HKSAR v. Lam Wai Shing

DCCC 706/2017

[2018] HKDC 655

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 706 OF 2017

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Reasons for Verdict

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1.The defendant faces a single charge of causing death by dangerous driving.

2.The charge arises out of a road traffic accident whereby a PLB, public light bus, driven by the defendant collided with an elderly pedestrian on a traffic light controlled crossing, causing the pedestrian’s death.

3.The pedestrian was crossing the carriageway at a time when the light controlling his access to the crossing was red.  The light controlling the PLB’s access was green.  The issue for decision in the case is whether the PLB’s driver, the defendant’s, standard of driving fell far below what would be expected of a competent or careful driver in the circumstances.

4.The defendant entered a plea of guilty to careless driving and conceded that his driving standard fell below the standard expected of a competent and careful driver.  He denied, however, that his driving fell far below that standard.

5.The background is as follows.  The general location of the accident was at a T junction where Aldrich Bay Road joins into Oi Shun Road.  The PLB driven by the defendant was driving north-east and negotiating a right turn into Aldrich Bay Road.  The junction is controlled by traffic lights.  Effectively, the defendant had to drive out across the dual carriageway and turn right into the far lane of the opposite carriageway.  On making the right turn, the driver must approach and pass through a green man crossing.

6.At the time when the defendant entered into the T junction, his light was green.  The pedestrian, the deceased, walked across the green man crossing in defiance of a red light.  On making the right turn on entering the yellow hatched area of the crossing, the PLB struck the deceased, causing his death.

7.These basic facts remained undisputed throughout.

8.The speed limit on the junction is 50 kilometres per hour.  The defendant told a police officer that at the material time he was driving the PLB at a speed of about 30 kilometres per hour on turning right into eastbound Aldrich Bay Road.  He had not paid attention to the road condition, and a black shadow appeared.  He applied the brake immediately, but still knocked down the pedestrian.  The defendant told another police officer that while he was negotiating a right turn, he looked to the left to observe the traffic condition.  When he turned his head to look to the front again, he saw a dark shadow appear in front of the PLB.

9.The speed recorder of the PLB showed that prior to the accident, the PLB accelerated from 17 kilometres per hour to 38 kilometres per hour and then slowed to 22 kilometres per hour in six seconds.  It finally came to a stop from 22 kilometres per hour in three seconds.

10.The evidence also contained the car camera footage taken from the PLB front window.  The camera is situate above the level of the driver in the middle of the front window of the PLB.  It provides a panoramic view.  The camera provided the following timings and observations. Firstly, at 16:53:28, the PLB travelled along Aldrich Bay Northeast Road towards the T junction.  At 16:53:31 the deceased can be seen walking out onto the crossing from the safety island.  At this point, the PLB begins to negotiate the right turn.  At 16:53:35.83, the deceased disappears from the bottom of the screen.  At 16:53:35.92, the screen vibrates at the moment of impact.  The PLB then stops after this.  Thus the deceased is visible from the camera for about four seconds as the right turn is negotiated.

11.The motor vehicle examiner performed a traffic accident reconstruction using a mannequin to represent the deceased.  He selected four observation points along the route of the PLB into the junction: T4, at 44.5 metres of the final position of the PLB; T3, at 34.5 metres from that position; T2, at 24 metres from that position; and finally, T1, at 15.5 metres from that position.  Using the mannequin, he determined that at points T4 to T2 inclusive, using a normal driving posture, that the driver’s view of the mannequin was completely blocked by the offside A column, though the mannequin could be seen if the driver’s head was slightly tilted away from the normal driving position.  From T1 to the point of impact is 8 metres.  At that time, 5.5 metres would be the reaction distance necessary when travelling at 22 kilometres per hour, the speed of the PLB at that point.

12.Besides the agreed evidence and the undisputed evidence, evidence was taken from PW1, a PLB passenger, from Dr Tam, on the accident reconstruction, and from the defendant.

13.PW1 had paid attention to the driving of the PLB because he thought the speed was relatively fast and the traffic lights were taken early.  He saw what he described as “the old man” walk out at the junction when they were about 20 metres away from the bus.  The pedestrian’s back was facing PW1.  He could see the upper body.  He was slow and had left the traffic island.  He thought the driver would slow down.  He did not do so.  PW1 focused on the driver and saw that the driver’s head was slightly tilted towards the left, but events moved so quickly that before he could alert the driver, the PLB had already reached the pedestrian, so the driver negotiated the bend at the normal speed, but only became aware of the problem when he tilted his head back.

14.As far as the defendant’s evidence is concerned, he said that he was aged 53.  He had spent 10 years as a PLB driver and driven this route for five years.  The weather was fine, conditions were good, he was not tired, and drove at a normal speed.  On approaching the junction, he saw the green light, and proceeded.  As he negotiated the right bend, he looked left in case a bicycle was jumping the red light.  He turned his head back to the right and saw a black shadow and applied the brake, but it was too late. He thought he looked to the left very quickly.  He was asked if he looked at the crossing to see if there was anyone there.  He said, “I could not see any person.  I looked from afar.  I saw no one.  I looked left, then turned back and saw the black shadow.”

15.As far as the law is concerned, the prosecution must establish beyond reasonable doubt that the defendant’s driving fell far below what would be expected of a competent and careful driver, and it would be obvious to a competent, careful driver that driving in that way would be dangerous.  Section 36(7) of the ordinance sets out what should be expected or obvious to a competent and careful driver.

16.The Road Users’ Code indicates for the green man crossing the driver must observe the following:  that when the green man shows you may go forward if there are no pedestrians on the crossing and there is room for you to do so.

17.To establish dangerous driving, the prosecution is required to adduce sufficient evidence to prove the requirements of section 36(4) of Cap 374 are satisfied.  In determining what is dangerous, all circumstances of the case have to be considered.  The standard is objective; specific intent to drive dangerously and the consequences of the accident are irrelevant.

18.The prosecution cannot rely on the doctrine of res ipsa loquitur.  The prosecution must usually point out what driving acts of the defendant constitute dangerous driving. 

19.The prosecution submitted the following:  that the defendant had failed to keep a proper lookout for pedestrians and failed to pay regard to the deceased at the pedestrian crossing while he, the driver, was negotiating the right turn onto the pedestrian crossing; in particular, that while turning right, the defendant had turned to look to the left for the whole time while he made the turn without looking at the stretch of road into which he was turning, thereby failing to notice the deceased or pay attention to the conditions on the green man crossing; furthermore, the defendant had not satisfied himself as to the condition of the green man crossing on entering the junction.

20.It was said as far as the existence of the blind spot identified by Dr Tam was concerned, this was not relevant, as a competent driver would need to look around the blind spot to satisfy himself as to the traffic conditions before entering the junction.

21.The prosecution refer to the case of HKSAR v Yu Wing Sing CACC 33/2012.  When dealing with a pedestrian struck on a green man crossing who was crossing on the red light, the court said that the defendant who was driving into the crossing was ignoring the persons crossing the road at the pedestrian crossing ahead and failing to see the deceased, who was slowly crossing the road nearby.  It was said the applicant continuously and recklessly overlooked the traffic conditions and the pedestrians ahead.  Since it could be determined objectively that the applicant overlooked these pedestrians, his manner of driving apparently reached the dangerous level.  In short, the dangerous driving was a continuous and reckless overlooking of the traffic conditions, especially the pedestrians ahead, this being an objective danger.

22.The defence say that this is no more than an error of judgment or momentary inattention.  The failure to register the pedestrian on entering the junction is momentary inattention.  Once the junction is entered, it is required for a competent driver to ascertain there is no risk from any of the carriageways.  A competent driver must look left in case of a cyclist going against the red light or another vehicle going against the red light and entering the direction of travel of the PLB.  The defendant simply misjudged how long to allocate to this exercise.  The timing from the camera would appear to show the defendant did this for at most two to three seconds.

23.The resolution of the issues is as follows.  The objective standard to be applied is that of a competent, careful driver.  On entering this junction, the driver faces a number of challenges.  The defendant has the green light.  All the challenges relate to a failure to observe and act on the red lights that applied to all the other junctions.  However, a competent and careful driver in the defendant’s position must firstly assess the risks that exist at the junction.

24.In this case, the major observable risk, objective risk, that exists at the time that the defendant’s vehicle entered the junction was the presence of the deceased at the safety island in the middle of the carriageway and about to proceed onto the crossing.

25.It is clear that the defendant did not appreciate this risk.  He was unaware of the deceased’s presence until shortly before impact.  Whether this was by a failure to see him or the effect of the A frame on his vision is not relevant, as the outcome is a failure to see a clear and obvious risk, a risk that PW1 was aware of from the time the PLB entered the junction.

26.Having failed to appreciate this risk, the risk that the deceased posed, matters were then compounded by his looking left.  It is clear the oncoming carriageway required attention, as there is an objective risk of the possibility of bicycles or other types of vehicles entering the junction in defiance of their red light.

27.Insofar as one analyses the defendant’s actions, he gave too much time to this exercise and was unaware of the danger unfolding right in front of his vehicle.  From the time of entering the junction to impact was a total of around four seconds.  During this time, the deceased could have been visible to the driver of the PLB, but was apparently unseen by him until possibly less than one second before impact, which meant that due to the reaction time, braking could not occur until the point of impact.

28.Is this is a series of errors of inattention and misjudgement, or a continuous and reckless course of conduct which, by overlooking the deceased, led to the defendant’s manner of driving reaching a dangerous level?

29.I consider the correct analysis is as follows. Careless driving is driving that falls below what would be expected of a competent and careful driver.  Examples of such behaviour are overtaking on the inside, inadvertent mistakes such as driving through a red light or emerging from a side road into the path of another vehicle; also short distractions such as turning on a car radio.

30.A typical piece of careless driving is a momentary negligent error of judgment or a single negligent manoeuvre so long as neither falls so far below the standard of competent and careful driver as to amount to dangerous driving.

31.Dangerous driving is where the standard of driving falls far below what would be expected of a competent and careful driver and it would be obvious to such a driver that driving in such a way would be dangerous.  Factual examples of such driving are aggressive driving such as sudden lane changes, racing or competitive driving, highly inappropriate speed, driving with an obvious defect, or using a handheld device.

32.Clearly, none of those categories are present here.  However, driving a vehicle with a disregard of traffic lights and other signs which, on an objective analysis, would appear to be deliberate, is also a form of dangerous driving.  This would appear to be the category that the defendant’s driving would fall into if it is to be considered to be dangerous.

33.The analysis is objective.  Objectively assessed, did the defendant’s disregard of the deceased’s position on the green man crossing appear to be deliberate?  This is an objective step.  The defendant’s intention is irrelevant.

34.However, the objective analysis must contain the known factors.  The defendant did not see the deceased on the safety island. The deceased started to cross when the PLB entered the junction.  The defendant says he looked; that he had a position where observation of the junction was easily possible from his position as a driver.  He did not see the deceased either because he was inattentive or his view was obscured by the A frame, and he was unaware of that.

35.Although the prosecution say the defendant admitted he did not look, in fact he said he had not paid attention to the road condition, which is a more general admission.

36.Objectively, the defendant’s failure to see the deceased at this point is a momentary negligent error of judgment.  On entering the junction, the defendant turned his attention to the risk from the other entry into the junction.  This is not negligent and required doing.  PW1 observed the defendant took too long on this manoeuvre.  The defendant turned his attention to the crossing too late to avoid the collision.

37.The reason for this is as follows.  The fact cannot be excluded that the deceased walked out recklessly.  It can be seen from the video that the deceased made no attempt to assess the road conditions and without any regard for his own safety.  This is not similar to Yu Wing Sing where pedestrians were clearing the crossing and there were no other objective risks present.  Is then the defendant’s driving, overall, is he driving objectively with a disregard that appears deliberate?

38.I believe that on assessment of all the conditions present at that junction the court cannot reach that conclusion to a certainty.  There is obviously a continuum between a bad case of careless driving and a bad case of dangerous driving.

39.I must be certain that the defendant’s driving standard falls on the side of far below.  Given the deceased’s disregard for his own safety, the defendant’s check at a junction where other risks exist, I do not find that the defendant’s driving standard could definitely be said to fall far below the objective standard.

40.Clearly, his driving is careless on the definition I have applied and on his own admission, and he will accordingly be convicted of that offence.