HKSAR v. WONG KWOK CHUNG

DCCC 850/2019

[2020] HKDC 1063

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 850 OF 2019

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REASONS FOR VERDICT

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Introduction

1.  The defendant was charged with causing death by dangerous driving, contrary to s 36(1) of the Road Traffic Ordinance, Cap 374.

2.  He pleaded not guilty to the charge but admitted the lesser offence of careless driving at the outset of the proceedings.  The lesser plea, however, was not accepted by the prosecution and the trial proceeded as charged.

3.  The defendant was originally the second defendant (D2) in this case.  The first defendant, Hui Chak Ching (D1), was charged with one count of dangerous driving and another count of driving under the influence of alcohol.  He pleaded guilty to both charges in an earlier occasion and was duly convicted and sentenced already.  I shall refer them as D1 and D2 accordingly in this trial.

The prosecution case

4.  The present case was a fatal traffic accident involving a collision between a white private vehicle (registration no SS 3199) (“V1”) driven by D1 and the white medium goods vehicle (registration no SL 1362) (“V2”) driven by D2 in Tolo Highway (Ma Liu Shui section), New Territories, in the early hours of 24 March, 2019.

5.  The Tolo Highway Ma Liu Shui section (New Territories Bound) is a four-lane one-way straight road.  The incidents took place near to chainage markers 11.6B – 11.8B of the highway.  The offside to the highway is a continuous concrete central divider.  Near side to the left first lane of the highway is a hard shoulder.  Near side to the hard shoulder is a continuous metal anti-crash barrier (“railings”).  The speed limit of the highway is 100 km/hr.

6.  At around 2:50 am on 24, March, 2019, the lighting was sufficient and the sight was clear.  The traffic of the highway was light and the highway was in good condition.  It was however raining and the road was wet.

7.  Before the collision, D1 was travelling at a high speed at about 150-160 km/hr on the fourth lane of the highway and it suddenly lost control and V1 swerved to the left, zigzagging between the second and third lane of the highway before mounting the central barrier on the right for some distance.  V1 finally came to a stop facing forward.

8.  The drivers of a few vehicles which were following V1 were able to swerve away from V1 and drove past it.  D2, who came to the scene at a later stage, however, failed to avoid V1 which was stationery and suddenly lying ahead of him in the highway and collided with it.  As a result of the impact, D2 lost control of V2 and swerved into the railings on the nearside of the highway.  Two sections of the railings, on the nearside of the highway, with the length of 6 metres and 22 metres respectively, were damaged.  Mr Tsang Yuk Keung, a male passenger of V2, was thrown out of the medium goods vehicle and was found lying on the hard shoulder of the highway 22 metres behind where V2 finally came to a stop.  He died instantly and was certified dead by the paramedics on scene.

9.  Upon initial enquiries made by the policeman later arrived at the scene, D2 said,

“I drove off in Tai Wai, and went to the vegetable market in Fanling via Tolo Highway, in the left 2^nd lane. When coming of a bend, saw that there is a stationary private car between the 2^nd and 3^rd lanes. At that time, the speed of my truck was about 70 km/h. And (I) steer to the right with the intention of staying away from the car, but, unavoidably, (I) hit the private car and then hit the nearside railing.”

10.  Apart from the Admitted Facts (Exh P10), the prosecution called a total of 5 witnesses.

11.  The Admitted Facts sets out, inter alias, the background of the traffic accident, the arrest of D2 and the production of the sketches and photos (Exh P3 – P6) together with the measurements made by the police at the scene.  There is also the production of the Motor Vehicle Examiner (M.V.E.) Accident Reports of both V1 and V2 (Exh P7 & P8), an album of 5 photographs taken to examine the line of vision from various chainage markers on the highway approaching the accident scene (Exh P9).  Finally, it deals with the sentences received by D1 following his convictions.  It was mentioned that the lowest of three reading showed the concentration of alcohol in his breath was 48 micrograms in 100 milliliters of breath.

12.  The prosecution called a total 5 witnesses in the trial[1]. Apart from the M.V.E, Mr Pang Tsz Wing (PW5) and the passenger of V2, Mr Zou Guowei (PW3), the other three witnesses were all drivers of the vehicles which were there before and after V1 lost control and stopped in the middle of the highway.  None of them witnessed the subsequent collision between V1 and V2.

13.  PW3 did not provide any insight to the cause of the accident apart from the fact that the deceased were sitting next to him by the nearside of V2.  PW3 has apparently fallen asleep before the accident and did not wake up until after the collision. Mr Lam Chung Yan (PW1) was a driver of a private vehicle (registration no FF1314) travelling on the second lane and Mr Tam Kwok Lam (PW4) was a driver of another private vehicle (registration no WYH0) travelling on the third lane of the highway.  Both observed the sudden coming of V1 from behind on the fourth lane at a high speed and were able to respond in time and avoided V1.  A video footage captured by the camcorder installed in PW1’s vehicle (Exh P1) was produced and played during the trial.

14.  Later, Mr Wu Ka Wai (PW2) also arrived at the scene as he drove a medium good vehicle (registration no MK1141) and found V1 on the highway at a distance of 150 metres.  He slowed down his vehicle, changed lane, passed by V1 and left the scene.  He remembered seeing D1 standing at the rear of V1 waving his hands as if signaling him to call the police for him.

15.  The M.V.E reports of both V1 and V2 indicated that both vehicles were severely damaged as a result of the collision.  While the M.V.E. Report of V2 (Exh P8) indicated that the steering, service brake and parking brake were operative, it also included findings by PW5 that the nearside front wheel flexible brake hose was fractured and the nearside front wheel was pushed rearward with the front axle dislocated.

16.  Under cross-examination, PW5 agreed that the first impact on the nearside front of V2 after its collision with the offside of V1 and hence the damage to the nearside front brake hose would result in the complete loss of braking power on the nearside front wheel.  PW5 further explained that the dislocation of the nearside front wheel would also mean that D2 would not be able to steer V2 properly according to his control.

17.  At the close of the prosecution case, the defence submitted that there was no case to answer to the charge. After hearing from both sides, I rejected the submission and ruled that there was a prima facie case.

The defence case

18.  As of his right, D2 elected not to give evidence. Nor did he call any witness to testify on his behalf.

Submissions from both sides

19.  Mr Douglas Lau, public prosecutor, cited two magistracy appeal cases and submitted that with the evidence in this case, in the absence of an explanation, the only proper inference is dangerous driving (see AG v Kwan Tak Fu[2])and there is no reason why even a momentary driving event could not properly be considered dangerous (see HKSAR v Chan Yau[3]).

20.  The main thrust of his submission on the manner of D2’s driving is twofold. Firstly, Mr Lau questioned D2’s decision to still turn right from the second lane when he spotted V1 was stopping on the second and third lane which will getting V2 into the third lane right away.  Secondly, he also criticized D2’s failure to stop V2 right after the first impact with the railings on the left but continued to move forward.  There have been no braking or emergency braking after crushing at the railing for the first time and the brake of V2 was admitted to be operative.

21.  All in all, the prosecution submitted that when D2 was approaching the accident scene, although the road was damp, the lighting was sufficient and he had an unobstructed view of the stationery vehicle in a straight road and he should be able to apply emergency braking to avoid a collision, failing which, the standard of his driving have fallen far below what would have been expected of a competent and careful driver.

22.  In reply, Ms Charlotte Draycott, SC, and with her, Mr Raymond Chui and Ms Sharon Ng, submitted that the proper charge in this case should be careless driving.  The fact that D2 was unable to avoid a stationery vehicle crashed in the road in front of him would not make it obvious to a competent and careful driver that the defendant’s driving in that way would be dangerous.  D2 was travelling well within the speed limit and there is no matter on the evidence to show that he was conducting himself dangerously.  Ms Draycott SC cited two Court of Appeal decisions, HKSAR v Lam Chi Fat[4] and HKSAR v Li Chau Wing[5], and submitted that the prosecution was unable to point out what driving acts of the defendant constitute dangerous driving.  She also cited Allen v Patterson[6], an English case about reckless driving and submitted that there is nothing in the evidence to suggest that the accident occurred other than by reason of a momentary lapse of concentration.  Nothing shows that D2’s driving fell far below the standard expected in the face of obvious and material dangers or in circumstances which showed a complete disregard for any potential dangers.  In Allen v Patterson, the court held that for reckless driving, it would require something positively wrong about the driving of the defendant rather than carelessness or inattention.

Consideration

23.  The first thing to note in the present case was that there is simply no evidence to say that D2 had contravened any traffic regulation or provision in the Road Traffic Ordinance before it came to collide with V1 at the material time.  What he had said to the police about the speed of V2 was of course self-serving and exculpatory but it was the only piece of evidence about his manner of driving and there was no other evidence to rebut it.  In this connection, I agree with the defence submission that D2 had two passengers who were effectively his employers.  There was no reason for him to use excessive speed or otherwise to drive dangerously.  His journey from Tai Wai to the vegetable markets in Fanling was a routine one which he performed nearly every day.  If the speed of V2 was only at 70 km/hr as he claimed, the speed was well within the speed limit of 100 km/hr and D2 could hardly be regarded as not a competent and careful driver even when it was raining and the road was wet at the material time. 

24.  One of the point stressed by Mr Lau in his final submission was that D2 should have swerved to the left instead of the right to avoid the collision in the circumstances.  This submission ignored the fact that D2 was suddenly confronted as he was travelling normally in the highway with the unexpected circumstance of a stationery vehicle stopping ahead at a distance.  The decision to turn right instead of left must be a split of a second or knee-jerk reaction and I see no reason to be so critical about the direction of his steering. In any event, according to the evidence, Mr Lam (PW1) took the same decision to turn his vehicle to the right to the fourth lane whilst Mr Wu (PW2) took a different course and turned left from the third lane to the second lane. Both succeeded to steer away from V1 and avoided collision with it.  It only goes to show that the direction of steering was not that important and it matters little if D2 had managed to turn to the left or right before the collision, contrary to what has been suggested by the prosecution.

25.  The other point relied on by Mr Lau that D2 failed to stop V2 right after the first impact with the railings on the left but continued to move forward was simply untenable in view of the answers given by PW5 during cross-examination.  It is plain from PW5’s answers that D2 would not be able to brake and steer V2 properly or at all after the damage to the nearside front brake hose and the nearside front wheel after the first impact with the left railings on the hard shoulder.  The complaint about no braking or emergency braking by D2 after crushing at the railing for the first time has to be dismissed in light of the opinion of PW5.  It also goes to explain why V2 had travelled such a long distance of 184 metres after the collision with V1 before it eventually came to a stop.

26.  In Li Chau Wing, the applicant who was driving the lorry in question had braked on seeing an unexpected obstruction in the fast lane of the highway ahead and subsequently lost control of his vehicle when it ‘jack-knifed’ into the side of the bus causing it plunged off the Tuen Mun highway through the safety barrier and down a slope.  21 people died in the tragic accident.  It may be noted that the lorry was travelling within the speed limit, but the road surface was wet.  The Court of Appeal held that the conviction for dangerous driving causing death is unsafe and substituted it with a conviction of careless driving.

27.  The Court of Appeal acknowledged that the consequences of the accident were tragic in that so many victims lost their lives but emphasized that if the accident was caused by the applicant’s lack of care, the consequences of the lack of care do not turn an act of careless driving into one of dangerous driving.

28.  Commenting on the manner of the applicant’s driving, the Court of Appeal said:-

“75. Nevertheless, it is plain the applicant may have been in a situation where he sighted stationary vehicles ahead of him at such close range as to warrant emergency braking so as to avoid a collision. If so, it must follow that he was in that situation either because he was travelling too fast in the conditions given the view he had of the road ahead, or because he was simply paying insufficient attention.

76. That in our view was a standard of driving which fell below what would be expected of a competent and careful driver given the nature and condition of the road (a descending left hand bend with a damp surface), and amounted to careless driving. By getting himself into a position where he had to apply emergency braking, the applicant had quite plainly driven without due care and attention to the circumstances existing on the highway at that time.

77. However, for the purposes of the charge of dangerous driving causing death, the key question before the judge was whether, as we say, the applicant’s standard of driving fell far below that standard and whether it would be obvious to a competent and careful driver that driving in that way would be dangerous. In this context, it is crucial to recognise that the case was not one of deliberately cutting across the path of the bus to gain access to the slip road. Rather, it was a case resting entirely on a collision with a bus on a stretch of highway on which, unusually, a number of vehicles were stopped around a bend after another accident.”

29.  The Court of Appeal concluded: -

“…If that evidence had been given proper weight the judge may well have been led to conclude that the application by the applicant of emergency braking to avoid the stationary vehicles on the highway ahead of his vehicle, could not necessarily be said to reflect a standard of driving far below that of a competent and careful driver, or be said to be obviously dangerous. Accordingly, the applicant’s conviction for dangerous driving causing death is unsafe.”

30.  In the present case, D2 was driving on the second lane in the highway at a speed of 70 km/h when, according to his words, coming off the bend and he was then confronted with a stationery vehicle between the second and the third lane.  He tried to steer to the right, applied the brake, skidded and unavoidably came to collide with V1 and the force of the impact was such as to cause V2 to swing to the left and hit the railings along the hard shoulder, damaging its nearside front brake and wheel and lost its steering power completely.  V2 continued to dash forward along the railings for a further 72 metres.  As V2 moved forward, the nearside vehicle compartment of V2 was severely damaged and the deceased was thrown out of the vehicle during the time and V2 rolled over his body before it finally stopped.

31.  As Ms Draycott SC has pointed out in paragraph 6 of her written submission and in mind, correctly, that:-

“6. In our case the road was also wet and slippery, but the defendant was travelling well within the speed limit. It was dark and Mr Lam said the rain made the lights glaring, affecting visibility. The defendant came upon the unexpected obstacle of the crashed car and failed to avoid it, either because of a momentary loss of concentration or because he lost control as he tried to drive around it, or probably both. There is nothing in the evidence that shows there was anything obviously wrong with his driving before he hit SL1362 and the findings of Mr Pang the vehicle examiner show that once he had hit the stationary car, the damage to his nearside wheel and brake would have made it impossible to control the vehicle. Nothing therefore can be gleaned about the defendant’s driving before the first impact, by looking at the behaviour of the van afterwards.”

32.  The difficulty facing the prosecution was that in this case, there was simply no direct evidence of any dangerous driving on the part of D2 and the there is also not sufficient evidence for the court to draw the necessary and irresistible inference that D2’s driving before V2 collided with V1 in the Tolo Highway at the material time was as a result other than his lacking of due care and attention momentarily.  There was no accident reconstruction in the police investigation and there was also no attempt, unlike in other fatal traffic accident cases, to call an expert to put forward a theory based on scientific calculations to establish how the driving acts of D2 fell far below what would be expected of a competent and careful driver.  The prosecution cannot rely on the doctrine of res ipsa loquitur to prove dangerous driving. (see R v Kit Wing Wo[7]).

33.  The fact that other drivers were able to stop and avoid the collision was neither here or there.  PW1 and PW3 were alerted to the presence and the danger of V1 when the vehicle was coming from behind at an alarmingly high speed.  PW2 was able to stop just in time but there was no evidence before me at what speed he was travelling.  In any event, as defence has submitted, the fact that PW2 was able to stop but D2 could not does not elevate the offence from careless driving to dangerous driving.  It simply means D2 was careless.  In any event, D2 admitted his fault and has already pleaded to careless driving at the arraignment which should have accepted by the prosecution.

34.  The two magistracy appeal authorities cited by Mr Lau are of no assistance to the prosecution case.

35.  In AG v Kwan Tak Fu, what the case has decided was that the facts of a particular case may be such that, in the absence of an explanation, the only proper inference is careless driving (or dangerous driving). In our case, D2 elected not to give evidence but he had proffered an explanation upon enquiry from the police at scene which was admitted into evidence by way of the Admitted Facts which was not rebutted by any contrary evidence in the trial.

36.  In HKSAR v Chan Yau, the appeal against the conviction of dangerous driving causing death was dismissed mainly because the appellant travelled on the wrong side of the road before the collision. When McMahon J. said “there is no reason why even a momentary driving event could not properly be considered dangerous”, his lordship was clearly not referring to any driving act in general. What his lordship was referring to instead was a momentary transgression of traffic regulation which of course could be regarded as dangerous. Obviously, Mr Lau has either misread the judgment or took the sentence out of the context of the judgment.

Conclusion

37.  D2 is acquitted of the charge of dangerous driving causing death and upon his own plea, he is convicted of careless driving, contrary to s 38 of the Road Traffic Ordinance (Cap 374).