HKSAR v. LI KAI HEI

DCCC 782/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 782 OF 2016

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REASONS FOR VERDICT

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CHARGES

1.  The Defendant pleads not guilty to Charge 1 ‘Causing death by dangerous driving’.

INTRODUCTION

2.  The Defendant was a PLB (public light bus) driver.  His PLB TN6061 knocked down a pedestrian on the road who came out of a bus stop. The pedestrian died as a result of the collision.

3.  Prosecution allege the Defendant at the material time was speeding at 60 odd kph when the road speed limit was only 50 kph.  Furthermore, the accident spot was near a traffic light controlled pedestrian crossing. 

4.  It is also alleged the Defendant failed to turn on the obligatory headlamps (強制性大燈) of his PLB and failed to keep a proper lookout on the road despite he was familiar with the area. 

5.  Prosecution say that in the said circumstances the Defendant drove far below the standard that would be expected of a competent and careful driver and it was obvious to a competent and careful driver that such driving was dangerous.

6.  Defence Counsel challenges the accuracy of the PLB’s ‘black box’ (EDRD - Electronic Data Recording Device), which purportedly recorded the Defendant was speeding at the material time and that the obligatory headlamps were off.

7.  Defence Counsel also challenges the evidence of Prosecution’s accident reconstruction expert PW13. 

8.  Defence Counsel says that it was not clear how the Deceased emerged from the bus stop to cross the road before colliding with the Defendant’s PLB.  He also says that the Defendant’s view had been blocked by a passing double decker bus on the opposite lane and the accident might be unavoidable. 

9.  Counsel submits even if the Defendant was driving with momentary fault (which the Defendant denies), the case is merely one of careless driving (which the Defendant does not admit either).

PROSECUTION CASE

10.  Prosecutor calls a number of witnesses to testify.

11.  There are prosecution exhibits P1-P25.

PW1 MR CHEUNG

12.  PW1 had lived in Nam Wah Po for 23 years since birth.  He was familiar with the road in question as he often took Route 25A minibus.

13.  On 10 February 2016, after 8 pm PW1 got on the Defendant’s PLB (TN6061).  He sat at the 5^th row near the window on the right side.  He felt the PLB was rather fast when it passed the crossroad near Po Ngar Court. The road there went up and down, PW1 could feel slight centrifugal force as the PLB travelled over that section of the road.  He looked at the speed displayer inside the vehicle. It showed ‘65 kph’.  That was about 10 seconds before the accident.

14.  PW1 saw a single person standing on the pavement of the bus stop on his right side.  He marks the area where that person stood on P9A with a red circle.  PW1 could not distinguish whether that person was a male or female, who was about 30 m away and looking over the road to the opposite side.  There was only one stationary person there; nobody was in the vicinity. A vehicle was moving on the opposite lane on PW1’s right (the southeast-bound lane) but he was not clear what type of vehicle it was.

15.  PW1 then looked at his telephone and did not pay further attention to that person at the bus stop.  Then he heard the PLB crashing something.  The vehicle stopped abruptly and veered to the left.  PW1 saw the left side of the PLB’s windscreen was crashed.  The Defendant got off the PLB.  PW1 followed.  He saw a person lying 4-5 m ahead of the PLB in a pool of blood.  PW1 could not see clearly whether that lying person (the Deceased) was that one standing earlier at the bus stop.

16.  PW1 says there was a traffic-light controlled pedestrian crossing about 17 odd metres to the accident spot.  Yet many people would cross the road from the said bus stop to the other side, where there was a housing estate called Parc Versailles.

17.  Defence Counsel puts to PW1 that his reading of the speed displayer was incorrect, and not many people would cross the road from the bus stop.  PW1 disagree to both suggestions.

PW27 MS KHOO

18.  PW27 was walking near the accident spot.  She heard the crash and saw the Deceased skidding on his side on the road before coming to rest in a pool of blood.

PW3 MR CHU

19.  Mr Chu is a director of Yan Hing Transportation Co Ltd, which employed the Defendant.  The Defendant had worked as a relief PLB driver since March 2015.  On 1 January 2016, he became a full time driver. Since then, the Defendant drove only TN6061 in Route 25A. He drove twelve rounds a day and six days per week.

20.  PW3 says his company’s 32 PLBs were provided with monthly maintenance by a garage appointed by the company.

21.  PW3 says TN6061 was a brand new vehicle when it was delivered to his company by the dealer.  It was registered on 29 July 2015 and had been in use since 5 August 2015.  At that time, the Electronic Data Recording Device (EDRD) had already been installed in the vehicle by an authorized installer.

22.  PW3 says he had not received any complaint about any EDRD installed in the many PLBs of his company.

PW14 MR LEE

23.  PW14 is an engineer of the Transport Department.  He works on safety standards.

24.  PW14 says all PLBs have to be fitted with EDRD. He confirms that Transfull Limited (the EDRD installer for TN6061) had been an authorized installer since 2013.

25.  PW14 says the Transport Department would check any EDRD newly fitted in a PLB.  If approval was granted, the Transport Department would make a seal on it together with the authorized installer’s own seals. The seals were to prevent tampering.  The Transport Department would check the intactness of the seals during the PLB’s annual check.  The department would also select some PLBs to randomly check their function.

PW15 MR HO

26.  PW15 is a director of Transfull Limited.  His company had been recognized by Transport Department as authorized installer of EDRD since February 2013 and had installed over 160 EDRDs of the type in question.  There was never any complaint. 

27.  PW15 says his company actually manufactured the EDRD.  They would check the device and seal it after confirming it was functioning properly.  After it was fitted in the vehicle, the Transport Department would check the EDRD and, if approval was granted, seal it too.

PW10 MR YEUNG

28.  PW10 has worked in Transport Department since 1990.  He has been a Motor Vehicle Examiner since 2007.  His expertise as a motor vehicle examiner is not in dispute.

29.  PW10 had prepared a report P10 after examining TN6061.  There were only two defects: one relating to a tyre and the other was about the absence of an information plate on the fitted speed limiter of the PLB. (Prosecution make it clear that those two defects had no bearing on Charge 1).

PW16 MR LI

30.  PW16 is the Technical Supervisor of Transfull Limited.  He had worked there for 11 years: first few years as technician, then as Product Manager and since 2010 as Technical Supervisor.  PW16 received training from his company on how to check, collect and analyse EDRD date.  He had actually been involved in the EDRD project since its inception in 2011.  He was also involved in the installation of about 10 EDRDs but he did not test or install that EDRD fitted in TN6061. 

31.  On 16 February 2016, PW16 inspected the EDRD of TN6061 after the accident.  All the seals on it were intact. 

32.  PW16 says EDRD had self-testing function.  If it was out of order, no data could be retrieved from it. He could retrieve data from the EDRD in TN6061.  He found that the running time of the device was about 5 minutes behind the real time.  (The subsequent time mentioned of any EDRD data would be the device time unless otherwise specified.)

33.  The data retrieved from the EDRD are presented in 2 sets:-

(i) P19 is a set of 28 speed diagrams; and

(ii) P19A is a set of Stop Records.

34.  PW16 says such EDRD devices had a 2-3% positive standard deviation regarding speed reading.  For example, when the actual speed of the vehicle was 50 kph, the EDRD device would read about 51 kph.  PW16 says the deviation was within the range of up to 10% as approved by the Transport Department.

35.  PW16 explains the contents of P19 as follows:

- Diagram 27 shows TN6061 started to brake at 20:13:28:00 when its EDRD speed was 66 kph.

- Diagram 26 shows TN6061 came to a halt at 20:13:32:00 when its EDRD speed 0 kph.

- Diagrams 25 to 6 reveal the EDRD speed of the PLB from 20:13:09:00 (46 kph) to 20:13:28:00 (66 kph). During that period, the vehicle accelerated gradually. The highest EDRD speed attained was 66 kph during 20:13:27:20 -20:13:28:00. The brake was then applied at 20:13:28:00 and the EDRD speed gradually decreased within 4 seconds to 0 kph at 20:13:32:00 (Diagram 2).

36.  PW16 also explains P19A, which is a set of stop records.  They contain information of the PLB’s lamps, revealing their ON/OFF state.  The records covered such period from 19:29:40:00 (page 35) to 20:13:32:00 (page 1) when the PLB came to a halt after hitting the Deceased.

37.  P19A shows:

- ‘Main beam: OFF’ and ‘Dipped beam: ON’ during 19:29:40:00 (page 35) - 19:35:51:00 (page 28).

- ‘Main beam: ON’ and ‘Dipped beam: ON’ during 19:39:05:00 (page 27) - 19:54:54:00 (page 13).

- ‘Main beam: OFF’ and ‘Dipped beam: ON’ during 19:56:12:00 (page 12) - 20:08:33:00 (page 6).

- ‘Main beam: OFF’ and ‘Dipped beam: OFF’ at 20:08:54:00 (page 5)

- ‘Main beam: OFF’ and ‘Dipped beam: ON’ during 20:09:33:00 (page 4) - 20:13:32:00 (page 1).

38.  PW16 clarifies that the references of ‘Dipped beam’ and ‘Main beam’ as printed on the EDRD record P19A were only programming terms used by the software writer based in China.

39.  PW16 was in Transfull when the company developed EDRD.  He had also done tests on EDRD.  His empirical evidence was: ‘Dipped beam: ON’ actually referred to the ‘obligatory frontlamp ON’ situation as shown in demonstration photos P22 (2B-D), while ‘Main beam: ON’ meant the ‘obligatory headlamps ON’ situation in demonstration photos P22(3B-D “one beam/bulb lit” and 4C-E “two beams/bulbs lit”).

40.  PW16 says the EDRD would register ‘Main beam: ON’ whether one or two bulbs of each side’s (left/ right) headlamp were lit. He says both bulbs of each headlamp were controlled by the same switch.

41.  For illustration, PW16 circles on Photo 4 (4) the EDRD-called ‘Dipped beam’ in blue (actually the obligatory frontlamp) and the EDRD-called ‘Main beam’ in red (actually the obligatory headlamp).

42.  PW16 says his company had installed less than 200 EDRDs.  He was involved in the testing of some but not the one fitted in TN6061.  There had not been any problem with any installed EDRD since Transfull began providing service as authorized EDRD installer in 2013.

CCTV

43.  The housing estate Parc Versailles was next to the road where the accident occurred.  It was at the top of Plan P9C.  There were CCTV cameras (see P24).  Channel 15 was fixed at more or less at that position and as pointed (marked in the middle of P9C) while Channel 16 was further away on the left.  [Channel 16 was actually out of the plan but Prosecution and Defence agree to have its pointing direction drawn there.  Channel 15 pointed to southeast -- capturing vehicles coming on the Defendant’s lane (the northwest-bound lane); Channel 16 pointed to northwest -- capturing the rear of the vehicles moving on the Defendant’s lane. The southeast-bound lane was on the right side of the Defendant’s lane.]

44.  Channel 15 and Channel 16 were synchronized in time. But it is not known how the CCTV time was related to the real time.

45.  Prosecution rely on the footage of both channels to show there was a PLB coming on the northwest-bound lane since CCTV time 20:17:55. [I shall call it PLB X and mark it with a red arrow in Photos P25(3-10) for easy reference. This was the designated PLB which the accident reconstruction expert PW13 traced in his analysis.  Prosecution say it was the Defendant’s PLB. Defence Counsel disputes that. He further argues the designated PLB in Channel 15 might not even be the same one as designated in Channel 16.] 

46.  Channel 15 shows a double-decker bus was travelling in the opposite direction on the southeast-bound lane. At CCTV time 20:17:56, the designated PLB was side by side with the bus. [ See Photos P25(4).]

47.  The designated PLB soon went out of the view of Channel 15.  But Channel 16 then captured the rear view of the traffic on the northwest-bound lane.

48.  The still photos of P25(5-16) taken from the Channel 16 footage were not clear enough.  One has to look at the footage itself (P16) for continuity and clearer observation. There one can see a PLB travelled and finally stopped next to a lampost.  PW13 had studied the footage and visited the site.  He found out that was Lampost N3807 [see its position in P9B and Photos P24 (4-5)]. That was the lampost next to the Defendant’s PLB where it finally stopped after hitting the Deceased.

PW13 DR TAO

49.  PW13 is a traffic accident reconstruction expert.  His expertise is not in dispute.  He had attended court 30-40 times in such capacity.  As far as he knows, there was only one occasion when his view was not accepted by the trial magistrate.  He does not know the reasons behind.

50.  PW13 had studied the CCTV record from Parc Versailles (P16).  It consisted of CCTV footage from Channel 15 and Channel 16.  PW13 made use of 9 image frames (A-I) from Channel 15 with identifiable geographical features.  He labelled the located front position of the designated PLB in Frames A-I as Positions A-I respectively [see para 7 of P13].

51.  On 20 April 2016, PW13 went with police and his colleagues to the scene.  The same PLB (now re-numbered KU9465 instead of TN6061) was driven along the road and stopped to accord the A-I images.  Positions of A-I were then marked and the separating distances were measured [see para 15 of P13]. 

52.  PW13 in court marks Positions D-I on Plan P9B; the further Positions A-C are out of the plan. 

53.  Based on the CCTV frame speed and the measured distance of A-I, PW13 is able to calculate the average speed for the various sections A-B, B-C, C-D, D-E, E-F, F-G, G-H and H-I [see para 15 of P13].

54.  Dr Tao has given a ±10% standard deviation to take care of any uncertainty of measurement of distance and time.  These are the calculated average speeds:-

Stretch	Distance	Time	Average Speed (±10%)
A-B	16.2m	1 sec	58 ± 6 kph
B-C	9.4m	0.58 sec	58 ± 6 kph
C-D	7.6m	0.42 sec	65 ± 7 kph
D-E	8.9m	0.5 sec	64 ± 6 kph
E-F	11.8m	0.67 sec	63 ± 6 kph
F-G	1.5m	0.083 sec	65 ± 7 kph
G-H	2.6m	0.17 sec	56 ± 6 kph
H-I	3.5m	0.25 sec	50 ± 6 kph

[Position I to Final stopped position is measured as 18.75 m; see P9B].

55.  During the road test, PW13 made the PLB move near the nearside kerb during reconstruction instead of further to the middle of the road or the offside. PW13 explains that would be the most favourable setting for the Defendant.  If the test PLB moved more to the right, then the measured distances would be longer and the calculated speeds for A-I would be faster. He gives this example in court: if he used his own measurement of 53.9 m for A-F, the calculated average speed would be 61 kph ±10%; if he used the longer A-F distance of 65m as suggested by the defence expert Dr. Cheung, the calculated average speed would increase to 73 kph ±10%.

56.  In the CCTV footage, PW13 saw a double decker bus moving on the opposite lane (the southeast-bound lane).  Again, he adopted the most favourable approach for the Defendant by assuming it was a bus of the longest type (11 m long).  He opines the Defendant’s view of the bus stop on his right might have been blocked completely at Positions A, B and C.  But when his PLB came to Position D and onwards, the blockage would decrease as the bus had moved further away from the bus stop (while the PLB at the same time moved nearer to the bus stop).  PW13 postulates the Defendant would have a clear view of that bus top at about 33 m to the final stopped position of his PLB(see P9B). 

57.  Knowing the Defendant’s PLB took 4 seconds to come to a halt after its brake was applied in the accident, PW13 calculates that if the Defendant’s PLB braked at 65 kph, it would have to travel 52 m (16 m reaction distance + 36 m braking distance) before it came to its final stopped position [see Footnote 5 of P13].  However, if the Defendant’s PLB only travelled at 50 kph (the road speed limit), it would merely require 33.9 m before it halted completely (see Footnote 6 of P13).  That is, the Defendant’s PLB could have stopped about 18 m behind its current final stopped position.  PW13 illustrates the two positions in Appendix III of P13. (By measurement, the assumed final stopped position under 50 kph would be slightly ahead of Position I on P9B). 

58.  Based on his calculation, PW13 makes a yellow marking on P9B to signify the point where the Defendant travelling at 65 kph applied brake. The braking point was about 36 m behind the front of the Defendant’s PLB as it finally stopped. (See Plan 9B.)

59.  PW13 also performed lamp simulation on the Defendant’s PLB during the road test by viewing through the same Channel 15 camera. P23(1-4) are four still photos extracted from the simulation footage. The photos show how the test PLB front looked with:-

(a) no lights on [Photo 23(1)];

(b) only obligatory frontlamps on [Photo 23(2)];

(c) obligatory headlamps (dipped beams) on [Photo 23(3)];

(d) obligatory headlamps (main beams) on [Photo 23(4)].

60.  P23(5-6) are still photos extracted from the Channel 15 footage taken on the accident night for comparison.  P23(5) shows the front lighting condition of PLB X.  P23(6) shows another PLB passing there some minutes earlier.  The purpose of these six photos [P23(1-6)] is for comparison.  Prosecution say PLB X was the Defendant’s PLB.  The said images show that when the Defendant’s PLB was on the northwest-bound lane just seconds before the accident, it only had obligatory frontlamps on and the obligatory headlamps were off.

MID-STAGE

61.  Defence Counsel makes no submission.

62.  I rule the Defendant has a case to answer on Charge 1.

DEFENCE CASE

63.  The Defendant elects not to give evidence.  There are defence exhibits D1-D2. (D1 are some photos of the PLB but they have no bearing on Charge 1.)

64.  Agreed facts (P17) state among other things:-

(a) The Defendant has a clear criminal record.

(b) The Defendant has held driving licence since 1986.

(c) The Defendant had been employed as part-time PLB driver since March 2015 and on full time basis since January 2016. He was responsible for driving in Route 25A in Tai Po.

(d) The Defendant passed breath test after the accident.

DEFENCE WITNESS DR CHEUNG

65.  The Defendant calls a mechanics expert, Dr Cheung. He is not a traffic reconstruction expert but a mechanics expert.  His expertise as such is not in dispute. Dr Cheung can comment on those aspects of the case which involve mechanics consideration.

66.  Dr Cheung is allowed to sit in court to hear prosecution witnesses’ giving evidence.

67.  After hearing PW13 Dr Tao’s evidence, Dr Cheung forgoes certain assumptions he had earlier made in his original comments. He amends his report accordingly and the amended report is Exhibit D2.

68.  Dr Cheung expresses doubt on PW13’s measurement as the CCTV images are not clear.  He says even though PW13 had projected enlarged images onto a 24" screen to compare with A4-size paper images, there was still uncertainty in measurement.  However, Dr Cheung accepts the 10% deviation adopted by PW13 in his calculation of speed can take care of such measurement uncertainty.

69.  Dr Cheung’s real complaints are:-

(a) The EDRD in the Defendant’s PLB had not been checked or calibrated after the accident to verify its accuracy. As such, it is not sure whether the retrieved EDRD data are correct.

(b) Dr Tao only used a police transit vehicle to simulate the double-decker bus during reconstruction. As a bus would be large than a police transit vehicle, the Defendant’s view on the accident night might be more severely blocked than what the reconstruction test could suggest.

FINAL SUBMISSION

70.  Both parties have made reference to some decided cases.  With respect, I do not find them useful.  It is obvious that cases of such nature are always facts sensitive.

PROSECUTION

71.  Prosecution says the Defendant drove dangerously in that:-

(a) He sped too fast in the circumstance;

(b) He failed to turn on the obligatory headlamps;

(c) He failed to maintain a proper lookout.

And the Defendant’s dangerous driving caused the death of the Deceased.

DEFENCE

72.  Defence Counsel submits that the EDRD might not be reliable as its accuracy had not been verified after the accident.

73.  Counsel queries the reliability of PW1 and PW16.  He also doubts the certainty of PW13’s calculation and postulation.  Counsel says the Deceased must have dashed out of the bus stop.  The Defendant’s view of the bus stop around that time had been blocked by the passing double decker bus. The Defendant could only notice the Deceased at such point when he had a clear view of the bus stop.  (Defence Counsel call that spot Point Y.) The Defendant would then need an average time of 0.9 second to react before applying his brake. The PLB would travel some distance at its speed. It would still knock down the Deceased even if the PLB’s speed was only 50kph.  The accident was thus inevitable due to the constraints in time and distance.  Counsel puts the blame on the Deceased for rushing out at too short a distance from the PLB.

74.  Counsel says even if the Defendant was speeding (which is not admitted), it was not dangerous driving per se.

75.  As to whether the obligatory headlamps were on or not, Counsel points to the EDRD’s record which registered ‘Dipped beam: ON’ at the material time.

76.  On the question of maintaining proper lookout, Counsel says a momentary lapse of attention (which the Defendant does not admit) was at most careless driving.

77.  All in all, Counsel submits that Prosecution fail to prove the Defendant drove dangerously or carelessly to cause the death of the Deceased.

DISCUSSION

CREDIBILITY

78.  I find all prosecution witnesses credible and reliable.  So is the defence witness Dr Cheung.

79.  The Defendant elects to remain silent.  That is his right.  No adverse inference would be drawn against him for that.

80.  The Defendant has held driving licence since November 1986.  He has a clear criminal record.  He had been a PLB driver since March 2015, first on part-time basis and became full-time in January 2016.  He had been driving in Route 25A regularly and thus was familiar with the area.

THE ACCIDENT

81.  There is no dispute that the Defendant’s PLB crashed with the Deceased.  The Deceased died due to the accident.  The crash point was on the left front of the PLB but it is not known at what point of the road the collision occurred.

82.  The Defendant’s PLB finally stopped next to Lampost N3807.

83.  The PLB’s passenger PW1 saw a single person at the bus stop area (circled red on P9A).  He did not pay further attention to him.  Soon the accident occurred and that person was nowhere to be seen, only with the Deceased now lying in a pool of blood on the road several metres ahead of the stopped PLB.

84.  The Deceased’s father says in his statement (P14) that his son was supposed to attend a dinner at 8 pm in Parc Versailles, which housing estate was just across the road.  It is obvious that the Deceased was already late for the dinner appointment.  He must be in a hurry when he crossed the road.

85.  It is not clear how the Deceased appeared on the road and at what point of the road he was hit.  However, in the circumstance, I can draw the irresistible inference that the single person seen by PW1 at the middle part of the bus stop was the Deceased.  He was in a hurry and came out of the bus stop to get to the opposite side of the road in order to meet his father for dinner in Parc Versailles.  He was already late.  The double decker bus as seen in the CCTV footage must have obstructed the Deceased’s left view somehow. From that side, the Defendant’s PLB was coming. 

86.  Whether the Deceased crossed the road perpendicularly or diagonally, he must have come from the red circled area, ie the middle part of the bus stop.  He had already traversed much of the road when he was hit by the left front of the Defendant’s PLB on the northwest-bound lane.  The hitting force was so great that he was thrown forward and finally lied several metres ahead of the stopped PLB.  He suffered serious injuries and died as a result of it a day later in hospital.

EXPERT WITNESSES

87.  Prosecution relies on their accident reconstruction expert PW13.  On the defence side, there is a mechanics expert Dr Cheung.

88.  Dr Cheung has originally prepared a report responding to PW13’s findings, calculations and postulations (P13).  Dr Cheung makes many assumptions in his original report.  However, after hearing PW13’s evidence in court, Dr Cheung gives up a number of his assumptions and criticisms. Basically, he now says PW13’s mapping of the designated PLB from grainy CCTV images would have uncertainty.  However, he agrees the 10% deviation PW13 adopts in his calculation can take care of such uncertainty.

89.  The other criticism is on the extent of the blockage caused by the double decker bus.  Dr Cheung says as PW13 used a smaller vehicle (police transit vehicle) in his road test, the real blockage caused by the double decker bus must be larger than what PW13 perceived.  Apart from this, the two expert witnesses are not at odds with each other.

90.  Defence Counsel doubts if PW13 traced the same PLB in Channel 15 and Channel 16 footage and whether it was the Defendant’s PLB. 

91.  PW13 had carefully studied the CCTV images with magnification means.  He can point out the designated PLB in Channel 16 finally stopped next to Lampost N3807.  That was where the Defendant’s PLB stopped after the accident.  So, the designated PLB he traced in Channel 16 was really the Defendant’s PLB.

92.  Defence Counsel says that designated PLB in Channel 16 might not be the designated PLB in Channel 15.

93.  From the time stamps of the two channel records (in synchronization) and the identifiable features in the images (particularly the two passing cyclists appearing around the time of the accident, captured first by Channel 16 [pointing northwest] and then by Channel 15 [pointing southeast]), I am sure the designated PLBs in both channels were the same one. And it was the Defendant’s PLB.

94.  PW13’s work is meticulous.  His reasoning and calculation are well based.  The defence expert Dr Cheung does not disagree to PW13’s calculation.  Dr Cheung also concedes the 10% deviation provided in PW13’s calculation would take care of any measurement uncertainty.

95.  PW13 finds out the maximum average speed of the Defendant’s PLB shortly before the accident was 65 kph ± 10%.That was very close to the EDRD registered highest speed of 66 kph (= real speed of 64.07 kph, see para 103).

96.  As to the view problem, I accept Dr Cheung’s comment that the blockage caused by the double decker bus would be greater that what PW13 perceived, as the latter only used a smaller vehicle (police transit vehicle) in the road test.  However, this had nothing to do with PW13’s speed calculation or lamps simulation.  Those are not affected by the double decker factor.

EDRD

97.  The Defendant’s PLB was fitted with EDRD.  After the accident, the vehicle was impounded.  Police caused an authorized EDRD installer Transfull to retrieve data from the PLB’s EDRD.  PW16 was Transfull’s Technical Supervisor.  He had been trained to install, test and retrieve data from EDRD.

98.  The PLB’s EDRD was not damaged or tampered with.  PW16 says EDRD had self-testing function.  If it was out of order, no data could be retrieved from it. PW16 was able to retrieve data from TN6061’s EDRD.  The printed reports are P19 and P19A which show, among other things:

- The PLB started to brake at 20:13:28:00 when its EDRD speed was 66 kph. [See para 35.]

- ‘Main beam:OFF’ during 19:56:12:00 - 20:13:32:00. [See para 37.]

99.  Defence Counsel agrees the EDRD data are admissible under s 67A(6) of Cap 374 Road Traffic Ordinance as evidence of the matters appearing from the record without further proof.  He and Dr Cheung, however, comment that the EDRD had not been verified of its accuracy after the accident.

100.  When considering the reliability of the EDRD data, I shall bear their comment in mind and also the reminding remark made by the Dr Cheung that all devices might go faulty even if newly used.

101.  The EDRD in the Defendant’s PLB had been in use since August 2015.  Thus, it had been used only for 6-7 months when the accident occurred in February 2016.  It was a pretty new device quite free of wearing out.  There is no evidence that it was damaged or tampered.

102.  The EDRD fitted in the Defendant’s PLB had recorded a maximum speed of 66 kph.  It was at the time when the Defendant applied his brake.  That was 4 seconds before the Defendant’s PLB came to a halt.

103.  PW16 says the EDRD had a 2-3% positive deviation regarding speed reading.  Giving the Defendant the greatest benefit, I adopt 3% for calculation of his PLB’s speed. A registered EDRD speed of 66 kph would mean a real speed of 64.07 kph (66 kph ÷ 103%), if the EDRD was accurate.

104.  PW13 by his independent calculation has found the maximum speed of the Defendant’s PLB seconds before the accident moment to be 65 kph ± 10%.  That was very close to the real speed recorded by the EDRD. I am thus sure the fitted EDRD in the Defendant’s PLB was functioning properly before, during and after the accident.  It registered accurately a maximum EDRD speed of 66 kph, which corresponds to a real speed of 64.07 kph (or 17.79 m/s) when the Defendant applied the brake.

STOPPING DISTANCE AND CAUSATION

105.  PW13 has calculated the PLB’s stopping distance on the basis that it was travelling at 65 kph when the brake was applied.  Now on the court’s finding that its real speed then was 64.07 kph (or 17.79 m/sec) and using the same formulae PW13 has adopted in his report (Footnote 5 and Footnote 6 of P13):-

a = (64.07/3.6-0) ÷ 4 = 4.45 m/s²;

µ = a/g = 4.45/9.81 = 0.45;

stopping distance at 64.07 kph (or 17.79 m/sec)

= reaction distance + braking distance

= 17.79 x 0.9 + 17.79²/(2 x 0.45 x 9.81)

= 16.01 m + 35.85 m

= 51.86 m

Stopping distance at 50 kph (or 13.89 m/sec)

= 13.89 x 0.9 + 13.89²/(2 x 0.45 x 9.81)

= 12.50 m + 21.85 m

= 34.35 m

106.  This revised calculation means that while the Defendant’s PLB was travelling at a real speed of around 64 kph when it braked, it had to travel about 17.5 m more to come to a halt than if it was merely travelling at the road speed limit of 50 kph.  The revised distance of 17.5 m is only 0.5 m less than PW13’s calculation of 18 m.  So the Defendant’s PLB would still have stopped slightly ahead of Position I -- about 3.5 m to the left of the southeast sharp end of the bus stop [see P9B].  As said in para 84 above, the Deceased must have emerged from the middle part of the bus stop (red circled by PW1). That was some metres to the right of that southeast sharp end of the bus stop. It means if the Defendant only travelled at the road speed limit of 50 kph, he could have stopped his PLB completely clear of the bus stop and thus some distance away the Deceased. The collision could then be avoided.

107.  Defence Counsel says the Defendant would only apply his brake at Point Y (that point which PW13 postulates the Defendant’s view of the bus stop would be totally freed of the double decker bus blockage; represented by the upper red dotted line in P9B).  Counsel submits in that case the separating distance between the PLB and the Deceased would be too short and the accident was unavoidable. 

108.  It is wrong for Defence Counsel to say the Defendant would only apply his brake at Point Y. In fact, he did it earlier at that yellow point.

109.  PW13 has calculated where the Defendant applied his brake. He marks that in yellow on Plan P9B. That was about 3 m behind Defence Counsel’s Point Y, or 36.1 m behind the PLB’s final stopped position.  Recalculating on a real speed of 64.07 kph instead of the estimated 65 kph, that distance behind the PLB’s final stopped position would be 35.85 m. The difference is just 0.25 m. That means the real braking point was still almost 3 m behind Defence Counsel’s Point Y. And before the Defendant braked, he must have seen the Deceased on the road and that sensation caused him to react to brake. (Road User’s Code says a normal driver would take 0.9 second to react.) At a real speed of around 64 kph, the Defendant’s PLB would travel about 16 m more before the Defendant stepped on his brake. Thus as a matter of fact, despite some blockage of his right-side view by the passing double decker bus, the Defendant did notice the Deceased on the road at about 19 m (16 m + 3 m) before Point Y. The Defendant reacted and then braked.

110.  I accept the bus blockage might be greater than PW13 perceives.  But PW13 is only talking about the bus blocking the Defendant’s view of the bus stop.  When the Deceased was knocked down, he was no longer at the bus stop but had already come out of it and traversed much of the road because he crashed with the left front of the Defendant’s PLB on the northwest-bound lane.  The Defendant’s right side view of the bus stop might have been blocked by the passing double decker bus but the front view of his own northwest-bound lane was not blocked; the CCTV footage shows there was no traffic immediately ahead of TN6061.

SPEEDING

111.  The Defendant does not admit speeding.

112.  Defence Counsel submits that speeding is not dangerous driving per se.

113.  I agree speeding per se might not be dangerous driving.  It depends on the circumstances.

114.  I accept the PLB’s EDRD was functioning properly and its readings were accurate.  It had a 2-3% positive deviation.  Adopting the 3% consideration for the Defendant’s benefit, a EDRD registered speed of 51.5 kph would represent a real speed of 50 kph.  Thus the Defendant was only speeding above the road speed limit when the EDRD read 51.5 kph or above.

115.  Shortly before the accident, the Defendant was travelling at registered EDRD speed of 52 - 59 kph (real speed = 50.48 - 57.28 kph) between 20:13:10:80 (P19 Diagram 24) and 20:13:21:60 (P19 Diagram 13). And from 20:13:21:80 up to 20:13:28:00 when he braked, the registered EDRD speed was 60 kph (real speed = 58.25 kph) or above. The highest EDRD speed registered was 66 kph (real speed = 64.07 kph) between 20:13:27:20 (P19 Diagram 7) and 20:13:28:00 (P19 Diagram 6). At 20:13:28:00, the Defendant braked. He brought the PLB to a halt four seconds later at 20:13:32:00. 

116.  The maximum real speed of 64.07 kph at which the Defendant was driving around the accident moment was about 28% over the road speed limit of 50 kph. It was only for less than a second. However, prior to that, the Defendant had been speeding gradually above a real speed of 50 kph from 20:13:10:80 for about 17 seconds up to 20:13:28:00. During that period, he had been speeding for 6 seconds (20:13:21:80 - 20:13:28:00) at a real speed of 58.25 kph - 64.07 kph. He braked at the highest attained real speed of 64.07 kph.

117.  I accept PW1’s testimony that quite often people would emerge from that bus stop to cross the road instead of using the traffic-light controlled pedestrian crossing some distance away. The Deceased did that exactly on the accident night. 

118.  The Defendant had been driving in Route 25A for some months regularly.  I am sure he was well aware of such jay-walking situation.

119.  The Defendant’s speeding as discussed above near the bus stop where he knew some people would emerge to cross the road instead of using the pedestrian crossing nearby amounted to dangerous driving.  Such driving manner was well below the standard of a competent and careful driver. His speeding in the circumstance posed danger to people jay-walking from the bus stop.  The jay walkers are of course to be blamed because they did not cross the road properly by the pedestrian crossing nearby. But that would not absolve the Defendant’s liability for driving that dangerously as said.  Even if the Deceased on that night could dash to safety and no casualty was resulted, the Defendant was still driving dangerously in the circumstances.

OBLIGATORY HEADLAMPS

120.  On the accident night, darkness fell on 6:27 pm.  The Defendant should lit the PLB’s obligatory headlamps since then.

121.  The EDRD in the Defendant’s PLB registered that the vehicle had this lighting condition:-

- ‘Main beam: OFF’ and ‘Dipped beam: ON’ during 19:56:12:00 (page 12) - 20:08:33:00 (page 6).

- ‘Main beam: OFF’ and ‘Dipped beam: OFF’ at 20:08:54:00.

- ‘Main beam: OFF’ and ‘Dipped beam: ON’ during 20:09:33:00 - 20:13:32:00.

122.  PW16 is a trained and experienced authorized person in EDRD testing, installation and retrieving data.  He had empirical experience of EDRD on a number of occasions.  He explains in court that the software writer of EDRD program had used ‘Dipped beam’ for obligatory frontlamps, and ‘Main beam’ for ‘obligatory headlamps’.  He further explains that EDRD would not have separate registration for real dipped beams and real main beams because the same switch controlled both beams.  [We know each obligatory headlamp had two beams: the dipped beam (also called ‘the low beam’ or ‘低燈’ when one bulb of each headlamp is lit) and the main beam (also called ‘the high beam’ or ‘高燈’ when two bulbs of each headlamp are lit). ]

123.  I accept PW16’s evidence as true and correct. Thus, the accurate interpretation of TN6061’s EDRD record is that the Defendant’s PLB actually had no obligatory headlamps lit between 19:56:12:00 and 20:13:32:00. During that period, neither the real dipped beam or the real main beam of the obligatory headlamps were on; only the obligatory frontlamps were on for most of the time then. This explains the dim front image of the Defendant’s PLB in Channel 15 on the accident night. [See Photo P23(5).] It also resonates with PW13’s lamps simulation test, which suggest that just before the accident the Defendant’s PLB had no obligatory headlamps lit; only the obligatory frontlamps were on. [See Photo P23(2).]

124.  PW10 the Motor Vehicle Examiner did not report any defect on the PLB’s lamps system. That means the ‘ON’ or ‘OFF’ state of the PLB’s headlamps was the result of the Defendant’s deliberate act while in control of the vehicle as driver.

125.  I am sure the Defendant had chosen to turn off the obligatory headlamps from EDRD time 19:56:12:00.  Counting to his applying the brake at EDRD time 20:13:28:00, the Defendant had turned off the obligatory headlamps for 17 minutes.

126.  There is no evidence that the Defendant turned off the PLB’s obligatory headlamps for reasons. 

127.  The road in question had street lamps. However, if the Defendant’s PLB had the obligatory headlamps turned on, the vehicle would become more noticeable to other road users including the Deceased.  It would also enable the Defendant himself to see more clearly ahead if the road in front was more illuminated by the PLB’s obligatory headlamps.

128.  The Defendant’s failure to lit his PLB’s obligatory headlamps for those 17 minutes for no reasons constituted dangerous driving in the circumstance.

129.  One cannot tell whether the accident could be avoided if the Defendant had turned on the obligatory headlamps but such serious failure certainly aggravated the already dangerous situation caused by the Defendant’s driving through speeding as discussed above.

LOOKOUT

130.  Prosecution also allege the Defendant failed to look out properly on the road.

131.  PW13 postulates that the Defendant’s view of his right side could have been obstructed by the double decker bus at some stage but he would have an unobstructed view of the bus stop about 5 m after Point E (see the upper red dotted line on P9B).  [Defence Counsel calls this Point Y.]

132.  Defence Counsel argues that the double decker bus blockage should be greater since PW13 only used a smaller police transit vehicle during the road test to assist his postulation.

133.  As pointed out in para 109, the Defendant did sense the Deceased’s presence on the road when his PLB was about 19 m before Point Y. Referring to P9B and para 15 of P13 for distance measurement, that sensing point was about 5 m to Point D, i.e. between Point C and Point D. I am not sure if the Defendant had been inattentive prior to that. The bus blockage might be a factor that disallowed him from seeing the Deceased at the bus stop. [But that blockage could not be relevant anymore when the Deceased was on the Defendant’s path (the northwest-bound lane) because there was no traffic immediately ahead of his PLB.]

134.  I cannot say the Defendant failed to pay proper lookout on the road before he noticed the Deceased in the circumstance, or there was any inattention on his part that would contribute to the accident.

CONCLUSION

135.  In summary, the accident was caused by the Deceased’s unduly crossing the road from the bus stop in a hurry and the Defendant’s speeding in the circumstance which constituted dangerous driving. His driving fell far below what would be expected of a competent and careful driver. It was obvious to a competent and careful driver that such driving would be dangerous. The situation was aggravated by the Defendant’s failure to turn on the obligatory headlamps for about 17 minutes before the accident. That was also dangerous driving.

136.  The collision with the Deceased could have been avoided had the Defendant not sped that much up to a real speed of around 64 kph (about 28 % over the road speed limit of 50 kph). The Defendant braked then as he noticed the Deceased on the road. But his PLB was too fast in the circumstance and hit the Deceased, who died as a result of the collision. The Defendant’s dangerous driving before the collision was aggravated by his failure to turn on the obligatory headlamps for quite some time.

137.  Prosecution have proved Charge 1 beyond reasonable doubts. I thus convict the Defendant of Charge 1 ‘Causing death by dangerous driving’.