HKSAR v. MAGSINO RESHIELLE LAGURIN

DCCC 111/2023

[2026] HKDC 387

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 111 OF 2023

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REASONS FOR VERDICT

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1.  The defendant in this case, Miss Magsino, has entered pleas of not guilty to two charges.  The 1^st charge is causing death by dangerous driving contrary to section 36(1) of the Road Traffic Ordinance, Cap 374, the deceased person being Elodie Ma.  The 2^nd charge is causing grievous bodily harm by dangerous driving to four persons, PWs1 to 4, that charge being under Section 36A of the relevant Ordinance.  Both charges arise out of a traffic accident that occurred on 10 December 2021 in Peel Street, Central.

2.  Basic facts that a vehicle driven by the defendant rolled down the slope of Peel Street in Central for quite some considerable distance.  The result of this action was the death of Ms Elodie Ma and the injuries caused to the prosecution witnesses.  The course of the accident and the death and the injuries are not disputed.  The prosecution say that the cause of the accident was the defendant’s dangerous driving, whereas the defendant says that it is not case and the defendant could only be found guilty, at most, of careless driving.

3.  The prosecution case proved by two sets of Admitted Facts which contained the CCTV footage, photographs and particulars of the vehicle and the evidence admitted under Section 65B of Cap 221 which consisted of witness statements, medical reports and experts’ reports.  Also, there is the evidence of three further witnesses whose evidence was given by way of oral testimony.

4.  The undisputed facts show that at around 8 pm on the evening of December 10, the defendant was driving a Nissan X‑Trail Sport utility vehicle.   The defendant drove this vehicle into Peel Street. Peel Street is in Central.  It is a steep slope, assessed at 1 in 4.  On entry to Peel Street, the driver is warned of this by traffic signs erected on both side of the road which says “Steep hill upwards ahead”; “1:4”.  The defendant drove the vehicle into the upper section of Peel Street which is a no-through road.  There is also warning signs to indicate this on both sides of the road. The slope at that point leads to a dead-end.

5.  The shops and restaurants along both sides of Peel Street contained many pedestrians of people out for the evening. It is part of an area where social events occur and there are a lot of restaurants and other meeting places and bars.  The road itself was clear.  The car driven by the defendant eventually came to a stop outside No. 70 Peel Street.  At that location, the defendant had stopped the car and then exited the vehicle.

6.  Shortly after she exited the vehicle, it rolled backwards.  The wheels of the vehicle were pointed forwards and the vehicle rolled backwards in a straight line gaining momentum as it rolled down the hill.  On its descent through Peel Street, the car killed the deceased, injured a total of seven pedestrians who were in the vicinity, four of whom suffered grievous bodily harm.  All of this can be seen from the CCTV footage which is admitted as part of the evidence.

Evidence of the deceased

7.  The death and injuries and the injuries to the witnesses was admitted under Section 65B, Cap 221, and was uncontested.

8.  There was a forensic analysis of the CCTV footage conducted by PW5.  His evidence, again, it was uncontested and could not be contested.  His evidence show that the vehicle was brought to a halt by way of braking at 8:05:59.  Later, the offside door of the car was opened.  One second after this, the top brake light of the car was turned off.  Two seconds later, the defendant started to alight from the vehicle.  One second after this at 20:06:09, the car started to roll backwards.  Therefore, the car commenced rolling backwards some 3 seconds after the service brake on the vehicle was released.

9.  I heard from a Senior Technical Officer at the Technical Department of Dah Chong Motor Services Centre Limited, who were the sole authorised agents and sellers of all Nissan vehicles in Hong Kong, including the vehicle involved in this accident.  The witness specialised in technical support of Nissan vehicles sold in Hong Kong who would be consulted by and gave evidence about the Nissan X-Trail sold in Hong Kong and the vehicle driven by the defendant.

10.  The vehicle had been purchased in 2017, been subject to regular check-ups and maintenance.  There had been no need for repair on the gearbox or any malfunctioning of the gearbox or any occasion of uncontrolled rolling back by this vehicle.  The Nissan X-Trail sold in Hong Kong had never been subject to any recall nor had there ever been any evidence of gearbox problems relating to rolling back with the same model as the instant car.  Similarly, there had never been any complaints from customers alleging gearbox malfunctioning or uncontrolled rolling backwards of the vehicle.  PW certainly confirmed where there was a vehicle examination repair conducted by Dah Chong Hong, DCH, as an agent to the manufacturer, then a diagnostic test would be performed.  This would be performed whether or not there was a warning indication on the vehicle’s dashboard.  PW7 said that any problem with the Hill Hold function would relate to the parking brake and that a slope test would be necessary where it was said the gearbox had malfunctioned.

11.  PW6, Mr Fok, was the Motor Vehicle Examiner at the Transport Department.  He is an expert on vehicle engineering and vehicle examination.  He produced an Expert Report detailing his findings on the vehicle and also matters raised to a certain extent by the defence witnesses.  PW6 conducted an examination road test of the car.  He found the car to be free from any mechanical defect.  The report of this witness showed that there were four ways which the car could be stopped and held in place:

Firstly, the service brake operated by a pedal. When the service brake is applied, a red light will illuminate at the rear of the car and be switched off once that brake is released. Secondly, a parking brake. This brake is operated again by the use of a foot brake pedal. Thirdly, the Hill Hold function. The Hill Hold will hold the vehicle when it has to stop briefly, such as when driving on an incline. Hill Hold will momentarily stop the vehicle from rolling back during the time when the driver’s foot is removed from the service brake but as yet not pressed onto the foot brake. Hill Hold would not operate when the car is in parking gear. It would only operate after the driver releases the service brake when the car’s ignition remains switched on and the car is set in a forward gear, for example, the “D” or “L” gear, and the parking brake had not been pressed beyond its coupling point. Once activated, Hill Hold will hold the car in place for around 2 to 3 seconds. Finally, the selection of “P” gear will also prevent the car from moving.

12.  PW6’s examination of the vehicle concluded there was no mechanical defect of the car and that all four methods of braking this vehicle were functioning effectively when he examined it.

13.  Based on the witnesses’ findings and the analysis of the incident and PW5’s analysis of the accident, it was concluded that before the vehicle had rolled down the slope on Peel Street the car would have been engaged either in the “D” gear or the “L” gear; that the parking brake had not been pressed to its coupling point and the engine would still have been on; that the Hill Hold function would have engaged for the 3 seconds before the vehicle began to roll backwards.

14.  This conclusion could also be reached from PW6’s evidence that if any of the following had occurred, the car would not have rolled back in the way it was seen to do so.  That is, if the parking brake had been engaged to its coupling point, if the parking gear had been engaged, if the engine had been switched off, and if the vehicle’s wheels had been turned, which of course would have engaged the steering lock.  Thus it could be deducted from the objective fact of the car rolling back or how the car was seen to roll back on the CCTV recording that none of these preventive measures had occurred and that the defendant would herself concede that the car engine was not switched off and the wheels were not turned before she left the vehicle, therefore the steering lock could not have been activated.

15.  The defendant herself is employed as a domestic helper.  She has worked here for her employer since 2009.  She is of clear record obviously.  She is a qualified driver, having had a full licence in Hong Kong since 2013.  Defendant has been driving the Nissan X-Trail since 2017 and she was familiar with driving this vehicle.   She also said she was familiar with driving the vehicle on slopes and had driven in areas such as North Point, The Peak and Sai Ying Pun.

16.  The defendant gave an account of how she would normally park the car on a slope.  She said she would lift her right leg from the accelerator and put it on the service brake to stop the car.  Then she would use her left hand to press the safety button of the gear selector and push it towards the “P” gear.  After that is engaged, she would use her left foot to press on the parking brake until she was sure that the parking brake had engaged or coupled.  She would then release her right foot from the service brake.  The defendant said she had never encountered any difficulty in parking the car throughout her years of driving it.

17.  On the night in question, the defendant had been driving the car and she was driving her employer’s wife to Pacific Place.  The defendant said she had missed her turning and had ended up in the upper section of Peel Street and she had not realised that this was a dead-end and the car had passed Elgin Street and had reached No. 70 Peel Street. It would appear the defendant had not seen the signs regarding the fact that Peel Street was a no-through road.  The defendant said that although she had repeatedly missed her turning to return to Admiralty, the intended destination, she did not consider she was in any rush to do so. 

18.  When the defendant reached No. 70 Peel Street, the employer’s wife who was in the back seat offered to take over the driving.  In order to do this, the defendant had to park the car or secure the car and she did so.  The defendant said that when she parked the car she used her normal method of parking.  She said she would only release the service brake after she had set the car to “P” gear and pressed the parking brake as far as it could go until she heard a click sound and felt that it was secure. The defendant said her memory of this was accurate and it is what had happened.  The defendant did not switch off the engine nor steer the wheels so the car could not move downhill.  She opened the driver’s door, stepped out with her right foot and immediately noticed the car started to move.  She then jumped out of it.  The car then rolled backward towards the bottom of the slope.

19.  The defendant admitted to the police when they arrived that she had been the car’s driver.  The defendant also admitted that when she left the car the car had not been parked in a designated parking space.  Thus, the defendant saying that she had done sufficient to ensure the car would not roll back.  She did, however, admit that there was more she could have done, for example, switching off the car engine or twisting the steering wheel so that the wheels would be locked.

20.  Another witness, DW2, Mr Nigel Self was called by the defence.  This witness was a Mechanical Engineer and was well-versed in the function of Italian cars.  He was approached some 1½ years after the accident to look at the car.  He conducted a diagnostic test on the car with a kit borrowed from another person.  He said that upon plugging the diagnostic tool into the car, three fault codes appeared and he used his mobile phone to take a picture of the screen display.  That was later produced as an exhibit.  The codes were “C” codes and “P” codes.  He could not say whether the codes were current or stored codes for the car.  He had not conducted any other examination.  The witness also removed the gear selection to do with the car and also the manual from its glove compartment and both these items where produced as exhibits in this hearing.

21.  The third defence witness was Mr Michael Stapleford who had come here from the United States.  This witness was the defence expert witness.  He was accepted as an expert in automotive matters, particularly engineering.  The witness’s evidence was extensive and he produced a lengthy report.  However, at the end of his evidence only parts of his evidence were relevant to the enquiry being made by the court.  This is as a result of concessions made by the witness in his evidence and in cross-examination.

22.  The main thrust of this witness’s evidence was that the examination conducted by PW6 had in fact been insufficient in the circumstances of this case.  He also opined on whether it would have been possible for the defendant had done her usual braking conduct at the time of the accident.  DW3 did concede that he had no complaint as to the actual examination and findings of PW6 in his examination of the vehicle.  DW3 said that PW6 should have conducted further tests and these are as follows:

23.  Firstly, a diagnostic test should have been performed upon the vehicle.  This originates after the fault codes found by DW2 and DW3 said that these fault codes may at the time have reflected problems with the Hill Hold function and should have warranted further examination;

24.  Secondly, PW6 should have conducted further tests on the Hill Hold and what is described as the “park pawl” function of the vehicle.  PW6, it is said, had failed to conduct tests of the Hill Hold function in abnormal circumstances, such as when the driver would move the gear stick from “D” to “P” directly without engaging the service brake and when the “P” gear is engaged if the car is still in forward motion as opposed to being stopped.  The park pawl is itself a mechanical feature of the park wheel which will fall into place when the parking gear is engaged, it is like a cog.  DW3 said further tests would have been necessary to see if the park pawl would fall out of synchronisation with the park wheel, meaning the park gear would not have engaged properly and the car could have rolled downhill despite the driver believing that the parking gear had been engaged.

25.  It was also said, thirdly, that PW6 did not measure the force that was necessary to engage the parking brake or the number of ratchets needed to engage the brake, again meaning that the driver would be satisfied the parking brake or the footbrake had engaged when it had not in fact been fully engaged.

26.  Finally, DW3 also gave evidence on questions of whether the car had been operated in the way the defendant said she had operated the car and could still have rolled backwards.  DW3 had also posited that there could have been a viable scenario whereby the defendant put the gear shift into “P” gear but using a different sequence from her normal and evidenced manner of securing the vehicle in that she would have moved the shift at “P” gear after releasing her right foot from the service brake.  In this scenario, PW3 opined it may be possible the Hill Hold function will behave differently than in the normal sequence of putting the car into the “P” gear then releasing the service brake.  It was said that this scenario had not been tested and in this scenario the parking pull inside the park wheel may not have properly engaged inside the park wheel meaning that there would be no braking effect from the “P” gear, thus the vehicle would roll down gaining speed and then due to the motion be in a position where the park pull could never engage into the parking wheel.

27.  It was DW3’s opinion that further tests should have been conducted to explore these possibilities.  These tests would have shown if there were any design limitations or characteristics of design concerning the park pawl on the Hill Hold function so that even if the driver had properly parked the vehicle, the vehicle may still roll backwards, as it did in the current case.

28.  Thus the defence case as articulated in the evidence was that the court would be entitled to bring in a verdict of careless driving against the defendant if the defendant’s version was true or maybe true.  Were the court to reject her evidence, there still remained the supposedly unexamined scenario of DW3 that she had taken the necessary steps to stop the vehicle because the prosecution was not able to properly deal with the scenarios due to the limitation of PW6’s examination of the vehicle.

29.  It was also submitted that even putting the prosecution case to its highest, the defendant’s conduct could be described as only a momentary lapse of attention and it would be wrong in principle to consider that these lapses would support a verdict of dangerous driving and in the circumstance of this case it was said that the tragic outcome, a catastrophic outcome in this case, does not necessarily turn careless driving, i.e. a momentary lapse of attention, into dangerous driving.

30.  The legal position is very clear.  A person is guilty of dangerous driving if it can be proved beyond reasonable doubt that the way he drives or she drives falls far below what would be expected of a competent and careful driver and it would be obvious to a careful and competent driver that driving in that way would be dangerous.  Dangerous is defined as danger either of injury to any person or serious damage to property.  Regard must of course be had to all the circumstances of the case including the nature, condition and use of the road concerned at the material time, the amount of traffic which is actually on the road concerned at the material time which might or might reasonably be expected to be on the road and the circumstances including the physical condition of the accused.  Also, any other circumstances shown to be within the knowledge of the accused.

31.  Since the danger has to be obvious to a competent and careful driver, the court has to adopt an objective test by considering the facts of each case from the perspective of a competent and careful driver.  Therefore, as in the case of careless driving, the subjective mindset for an individual driver is not a determining factor.  Examples of what is normally said to be dangerous driving would be examples of racing in a car, running a red light, deliberately excessive speeding or driving a vehicle known to be overloaded or dangerous.

32.  This being a criminal case, the prosecution must prove this case beyond reasonable doubt.  Furthermore, where any inference is to be drawn from facts already proved, that inference must be capable of being drawn beyond a reasonable doubt.  It must be the only reasonable inference that can be drawn in the circumstances.  I also note in this case the defendant gave evidence and she is of clear record.  That is relevant to the consideration of both the credibility of her evidence and the reliability of her as a witness.  In this case, the prosecution would say the defendant was simply mistaken about what she had done. 

33.  The resolution of the issue will be as follows:

In submissions, the defence had pointed the court to the photographs taken of the vehicle after the impact. This showed that the gear shifter was in “P” position. This was taken after the police photographer had arrived at the location. They said that was in accordance with the defendant’s evidence that she had done this action, namely placed the car in the “P” gear. However, the prosecution pointed the court to the CCTV recording taken at the time from a camera above the windscreen of the vehicle. This recording was contemporaneous with the impact of the vehicle and the immediate aftermath of the accident. This recording showed that at the time of the collision at the bottom of Peel Street, the gear shifter was not in the “P” gear position and it can be somewhat indistinct but can be made out to be in either the “D” or “L” position, which is entirely consistent with the evidence of the prosecution expert witnesses whose evidence was the Hill Hold function which is observed would only operate when the car was in the “D” or “L” position. This is also the position of the manufacturer, as can be seen from the vehicle handbook which was produced, if the Hill Hold function is engaged, the car could not have been placed in the “P” gear.

34.  The CCTV recording also showed that after collision a number of people accessed the driver’s position in the vehicle. The inference to be drawn from their actions is that they were attempting to secure the vehicle from further movement.  Obviously to do that, they would need to place the car into the “P” parking gear.  This would appear to be the logical and simplest explanation of why the car was found to be in the parking gear whereas it had not been in that position earlier from the contemporaneous recording from the CCTV camera.  The people who accessed the driver’s position there could also be seen to be accessing the area of the gear shift as well. 

35.  I found that this evidence clearly rendered the evidence of DW3 somewhat otiose for if the gear shifter was set to “D” or “L” when the defendant left the vehicle then the defendant’s evidence was that she placed the car in the “P” gear must be incorrect or mistaken. Thus, the possibility of the vehicle jumping out of the “P” gear is eliminated and there could be no criticism of PW6 for failure to examine this somewhat remote possibility.

36.  I also noted that DW3’s evidence about the accident did not accord with any of the defendant’s evidence about how she acted in relation to securing the car.   In fact, I found DW3’s evidence to be somewhat unhelpful and not useful at all as it dealt with remote speculative possibilities that are excluded by the actual objective evidence of how the accident occurred.

37.  I found it to be clear on the evidence that the defendant’s evidence about what she did at the material time cannot be accepted.  It is in contradiction with the known facts.  Firstly, the defendant could not have properly engaged the foot parking gear for PW6’s evidence, which was not contradicted, was that the proper application of this gear would have prevented the car from rolling downhill even if no other steps would have been taken to secure the vehicle.

38.  Secondly, the vehicle could not have been placed in the “P” gear as she stated, because it is clear from the CCTV recording that the car would have been placed in the “D” or “L” gear before it commenced rolling backwards.  This is supported by the evidence of PW5 that the Hill Hold function was engaged on the vehicle which would only be engaged if the car was in “D” or “L” gear at the time.  Therefore, the defendant failed to take these two obvious steps to secure the vehicle on the slope.  It is not disputed she did not turn the wheel or switch the car engine off. 

39.  It is clear from the formulation of the offence in the legislation that whether the defendant thought she had done these things does not go and so criminal responsibility on this charge an objective standard is imposed.

40.  Finally, I also found the evidence of PW6 and 7 showed that there were no mechanical issues in the functioning of this vehicle which would account for its rolling backwards.  In these circumstances, I found PW6’s examination of the vehicle was exhaustive and would clearly have surfaced any issues with the vehicle.  The existence of the code faults had no effect on the functioning of the vehicle and did not require any further examination advanced that conducted by PW6. 

41.  The objective facts show the defendant did not turn off the ignition, turn the wheel to prevent the car from moving backwards in a straight line, thirdly, engage the “P” gear, or fourth, engage the parking brake.

42.  The other circumstances I must examine is the steep slope and the presence of many people and pedestrians and other users on the slope below creating an obvious risk that any failure to secure the vehicle would lead to catastrophic consequences.  Failure to take the necessary acts in this case leads to be clear objective risk of not just damage or injury but severe damage or injury and must constitute conduct that falls far below the standard of a competent and careful driver in all those circumstances.  In fact, in the case such as this, drivers should not even leave the vehicle until he is absolutely satisfied that the vehicle cannot roll backwards.

43.  Giving my findings on these matters, I find that I must convict the defendant on both the charges on the indictment as they are charged, namely that of dangerous driving causing both death and grievous bodily harm.  That is the finding of the court.