HKSAR v. JARRETT OLIVER GEORGE

HCMA 516/2021

[2022] HKCFI 268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 516 OF 2021

(ON APPEAL FROM ESCC 267 OF 2021)

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JUDGMENT

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Introduction

1.  The appellant was found guilty after trial before Mr Yip Shing‑lam Paul, Deputy Magistrate (“the Magistrate”), on 11 October 2021, of a single charge of dangerous driving causing grievous bodily harm contrary to s36A(1) of the Road Traffic Ordinance, Cap 374 (“RTO”).  He received a sentence of imprisonment of seven months and was disqualified from obtaining or holding a driving licence for a period of two years or until the completion of a driving improvement course at his own cost, whichever is the later.  He was also required to attend a driving improvement course within the last three months of his disqualification.  That course to be completed within three months of the disqualification order.  The appellant was released on bail pending appeal.

2.  By his notices of appeal, dated 22 October 2021, the appellant appeals both conviction and sentence.

Prosecution Case

3.  At 12:15 hours on 8 August 2020, the appellant was driving his motor vehicle registration number SM9801 (“the car”) along Pok Fu Lam Road towards Mid‑levels.  As he approached the intersection of Water Street, High Street and Pok Fu Lam Road, with the University of Hong Kong to his right, he drove around a left hand bend with a downward incline straight ahead of him and slightly to his left.  This was the continuation of Pok Fu Lam Road.  At the very top of that incline and sitting immediately adjacent to the intersection of Pok Fu Lam Road and High Street was a pedestrian crossing and traffic lights.  PW1 and PW2 were waiting on opposite sides of that pedestrian crossing.  Taking a view from the perspective of the appellant heading towards the crossing, PW1 was to the left hand side of the road and so on the near side for the purposes of traffic from Pok Fu Lam and PW2 was on the right hand side of the road next to traffic climbing the incline to travel towards Pok Fu Lam. The pedestrian lights turned green to allow PW1 and PW2 to cross, which PW1 started to do.  They were not in a position to say whether the associated traffic light had firstly turned red.  It was the prosecution case in trial that the appellant deliberately and dangerously ran the red traffic light stopping all traffic at the pedestrian crossing.  As PW1 stepped onto the pedestrian crossing, the front near side of the appellant’s car, just in front of the wheel arch, made contact with her.  PW1 did not recollect the incident as she was knocked out as a result of the collision but it appears she made contact with the left nearside of the appellant’s vehicle and fell backwards onto the kerbside, which presumably caused the fracture to her clavicle and the head injury which knocked her out.  Luckily she made a full recovery.

Defence Case

4.  It was Saturday lunch time.  The appellant was in his car with his wife and a young child in a car seat to the rear.  They were heading for mid-levels to drop off a gift.  The appellant and his family live in Chung Hom Kok and he did not know the area in which he was driving.  As a consequence, he had programmed the address in Mid‑levels into Google Maps on his mobile phone, which had been placed into a bracket on his dashboard in an appropriate position.  No complaint was made by the prosecution about that.  He was travelling around 30km/h, at most 35km/h, along Pok Fu Lam Road as he did not know the area.  The speed limit in the area was 50kph.

5.  At the time of the incident, there were no warning signs before the junction with Water Street on the left hand side of the road or before the left hand bend on Pok Fu Lam Road, to alert a driver to any pedestrian crossing or any traffic lights.  It was a blind bend.  As the appellant rounded the bend, he could see the road ahead and he glanced down momentarily at Google Maps to ascertain his direction.  As he did so, he heard a gasp from his wife, looked up and made contact with PW2.  He stopped immediately, just about a cars length from the pedestrian crossing and went to her aid.  He stated that, as he had rounded the bend, he had not seen the traffic light in the middle of the junction between Pok Fu Lam Road and High Street and had not been aware of the pedestrian crossing at the junction. Given its proximity to the junction he may have confused the yellow lines with a box junction.

Grounds of Appeal against Conviction

6.  The Grounds of Appeal against Conviction were extensive and read as follows:

“Ground 1: Unbalanced Approach:

1.1 The Learned Magistrate’s approach to the case was fundamentally flawed in that it lacked appropriate balance and failed sufficiently to take into account the incontrovertible and largely unchallenged evidence that the Appellant’s driving at the material time was at worst careless and not dangerous.

1.2 The Learned Magistrate in his Reasons for Verdict failed properly or adequately to take into account overwhelming evidence showing that the Defendant did not willfully or even recklessly drive in a manner falling far below that to be expected of a reasonably prudent motorist.

1.3 In his Reasons for Verdict the Learned Magistrate found that the Appellant had not intentionally jumped the traffic lights [RV#52]. Nevertheless, he went on to convict on the basis of a momentary lapse of concentration when the Appellant glanced at Google Map on his phone at a time when he was driving between 30-35 km/h [RV#54 to 63].

Ground 2: The Traffic Lights at the Pedestrian Crossing:

2.1 It was a crucial part of the Prosecution Case that the Appellant crossed the pedestrian crossing at a time when the traffic lights were against him. The Learned Magistrate failed sufficiently to take into account the following:

a.  That at least one of the three traffic lights at the scene (the light to the south side of the junction) was dysfunctional in that it was pointing in the wrong direction and was thus not visible to oncoming traffic.  [Conceded by the Prosecution]

b.  The evidence suggested that as many as 50 double decker buses would pass in a westerly direction along Pok Fu Lam Road per hour and that such buses as well as any high-sided goods vehicles would mask the central traffic light from the vision of oncoming drivers.  [Not challenged by the Prosecution.]

c.  The remaining traffic light (the light to the north side of the junction) may either have been blocked by construction work or masked by a driver’s own rear-view mirror and/or other street signs.

d.  In any event the Prosecution was unable to prove that the lights were functioning properly as the Central Traffic Computer System was down at the material time.

e.  At the material time there was no traffic sign warning of the approaching pedestrian crossing in the easterly direction of Pok Fu Lam Road at or prior to a left-hand bend immediately before the junction in question.  [A position later rectified by the Transport Department probably as a direct result of this accident.]

2.2 For these reasons there was sufficient doubt about the Appellant’s ability properly to see the traffic lights at the material time that his conviction for dangerous driving is perverse and against the weight of the evidence.

Ground 3: The Appellant’s Speed:

3.1 The Learned Magistrate was wrong to find that the Appellant’s speed was too fast in all the circumstances, especially given that:

a. There was no expert evidence of speed;

b. The evidence was that he was driving at 35 km/h at the most – 15 km/h slower than the speed limit;

c. The Appellant’s vehicle stopped within 2 meters of the crossing;

d. The Appellant and his wife testified that he was driving at a safe speed;

e. PW2 was unqualified to express any opinion as to speed.

3.2 For these reasons there was sufficient doubt about the approaching speed of the Appellant’s vehicle that his conviction for dangerous driving is perverse and against the weight of the evidence.

Ground 4: The Glancing at Google Map:

4.1 The Appellant testified that shortly prior to the collision he had glanced momentarily at Google Map on this mobile telephone as he was unfamiliar with the area. This momentary diversion was the basis of his Plea of Guilty to careless driving.

4.2 In this day and age it is perfectly commonplace for drivers to rely upon navigational aids such as Google Map – indeed nearly all new cars now have fitted as standard Satellite Navigational Aids the positioning of which often require a driver to look away from the road for a short period.

4.3 It was wrong as a matter of law and fact for the Learned Magistrate to find as he did that such a momentary lapse of concentration amounted to dangerous driving. The case of HKSAR v Chan Yau HCMA 1108/2007, upon which he relied was decided on very different facts and was easily distinguishable.

Ground 5: Unsafe and Unsatisfactory

3.1 In all the circumstances of the case the Appellant’s conviction is unsafe and unsatisfactory and should be quashed.”

Statement of Findings

7.  In his Statement of Findings (“SoF”), the Magistrate noted in some detail the evidence of all five prosecution witnesses plus the witness statement which was tendered from Wong Kin-nam for the Traffic Department (“the TD”).  He gave equal and considered attention to DW1 and DW2, who were the appellant and his wife. He found all witnesses to be credible, clear and direct.  The majority of the evidence for both parties was not in issue.

8.  The greater part of the trial, as Mr Harris explained, had been focused upon the traffic lights and whether they were operating correctly, including a suggestion confirmed by the TD, that there had been an operating system malfunction on the afternoon in question but that the TD had not received any complaints in respect of the relevant traffic lights. Under questioning by the Court[1], PW5 conceded that the malfunction could cause the lights to go off but since there was damage to the connecting cable with the Traffic Control System, the witness conceded they could not retrieve the information about that.  There was therefore a doubt, albeit a minor one, as to whether the traffic lights were working at the material time.  This was not given any weight by the Magistrate. He appears to have relied upon the evidence of PW5 that no reports of malfunctioning had been received at the relevant time.  At paragraph 57d of his SoF, he finds that the traffic lights were working.

9.  There was also evidence from PW2 as to the significant number of buses which passed through the junction each hour[2], and which could have obscured a driver’s view of the central pedestrian traffic lights.  This evidence was also given by DW1, although neither witness could recollect whether there were buses at that time.  This appears to have been given no weight by the Magistrate.  It was also clear from the photographs adduced by the appellant[3], that a driver’s view of the left hand side of the pedestrian crossing was obscured by road works of some sort, which in turn would obstruct the view of any pedestrian standing at the crossing and waiting to cross.  Additionally, it had been suggested that the driver’s view of the central traffic light may have been obscured momentarily because of the angle of the bend and the position of Pok Fu Lam Road from the bend.  The Magistrate did not refer to this suggestion nor to the position of PW1 at the pedestrian crossing.  He found the appellant’s view was not obscured.

10.  Those two findings, that the traffic lights were operating properly and that the driver’s view of the traffic lights was not obscured,  were the result of the drawing of an inference[4].  The primary proven facts from which he drew those two inferences were:

(a)  The left hand bend was a sharp bend.

(b)  Shortly before the bend, there were traffic signs alerting drivers to it.

(c)  The pedestrian crossing was very close to the bend.

(d)  The traffic lights were actually in working order as shown in Exhibit P6(8) except that the set of traffic lights i.e. the rightmost on exhibit D1(1) were pointing in the wrong direction.

(e)  There was yellow pedestrian crossing marked on the road surface at the pedestrian crossing.

(f)  The defendant did not recall seeing any buses driving past the junction at the material time.

Leaving aside whether these were indeed primary proven facts[5], having apparently drawn a reasonable inference that the traffic lights were operating properly and that the driver’s view of them was not obscured, the Magistrate did not go on to consider the evidence before the court which supported another reasonable inference in favour of the appellant. 

11.  The Magistrate did note at an early stage[6], that the nub of the defence case, was that the appellant had a momentary lapse of concentration which led to the accident.  The appellant had accepted this throughout and it was the basis for his offer of a plea to careless driving.  The appellant gave evidence that he glanced at Google Maps at the material time.  The Magistrate accepted this evidence and commented; “…what the defendant is saying is perfectly possible for a modern day driver”.  As a consequence of that finding, the Magistrate ruled out the primary prosecution allegation that the accident had been caused by the appellant deliberately and dangerously jumping the lights[7] and came to the conclusion that the loss of concentration by referring to Google Maps was the operative blameworthy act.

12.  The Magistrate therefore went on to consider the loss of attention which resulted in the accident.  He noted the actions which preceded the glance at the phone.  The appellant had given evidence that, as he rounded the left hand bend, he had found the road ahead to be straight and unobstructed, which is why he felt he could glance at his phone.  The Court noted inter alia the bend to the left was a sharp bend; the pedestrian crossing was very close to the bend, and there were traffic lights for the pedestrian crossing, which the appellant should have seen.  Perhaps more importantly and unfortunately, the Court appeared to rely upon the fact that the appellant had not recollected any bus passing the junction which could have obscured the relevant traffic light in the middle of the junction between Pok Fu Lam Road and High Street, as being evidence that there was no such obstruction, whereas that evidence by both PW1 and DW1 was neutral as to whether or not there was a bus at the material time.  In addition, the Magistrate found that 30-35 km/h on a straight road was acceptable but that same speed was not acceptable for a sharp bend.  He found there was a further sharp bend to the right ahead of the appellant and further down the incline. That being the case, he found that a competent and careful driver would not have glanced at the phone as it was not safe in the circumstances to do so. Had the appellant adopted a slower speed and not glanced at his phone, the Magistrate found that he would have been able to stop at the crossing.

The Law

13.  Dangerous driving is defined by s37(4) of the Road Traffic Ordinance, Cap 374 as:

“A person is to be regarded as driving dangerously within the meaning of subsection (1) if —

(a)  the way he drives falls far below what would be expected of a competent and careful driver; and

(b)  it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

14.  The factors to be considered when determining s37(4)(a) and (b) are found in s37(7):

“(7) For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including—

(a) the nature, condition and use of the road concerned at the material time;

(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; and

(c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.”

15.  By comparison s38(1) of the Road Traffic Ordinance[8], Cap 374 defines careless driving as:

“(1) A person who drives a motor vehicle on a road carelessly commits an offence and is liable to a fine at level 2 and to imprisonment for 6 months. (Amended 33 of 2000 s. 3)

(2) A person drives carelessly within the meaning of this section if on a road he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road.”

16.  The appellant accepted from the outset that his manner of driving was careless.  The issue is therefore whether the standard of his driving went further than that and was dangerous in that it fell far below the standard which would be expected of a competent and careful driver as required by s36(4)(a) and was obviously dangerous in terms of s36(4)(b).  It is not necessarily the case that an accident caused by an appellant’s lack of due care and attention and which results in injury to someone else, turns that act of careless driving into one of dangerous driving[9].  It follows of course, that just because there has been no actual injury that it will never be the case that an act of dangerous driving is not properly made out.

Analysis

17.  With respect to the Magistrate, and before the analysis of the evidence, it must be said that this Court finds the Magistrate made an error of fact when he found that the left hand bend at the intersection with Water Street and High Street was a sharp bend.  It was an ‘obscured’ or ‘blind’ bend but, as the warning sign at D1/6 indicates, it was a moderate bend to the left sufficient to warrant a warning sign.  He made a similar error of fact when he found that the bend beyond the pedestrian crossing was a sharp bend to the right.  It was not.  It was a sweeping bend to the right at less of an angle than the left hand bend previously described and not sufficient to warrant a warning sign.  It follows from that finding, that the Magistrate misdirected himself as to the speed at which it would be acceptable for a driver to enter and exit the bends at the scene.  This was in any event speculative in nature as no expert evidence was adduced.  That is not to say that a trier of fact may never pray in aid their own personal experience so long as it is just that, experience, in this case driving experience, and so long as the parties are aware that is what the Court is doing.

18.  This Court also finds, as did the Magistrate, that the appellant was travelling at 30-35 km/h, which was well within the speed limit for urban areas.  An experienced driver would consider it slow. This was not given sufficient, if any, weight by the Magistrate as a result of his earlier finding upon the geography of the bends.  He had not been assisted by any expert evidence or other documentary evidence of the proper layout of the roads.  The photographic perspectives were possibly misleading. Nevertheless, he came to the somewhat speculative conclusion that the appellant had approached the left hand bend at a fast speed, whilst at the same time accepting that he was not speeding.  This Court will therefore not consider the angle of the bends or the speed of the appellant as aggravating features of this case.  The Court finds the speed at which the appellant was accepted as travelling to be a safe speed in all the circumstances of this case in respect of the nature and condition of the road so far as it is known and the traffic to be expected at the junction on a Saturday at midday.  It is interesting to note that the Magistrate did not appear to take into account that this would have been a very busy junction even if he were to rely only upon the evidence of PW2 who stated there were at least 50 buses per hour.

19.  The appellant was driving with his wife and young child through the University of Hong Kong area of Pok Fu Lam well within the speed limit.  It was an area he was not familiar with.  His use of a satnav or Google Maps on an appropriately secured phone, would not of itself be a foundation for a prosecution for either careless driving or dangerous driving.  It follows that a momentary lapse of focus on the road ahead, as a result of glancing at a satnav or Google Maps, would also not be a foundation per se for such a prosecution.  What more is required?  Operating a satnav or inputting data into Google Maps might be considered either careless or dangerous driving depending upon the action carried out and the length of time required to do so, as well as the nature of the general driving conditions.  Any action which takes a driver’s attention from the road ahead is potentially dangerous.  In this case, it was accepted that the appellant ‘glanced’ at Google Maps and no more.  He did not interact with it in any way other than to ascertain his route.  That being the case, the issue is at what point in time did he do so and whether his decision to do so at that point in time fell within the category of an act so far below that which would be expected of a competent and careful driver that it would be obvious to a competent and careful driver that his manner of driving was dangerous.

20.  When driving from Pok Fu Lam, the Pok Fu Lam Road leading up to the intersection in question, shields a driver moving towards Mid‑levels from the left hand bend in the road until the last moment. The prosecution photographic exhibits do not assist with this as they are taken from the northern side of Pok Fu Lam Road just below the university and at a position when cars are travelling eastbound on a dual carriageway.  The defence exhibits[10] show the left hand bend ahead[11] approximately 20m away[12] with a sign indicating ‘no left turn’ in the distance.  There is nothing to indicate any need for anything other than the usual amount of caution in a built up area.  D1/6 shows the road just before the bend and has a sign which indicates traffic lights ahead although it was accepted no such warning sign was in situ at the material time.  There is a ‘road bends’ sign in the foreground of D1/6, which indicates a gentle 45° sweep to the left.  It does not indicate any significant gradient, nor would one be aware that there is a three‑way intersection at that point.  In other words, nothing to suggest that a driver should take any special action other than to drive within the speed limit and to brake, as all drivers do automatically, when approaching a bend.  There is no suggestion that the appellant did not do this.

21.  The next photograph in time is D1/2.  This shows Water Street off to the left.  The appellant has already rounded part of the bend by this stage.  It would only be as the driver was rounding the bend that he would realise which road was the ‘no left turn’.  The road directly ahead of the driver would be High Street and the road going off to the left beyond Water Street and dissecting Water Street and High Street, would be Pok Fu Lam Road. It was as the appellant passed Water Street to his left and with the split roads ahead of him, that he glanced at the map.

22.  Given D1/2, the Court must ask itself why the appellant did not notice both the traffic light in the middle of the scene and the pedestrian crossing.  The answer to that may lie in a more detailed analysis of the scene.

i.  As a car rounds the bend on Pok Fu Lam Road, the left hand side of the pedestrian crossing is almost completely blocked by construction works, railings and lamp posts[13]. It is entirely possible that any pedestrian in the position of PW1 would not be made out[14]. It is also possible that the bright yellow road marking to the left hand side of the road as looked at by the appellant would be less visible initially.

ii.  D1/5 indicates that any double decker bus or other traffic may also momentarily block a significant amount of paint on the road as well as the central traffic light.

iii.  There may be a point that the driver’s rear view mirror momentarily blocks the traffic light which is some meters ahead as the car travels around the bend to the left.

iv.  There is a distance of something in the order of three car lengths between clearing the bend and the crossing itself ahead, which is very close to the junction, and another two to three car lengths after the crossing as the round sweeps gently to the right.

v.  On a Saturday at midday, there would have been traffic on both sides of the road, both on Pok Fu Lam Road and High Street.  There is a high probability that some of that traffic included double decker buses and/or mini buses.

vi.  The whole of the scene including Water Street, Pok Fu Lam Road and High Street, plus all of the traffic passing over those streets will be constantly assessed by a driver and all the more difficult to assimilate when that driver does not know the area.

vii.  The pedestrian crossing over both Pok Fu Lam Road and High Street are unusually close to the main intersection.  A driver would not expect them so close to the junction.

viii.  Given the day and time, even if there had been little traffic at the moment the appellant chose to look at Google Maps, it is highly improbable that traffic would be light for more than a few seconds as it is controlled by other lights further out from the intersection.  Traffic within this area would be expected to be constant at that time of day.

ix.  Given that PW1 stepped out a split second before the appellant made contact with her and was not any distance into the crossing, it is possible that the pedestrian light had only just changed or that she pre-empted it changing when the traffic light turned red only a split second before the accident which could have been at the same time as the appellant looked down at Google Maps.  This very short window of time is supported by the evidence of PW2 who had not yet stepped onto the road after the pedestrian light turned green when the accident happened.

x.  If that were the case, the traffic light could have been blocked by traffic which would have been able to travel over the crossing, whilst the light was at the pedestrian crossing was red.

23.  These are just a few issues raised by the direct evidence before the Court.  Each scenario is a potential inference to be drawn.  A Magistrate cannot be criticised for not taking into account matters raised by the defence which are inherently improbable, but he should acknowledge them in order to reject them as fanciful.  In this case, the available evidence provided a foundation for the above inferences to be drawn and they were not considered.

24.  The prosecution failed on its primary submission as to a deliberate running of the red traffic light.  It has not proved beyond reasonable doubt that the appellant’s action in glancing at his Google Maps when he did, fell so far below the standard of a competent and careful driver that such a driver would realise what he did was dangerous.  The situation may well have been different if, for example, the appellant had been familiar with the area and had therefore known in advance about the pedestrian crossings and the fact that the University and schools increase footfall.  It may have been different if the appellant had been driving at a speed near to or over the accepted limit for this area or been speaking on his phone, to name but a few aggravating features but that was not the case here.  There were no aggravating features.

25.  It was however careless to have glanced at the Google Maps on his phone given all the circumstances.  He was driving without due care and attention.  This was a built up area and the appellant should have had his eyes on the road and on the lookout for pedestrians, whether at a pedestrian crossing or otherwise.  That momentary inattention caused harm to PW1, which I am sure the appellant deeply regrets, as evidenced by everything he sought to do for her after the accident.

Grounds of Appeal against Sentence

26.  Given the finding of this court, the appellant’s grounds of appeal against sentence are no longer applicable save for the mitigation now before the Court.  The appellant is a mature businessman of positive good character.  He is married with two young children.  As a result of his conviction he has lost his job with an international firm and therefore intends to leave Hong Kong and seek a new position in Australia.  Sadly, he also has a serious kidney condition which requires a transplant.

Conclusion

27.  In all the circumstances of this case, as outlined above, the conviction for dangerous driving was unsafe.  The appeal against conviction will be allowed.  The conviction for dangerous driving causing grievous bodily harm will be set aside and a conviction for careless driving contrary to s38(1) of the Road Traffic Ordinance, Cap 374 will be substituted for it in accordance with the power vested in this Court by virtue of s36(10) of Cap 374.

28.  As a consequence of that finding, the term of imprisonment of seven months will be set aside.  The appellant has already served a period of disqualification of some three months.  The order for disqualification and consequential orders will also be set aside.  Whilst this offending was not at the very top of the range of careless driving, it is nevertheless a serious matter which resulted in significant injury to an innocent pedestrian.  The appellant will therefore pay a fine of $4,000.

29.  There will be no order as to costs.