HKSAR v. Ghulam Raza

CACC 312/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 312 OF 2015

(ON APPEAL FROM DCCC 286 OF 2015)

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REASONS FOR JUDGMENT
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Introduction

1.The applicant appeared in the District Court on a Charge Sheet containing the following charges:

(i) causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374;

(ii) failing to stop after an accident whereby personal injury was caused to a person, contrary to section 56(1)(a) and (5) of the Road Traffic Ordinance, Cap 374;

(iii) failing to report an accident involving injury, contrary to section 56(3) and (6) of the Road Traffic Ordinance, Cap 374;

(iv) using a vehicle with stop lamps maintained other than in a clean and efficient condition, contrary to regulations 116 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulation made under the Road Traffic Ordinance, Cap 374;

(v) using a vehicle with fittings other than in good and serviceable condition, contrary to regulations 5(1)(b) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulation made under the Road Traffic Ordinance, Cap 374;

(vi) using a goods vehicle fitted with an automatic device other than capable of giving audible and sufficient warning, contrary to regulations 38(1A) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulation made under the Road Traffic Ordinance, Cap 374.

2.The applicant pleaded not guilty to charges 1 to 3 and guilty to charges 4 to 6.  Charge 5 referred to reversing lights and charge 6 to the device which emits an audio warning that the vehicle is reversing.  He was tried before District Court Judge Woodcock (“the judge”) on charges 1 to 3 and was found guilty after trial of all three charges. 

3.On 2September 2015, the applicant was sentenced by the judge on all charges as follows:

1^st charge:  (1) Two years’ imprisonment, (ii) disqualification for three years from holding or obtaining a driving licence for all classes (after day of release from prison) and (iii) to attend a Driving Instruction Course within 3 months of the last disqualification period at his own expense.

2^nd charge: Six months’ imprisonment (concurrent with 1^st charge)

3^rd charge: Three months’ imprisonment (concurrent with 1^st charge)

4^th charge: HK$1,000 fine

5^th charge: HK$1,000 fine

6^th charge: HK$1,000 fine

4.The applicant applied for leave to appeal against his convictions in respect of charges 1 to 3.  At the hearing of his application I refused it and said I would hand down my reasons for doing so at a later date.  This I now do.

The prosecution case

5.The facts of the prosecution case were quite straightforward.  The prosecution alleged that on 8 October 2014 the applicant reversed his vehicle down a road and in doing so ran over a 80 year old woman, Madam Chow Moon, who was walking away from his vehicle in the middle of the road.  Madam Chow and the applicant’s vehicle were, therefore, moving in the same direction with Madam Chow walking with her back to the rear of the applicant’s on-coming vehicle. The accident caused severe injuries to Madam Chow from which she died six days later.  There was no dispute that Madam Chow died from the injuries she sustained whilst walking on this road on the day in question.

6.The road on which the accident took place is an un-named road that provides service access to the Lok Fu Estate wet market.  It is a long, narrow road flanked by parking spaces on both sides to accommodate large vehicles.  When these parking spaces are occupied the effect is to transform the road into a single lane road, compelling vehicles which have entered the road to exit it by reversing down it. 

7.There were only two issues in this trial.  The first was whether it was the applicant’s vehicle that caused the injuries to Madam Chow.  The applicant claimed it was not and there were no eyewitnesses to the accident.  The prosecution relied on circumstantial evidence to prove that the injuries to Madam Chow were caused by the applicant’s vehicle.  The second issue, which arose only once the applicant had been found to be the cause of Madam Chow’s injuries, was whether the manner of the applicant’s driving was dangerous.

8.CCTV footage from a camera located at the scene shows Madam Chow walking down the middle of the road at 7.09 am towards the entrance of the road.  Madam Chow can be seen in the video footage walking down the road until 7:10:33 am at which time she disappears from view. 

9.On either side of the road trucks are parked creating a single lane road.  It was not disputed that the width of the road was 3.2 metres and the width of the applicant’s vehicle was 2.4 metres and its length was 6.6 metres. At 7:10:38 am the applicant commenced reversing his vehicle down the road and at this time he is the only vehicle moving on the road.

10.It is possible to see on the video footage that at 7:11:30 am the rear right side of the applicant’s 8 tonne truck rises up a little and then falls down.  The truck stops, then moves forward, and finally comes to a stop again.  It was the prosecution case that this was the moment that Madam Chow was hit and run over and that it was her body that caused the rising and falling movement of the rear right side of the applicant’s vehicle.  The defence did not dispute that this up and down motion of the applicant’s vehicle could be seen in the CCTV footage.

11.The video footage then shows people running in the direction of the applicant’s vehicle.  At 7:14:11 am the vehicle moves forward again and stops.  At 7:16:18 am the applicant reverses his vehicle around Madam Chow who is lying on the road.  The prosecution alleged that the applicant was told to stay at the scene, but that, instead, he reversed around the victim and out onto the main road and then left the area.

12.A sketch was drawn by police officers in which the location of Madam Chow was marked by reference to a bloodstain found on the road.  There was a distance of 30 metres from the bloodstain to the area where the applicant had parked his vehicle and this showed the distance that he had reversed his vehicle in order to exit the market. 

13.The prosecution called a delivery driver, PW3, whose vehicle was parked in front of the applicant’s vehicle in the last parking space on that side of the road.  This witness said that he was sure that when the applicant started to reverse his vehicle at 7:10:38 am, that he did not hear the applicant’s vehicle emit the usual audio warning sound.  According to him, there was no “beep beep beep” sound coming from the applicant’s vehicle when it was reversing. 

14.Another prosecution witness, PW4, was a nurse walking to work that morning.  She saw the victim lying on the road about 4 feet behind the rear of a vehicle whose number plate she noted. This was the number plate of the applicant’s vehicle.  She confirmed that she heard people telling the applicant not to leave but that notwithstanding this instruction he still drove away. She watched the applicant’s vehicle leave and made a note of the number plate in her phone. 

15.There was also evidence that the applicant’s vehicle was equipped with a rear-view camera, installed at the back of the vehicle, and that, when operating, it fed images to a monitor in the cabin of the vehicle.  Of course, if the monitor in the cabin was turned off or the driver was not regularly checking it, then the driver would be denied the assistance of this camera in providing a view of the area behind the vehicle. 

16.An examination of the tyres of the applicant’s vehicle revealed that the tread and outside of the right rear tyre had bloodstains on them which DNA revealed had an extremely high likelihood of being Madam Chow’s blood.  The applicant had no explanation as to how her blood came to be on the tread of his tyre. 

17.The applicant’s motor vehicle was examined for mechanical defects and this led to the 4^th – 6^th charges being laid.

The defence case

18.The applicant elected to give evidence and claimed that his vehicle’s audio warning device was working when he reversed out of the market road on the day of the accident.  He said that it must have malfunctioned after that occasion and before it was examined by the motor vehicle examiner the next day, on 9 October.  He did not accept that there was no warning noise being emitted from his vehicle when he reversed down the market road.

19.He said he reversed very slowly down the road, looking at both side mirrors and also his camera monitor at all times during the reversing process.  He said he saw nothing behind him as he reversed.  He agreed that he stopped at 7:11:34 am and moved forward a short distance.  He said he did this because he felt he was not reversing straight, so he had to move forward to straighten his vehicle before he began to reverse again.  After he moved forward to straighten up, he saw something behind him at a distance and so he got out of his vehicle to check what it was.  It was then he saw Madam Chow lying on the ground and he shouted out to people to help.  He claimed Madam Chow was then about 10 feet from the rear of his vehicle.

20.He said he later moved forward so that other vehicles could exit the road and in order to make room for the ambulance which was on its way.  He later returned to the scene of the accident when he received a telephone call from the police to do so.

21.He was cross-examined on the defects to the reversing light, the rear stop lights and the warning device that emitted sounds when the vehicle was reversing.  He said he was not aware of defects to any of those parts of his vehicle that morning.  He claimed that he was sure he heard the reversing audio device in operation that morning. 

22.He agreed that when he reversed down the road towards the victim he was the only moving vehicle on the road at that time.  He further agreed that the CCTV shows the right rear of his vehicle moving up and down as if he had run over something.  He said that he felt something that morning but did not know what it was.  He suggested that it could have been an onion, a potato or some other vegetable that he had run over.  He agreed that he immediately stopped his vehicle after it went up and down and then moved it forward, but he disagreed that he did so because he knew he had hit and run over Madam Chow. He said he did not know how the victim came to fall over and could not explain how her blood came to be on his right rear tyre, but he disagreed that it was because he had come into contact with her when he ran her over.

The Reasons for Verdict

23.The judge directed herself on the law relating to the offence of dangerous driving causing death.  She also directed herself on the legal principles relevant to the drawing of inferences. She then went on to make her findings.   

24.She said she accepted the evidence of PW3 who was the delivery driver parked in front of the applicant’s motor vehicle.  She accepted the evidence that he did not hear the audio warning system of the applicant’s vehicle operating as the applicant reversed his vehicle down the market road. 

25.As to the prosecution evidence generally the judge said:

“I have considered the prosecution witnesses’ evidence and find no discrepancy. Their evidence was not materially challenged, and I am sure they all told the truth in court. I accept their evidence, especially PW3 and PW4, in their entirety. This was, however, not a case where their credibility was of utmost importance.”

26.The judge said that he rejected the applicant’s evidence in its entirety, characterising it as inherently improbable, and explained why she had reached that conclusion. 

27.The judge found that it was the applicant who hit and ran over Madam Chow.  She said she was sure on the evidence presented to her that it was his vehicle which caused the injuries to the deceased.  She found as a fact that the moment of impact was at 7:11:30 am when the CCTV footage shows the rear of the applicant’s vehicle moving up and down.  The judge said that she was sure that the reason the applicant stopped, drove forward, and then stopped again, was because he knew he had run over something or someone. 

28.She went on to say that she was also sure that Madam Chow’s blood was on the applicant’s tyre because it was his vehicle that came into contact with her.  She said that was the only plausible explanation for the presence of her blood on his tyre.  She said it was clear from the evidence that Madam Chow’s blood did not run onto the road until after the ambulancemen turned her over and treated her.  The applicant could not, therefore, have run over her blood spilt on the road.  The judge said that she was sure it had been transferred onto his tyre at the time it impacted with Madam Chow.  

29.The judge inferred that it was the applicant who ran over Madam Chow and said that this inference was a compelling one and the one inference that no reasonable man could fail to draw from the direct facts proved. 

30.The judge then went on to consider the issue of whether the applicant had driven dangerously.  On this issue she made a finding that the applicant’s attention was primarily focussed upon the sides of his vehicle as he was concerned that his vehicle should not come into contact with any of the vehicles that were parked on either side of the road and this explained how he failed to see Madam Chow before he ran over her.  She said because he was so focussed on avoiding contact with the parked vehicles that he neglected the rear of his vehicle and this, she said, must be an act of dangerous driving.  

31.There were also present factors which would contribute to Madam Chow not being aware of the applicant’s vehicle coming towards her.  The judge found that as a result of their defects the vehicle’s lamps and its reversing audio warning device were inoperable.  The consequence was that the deceased had no audio or visual warning that the applicant’s vehicle was approaching her from behind.

32.The judge then analysed the findings she had made saying:

“I am sure if a competent and careful driver was presented the findings I have made above, he or she would find it obvious that driving in this manner was dangerous. A competent and careful driver would be expected to ensure there was no one behind his vehicle when reversing. To fail to do so for a prolonged period of time and over some distance is dangerous driving. It falls well below what would be expected of such a driver.”

33.As a consequence of this analysis she said she was sure that it had been proven that the applicant drove his vehicle dangerously and that as a result so doing he caused the death of Madam Chow.

34.She then went on to convict the applicant on charges 1, 2 and 3.  

The grounds of appeal

35.The applicant has no legal representation and has not, therefore, filed any Perfected Grounds of Appeal.  In a note attached to his Form XI he simply said he wishes to appeal his case and asserted that the conviction is not fair to him.  In a subsequentletter written to the court he said that he wishes to represent himself on his appeal as he has not been able to obtain any legal representation.  In respect of his grounds of appeal he raised four matters.  The first matter is that he claims he did not knock down anyone and there was no direct evidence of him having done so.  The second matter is that the prosecution failed to prove that his driving was dangerous driving.  The third matter is that the conviction is not safe and is only the product of circumstantial evidence which he claimed may be enough to prove careless driving by him but does not reach the standard of establishing dangerous driving.  Finally he asked the court to re-examine his whole case.

36.At the hearing of the application he handed in a letter containing grounds and facts which he relied upon in support of his appeal.  In this letter he repeated the four matters he had mentioned in his earlier letter and raised some new matters, namely:

(i) as Madam Chow was elderly and the road was wet it is possible she could have slipped and fallen over and sustained her injuries in that way; 

(ii) contact between the applicant’s vehicle and Madam Chow could not be proven by forensic evidence such as by paint or fibre;

(iii) the road is a narrow road and is a closed road;

(iv) the road is for use of goods vehicles for loading and unloading purposes;

(v) the applicant was driving at only 3-4 km/hr; and

(vi) the applicant was not intoxicated.

37.The applicant also handed to the court a second letter setting out background information on himself, a letter from his wife and a reference letter from Oudherwal Funeral Committee which described charitable services he had provided to it.

Discussion

38.I have carefully considered the Reasons for Verdict of the judge.  There is no error in the directions she gave herself on the law.  Nor can I detect any error in her analysis of the evidence.  I agree with her that whether or not the applicant was the cause of the injuries to the deceased can only be determined by the drawing of inferences. However, given the evidence presented by the prosecution in this case I have no doubt that it was open to the judge to draw the inference that those injuries were caused to the deceased by the applicant’s vehicle.  Indeed, I agree with the judge that that is the only reasonable inference that can be drawn from the facts proven.

39.Contrary to what the applicant submitted there was forensic evidence to show that his vehicle had come into contact with Madam Chow.  This was the DNA evidence in relation to the presence of Madam Chow’s blood on his right rear tyre.  This is a very compelling piece of circumstantial evidence.  

40.In view of the applicant’s suggestion that Madam Chow’s injuries might have been caused other than through contact with his vehicle I obtained copies of the medical reports and the autopsy report on Madam Chow.  These were produced at trial through paragraphs 17 and 18 of the Admitted Facts.  The two medical reports became exhibits P9 and P10 and the autopsy report became exhibit P11.  These show that Madam Chow sustained massive injuries to her body with severe blood loss.  She had a fractured pelvis which the pathologist who conducted the autopsy concluded was the cause of her death.  She also had severe injuries to both lower limbs which necessitated amputation of the left leg above the knee.  The surgeon also had to remove her spleen.  Clearly these injuries could not have been caused to Madam Chow by her simply slipping and falling onto the ground.

41.I also carefully examined what the judge had to say in respect of the element of whether the driving of the applicant was dangerous.  Again the judge carefully analysed the evidence before making findings of fact that provided a foundation for her ultimate finding that the applicant’s driving was dangerous.  In my view her analysis of the evidence is correct and the findings of fact on which she founded the conclusion that the applicant’s driving was dangerous was a conclusion open to her.

42.It is of no assistance to say, as the applicant says, that the road was narrow, was a closed road and was used for service vehicles.  None of these matters absolves the applicant of the responsibility of keeping a proper lookout for other users of this road, including pedestrian users.  Once the conclusion is reached that it was the applicant’s vehicle that caused Madam Chow’s injuries then the only reasonable inference that can explain how this came about is that the applicant was not keeping a proper lookout of the road behind his vehicle as he was reversing down it. 

43.The fact that he drove slowly and was sober are irrelevant as neither speed nor intoxication were alleged to have played any role in causing this accident.

44.I find none of the applicant’s complaints about his conviction reasonably arguable.

Conclusion

45.For these reasons I dismissed the application for leave to appeal against conviction.  I informed the applicant of the power possessed by the Court of Appeal under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.  

Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent

The applicant appeared in person