HKSAR v. NG SIU BUN

CACC 123 /2019

[2019] HKCA 1457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 123 OF 2019

(ON APPEAL FROM DCCC NO 506 OF 2018)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The applicant was charged with causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (“the RTO”). He pleaded not guilty to the offence in the District Court but admitted the lesser offence of careless driving at the outset of proceedings. Following a trial, he was convicted as charged of causing death by dangerous driving by HH Judge Casewell (“the judge”) and sentenced to 15 months’ imprisonment. He now appeals against his conviction only.

2.  The applicant was the 1^st defendant in the trial.  He was tried together with the 2^nd defendant (“D2”). D2 faced a separate charge of causing death by dangerous driving, in addition to two other charges, namely, failing to stop after an accident and failing to report an accident.  D2 was acquitted of causing death by dangerous driving but convicted, in the alternative, of careless driving, as well as of the two other charges.

3.  In addition to his sentence of imprisonment, the applicant was disqualified from driving for 5 years and ordered to attend and complete a driving improvement course before the end of the disqualification period.  D2, on the other hand, was sentenced to a Community Service Order for 200 hours and disqualified from driving for 2 years.  He was also required to attend and complete a driving improvement course.

4.  On 18 December 2019, we allowed the applicant’s appeal against conviction and, in the exercise of our powers under section 83A of the Criminal Procedure Ordinance, Cap 221, substituted a conviction for careless driving, contrary to section 38 of the RTO.  We also set aside the disqualification period and the requirement to attend a driving improvement course, and said we would hand down the reasons for our decision in due course. These are our reasons.

The prosecution case

5.  At about 3 am on 15 October 2017, at the junction of Hing Wah Street West and Tung Chau Street in Cheung Sha Wan, Kowloon, the deceased was struck by the applicant’s taxi as he was crossing a pedestrian crossing in Tung Chau Street, in defiance of a red pedestrian signal.  The deceased, who was 91 years of age and suffering from dementia and lung cancer, had apparently left home for a walk at about 6 pm on 14 October 2017, but been reported missing by his family at about 10 pm.  He had, therefore, been wandering the streets of Kowloon for some 9 hours.

6.  The applicant’s taxi arrived at the junction in the right outer (or fourth) lane of Hing Wah Street West, intending to turn right into Tung Chau Street.  Hing Wah Street West is a four-lane carriageway, the two right hand lanes turning right into Tung Chau Street.  The traffic signal governing the applicant was, at the time, green in the applicant’s favour. 

7.  The junction was described by the judge as a “complex” one, with six roads converging on the junction, each controlled by traffic lights with pedestrian crossings[1]. The angle of the turn from Hing Wah Street West into Tung Chau Street was an acute one (of about 70°) and, for some of the way during the turn, the pedestrian crossing on Tung Chau Street was blocked from view by a large V-shaped concrete pillar of a substantial flyover supporting the West Kowloon Highway.  On the night in question, Typhoon signal No 3 had been hoisted, it was drizzling and the road surface was wet.  The speed limit at the junction was 50 kph.

8.  After he was struck by the applicant’s taxi, the deceased fell towards the nearside kerb of Tung Chau Street, which is a two lane carriageway heading in a south-easterly direction.  The applicant stopped his taxi, immediately activated his hazard lights, and tried to assist the deceased, who was still conscious and able to communicate with him, by covering him with newspapers to shield him from the rain.  He made a report to the police on his mobile telephone and attempted to prevent oncoming traffic from hitting the deceased.  However, whilst trying to identify the exact location of the accident for the benefit of the police console, another taxi driven by D2 drove over the deceased.  D2 did not stop at the scene, despite the shouts of the applicant alerting him to what he had done, nor did he report to the police.  Since the applicant was still speaking to the police console when the incident happened, he was immediately able to read and report the registration number of D2’s taxi over the telephone.  D2 was thus arrested two days later.

9.  PW2 and PW3 saw the applicant’s taxi entering the junction.  PW2 was driving another taxi and was stationary at the head of the first of the two outer lanes (the left outer lane) in Hing Wah Street West, which turn right into Tung Chau Street, waiting for the traffic lights to turn green so that he could proceed.  PW2’s taxi would, therefore, have been parallel to the applicant’s taxi for a short time as they both prepared to turn right into Tung Chau Street.  When the lights turned green in favour of the traffic waiting to turn right from Hing Wah Street West into Tung Chau Street, PW2 described the applicant’s taxi as driving past him “very quickly”[2].  In his evidence-in-chief, he estimated that the speed was “almost or more or less than 50 (kph)”[3], whilst in cross‑examination, he said that “it should be less than 50 (kph)”, but that he was only guessing as to the speed[4]. In answer to the suggestion in cross-examination that the applicant’s vehicle had been travelling at 20 or 25 kph, he said he “could not guess, but it was very quick and then it made the turn”[5]. He himself then turned into Tung Chau Street and saw the deceased lying in the road. 

10.  PW3 was driving another taxi and was in the right outer lane of Hing Wah Street West, the same lane as the applicant’s taxi but about two cars behind him.  PW3 entered the junction slowly, since he knew there was a pedestrian crossing after the right turn in Tung Chau Street.  He saw the applicant’s taxi stopped in Tung Chau Street and the deceased lying on the ground.  He then saw D2’s taxi drive over the deceased[6] at about 20 kph[7].

11.  The deceased was taken to Caritas Medical Centre and later transferred to Princess Margaret Hospital.  Regrettably, he died five days later on 20 October 2017.  The cause of death was multiple traumatic injuries and fractures. 

The defence case

12.  The applicant did not give evidence but relied on what he had said in his video-recorded interview (VRI) to the police.  In that VRI, the applicant explained that he had not completely come to a halt when he arrived at the junction, but accelerated as the lights turned green to execute the turn.  He maintained that he had kept a “steady speed”[8] of about 25 kph[9] in executing the turn into Tung Chau Street.  The deceased suddenly appeared in the road in front of him, whereupon the applicant immediately “slammed on the brake”[10].  However, the wheels locked[11], the vehicle skidded[12] and he hit the deceased.  He alighted from his taxi and made a report to the police, whilst trying to alert other vehicles to the danger posed by the accident.  He then saw D2’s taxi drive over the deceased.

13.  Apart from disputing the speed at which it was said he was driving, the applicant also argued at trial that the court could not be sure that he had killed the deceased, since D2’s act of running over the victim was a novus actus interveniens, which could have caused the death of the deceased.

14.  Although what D2 told the police in his VRI could not be evidence against the applicant, we think it necessary to give his explanation as to why he ran over the deceased.  In his VRI, D2 said that at the time he had a passenger on board his taxi.  He saw two vehicles stopped at the junction, one being the applicant's taxi.  Seeing a white car cutting through the junction ahead of him, he drove his taxi around the junction to avoid the vehicles parked in the road.  As he did so, he felt his taxi vibrate vertically when driving over something, but only saw what he thought was rubbish in his rear view mirror.  He did not stop to check and was not aware that he had driven over a person until he was contacted by the police.

The reasons for verdict

15.  The judge did not appear to accept that the applicant had been driving at about 20 or 25 kph because, if he had been, he should have been able to come to a halt before the pedestrian crossing.  But nor did the judge find that the applicant had driven in excess of the speed limit.  Rather, he considered that the applicant had driven at a speed that was “inappropriate for the prevailing conditions”[13]; given, inter alia, the condition of the road surface which was wet, thus compromising his braking ability and grip, and the existence of the concrete pillar obstructing the view of the pedestrian crossing[14].  He found that the applicant’s driving amounted to dangerous driving because it created “a significant and objective risk of danger in the circumstances of that junction, and … fell far below the standard expected … of a competent and careful driver”[15].

16.  With regard to causation, the judge held^[16]:

“44. The 1^st 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.”

17.  As for D2, the judge accepted that D2 did not see the deceased lying on the road covered in newspaper.  Nevertheless, he still found that D2 had failed to keep a proper look out and was, therefore, guilty of careless driving.  He further found him guilty of failing to stop after an accident, contrary to section 56(1)(a) and (5) of the RTO, and failing to report an accident involving personal injury to another person, contrary to section 56(3) and (6) of the RTO.

Grounds of appeal against conviction

18.  Mr David Boyton, on behalf of the applicant both here and below, initially put forward one ground of appeal, complaining that the judge had failed to deal properly with the issue of causation.  However, prior to the hearing, we invited the parties to address us on the issue of whether the applicant’s driving, in the circumstances and evidence presented before the judge, amounted to dangerous driving or careless driving. Accordingly, Mr Boyton amended his grounds of appeal to argue that this was a case of careless driving and not dangerous driving.  It is to be noted that this had been his primary position before the judge at trial and, indeed, the applicant had pleaded guilty to the alternative charge at the inception of proceedings.

Consideration

19.  In the event, we only found it necessary to hear from both parties on the question of whether the facts before the judge disclosed a case of dangerous driving or careless driving.  Having heard oral argument, we came to the decided view that this was a case of careless driving and not of dangerous driving.

20.  The first important matter to note, which Mr Derek Lai, for the respondent, was bound to concede, was that at no stage had the applicant infringed any traffic regulation or provision in the RTO.  At the time he accelerated in order to turn from Hing Wah Street West into Tung Chau Street, the traffic lights were green in his favour.  He was entitled to proceed and there was never any suggestion that he was ‘jumping’ or ‘running’ the lights.  By contrast, the pedestrian lights governing the pedestrian crossing which the deceased was trying to cross were, at the material time, red against him.

21.  Nor was there any evidence that the applicant was speeding above the limit of 50 kph as he negotiated the turn into Tung Chau Street.  Although the prosecution case had initially been put on the basis that the applicant was “turning in wet/rainy conditions at around 50 kph which was touching the speed limit”[17], the testimony of PW2, upon which this assertion was based, rather unravelled in evidence, as the excerpts from the evidence at paragraph 9 above demonstrate. Moreover, as the judge himself noted[18], PW3, who was in the same lane as the applicant’s vehicle but a few vehicles behind, and who saw the vehicles ahead of him in Hing Wah Street West move off when the traffic lights turned from red to green, put their speeds at about 20 kph, which he said “wouldn’t have been very fast”[19].  Indeed, PW2 made the obvious point that if he had executed this particular turn too fast, he would have lost control of his vehicle[20]. Given that the turn into Tung Chau Street involves a 70° turn rather than a 90° turn, PW3’s observation perhaps accords with common sense.  There is no suggestion that the applicant was either speeding or at any stage lost control of his vehicle.  Moreover, he executed a turn from the right outer lane on Hing Wah Street West to the right-hand lane of Tung Chau Street, not into the left-hand lane of Tung Chau Street.

22.  The second important matter to note is that when one is positioned, as was the applicant, at the front of the right outer lane in Hing Wah Street West waiting to turn into Tung Chau Street, the pedestrian crossing across Tung Chau Street is almost entirely obscured by a large V‑shaped concrete pillar supporting the flyover.  That becomes clear when looking at the police photographs of the route taken by the applicant’s vehicle, Exhibit P8, and from the police sketch plan, Exhibit P10.  Whilst it may certainly be said that any motorist must exercise particular care in executing this 70°turn, when the pedestrian crossing is not initially visible but becomes more and more visible as one executes the turn (the more restricted view of the pedestrian crossing being in the outer of the two right-turning lanes in Hing Wah Street West), a motorist is also entitled to assume that with the traffic lights in his favour, a pedestrian will not walk across a pedestrian crossing when the pedestrian lights are against him.  To do so is extremely risky for a pedestrian crossing from the central reservation when he equally cannot see the traffic coming from behind him to his left and around a concrete pillar.

23.  Although the fact that it was drizzling should make motorists even more cautious, we do not think this should be given undue emphasis in this case.  First, the rain was relatively light according to the contemporaneous video evidence of a car camera from a passing vehicle produced at trial by D2, Exhibit D5, which was played in open court.  Secondly, one is entitled to assume, as a matter of common sense, that it would not have been drizzling directly under the flyover, although the road was clearly wet from the passing traffic.

24.  However, Exhibit D5 is interesting for another reason.  Tung Chau Street is somewhat narrower than the photographs and police sketch would perhaps lead one to believe.  If one is in the right outer lane of Hing Wah Street West, turning into Tung Chau Street, the part of the pedestrian crossing closest to the central reservation is obscured by the concrete pillar for longer than it would be if one were in the left outer lane.  Again, it is a matter of physics and common sense that the vehicle closest to a large concrete pillar as one goes around it would see less of what is around the corner than the vehicle taking a wider angled route.

25.  We make this observation because one of the points stressed by Mr Lai was that the applicant accepted in his VRI that, inexplicably, he did not see where the deceased came from and that he was only a vehicle’s length away when he suddenly saw him on the pedestrian crossing[21].  Since the applicant struck the deceased with the nearside front of his vehicle, the deceased must have been significantly across the right hand lane of the pedestrian crossing, almost at the centre of the two carriageways when the applicant’s vehicle hit him.  That is, of course, assuming that the deceased was walking from the central reservation to the pavement of Tung Chau Street, and not in the opposite direction; although there was no evidence of where the deceased was actually coming from or walking to.  If he was walking from the central reservation to the pavement, as seems more likely, Exhibit D5 tends to show that the applicant would not have seen the deceased as early as the driver of a vehicle rounding the corner at a wider angle in the nearside lane.  The applicant’s visibility would have been even later if the deceased had approached the pedestrian crossing at an angle from the central reservation.

26.  The test for dangerous driving can only be met, under section 37(4) of the RTO if the defendant/applicant’s driving can be said to have fallen far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous.  And in determining what would be expected of, or obvious to, a competent and careful driver, regard should be had to all the circumstances of the case, including (a) the nature, condition and use of the road concerned at the material time; and (b) the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time: see section 37(7)(a) and (b) of the RTO.

27.  While it was, as we have observed, drizzling at the time and any prudent driver must have in mind how his vehicle and his driving may be affected by rain and a wet road surface, it was also 3 o’clock in the morning, a time at which one would not necessarily expect many pedestrians to be about.  And while a green light in a driver’s favour does not provide a licence for him to drive through pedestrians whom he can see are jaywalking, he is entitled to assume that others, both motorists and pedestrians, are obeying traffic signals.  As we have said, and we must stress, the applicant did not infringe any traffic regulation or provision in the RTO. Whilst we acknowledge, as Mr Boyton concedes, the applicant was careless in not keeping a careful lookout in the wet road conditions at a busy junction, particularly where his view of the road ahead was completely and then partially obscured, we cannot see how his driving can be said to have fallen far below what would have been expected of a competent and careful driver.

28.  An authority which we have found of assistance is the case arising out of the appalling tragedy which unfolded on the Tuen Mun highway in July 2003, when 21 people met their deaths as the bus in which they were travelling was hit by an articulated lorry and trailer and plunged off the highway through the safety barrier and down a slope.   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.  It may be noted that the lorry was travelling within the speed limit, but the road surface was wet.

29.  The Court in HKSAR v Li Chau Wing[22]focussed at the outset on the important distinction between dangerous and careless driving[23]:

“14. We should say at the beginning of this judgment that, as will be seen on the evidence accepted by the judge, we have no doubt that the applicant was guilty of careless driving. What concerned us was whether his deficient driving went further and was dangerous in that it fell far below the standard which would be expected of a competent and careful driver as required by section 36(4)(a) and was obviously dangerous in the terms of section 36(4)(b) of the Ordinance.”

The Court went on to emphasise, in terms that are perhaps relevant to the present case, that[24]:

“15. …The consequences of this accident were tragic, aggravated by the numbers who lost their lives. As the judge recognised, the fact that the consequence was tragic does not of itself characterise the cause. 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.”

30.  Having examined the evidence at trial and the judge’s findings, the Court said[25]:

“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.”

The Court 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.”

31.  In the case before us, the applicant was suddenly confronted as he was proceeding perfectly lawfully through a junction with the unexpected circumstance of a pedestrian crossing a pedestrian crossing in defiance of the lights controlling that crossing.  He braked hard, skidded and, sadly, hit the pedestrian.  Putting to one side the issue of causation, and the running over of the deceased by another vehicle, it may be said that the applicant was not keeping a proper lookout: had he been doing so and driving more cautiously in the prevailing conditions, knowing that he was turning a corner at an acute angle with a restricted view of the road ahead, he ought to have been able to bring his vehicle under control and to a halt without hitting the deceased.  However, that, in our judgment, was careless driving: it was not dangerous driving, as defined by the Ordinance. 

32.  Had the applicant been driving in excess of the speed limit, or ‘jumping’ a red light or pre-empting a green light, we might have come to a different view.  But he was not.  And at 3 o’clock in the morning, during a Typhoon signal No 3, we do not think that he would necessarily have expected a pedestrian to be walking across a pedestrian crossing in defiance of what is a carefully constructed set of traffic and pedestrian controls at that location.

33.  For these reasons, we granted leave to appeal on the amended ground of appeal, allowed the appeal and, in accordance with this Court’s powers under section 83A of the Criminal Procedure Ordinance, substituted a conviction for careless driving under section 38 of the RTO for that of dangerous driving causing death.

34.  It thereby became unnecessary to examine Mr Boyton’s original ground of appeal in respect of the issue of causation. Interesting though that argument undoubtedly is, the causation of a consequence such as death or grievous bodily harm is not an element of the offence of careless driving.  It may, however, be a factor in sentence for careless driving and it is to that issue we now turn.

Sentence

35.  In considering the question of sentence for this offence of careless driving, we must note that the applicant has been in custody since 21 March 2019, a period of almost 9 months by the time we allowed his appeal on 18 December 2019.  That is highly regrettable because the applicant should never have been convicted of dangerous driving causing death in the first place.  Had he been convicted of careless driving, as he should have been, the maximum sentence would have been 6 months’ imprisonment.  He has, therefore, served well over the maximum sentence available, had he been properly convicted of the right offence.

36.  We invited submissions from the parties on the appropriate sentence for careless driving in the circumstances, particularly as to the relevance to sentence of a death resulting.  In HKSAR v Leung Chiu Yu[26], Stock VP said of this issue[27]:

“33. The fact that the primary consideration in driving offences is the culpability of the impugned course of driving does not derogate from the fact that the consequences of that driving are relevant for sentencing purposes. There is obvious sense in the remarks by Blair-Kerr J in Chan Kwai Lai v R [1968] HKLR 31, 42 that whilst the fact that the driver has killed someone is not an element in the offence of careless driving, nonetheless:

…What the fact of death does is to throw into proper perspective the reason behind the enactment of various provisions relating to careless, dangerous and drunken-driving, speeding, failing to give preference to pedestrians on road crossings, failing to obey various lawful orders in regard to stopping when approaching major roads and so on. These provisions have one object: to reduce the risk of death and injury on our roads. Yet, how often do we all forget the intensity of the potential danger to persons or property which is created by careless driving.

34. In a number of cases in England and Wales the point has been made in relation to careless driving which causes death that whilst culpability remains the primary consideration, the sentencing judge should nonetheless not close his eyes to the fact, where it pertains, that death has resulted: see R v Morling [1998] 1 Cr App R (S) 421; R v Simmonds [1999] 2 Cr App R 18; R v King [2002] RTR 1. In any case of careless driving, a sentencing court will have regard to the potential consequences of the piece of careless driving under consideration - whether, for example, there were other vehicles on the road, or pedestrians about who were put at risk, and so on. That being so, there is no logic in ignoring for sentencing purposes the actual consequence of an act of careless driving.

35. What weight is to be given to that consequence depends on the nature of the consequence and all the circumstances of the case.  In each of the authorities to which we have referred, the act of careless driving itself was a particularly serious one of its kind.  In this case, as we have indicated, the active careless driving was not of that magnitude of culpability.  Furthermore, and importantly, in each of the authorities to which we have been referred by counsel on behalf of the Secretary, it is noticeable that culpability was all one-way; that is to say, the driver guilty of careless driving was solely at fault.  In this case, that cannot be said.”

37.  In Leung Chiu Yu, the Court refused to disturb the sentence of a fine in the court below but did impose a 12 months’ disqualification order in addition to the fine.  We note in passing, with some interest, given the facts of the case with which we are concerned, that in Leung Chiu Yu, the defendant/respondent had hit and killed a 4-year-old child who had strayed onto a pedestrian crossing in circumstances where there was no evidence that the applicant was speeding, or that the traffic lights were not in his favour.  He had originally been charged before the District Court with dangerous driving causing death, but was acquitted of that charge and convicted instead of careless driving; a verdict which the Court described as “entirely understandable in the circumstances”[28].

38.  At the other end of the spectrum of careless driving, the Court in Li Chau Wing considered that the appropriate sentence for the substituted conviction of careless driving should after trial be 5 months’ imprisonment.  Ma CJHC (as he then was) described the case as[29]:

“…among the most serious of its kind under the offence of careless driving. This is so given the consequence of the careless driving involving the tragic loss of life”.

In that case, as we have pointed out, 21 people lost their lives.

39.  We were of the view that the appropriate starting point for sentence in the present case would have been 6 weeks’ imprisonment after trial.  The applicant had offered a plea of guilty to careless driving on arraignment, which was refused by the prosecution.  In our view, the plea should have been accepted but, having proceeded to trial, the applicant’s conduct should not, with respect, have been characterised as dangerous driving by the court.  Had he been convicted on his own plea to careless driving, as we think he should have been, the sentence would have been 4 weeks’ imprisonment.  Furthermore, we did not agree with the judge’s 5‑year disqualification order, and nor did we agree with his order requiring the applicant to take and complete a driving improvement course.  Those orders were accordingly set aside in their entirety.

40.  In the result, we substituted for the sentence of 15 months’ imprisonment for dangerous driving causing death a sentence of 4 weeks’ imprisonment for careless driving.  Given the time he has already spent in custody, the applicant was immediately released.

41.  The applicant applied for the costs of the trial only.  We saw no reason whatsoever why the applicant should not get his costs of the trial, which we ordered to be taxed if not agreed.