HKSAR v. FRANKLIN FELIX UKOMAH

HCMA 331/2020

[2021] HKCFI 2282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 331 OF 2020

(ON APPEAL FROM KCS 502765 OF 2020)

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JUDGMENT

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Introduction

1.  On 5 October 2020, the defendant was found guilty after trial before Yu Chun Pong, Special Magistrate, at Kowloon City Magistrates’ Courts of careless driving contrary to s38(1) of the Road Traffic Ordinance, Cap 374.  He was sentenced to a fine of HK$2,500 and was ordered to attend and complete the Driving Improvement Course within three months.

2.  By reason of his Notice of Appeal dated 5 October 2020, the appellant now appeals against his conviction.  He maintains that the conviction was against the weight of the evidence and that there was insufficient evidence to found a conviction.

Facts of the Case

3.  The offence took place on 13 August 2019, within the Lion Rock Tunnel at 3.24 p.m.  The CCTV footage from the tunnel [P4] and the car camera footage [D1] both recorded the incident and were admitted.  According to the Statement of Findings, that evidence shows the appellant’s Mercedes motor vehicle with registration number TN2298 remained at a constant speed throughout on a constant path without deviation up to the moment of impact with the offside kerb which damaged the vehicle.

4.  According to the Statement of Findings[1], the appellant gave evidence and stated that the steering wheel airbag had suddenly inflated within the vehicle, causing the vehicle to start to drift to the left which resulted in the appellant swerving to the right and braking.  He put on his hazard lights and then he collided with the kerb, whereupon the other airbags within the car inflated.

5.  The learned Magistrate found there was no independent evidence of the stage at which individual airbags inflated[2].  The admitted digital evidence did not support either the veer to the left nor a subsequent deliberate swerve to the right rather than a gradual curve towards the point of impact.  In addition, there was no evidence to indicate that the vehicle’s hazard lights were turned on at the stage suggested by the appellant. Accordingly, the Magistrate did not accept the appellant as a credible witness.

Grounds of Appeal against Sentence

6.  By way of a letter dated 3 November 2020, the appellant was required to lodge his Perfected Grounds of Appeal within 21 days and his written submissions 35 days thereafter.  The appellant explained that he had considered that his original grounds adequately summed up his appeal.  He did submit his argument in writing before the Court and with assistance his case was outlined in a clear and logical manner.

The Defence Case on Appeal

7.  There was no transcript of the proceedings before the Court.  The appellant outlined his version of events clearly.  This was not disputed by the Respondent.  He had been driving within the Lion Rock Tunnel on the day in question and was in the outside lane when the airbag in the steering wheel suddenly inflated.  He was shocked by this event and felt the car move to the left through the steering wheel but at all times his vision was now blocked.  He sought to compensate by manoeuvring the vehicle to the right, initially to bring the vehicle back to centre but also and almost simultaneously to bring it to the right of the lane as he did not want to drive left into the slower lane and he was conscious of vehicles behind him.  His thought process in this split second was to position himself as far to the right of the fast lane as possible in order to allow vehicles behind him to pass on his near side.  He clearly had to come to a halt as soon as possible.

8.  The appellant submits that as he started to correct the steering wheel and manoeuvre to the right, he also slowed but did not carry out an emergency brake because of the following vehicles.  He attempted more than once to put on his hazards and he did so before he collided with the kerb.  He had no idea of the distance he covered during this time but thought it was more than 5 metres.  He climbed the kerb and was coming to a stop when the vehicle was caught within a floodwater outlet.  He had been injured by the airbag but not by the collision.  No other vehicle was damaged nor any other person injured.

9.  He submits that he did not suggest that he had swerved to the magistrate, in the sense that he made an erratic manoeuvre, but that when the prosecution and the magistrate were asking him questions at the same time, he may have agreed with their wording.  It was no part of his case that he swerved.  He does maintain he slowed down and that he put on his hazard lights.

Analysis

10.  I have had the opportunity to view both the CCTV [P4] and the car camera footage [D1].  They were played several times at differing speeds.  The timing is slightly out between the two and some adjustment as to timing therefore needs to be made, but it is clear that the CCTV footage only shows part of the events.  In the CCTV footage [P4], the appellant’s vehicle only comes into view at 15:24:11 as it turns to 15:24:12, and at 15:24:13 it already comes into contact with the kerb for the first time.  This is just a second after appearing.  This footage is therefore pertinent to the imminent impact of the car with the kerb and not to any earlier action.  Hitting the kerb should not in its own right have caused any problem as the car could simply have corrected its position, but the Lion Rock Tunnel has substantial floodwater outlets running off the road into the kerb at short intervals and the vehicle immediately hit an outlet which caused the car to jolt and required the driver to regain control as it road over a number of outlets.  It appeared that the driver took about 6 to 10 seconds and some 10 to 20 metres to regain control and come to a stop, but was all along driving slowly on the far right side of the fast lane.  This cannot be seen on the CCTV footage.  The appellant did so without causing any harm to the following vehicles.  As for the hazard lights, there is some difficulty distinguishing hazard lights within the tunnel.  Other vehicles, which had put on their hazard warning lights, displayed clear white flashing lights and some displayed red flashing lights.  I found that the appellant’s vehicle did in fact put on hazards at approximately 15:24:15 although it was not clear because of the distance and the lighting within the tunnel.  This was before the car came to a halt and after it hit the kerb for the first time.

11.  The car camera footage [D1], was from left of centre of the vehicle and did not cover the dash board or driver.  It also had audio and music was playing.  Fortunately, the Mercedes vehicle had a prominent Mercedes badge in the centre front of the bonnet which provided a reference point with the double white lines on the centre of the road.  This footage commenced much earlier as it follows the vehicle into the tunnel.  There is a slight time difference of something in the order of 9 seconds between P4 and D1.  This is very approximate and D1 is ahead of P4.  At about 15:24:08 (according to D1), there is a slight noise in the audio as if either someone on the music or the driver exclaims gently.  It is momentary and not particularly significant but thereafter the vehicle can indeed be seen to drift slightly to the left towards and over the double white lines.  On the timing delay, this would have occurred before the vehicle can be picked up by P4.  The vehicle does appear to maintain speed for about 6 seconds and is moving gently away from the middle of the road and to the right hand side.  According to the car camera, the vehicle slows slightly and then hits the kerb at 15:24:22.  It does not appear to ride up the kerb but can be seen to be jolted by the floodwater outlets as it hits them.

12.  I also had the benefit of the appellant’s submissions and could therefore assess him as a witness even though he was not in the witness box.  With assistance he gave a clear and logical account of the events.  He appeared to be careful and thoughtful about his submissions and I consider he attempted to assist the Court in understanding what had occurred in the Court below.

Conclusion

13.  There was no evidence before the Court that the steering wheel airbag did not inflate prematurely.  Given the acceptance by the expert witness that he could not say when that airbag had inflated and that airbags are known to inflate without good reason, the evidence by the appellant is not inherently improbable and the appellant should have been given the benefit of the doubt. In this respect the magistrate erred when he found that the airbag had not inflated[3]. Indeed, it appears as if the magistrate’s reasoning in this respect was premised upon his earlier rejection of the appellant’s case in respect of the vehicles move to the left then right, his deceleration and the use of his hazards.  The magistrate fell into error by assuming that if he had found against the defendant on the other matters, it followed that he was not telling the truth as to the airbag.

14.  This finding was crucial to the later reasoning of the magistrate, for if his airbag had inflated, it may have followed that the steering wheel may have been affected at the time of activation.  It may have also followed that the driver would initially have significant loss of attention and/or vision at the time of impact of the airbag and it may have followed from that point onwards that his ability to manoeuvre the car and see the road ahead was impaired by the fully inflated airbag in his face and chest.  If that were the case, it may have been that the car did move to the left and present a hazard to vehicles in the slow lane or, it would not be inherently improbable that the driver may have believed the car to be pulling to the left or right, because of the activation of the airbag from the steering wheel.  If so, a reasonable driver in the fast lane would be conscious of the need to be aware of traffic in the slow lane which would be gaining on the stricken vehicle.  A reasonable driver in the situation of someone with an activated steering wheel airbag, may attempt to correct the car’s position but would have very little vision or physical manoeuvrability to do so.  He may, at the same time, be conscious of following traffic.  An emergency stop in the middle of the fast lane would not be an obvious manoeuvre.  Nor would it be advisable. In this case, the appellant sought to give all other traffic the most room by driving to the right and coming to a stop at sufficient speed not to allow further injury to the driver and allowing all other vehicles to pass.  In the event they had sufficient warning to slow and come to a stop.

15.  The Magistrate was plainly wrong in his findings from P4 and D1.  There was a movement to the left and a following movement to the right.  Whilst the vehicle did not brake suddenly, after 6 seconds it slowed.  There is a possibility that the hazards were in fact activated.  The magistrate erred thereafter when, having rejected the whole of the appellant’s case, he did not explain his rationale for finding the prosecution’s case proved beyond reasonable doubt.  In this respect Mr Liu sought to assist.  It was Mr Liu’s contention, on his case at its highest i.e. that the airbag did not inflate, that merely hitting a kerb is sufficient to attract criminal liability without more unless there was good reason for it. I beg to differ.  There are many reasons why a vehicle might clip a kerb.  Not all of them because a child runs out or an obstacle is unexpectedly in the way.  All of the circumstances must be taken into account including the width of the road, the type of vehicle, the visibility from the driver’s seat of the kerb, the type of kerb; the traffic; the weather and the geography of the location to name but a few.  All drivers will clip a kerb at some time in their driving careers and very few would be considered to be driving without due care and attention sufficient to warrant punitive sanctions.  Something more is surely required to attract public censure and criminal liability.  Something which suggests that a driver is on notice that he should pay even more attention than that ordinarily expected of him as a careful and considerate road user.

16.  As it is, this Court found that the benefit of the doubt as to the airbag should have gone to the appellant in the circumstances of this case.  That did not occur.  Mr Liu rightly conceded that if that had been done, the magistrate would then have to assess the reaction of the appellant to that event and whether he had reacted with due care and skill thereafter.  That cannot be gainsaid.  Having drifted to the left, the vehicle was brought back to its proper lane thereby reducing the risk to vehicles in the slow lane.  Having brought the vehicle back to the fast lane the appellant manoeuvred it towards the right hand side in order to come to a controlled halt.  Unfortunately, he clipped the kerb and the floodwater drain which caused an unexpected problem and the car was temporarily out of control for a matter of 9 seconds or so as it hit subsequent drains at which point it was brought to a stop without harm to following vehicles.  That being the case or possibly the case, the appellant was not guilty of driving carelessly.

17.  This appeal is allowed.  The appellant must be repaid the $2,500 paid by way of fine and all relevant points should be stricken from his driving record.