tends to show that the amount of alcohol taken was such as to adversely affect a driver or alternatively that the defendant was in fact adversely affected (see Archbold Hong Kong 2021, paragraph 34-15). However, no factual or medical evidence was adduced at trial to show that the amount of alcohol that the defendant consumed would have affected her driving at the time of the accident or her reaction would have been affected by that amount of alcoholic consumption.

15.  The video files did not reveal any bizarre or obscure driving manners by the defendant throughout the entire journey.  In the absence of such evidence, I cannot say for certain that the amount of the drink that the defendant had taken was such as adversely to affect the quality of her driving.

16.  In relation to the excessive speed, the prosecution contended that defendant should have lowered the speed when the O/V entered that part of carriageway which the lighting condition was poor but she kept driving at an average speed of 56 kilometres per hour plus or minus 6.  Having failed to do so her driving act must be dangerous.

17.  It is noted that in Video 1A at Counter 02:02:27, the yellow or orange light spot at the top right-hand corner on the front windscreen of the O/V disappeared.  At Counter 02:02:28, Madam Ng was barely visible on the carriageway and at Counter 02:02:29 she was hit on her back by the O/V.  It is also observed that in relation to the rear side, video file 1B at Counter 02:02:28, the illumination on the road surface disappeared and at Counter 02:02:29, there was a big bang sound record.  I noted that SPC47560 indicated on P7A that there was no shading created by the obstruction of the lamp post at the accident location.  However, it is not clear whether the measurement was taken in June 2020 or August 2021.  In any event, I accepted that as seen from the video files the accident location was dim and dark.

18.  From the video files, it is clear that Madam Ng was visible only at a very short distance, less than one second from the defendant’s line of vision before the collision.  Even if the defendant drive at a slower speed or not under any influence of alcohol she could not have enough time to apply brake or manoeuvre to avoid the accident given the fact that a prudent and careful driver will need reaction time to respond to the situation. 

19.  Further, no evidence was adduced in the trial to show how far a driver driving on the subject carriageway could have observed a pedestrian on the accident location under such poor lighting condition.  It is true that the defendant did not slow down or try to apply any brake before the impact.  The only irresistible inference, which I accepted, must be that she was not aware of the presence of Madam Ng on the carriageway.

20.  Prosecution further argued that the defendant was not fully in her senses as she did not stop immediately after the collision and drove for another 10 seconds before she returned to the accident location.  She was not charged with an offence of failing to stop after the accident.  As revealed in the video files, O/V was moving at a much slower speed after the impact.  Her explanation that she needed some time to collect her thoughts after the collision under caution might well be true.  I find there is nothing unusual in this aspect.

21.  Further, prosecution contended defendant was listening to some high volume music during the entire journey and her concentration must be affected by such.  The noise level which was generally by the radio talk show programme and the news report instead of music, as the prosecution alleged, was not particularly high and there is no evidence to support from the video files that the defendant’s attention was distracted by such. 

22.  The subject carriageway is a straight road without any pedestrian crossing.  It was late night and the traffic condition was very light and there was insufficient lighting at the accident location as the lamp post was obstructed by the bamboo tree.  The defendant was travelling at a speed within the speed limit and without any contravention of the traffic regulation except the drink driving and Madam Ng only appeared at her line of vision for one second before the collision.

23.  Having considered all the evidence, I am satisfied the prosecution fails to prove that the defendant’s driving act amount to dangerous and she is acquitted of the charge of dangerous driving.

24.  Having said that, defendant should have reduced the speed when she drove into the area where lighting was insufficient.  Her failure to adjust the speed to adapt to the road condition shows that her standard of driving fell below the objective standard expected of a competent and careful driver.  She is convicted of careless driving pursuant to Section 38 of the Road Traffic Ordinance.