LEUNG MEE YEE AND ANOTHER v. WONG KWOK FAI AND OTHERS

HCPI 1344/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 1344 OF 2000

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J U D G M E N T

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1. This is the trial of a preliminary issue in an action arising out of a road traffic accident on the 9 November 1997 shortly after 0300 hours in which the Plaintiff's husband was killed. She has sued her late husband's employer (the second Defendant), another employee who it is alleged was the driver of the vehicle in which the deceased was travelling (the first Defendant) and the Hospital Authority (the third Defendant), which, it is alleged, was negligent in its treatment of the deceased when he was admitted with severe injuries. I need not concern myself at this stage with the cause of action against the Hospital Authority. The issue is, who drove the vehicle in which the deceased, the first Defendant and one other, were travelling? One other vehicle was involved directly but its driver is not a party to the action. I thought he was an honest witness though mistaken in some respects.

2. The deceased was the regular but not the only driver employed by the second Defendant to drive the van, which collected newspapers in the early hours of the working mornings from Admiralty and then delivered them to various destinations. The alternate driver of the van was the first Defendant. According to the first Defendant, the van was usually parked near the deceased's residence. On the occasions on which the deceased was the driver, the other member of the team, Chung Pak Lok, would be in the front passenger seat, and he, Wong Kwok Fai, was in the seat behind the two of them, which was in a middle position in relation to those two front seats. There was no seat belt fitted for that seat. This is a singularly important fact and has not been disputed. It is important to review all the evidence, written as well as oral, to determine what is reliable. The Police evidence is of course highly important. It is unlikely to be affected in any way by the interests of other living parties, or indeed by the deceased's family. As a guiding factor in a Police investigation into a road traffic accident is the need to determine, if at all possible, who was the driver of any vehicle involved. If a person who is determined to be the driver of the vehicle in question, is seen to be at fault in respect of the Road Traffic Ordinance, then the public interest requires that he be prosecuted. This is likely to be in the forefront of the mind of any Police Officer who is gathering evidence which may help decide how and why an accident occurred.

The other vehicle

3. The driver of the vehicle with which the second Defendant's van came into contact said that he was driving in the outside lane of the dual carriageway at a speed of approximately 100 k.p.h. He became aware of a van in the middle (second) lane moving to its right into his lane. It came into contact with the nearside of his car. As a consequence his car went to the central reservation divider, struck that and bouncing back to his nearside came into contact with the second Defendant's van again. Both vehicles then went to the nearside with the van striking the nearside crash barrier and eventually turning over onto its roof.

4. He went to the overturned vehicle. He saw an occupant in an upside down position at the front of the van in the front seat. It was clear from this description that he was describing a person suspended at the front of the van by some means. That person was still in that position at the time that the Police arrived. He saw a seat belt restraining that person. He also saw an injured person who had been thrown out of the van. He heard the sound of, but did not see a third person. No one appeared to be in the back seat of the van.

5. It is apparent that when he was asked on which side of the overturned vehicle he was standing, he said he paid no attention but on the plan he marked himself as standing by the front nearside corner of the van i.e. by the passenger side.

6. When he said the person suspended in the van was in front passenger seat he was mistaken. The front passenger had been thrown out. There was no seat belt for the rear passenger. The driver had a seat belt. In the overturned van he may well have appeared to Mr Kwan to be the front seat passenger. I place no reliance on estimates of age. Two men were unconscious and badly injured.

7. Some attempt was made to explore the possibility that his driving may have contributed to the accident although he has not been made a party in these proceedings. Nothing materialised to support any such allegation and it would be difficult at this stage to find the basis for a case against the third party. In any event there is no allegation against him in the Defence of the first and second Defendants and therefore I am not strictly concerned with that.

The Police investigation

8. The first Police Officers to reach the scene were probably PC47831 with his colleague PC1416. The latter controlled the traffic.

9. The first mentioned Police Officer said that the driver of the van was injured and was still buckled into the seat belt. He was unconscious. There were two other persons lying on the carriageway who appeared to have been thrown out of the van and they were both injured. Those two injured persons outside the van were taken, this officer said, in Ambulance A256.

10. The man who appeared to be the driver, who was still trapped in the van, had to be released by a fireman before he was taken off to hospital in Ambulance A13. Ambulance A256 went off to the Prince of Wales Hospital. Ambulance A13 went off to the Tai Po Clinic. The evidence of PC47831 was that the two injured persons lying on the carriageway were taken off in Ambulance A256.

11. Senior PC9704 arrived at the scene about ten minutes after PC47831 by which time all the occupants of the van had been taken to hospital. He was told by his colleague that he believed that the person still buckled in his seat in the van was the driver. Ambulance A13 had taken that person to Tai Po Clinic. This was in the report made by PC47831 to his console and in his notebook. This officer also marked on a plan the positions, as he recalled them, of the two injured persons found lying outside the van.

12. It is quite clear that there were some careless entries and omissions in the records. He did not recall a taxi-driver stopping to offer assistance whereas the driver of the other vehicle clearly recalled such a person. There were other aspects of detail on which this officer was less certain and some where he was surprisingly mistaken.

13. There was good reason to believe that this officer was less than careful and accurate in a number of respects in his evidence and his records but it has to be borne in mind that it was not until several years had elapsed that he was aware of the dispute as to who was the driver. He was firm however in his evidence that the only person in the van was the person who he adjudged to be the driver, being the person suspended by the seat belt in the front of the van and that he was the person taken away from the scene in Ambulance A13.

14. SPC9704 found PC47831 already at the scene when he arrived. By that time all the occupants had been removed by ambulance to hospital. He was told by PC47831 that the person in the driver's seat of the van had been taken by ambulance to Tai Po Clinic and the two injured found outside the vehicle had been taken to the Prince of Wales Hospital. He later received a message that the ambulance (A13) which had taken the driver to Tai Po Clinic had transferred him to the Prince of Wales Hospital. A13 arrived at the Prince of Wales whilst he was at the Hospital. The person in that ambulance was identified by property including an ID card as Wong Kwok Fai, the first Defendant.

15. The investigation log recording the officers' findings contains at 3:50 am:

"The driver was identified by Z10 (PC47831) to be Mr Wong Kwok Fai - ID XXXXXXX-X who was taken away by Ambulance A13 to the Jockey Club Clinic/Tai Po whereas the 2 injured passenger was taken away by Ambulance A254 to the Prince of Wales Hospital ........... All 3 injured persons suffered from severe head injuries. D1 and a passenger were in a coma (later identified as Li Yat Sang ID XXXXXXX-X)"

16. The identification clearly refers to the passenger as Li Yat Sang (the deceased) the driver having been identified earlier in the entry [p.161I]. The reference D1 is an error - it must mean D2. The other passenger was identified as Chung Pak Lok.

17. In the Command Centre Control Log [p.256] there is also recorded as the driver of V2 (the van) Wong Kwok Fai. He is noted as having a head injury and being in an unconscious state, as was Li Yat Sang. The confusion between V1 and V2 is also continued. V2 was the overturned vehicle.

18. According to this Police Officer he had had a conversation with Chung Pak Lok in which the latter said that Wong Kwok Fai was driving the van at the time of the accident. When this officer took a written statement from Chung Pak Lok on the 6 January 1998, the passenger clearly stated that Wong Kwok Fai was the driver and that he was in the front passenger seat. I shall return to this witness' evidence later.

19. There were criticisms validly made of this officer's efficiency in recording all the matters that emerged. For example he made no record of the fact that, as he asserted, Chung said the deceased had driven the van to Tai Po and then Wong Kwok Fai took over the controls with the deceased moving into the back passenger seat.

The Occupants of the Second Defendant's Van

20. Wong Kwok Fai said that when he made his statement to the Police he could not remember the accident. He drove the vehicle only when Li Yat Sang was off-duty or on leave; this occurred only about once each month. It was normal for Chung Pak Lok to be in the front passenger seat of the van by the time he reached the car park where the van was kept. His position was in the middle seat behind the other two. There was no seat belt for a passenger in this seat.

21. There is no doubt that he suffered a relatively severe head injury. He was unconscious for some time. It is quite understandable that he has no memory of material events on either side of the accident. In his police statement he said:

"Chung Pak Lok said that I was the one driving to Central."

This was on the 6 February 1998. It is not clear whether he is saying that that was what Chung Pak Lok said to him or whether he heard that at second-hand. It remains, nonetheless, a point of some importance.

22. The last oral witness who could give direct evidence of the circumstances was Chung Pak Lok himself. From the outset I gained the impression that this witness was decidedly uneasy and far from frank in his manner.

23. The last thing he remembered was Wong Kwok Fai getting into the van through the middle door or the passenger side. Li Yat Sang had driven the van that morning when he was collected. He had then fallen asleep.

24. He then recounted a somewhat convoluted and entirely unconvincing story about a taxi-driver whom he said had stopped at the scene (I accept that one did) and whom he subsequently met again on Tai Po Station. The taxi-driver's conversation was centred around the suggestion that the third party driver was or may have been responsible for the collision by encroaching onto the middle lane a little ahead of the van, and causing an impact.

25. In a statement dated 11 December 1997 obtained from him by some agency acting on behalf of his employers or an insurance company, he stated that Li Yat Sang was driving the vehicle when he came to collect him. He makes no mention of Wong Kwok Fai being in the vehicle at all on that occasion. He concludes by saying that he had heard from the Police that Wong Kwok Fai was the driver at the time. He makes no further comment in that statement as to whether he agreed or disagreed with that, assuming he had indeed been told that by the Police.

26. His statement to the Police was not made until early January 1998. At the beginning of the statement he asserted that Wong Kwok Fai was the driver and that Li Yat Sang was in the back seat.

27. His explanation for that was that the Police Officer told him Wong was the driver and that although he reasoned with the officer and did not agree with him, it was the officer who wrote it down and he was too frightened not to sign it. He denied telling the Police Officer that he and Li Yat Sang were asleep but that found its way into the statement. In the later part of the statement he referred to the taxi-driver and what he told him about the involvement of the other car on a subsequent meeting.

28. He was asked about occasions on which he met Madam Leung Mee Yee, the widow of Li Yat Sang. It is not necessary to deal with the details of what he said to her. His account was that there was only one meeting. As I have said earlier, I found him an unconvincing witness.

Madam Leung Mee Yee

29. When she arrived at the Prince of Wales Hospital she was told by the Police that her husband was not the driver because he had been in the rear of the van.

30. She saw Chung Pak Lok at the hospital. She did not know him but a friend of hers did. She was understandably concerned to be sure about who was driving the van because she knew her husband normally drove it. Chung confirmed to her that her husband was not the driver.

31. She did not see Chung again for some time. She went to look for him having instructed solicitors to pursue a claim. No doubt she had been advised to find out where he was. Perhaps the issue of who had been the driver had already been raised.

32. She found him. He repeated that Wong Kwok Fai had been the driver and that her husband had been asleep in the back. She knew her husband would have been tired as he had two jobs and had arrived back home late that evening. Chung agreed to be a witness.

33. A few months later she went to look for Chung again. Her solicitor had told her that Chung was no longer willing to help. When she found him he stated that he was now a witness for Yip Wah Kee, his employer. The inference was that he was changing his story.

34. I found Madam Leung patently honest and reasonable. I did not believe Chung Pak Lok.

Conclusion

35. I have no doubt that Wong Kwok Fai was driving the van at the material time. I have taken into account all the evidence before me including the transcript of proceedings in the Magistrate's Court. It is not necessary to rehearse all the arguments based on the differences in detail, perception and recollection.

36. Whatever criticism can be made about the quality of the Police Officers' evidence on certain matters of detail which have been properly and fully explored in cross-examination, I am satisfied that the crucial aspect of their evidence, namely who was driving, withstood all tests. Their evidence is consistent on this as are the contemporaneous records.

37. I reject Chung Pak Lok's assertion that the Police Officer was responsible for that part of his statement which says that Wong Kwok Fai was the driver. He told Madam Leung on two occasions that Wong Kwok Fai was the driver. He has now sought to distort the picture as best he can for his own reasons which may include a reluctance to name Wong Kwok Fai as responsible for the fatal accident. This may also account for what I regard as a dishonest embellishment of his evidence - namely the meeting on Tai Po Station with the taxi-driver. He was willing to try and cast blame on the Third Party driver, either as a diversion or as a means of relieving Wong Kwok Fai of liability for the accident.

38. The man still tangled up with a seat belt in the van who was subsequently released and taken initially to Tai Po Jockey Club Clinic was Wong Kwok Fai and he was the driver. The deceased was in the rear passenger seat and was one of the other two occupants of the van thrown out by the collision. Wong Kwok Fai was solely responsible for the collision.

39. Accordingly on the preliminary issue there is judgment for the Plaintiff against the first and second Defendants with costs. In effect, this means that the Plaintiff has established her case against these Defendants. She need establish only 1 percent against them in the action in negligence. That leaves open the question of whether there is any negligence on the part of the third Defendant who received into their care an unconscious man with severe head injuries. None of the evidence before me, of course, deals with that issue.