HKSAR v. YU JIE

CACC 33/2022

[2022] HKCA 460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 33 OF 2022

(ON APPEAL FROM DCCC NO 579 OF 2020)

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D E C I S I O N

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1.  This is an application for bail pending appeal.

2.  On 17 February 2022, the applicant was convicted after trial of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374, by District Court Judge Dufton (the judge). He sentenced the applicant to 15 months’ imprisonment and ordered that she be disqualified from holding or obtaining a driving licence for all classes of vehicles for two years and to attend and complete a mandatory driving improvement course prior to the end of the disqualification period.

3.  On 24 February 2022, the applicant filed a notice of application for leave to appeal against conviction and sentence.

The absence of the applicant

4.  The bail application was first fixed to be heard on 10 March 2022 but was adjourned to 23 March 2022 because the applicant could not attend the hearing as she had close contact with a confirmed COVID-19 patient. The day before the adjourned hearing the Correctional Services Department issued a notice that the applicant would be unable to attend because she tested positive for COVID-19. The hearing proceeded in the absence of the applicant but was adjourned part-heard because of the likelihood that bail would be granted and in order for the applicant to agree and confirm the terms and conditions before the Court.

The test for bail

5.  I bear in mind that bail pending appeal is an exceptional remedy after conviction which may be granted where it appears that the appeal has a strong likelihood of success (the “merits ground”), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the “time ground”). In considering the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising.[1] In other words, the grounds of appeal are reasonably arguable in that they afford some real chance of success.[2]

The prosecution case

6.  The offence arose from a road accident that took place at about 3:25 pm on 9 January 2020 when a private vehicle driven by the applicant and a motorcycle driven by Christian Huber (PW1), with his wife, Li Shuangying (PW2), as a pillion passenger, collided on Nam Fung Road, South Island. The road consisted of three lanes, two uphill (the first lane or the slow lane is the one closest to the pavement and the second lane or the fast lane ran parallel to the continuous double lines) and one downhill with a continuous double white line separating the lanes (the downhill lane). On the downhill lane, there was a bus lay-by area.

7.  The prosecution case was that PW1 was riding his motorcycle uphill in the second left lane when suddenly he saw in the middle of the road a vehicle from the opposite direction making a U-turn and blocking his lane. PW1 was unable to brake in time and collided with the vehicle. The two vehicles came together in one of the uphill lanes. Both PW1 and PW2 sustained injuries amounting to grievous bodily harm.

The defence case

8.  The defence case was that the applicant made the U-turn from the bus lay-by area having first checked the traffic on both sides of the road at which time she saw the motorcycle about 120 meters away travelling at a speed of about 50 km/h in the slow lane (first left lane). While making the U-turn, the motorcycle accelerated to try to pass the front of the applicant’s vehicle but was unable to do so and collided into the rear passenger door.

The reasons for verdict

9.  Whilst accepting the evidence of PW1 and PW2 that the applicant’s vehicle suddenly appeared in front of them blocking their lane,[3] the judge drew the only inference that the applicant made the U-turn from the bus lay-by area contrary to the double white lines without paying attention or sufficient attention to the traffic on the uphill lanes, resulting in the collision. The judge found that the applicant’s driving fell far below what would be expected of a competent and careful driver and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.[4]

10.  The judge further found that only the injuries sustained by PW1 amounted to grievous bodily harm. He convicted the applicant of the offence of causing grievous bodily harm to PW1 by dangerous driving. PW1 sustained injuries to his abdominal region and pelvis for which he required surgery and long term treatment.

The grounds of appeal

11.  The applicant makes two complaints:

Ground 1: The judge erred in law and/or on the facts by failing to consider, and/or show that he had considered the evidence of Wong Ka-wai (DW4) and/or give reasons and/or sufficient reasons and/or show he had given reasons why the evidence of such witness was dismissed and not considered.

Ground 2: The judge erred in law and/or on the facts by failing to consider, and/or show that he had considered the reliability of the two prosecution witnesses (PW1 and PW2) and/or give reasons and/or sufficient reasons and/or show he had given reasons why the evidence of such witnesses were reliable.

12.  The issues in dispute as identified by the grounds of appeal are as follows:

(1) whether the applicant had sufficient room to make the manoeuvre “safely” and if not, whether that manoeuvre was careless or dangerous;

(2) in which lane was PW1 travelling;

(3) was it PW1 who accelerated uphill in an unsuccessful attempt to avoid the applicant.[5]

13.  PW1 testified he never changed lanes and the collision occurred in the second lane.[6] He said he knew the speed limit was 50 km/h and that he was travelling at a speed of around 30 to 40 km/h, which he believed was the maximum speed he could go on the road because his wife was a passenger and he was going uphill. He said he suddenly saw a vehicle in the opposite direction making a U-turn and blocking his lane. He said the vehicle was also encroaching the first lane and the downhill lane, and “I was wondering what that vehicle was doing in the middle of the road and laying perpendicular to the traffic.” He said he first saw the vehicle at a distance of about 15 to 20 meters. He said he tried to apply his brakes and could not change lanes as he did not know what the vehicle was doing. A collision was therefore inevitable.[7]

14.  PW2’s evidence was fairly general. She testified that they were travelling in the second lane when suddenly a vehicle appeared. She disagreed that prior to the accident they were travelling in the first lane for about 120 meters; that the accident happened in the first lane; and immediately before the collision her husband was travelling at speed of about 80 km/h; and that her husband accelerated to pass through the first lane.[8]

15.  The defence case was that prior to the collision PW1 was travelling in the first lane; on seeing the vehicle making the U-turn he accelerated to a speed of about 80 km/h; unable to drive through the first lane he failed to brake in time, causing the collision.[9]

16.  The applicant testified that she drove to the bus stop area intending to make a U-turn. She saw the motorcycle at the bend of the road about 120 meters away travelling in the slow lane. She estimated his speed to be around 50 km/h. She believed the motorcycle was at a very safe distance away to make a U-turn. She put on her right indicator to make her turn. She looked and saw that the motorcycle was just passing through the bend at about 100 meters away. She saw the motorcycle a third time when her vehicle was across the fast lane and about to enter the slow lane. She was making a three-point turn and saw the motorcycle was still travelling around 50 km/h in the slow lane. She estimated the motorcycle was about 80 meters away. She said that when she had almost finished entering the first lane and straightening up her vehicle she heard a loud bang sound on her left side.[10]

17.  A feature in this case was whether the motorcycle was travelling in the first lane and on seeing the vehicle making a U-turn, accelerated and tried to get around the front of the vehicle as it was making a U-turn. The defence called a bystander (DW4), who was in a stationary vehicle at the time. He testified as to the position of the vehicle and motorcycle before the collision. He saw the applicant attempting to make a U-turn with an indicator light on and that the motorcycle was travelling at a speed of about 50 to 60 km/h in the first lane. He estimated the motorcycle was about 70 odd metres away. He did not actually see the collision but made a report to the police after it had happened.[11]

18.  One of the difficulties with this case was how the accident actually occurred, notwithstanding the applicant’s illegal manoeuvre in making a U-turn across double lines. The parties called expert evidence on this issue. The judge’s reasons for verdict are 84 pages in length and, as is customary with this judge, he has set out in considerable detail the evidence which he has carefully analysed in determining what evidence he accepted or rejected. He rejected the evidence of the applicant and the defence expert. He accepted the evidence of PW1, PW2 and the prosecution expert. He turned to consider the elements of the offence, setting out the basis of his finding that the applicant was guilty of the offence.

19.  The complaint of the applicant is that the judge did not adequately address or resolve the issue of DW4’s evidence that he observed the motorcycle travelling in the first lane at a speed that was close to or over the speed limit. This evidence was a critical component of the defence case. It went to the issue as to whether the motorcycle attempted to overtake around the front of the vehicle, notwithstanding the vehicle was making a U-turn.

20.  The relevant findings of the judge in respect to this complaint were as follows:

“205. Whilst accepting the defendant may have made the U-turn from the layby/bus stop area, I have no hesitation in rejecting the defence evidence that the defendant first saw the motorcycle about 120 m away travelling in the slow lane at a normal speed of around 50km/h; that the defendant next saw the motorcycle when she started to make the U-turn at which time the motorcycle was 100 m away still in the slow lane and travelling at a speed of 50 km/h; that the defendant saw the motorcycle for a third time when she was about to enter the slow lane at which time the motorcycle was 80 m away still in the slow lane and travelling at a speed of 50 km/h; that Mr Wong Ka Wai (DW4) saw the motorcycle about 70 m away travelling in the first lane at a speed of about 50-60km/h at which time the car was just past the double white lines making a U-turn and the evidence of Mr Lo that the collision happened because the motorcycle accelerated to speeds of up to 81.5 km/h.

206 I do not find this evidence credible. I find inherently improbable that a motorcyclist with a clear view ahead and having sufficient time not only to slow down but to stop to avoid a collision would instead accelerate to speeds of up to 81.5 km/h, 31.5 km/h over the speed limit, in an attempt to pass the front of the car thereby risking not only his life but the life of his passenger as well.”

21.  The applicant submits that if the evidence of DW4 was, or may have been true then this may have undermined the prosecution case: that PW1 may have seen the applicant; that PW1 may have had sufficient time to stop to avoid the collision; that PW1 may have been in the first lane; and PW1 may have accelerated to overtake around the front of the applicant’s vehicle. Accordingly, the applicant contends that the conviction may therefore have been reduced to one of “careless driving” because the judge found that the applicant’s driving was dangerous for “failing to pay attention or sufficient attention” to the traffic.[12] The applicant further submits that as the conduct was not deliberate or reckless, this may have simply been a case of careless driving, that the applicant had admitted to before her plea was taken.

22.  The applicant also complains that the judge did not properly consider the reliability of the evidence of PW1 and PW2, particularly PW1, who accepted that as a result of the accident he lost consciousness as well as “my memories”.[13]

Discussion

23.  As for the first ground, there appears to be support for the applicant’s argument that the judge failed to resolve the conflict of evidence between DW4 and PW1 in respect of the events leading up to the collision between the motorcycle and the vehicle. It is arguable that DW4’s evidence supported the defence case, particularly the applicant’s account of what took place. However, the judge, having considered the evidence, seems to have taken an overall view that it was inherently improbable that a motorcyclist would, in these circumstances, accelerate in an attempt to pass around the front of the applicant’s vehicle.

24.  The respondent submits that in any event there is a strong case that the applicant’s driving was dangerous because she deliberately disobeyed the double white lines and created a dangerous situation on the roadway by making a U-turn. Moreover, the respondent argues that would still be the case, even if there was justification in the complaint made by the applicant about the judge’s handling of DW4’s evidence.

25.  The first ground will have a bearing on the second ground, regardless of the judge’s acceptance of the evidence of PW1 and PW2. DW4’s evidence was in conflict with the account given by PW1 and PW2 that they were in the second lane.

26.  The applicant was sentenced to 15 months’ imprisonment on 17 February 2022 and with one third remission for good conduct she will be released from custody on 16 December 2022. Given the current public health concerns as a result of the coronavirus disease (COVID-19) and the implementation of a General Adjourned Period (GAP) by the judiciary, there is a real risk that the applicant will have served a substantial part, if not all, of her sentence by the time her appeal is heard.

27.  There is also a reasonable argument as to whether the sentence was excessive in the circumstances. Although, I must say that the judge, as he did with his reasons for verdict, sets out in considerable detail the reasons for his decision. He referred extensively to all the relevant authorities in sentencing an offender for this type of offence. See in particular Secretary for Justice v Chu Wing Ying Christine [2020] 1 HKLRD 771. The issue of the applicant’s sentence will mainly depend on an assessment of the degree of dangerousness of her driving and the harm caused to PW1 as a result therefrom.

28.  I am satisfied that the applicant should be granted bail on both the merits ground and the time served ground.

The conditions of bail

29.  I grant bail to the applicant on the following conditions:

• $100,000 cash.

• Not to leave Hong Kong.

• Surrender all travel documents prior to release from custody, including a HKSAR passport and Home Visitor’s permit.

• To reside at the address given.

• To inform the Happy Valley Police Station within 24 hours prior to any change of residence.

• Not to drive any class of vehicle until such times that the disqualification order is quashed or set aside.

• To appear at any hearing for the application for leave to appeal against conviction and sentence before the Court of Appeal, or liaise with the judiciary if the application is disposed of on the papers.