HKSAR v. Cheung Wai Kwan

DCCC 489/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 489 OF 2016

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Reasons for Verdict

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1.The defendant pleaded not guilty to one count of dangerous driving causing grievous bodily harm, contrary to section 36A of the Road Traffic Ordinance, Cap 374.

2.This traffic accident happened on 24 November 2015, at the junction of San Wan Road and Chi Cheong Road, Sheung Shui.  The defendant at the time was driving a light goods vehicle SW 9003.  The victim was a cyclist.  Although the defendant pleaded not guilty to dangerous driving, he did plead to the alternative of careless driving.

3.The prosecution’s case is as follows.  The victim was riding a bicycle when he was knocked down by the defendant’s vehicle at about 6.45 am that morning.  This accident happened at a traffic-light-controlled pedestrian crossing on San Wan Road.  The defendant’s vehicle had the right of way, and he was driving through a green traffic light.  The victim rode his bicycle across the pedestrian crossing against a red-man signal.  He did not have the right of way.  The victim did not walk his bike across the pedestrian crossing as advised.  He was also observed not to be wearing a helmet and appeared to have earphones in his ears. 

4.This collision was captured on the car camera. The footage captures the path the defendant’s vehicle took prior to the junction as well as the actual accident.  It is Exhibit P13.  

5.San Wan Road is a four-lane, two-way carriageway with a safety island between the northwest-bound and southeast-bound direction. Two lanes on the northwest-bound side of San Wan Road are divided by a broken white line, and the right lane has markings on the ground mandating a right turn only.  Left lane mandates traffic to travel straight ahead.  The speed limit on this stretch of road was 50 kilometres per hour.

6.The accident happened, as I have said, on the crossing but in the right-turn lane.  It is not disputed the defendant did not intend to turn right but drive straight ahead.  He was in the wrong lane.  He did not see the victim cycle out onto the crossing and did not have time to brake until the moment the vehicle hit the victim.  The victim was thrown 15 metres and lay on another traffic-light-controlled pedestrian crossing further along San Wan Road.  The photographs best show the scene, in particular, Photographs 22 and 24 of Exhibit P12, a photograph album.

7.The victim was very seriously injured and to date has not regained consciousness.  He is sadly in what can only be described as a vegetative state.  The medical reports are exhibited at P6, A to D.  There is no question he suffered grievous bodily harm as a result of the accident, but the issue is whether the defendant was driving dangerously. 

8.The vehicle and bicycle were examined.  There were no mechanical defects found.

9.The defendant was arrested that morning and made a statement under caution several months later.  That was not challenged (Exhibit P3, A and B).  The defendant was obviously also breathalysed immediately after the accident with a negative result.

10.The sketches and location of damage and debris from the accident were not challenged.  The photographs in the album P12 speak for themselves.  The skid marks were measured, and the government forensic expert conducted tests and calculated that the defendant was driving between 58 kilometres per hour and 65 kilometres per hour, but he concludes that a fair estimate would be a speed of around 60 kilometres per hour.

11.Prosecution says the defendant was speeding and in the wrong lane when he had no intention to slow down to turn right.  He also failed to pay proper attention to the pedestrian crossing ahead.  He drove dangerously when he hit the cyclist. 

12.PW1 was the first officer at the scene.  Under cross-examination, he described that stretch of road in detail.  From the accident location up ahead, the Sheung Shui KCR Station was about 100 metres away.  He agreed that before the accident location, there is a stretch of road 100 metres long where heavy goods vehicles are allowed to park in the left lane every night between 9 pm and 7 am.  That parking area ends about 180 metres before the accident location.  There is also a lay-by after that parking area where vehicles can park or stop.  This can best be seen and is illustrated by the sketch, P14.

13.PW1 also agreed in cross-examination there is a sign at the pedestrian crossing telling cyclists to dismount and walk their bikes across the road.  He also agreed that the highway code advises cyclists not to wear earphones whilst cycling.  He agreed when shown the camera footage that there was a heavy goods vehicle stopped illegally in the left lane just at or after the crossing immediately after the accident-location crossing, about 30 metres away.  Photographs D2, No. 3 and 4 illustrate that exact scenario.  He agreed that the heavy goods vehicle stopped in this manner in that lane was a hazard to road-users approaching in the same left lane like the defendant that morning. 

14.He said when he arrived at the scene, the heavy goods vehicle had already driven away.  He agreed that the defendant co-operated at the scene and told him that he was driving at about 50 to 60 kilometres per hour at the time and the traffic light was green.

15.PW2, another police officer, arrived not long after the victim had been taken to hospital.  He arrested the defendant at 8.05 am.  He took the photographs of Exhibit P12.  He agreed that the heavy goods vehicle parked up ahead in the left lane would have been illegally parked.  He agreed the defendant told him that he had the right of way, and as he drove on to the crossing, the cyclist dashed out in front of him from his right, and although he braked immediately, he hit the cyclist.

16.PW3 very helpfully measured and drew out San Wan Road on a sketch, Exhibit P14.  The lights, lay-by and pedestrian crossing can also be clearly seen in P13, the video footage.  P14 gives accurate measurements between certain landmarks.

17.PW4, Dr Cheng, the forensic expert, confirmed his report, P11.  His expertise was not challenged.  He conducted tests based on the camera footage as well as the distances and measurements from the scene.  He concluded that the defendant was travelling at about 60 kilometres per hour at the crossing.  He said in his opinion, the accident was unavoidable.  He agreed in cross-examination that even if the defendant had been driving at 40 kilometres per hour at the crossing, the accident would still have been unavoidable.  And I quote from his report, P11, at paragraph 5.1: 

“As shown in the accident footage, the cyclist appeared in the screen of the footage behind the bushes next to the safety island, and the cyclist and his bicycle became unobstructed at frame 658 when the light goods vehicle reached near the front end of the second intermittent white lane. This moment was only 0.96 seconds before the moment of the impact, and the front of the light goods vehicle was estimated less than 70 metres from the point of impact. As the reaction time of a driver inferred from the Road Users’ Code of the Transport Department is 0.9 seconds and the stopping distance of a vehicle at 40 kilometres per hour is 20 metres, the accident in my opinion was unlikely avoidable even if the driver drove the light goods vehicle at a speed of 40 kilometres per hour. It should be noted that the light goods vehicle driver’s view of the cyclist and the safety island was less clear than the view of the car camera due to the driver’s perspective being close to the offside.”

18.The reaction time referred to comes from the highway code and applies to a prudent driver. 

19.PW4 agreed that people do react differently, sometimes slower, sometimes faster.  He agreed with the defence question in cross-examination that an element of surprise can affect a reaction time. However, he also said drivers should be aware of pedestrians who dash out unexpectedly.

20.In this case, the element of surprise is neither here nor there.  The accident was unavoidable.  The defendant would not have had enough time to react unless he could have seen the cyclist earlier or the cyclist was visible at the crossing.

21.The defendant himself elected not to give evidence.  There are admitted facts, Exhibit P1.  They confirm the defendant has a clear record in Hong Kong and has been driving since 1989.  He has held a driving licence for 27 years.  Other facts that were not disputed include the defendant’s arrest, the post-recorded statement and the video-recorded interview as well as the medical reports of the victim, photographs taken at the scene as well as those of the vehicle and sketches drawn. The CCTV footage and the motor vehicle examiner’s report were also admitted.

The Law

22.A person drives dangerously in terms of section 34 of the Road Traffic Ordinance 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. 

23.Section 36(7) sets out the circumstances that should be taken into account 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 and (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. 

24.Section 36 sets out a wholly objective test, and I refer myself to HKSAR v Lam Chi Fat CACC 89 of 2011, particularly paragraph 31.  The court in Lam quoted Lord Wolff CJ in the Attorney General’s Reference No. 4 of 2000, R v GC RTR 415 at page 425:

“Whether the defendant intends to drive dangerously is not relevant to any assessment as to whether the driving was dangerous.”

I quote paragraph 31:

“Whether a person’s way of driving is dangerous is a matter to be decided objectively, but the elements of the offence of dangerous driving do not include any specific intent to drive dangerously.”

25.Speeding per se is not sufficient to establish dangerous driving, and I refer myself to the authority of DPP v Milton [2006] RTR 21 at paragraph 57.

26.The prosecution has the burden of proof to prove the defendant drove dangerously beyond reasonable doubt.  The defendant has nothing to prove.  The defendant denies dangerous driving but pleaded to careless driving.  The driving manner that was careless was driving in the right lane when he did not intend to turn right as directed and travelling at at least 10 kilometres per hour above the speed limit of 50 kilometres per hour.

27.What is not in dispute at the material time from the CCTV footage is the defendant had stopped at a set of traffic lights before the accident crossing, some 178 metres behind that crossing.  When stopped there from his right, cars turned into San Wan Road but can be seen to steer out of the left lane into the right lane because a bus was blocking the left lane at the lay-by.  The lay-by was full.  Buses and other vehicles had no choice but to stay in or move into the right lane because of this obstruction. There is no dispute that ahead of this obstruction was another obstruction in the left lane, this time just after the accident crossing some 37 metres ahead of it.  The footage shows a heavy goods vehicle parked in the left lane with its hazard lights on.  Anyone in the left lane would have again had to move into the right lane to drive past it.

28.The defendant told the police that he drove in the right lane instead of the left because of the two obstructions in the left lane.  He did not slow down nor speed up as he approached the crossing as he had the right of way.  He did not see anyone at the sides of the crossing.  The camera footage also does not show any visible pedestrians or cyclists as he approached this crossing.

29.The defence submit the defendant’s driving manner did not fall far below what would be expected of a competent and careful driver, and it would be obvious to such a driver that driving in the manner he did would be dangerous.  The defence submit the speed was not excessive and not dangerous per se nor did it cause the accident.  The defendant stayed in the right lane after the obstruction in the left lane by the lay-by because he could see another obstruction up ahead.  The defence submit this decision was not unreasonable nor dangerous driving. 

30.After careful consideration of all the evidence, I agree with those submissions.  The photographs of Exhibit D2 and CCTV show other vehicles having to take the right lane at various times or stages because of those obstructions as would have the defendant.

31.Sadly, the cyclist did cycle without any warning in front of the defendant.  He was not visible to the defendant prior to cycling across the lane.  He did not wait for a green man before he crossed nor did he walk his bike across.  The defendant could not have avoided him.  There was no forewarning to the defendant of such a danger.  It is a most tragic accident.  The defendant could have gone back into the left lane before the accident crossing, passed through it in the left lane before taking the right lane to pass the illegally-parked truck, but the fact he did not in my finding is not driving in a manner that falls far below what would be expected of a competent and careful driver.  

32.Applying the objective test, I agree with the defence submissions.  The prosecution has been unable to prove the elements of dangerous driving beyond reasonable doubt.  The defendant is acquitted of dangerous driving causing grievous bodily harm but I find the elements of careless driving proved, and in any event the defendant pleaded to that alternative charge.  He is convicted of careless driving.