HKSAR v. NG SIU BUN AND ANOTHER

DCCC 506/2018

[2019] HKDC 645

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 506 OF 2018

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Reasons for Verdict

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1.  This case concerns a fatality that occurred as a result of a road traffic accident in Tung Chau Street, Cheung Sha Wan. The accident took place at 3 am on 15 October 2017, whilst the deceased, a pedestrian, was crossing Tung Chau Street at a traffic-light-controlled pedestrian crossing. He was undoubtedly crossing in defiance of a red man signal. He was struck by a taxi driven by D1. D1’s taxi had turned at the junction at an acute angle from Hing Wah Road. The juncture was traffic light controlled. The lights were in his favour. They were green for his direction of traffic. D1’s taxi struck the deceased, who was propelled towards the nearside kerb of the road.

2.  D1 stopped his car and tried to assist the deceased, informed the police and prevent oncoming traffic from striking the deceased, who was lying in the carriageway.  Whilst the deceased was lying in the nearside carriageway, another taxi driven by D2 from oncoming direction ran over the deceased without stopping.  D2 was eventually arrested some two days later.

3.  The prosecution say that at the time the driving standard of both D1 and D2 fell far below that of a competent and careful driver in the circumstances, thereby causing the deceased’s death.

4.  In respect of D2, it is also alleged that he failed to stop and failed to report the accident.  The charges reflect these allegations.

5.  D1 admits that his driving fell below the standard of a competent and careful driver, and admits the alternative charge of careless driving.  He thereby denies that his standard of driving was far below the standard of a competent and careful driver.

6.  D2 denies that his driving was dangerous simplicter. He maintains he took all reasonable care in the circumstances and that he was not under any obligation to stop or report any accident. 

7.  A more detailed account of the evidence at trial is as follows.

8.  The accident occurred near the junction of Hing Wah Street and Tung Chau Street, Kowloon, after 3 am on 15 October 2017.  The deceased was a 91-year-old man.  He had gone out to walk at around 6 pm.  He had been reported missing by his family at about 10 pm.  He was suffering from both lung cancer and dementia. 

9.  There is no dispute that at the material time he crossed Tung Chau Street, a two-lane carriageway, by way of pedestrian crossing.  There is no dispute that D1’s taxi struck him after he did so. There can be no dispute that D1’s taxi crossed into the junction with a green light in his favour, and that the deceased crossed the carriageway with the red pedestrian warning light against him.  The overall junction is complex and traffic arrives from at least five different directions.  All directions are controlled by traffic lights and have pedestrian crossing points that are light controlled.

10.  D1 had accessed the junction from Hing Wah Street that had four lanes.  The rightmost two lanes turn right into Tung Chau Street in the direction of Mong Kok.  D1 was in the rightmost lane, the light was green, and he proceeded into the junction.  His speed is disputed.  It is not disputed that the Typhoon 3 signal had been hoisted earlier.  It was raining and the road surface was wet.  Traffic flow was described as smooth and the speed limit was 50 kilometres per hour.

11.  Two prosecution witnesses say they saw the defendant’s vehicle enter the junction.  The first was PW2, a Mr Lo.  He is a taxi driver.  He is aged 71.  He was at the junction in Hing Wah Street waiting at the red light for it to change.  He said there was no vehicle waiting on either side of him.  The lights changed as he commenced to drive off.  He said the taxi which he identified as KD1716 driven by D1 drove from his right at a very high speed.  “It drove past me very quickly,” he said.  “It was almost less than 50,” he added.

12.  PW2 turned right, following the 1st defendant’s taxi.  By the time he arrived at Tung Chau Street, he saw the deceased lying by the gutter on the left side of the carriageway.  He saw D1 making phone calls. He believed D1 signalled to him to leave, and he left.

13.  PW2 agreed in cross-examination that D1’s taxi speed was less than 50.  He agreed that he was guessing, because the speed limit was 50 kilometres per hour.  It was put that D1’s speed could be 20 or 25 kilometres per hour.  His answer was:  “I couldn’t guess.  It was very quick and made the turn.”  He agreed Tung Chau Street could not actually be seen because of a pillar that was there when one crossed the junction.

14.  PW3, a Mr Wong, was also a taxi driver.  He told us he was also in Hing Wah Street, stopped at the junction for the red light. He was in the fourth lane from the left stop behind three vehicles.  He saw the three vehicles in front go to turn right when the lights changed.  He said that he entered the junction slowly as he knew there was a pedestrian crossing after the right turn. 

15.  He saw the front-most car KD1716 had stopped on Tung Chau Street.  The driver got off, came and told him he had hit something. This was D1.  He saw the deceased lying on the pavement and zebra crossing, with his taxi headlights on full beam, the angle of the beam allowing him to see the deceased.  KD1716 had its hazard lights flashing.  He then said he saw a taxi roll over the deceased.  He said it was on the first lane, very close to the kerb.  He said it did not stop rolling over and drove roughly over about 20 kilometres per hour.  He added, “Not very fast.” 

16.  When cross-examined, he agreed that the vehicles in front of him at the junction of Hing Wah Street moved off from stationary to roughly, he said, 20 kilometres per hour.  He disagreed that the taxi that rolled over the deceased was slowing down.  He did agree the speed of that taxi was slower than 20 kilometres per hour.

17.  In addition to these witnesses, the prosecution produced video recorded interviews made by both the 1st and 2nd defendants, medical evidence as to the cause of death, and a recording of the 1st defendant’s 999 call to the emergency services.

18.  As far as the defence case is concerned, the 1st defendant did not give or call evidence, other than some agreed panoramic photographs of the junction.  He also relied upon his explanations given within his video recorded interview. 

19.  The defendant had said that he had not completely come to a halt when he took the junction.  The signal at the junction had turned green in his favour so, as I said, he had not completely stopped.  Whilst turning right into Tung Chau Street, his vision of Tung Chau Street was hindered to a certain extent by the flyover pillar.  He had maintained a constant speed of around 25 kilometres per hour when turning, and when his vehicle had reached Tung Chau Street he had seen the deceased suddenly cross.  He had immediately applied his brake but the nearside front of his vehicle had hit the deceased.  He had immediately got out of his vehicle to make a report to the police and also, as I said, to secure the area.  He had seen the second vehicle roll over the deceased’s body.

20.  As far as the 2nd defendant’s case is concerned, he again did not give or call any evidence.  He did, however, adduce a video taken from the social media site, Facebook, which the third prosecution witness agreed showed the aftermath of the accident.  PW3 was able to both identify his own vehicle and D1 from the video recording.  It does show the positions of the vehicles and the 1st defendant attempting to, as it were, secure the scene, I think is the best way I can describe it.

21.  The 2nd defendant also, to a certain extent, relies upon the explanation given by him of the accident in his video recorded interview.  He does admit that he entered the junction in question.  He had a passenger on board at the time in his taxi.  He had seen two vehicles stop there, one of which was undoubtedly the vehicle belonging to the 1st defendant.  They both had their emergency lights on.  He had seen a white car cutting through the junction ahead of him.  He had seen D1 walking on the left side of the road.  He had driven his vehicle around the junction to avoid the cars parked there. 

22.  Whilst passing the junction, he felt a vertical vibration of his vehicle.  He looked in his rear view mirror and saw something like rubbish on the road.  He said he was unaware that he had actually rolled over the deceased till the police contacted him, and there was no report of this accident when he checked the news.  He did not think to go back to the accident location to check.

23.  As far as legal factors are concerned, this is a criminal trial.  To establish guilt on the charges, the prosecution must prove their case beyond reason doubt.  The burden to do so remains on the prosecution at all times.

24.  The defendants are tried together on this indictment.  However, their cases are separately charged and must be evaluated separately.  Both defendants gave video recorded interviews.  Their contents may provide evidence against the maker of the interview, but it does not provide any evidence against any other defendant. 

25.  Neither defendant gave evidence.  They are entitled to do so.  No adverse inference can be drawn against them in respect of that decision.

26.  The 1st and 2nd defendants face separate charges of causing death by dangerous driving, contrary to section 36(1) of Cap 374.  A person is to be regarded as driving dangerously if the standard of driving falls far below what would be expected of a competent and careful driver, and it would be obvious to such a competent and careful driver that driving in that way would be dangerous. 

27.  The 1st defendant has admitted to careless driving. Careless driving is driving that falls below what would expected of a competent and careful driver.  A typical example of careless driving may be a momentary negligent error of judgment or a single negligent manoeuvre.  Due to the 1st defendant’s plea in this case and the 2nd defendant’s case generally, it will be necessary to establish the threshold with which a piece of careless driving becomes a piece of dangerous driving.  This is articulated in the legislation as when the driving falls far below the necessary standard.  Thus the court must evaluate the quality of the driving involved and the degree of danger it foreseeably creates.

28.  The threshold of the quality of driving must create a significant risk of danger, and this can occur when a vehicle is driven at a speed that is inappropriate for the prevailing conditions or in such a way as to create a brief but obvious danger arising from a seriously dangerous manoeuvre.

29.  D1 has also argued that an issue of causation arises in this case.  To establish causation, the prosecution must establish some element of fault by the defendant which contributes in more than a minimal way to the death.

30.  I will turn to the individual charges and resolve the issues in this case.

Charges

The 1st defendant, on Charge 1, causing death by dangerous driving

31.  The case against D1 on this charge relies upon the evidence of PW2 to establish that D1 drove at a speed that was inappropriate for the prevailing conditions, thereby creating a significant risk of danger to other road users, including pedestrians.

32.  The prevailing include, firstly, the time of day, which was the early morning; the rainy conditions, which would create impaired visibility and compromise grip and braking; the acute angle of the right turn; and that the fact that the pedestrian crossing is obscured for quite a period of time by a pillar of the flyover when you start from the traffic lights of Hing Wah Street.  All these factors increase the need for caution and require the junction to be taken slowly.

33.  In fact, PW3 said the obscured nature of the pedestrian crossing was something he realised required special care. 

34.  PW2’s evidence was that the 1st defendant had driven past him very quickly, at a very high speed.  He was not able to at quantify that, but he said almost less than 50 initially.

35.  The 1st defendant criticised these observations, pointing out that he had agreed it was less than 50 and he was guessing because the speed limit was 50 kilometres per hour.

36.  Furthermore, PW3, who saw the vehicles starting off ahead of him from the red light, put their speed as 20 kilometres per hour, the same speed the 1st defendant has referred to in his video recorded interview.

37.  I noted from PW2’s evidence that it could be said that the defendant’s car had not stopped at the lights and, in fact, the 1st defendant had said in his recorded interview that he had not completely stopped, whereas the third prosecution witness had said all the cars had stopped.  So it is clear that recollections differ.

38.  I also note that speed is difficult to judge accurately, even for professional drivers.  However, two matters are of significance.  Despite the questioning of PW2, he did maintain throughout that the 1st defendant had driven very quickly and that D1 and PW2 had been at the heads of their particular lanes of traffic, entering the junction.  D1 clearly arrives there significantly earlier.  PW2 had arrived there after the deceased had been thrown to the kerbside, and PW2 was easily able to bring his vehicle to a halt at the junction before the pedestrian crossing, as was PW3, which is suggestive of D1’s speed being significantly excessive at the point at which he reached the pedestrian crossing.

39.  I consider, if he was travelling at a speed of around 20 to 25 kilometres per hour, that he should have been able to brake to a halt before the pedestrian crossing. 

40.  Taking these factors together, it would appear there is clear evidence that the 1st defendant was driving at a speed that was inappropriate for the prevailing conditions, these conditions being, amongst things, being the poor conditions which compromised braking ability and grip, the existence of the pillar obstructing the view, and the pedestrian crossing itself, which elevated this risk.

41.  I do note D1, despite being interviewed extensively, was never asked about his prior knowledge of the pedestrian crossing.  However, the crossing is objectively foreseeable, as all the traffic lights entering the junction are traffic-light-controlled pedestrian crossings.

42.  I do find that the 1st defendant’s driving did create a significant and objective risk of danger in the circumstances of that junction, and that his driving fell far below the standard expected of that of a competent and careful driver.  It was clearly excessive with regard to the surrounding circumstances.

43.  D1 did argue that the presence of D2 driving over the deceased could mean that the court could not be sure that it was D1’s driving that caused the death of the deceased.

44.  I do not agree with this argument.  The 1st defendant struck the deceased whilst driving dangerously, in such a way as to propel the deceased to the kerb of a dual carriageway from the offside lane in which he was driving.  This must have caused injuries which contributed to the deceased’s death in more than a minimal way.  This is the only possible and irresistible conclusion that can be drawn from those facts.  The fact of another car driving over the deceased does not alter that fact.

45.  I find Charge 1 proved as against the 1st defendant beyond all reasonable doubt.

46.  I will deal with Charge 2 against the 2nd defendant, causing death by dangerous driving.

47.  The basis of this charge is the 2nd defendant ran over the deceased.  This was witnessed by PW3 and this fact could not be contested.  At the time, both PW3 and D1 were parked with hazard lights flashing.  At least two cars had already driven through the scene and managed to avoid the deceased, who was lying in the carriageway by the kerb, with his head pointing towards Mong Kok and his feet facing oncoming traffic.  He had been covered in newspaper by the 1st defendant to protect him from the rain that was falling.  This scene can been seen from the video produced by the defence. D1 was at the kerbside talking on the phone. 

48.  The 2nd defendant in his video recorded interview said he believed there had been an accident and he never saw the deceased.  Clearly, the 2nd defendant did not see the deceased lying on the road and that his vehicle collided with the deceased.  The 2nd defendant was aware after the fact that his vehicle had rolled over something. 

49.  The failure to see and avoid an obstruction on the road is clear evidence of the failure to keep a proper lookout and, at minimum, proves a case of careless driving without due care and attention and must, as I say, at minimum, establish careless driving.

50.  Does this cross the threshold into dangerous driving?  PW3 described the 2nd defendant’s speed as lower than 20 kilometres per hour.  At this speed, the 2nd defendant’s driving cannot be said to be inherently dangerous.  He is driving with regard to the fact that there has been a collision and there are stationary vehicles on the road that require avoiding.

51.  However, there is nothing necessarily to suggest that a pedestrian would be lying on the crossing.  To the extent that the deceased can be seen, as witnessed in the video recording produced by the defence, his outline is broken by the newspaper, which the 1st defendant had placed on him.  This breaking of the outline provides an element of camouflage. 

52.  In any event, the 2nd defendant did not see the obstruction on the road.  In the circumstances of this case, I do not believe the 2nd defendant’s inattention to the road surface can be said to be so careless as to appear objectively dangerous.  Although his driving fell below the requisite standard of that of a competent and careful driver, it cannot be said to fall far below that standard. 

53.  The 2nd defendant will therefore be convicted of careless driving as an alternative to the existing charge.

54.  The 2nd defendant faces two further charges as a result of his failure to stop and to report the accident.  An accident had occurred owing to the presence of his vehicle on the road, whereby personal injury was caused.  That is proved by the prosecution.  Both of these offences are offences of strict liability.  It is a defence to prove on a balance of probability that the defendant was unaware that an accident had occurred. 

55.  The 2nd defendant was clearly aware of his impact with an obstruction in the carriageway.  He says he felt a vertical vibration.  He looked in his mirror to check.  He admits this in his video recorded interview.  He was therefore aware of the impact with an obstruction. He was obliged to stop and ascertain the situation.  He is therefore liable to conviction under Charge 3 and will be convicted.

56.  He was also under an obligation to report the accident to police within the requisite time.  As with Charge 3, there can be no doubt that the 2nd defendant was aware of an impact and therefore an accident had occurred.  It is not disputed that he failed to both stop and report.  The fact that he said he saw no evidence of an accident save for the presence of rubbish or newspapers is not a defence.  He drove through a location where some form of accident had already occurred.  He was aware that his vehicle had impacted something.  He was obliged in those circumstances to both stop, ascertain the situation, and then report the accident to police. 

57.  He is convicted of Charges 3 and 4 accordingly.