HKSAR v. Tam Chung Sang

DCCC 782/2017

[2018] HKDC 670

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 782 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, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.

2.The accident occurred on part of a dual carriageway where a green man pedestrian crossing is located.

3.The deceased was on that crossing at the time that the defendant’s car struck him, thereby causing his death.  The deceased was crossing against a red man light that governed the crossing at that time.

4.The prosecution say the defendant’s driving was dangerous by reason of his excessive speed and inattention when driving towards a pedestrian crossing.

5.The defendant contends that this is purely and simply an accident.  The defendant was distracted by a vehicle reversing at the junction where the traffic lights are situated and the deceased walking across the crossing against the red man light, and finally running into the path of his vehicle whilst he, the defendant, tried to exit the junction.

6.The evidence was largely undisputed.  The defendant was driving a private car southbound on Po Hong Road in Tseung Kwan O.  This is a dual carriageway.  He approached the junction of Po Hong Road and Tong Ming Street.  This junction is controlled by traffic lights.  There is a pedestrian crossing at this junction.  The speed limit on Po Hong Road is generally 70 kilometres per hour.  It reduces to 50 kilometres per hour 101 metres from the white stop line at the junction.  The reduction in speed limit is indicated by two signs further down the road.  The 50 kilometre speed limit is shown both on the road and by signs at the side of the road.

7.At the time of the accident, the road conditions were fine and traffic flow was light.  It was around 7.15 pm on 18 December 2016.  Therefore, it was after nightfall, but driving conditions and lighting were good.

8.The deceased was crossing southbound Po Hong Road at a pedestrian crossing.  The defendant’s vehicle collided with the deceased.  The deceased was thrown into the air.  The collision caused the deceased’s death.  At the time the deceased entered the southbound carriageway at Po Hong Road, there was a red man showing in the traffic light governing the dual carriageway he entered.

9.A number of witnesses were called and gave their impression of the accident.  PW1 was the driver of a private car and PW2 was his passenger, his wife.  Just prior to the accident PW1 was reversing his private car from the access road outside the car park to Tseung Kwan O sports ground.  He was reversing into Po Hong Road.  The access road is just before the junction on the southbound carriageway.  Both PW1 and PW2 were observing the oncoming traffic, and PW1 had reversed about one foot into the carriageway.

10.PW1 described the defendant’s private car as travelling very fast.  He saw it collide with the deceased.  PW2 said the defendant’s vehicle travelled at high speed.

11.PW3 was travelling on the northbound carriageway and had stopped at the traffic lights at the junction.  He heard the collision of the vehicle and the deceased.  His car is fitted with a video camera, which showed the defendant’s car entering the junction.  The sound of the defendant’s car horn can be identified on the recording.  PW3 had also heard braking sounds immediately before the collision.

12.PW4 was also parked at the northbound junction, saw the collision, heard the sound of the horn, and saw the pedestrian run into the course of the defendant’s private car.

13.The management officer of Beverly Hill, a development adjacent to the junction, produced their CCTV of the junction which shows the collision.  The deceased can be seen walking to the traffic island in the middle of Po Hong Road and then walking out onto the carriageway against the red man signal.  He appears to see the defendant’s vehicle and then tries to run across the rest of the road to reach safety.  He is unable to do so and is hit early on.

14.This CCTV recording was analysed by a Dr Cheng, who was called as an expert witness.  He reached certain conclusions about the speed of the defendant’s vehicle at that junction.  He concluded that from the CCTV footage available, the speed of the defendant’s vehicle around the time it reached the pedestrian crossing was 66 kilometres per hour with give or take 7 kilometres per hour for error.  He was also able to analyse the sequence of the traffic lights on southbound Po Hong Road. They turned from green to amber at 19:15:22.  Three seconds later, they turned to red at 19:15:25.  Then at 19:15:27 the front of the defendant’s private car reached the pedestrian crossing.  He concluded that at a constant speed of 66 kilometres per hour the light governing southbound Po Hong Road would have changed from green to amber whilst the defendant’s vehicle was 50 metres from the white stop line to the junction.  If a more favourable speed to the defendant of 59 kilometres was assumed which is within the error rate of Dr Cheng’s calculation, then the defendant’s vehicle would have been around 41 metres from the stop line to the junction when the lights changed from green to amber on southbound Po Hong Road.

15.The defendant’s explanation was given at the time and also by him in evidence at trial.  At the time, he said he was driving southbound on Po Hong Road.  He saw at the road entrance to his left a private car with reversing lights on, so he flashed his headlights.  He then looked to his front again and saw the old man - that is, the deceased - one to two steps to the right side of the pedestrian crossing.  He sounded his horn again and swerved to the left.  The old man dashed forward.  He - that is, the defendant - was not able to stop in time.

16.The defendant told another police officer that he saw the traffic light was green in his favour.  He then noticed the car reversing out of Tseung Kwan O sports ground.  He continued on.  The deceased went out from the crossing onto the southbound carriageway of Po Hong Road.  He sounded his horn and turned to the left to avoid a collision.  The deceased heard the horn, did not step back, and rushed forward.  The front part of the defendant’s vehicle hit him.

17.In his evidence it was established the defendant had a clear record and no convictions for careless or dangerous driving.  The defendant’s evidence was consistent with what he had told the police earlier. He recalled reaching the 50 kilometre sign.  He said there was no traffic in front of him.  He was travelling at 50 kilometres per hour, but he did not check the speedometer; that was an estimate.  He saw the vehicle reversing at the junction.  He sounded the horn and used high beam to warn him.  He looked ahead again.  He saw the pedestrian walk out from the safety island at about one step.  He was then about two private car lengths away.  He sounded the horn, braked, and swerved left.  He did not expect the deceased to run forward, and would have avoided him if he did not.

18.In cross-examination he agreed with prosecuting counsel that he, the defendant, was travelling at at least 59 kilometres per hour.

19.In resolving the issue disclosed by the evidence, various legal considerations must be borne in mind.  Firstly, that the burden of proof lies on the prosecution at all times in this trial.  They must prove the case beyond reasonable doubt.  Secondly, the defendant is of clear record, certainly relevant to his propensity to commit offences of this nature and also to the reliability and credibility of the evidence he has given before me.

20.As far as the offence under section 36(1) of Cap 374 is concerned, the prosecution must establish beyond reasonable doubt that the defendant’s driving fell what is described as far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous.  We can see that from section 36, subsections (4) and (5), and subsection (7) sets out the circumstances that would be expected of a competent and careful driver.

21.This says that in determining what is dangerous, all the 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.

22.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.

23.I note that the accident occurred at what is called a green man crossing.  The Road Users’ Code does contain certain directions for drivers at green man crossings.  They do not have the force of law, but they are matters that should be considered.  They say that the driver is to give way to any pedestrians on the crossing.  The elderly, the disabled, and people with children may need extra time to cross.  It says to the driver that when the green light shows, presumably in his favour, “You may go forward if there are no pedestrians on the crossing and there is room for you to do so.”

24.Also in Hong Kong in the case of HKSAR v Yu Wing Sing CACC 33/2012, the Court of Appeal dealt with a case involving a pedestrian crossing on a green man crossing who was struck by a vehicle, and the deceased was crossing when the light was red for him.  The court said that the defendant driver ignored the person crossing, and they described his overlooking was such as to be a continuous and reckless course of conduct, and as such, his driving objectively reached a dangerous level.

25.The objective standard is that of a competent and careful driver.  To fall below that standard is to drive carelessly.  That offence of careless driving is an alternative available verdict on this charge and should be considered if dangerous driving is not established.

26.Examples of careless driving are such things as inadvertent mistakes such as inadvertently driving through a red light or emerging from a side road into the path of another vehicle, or short distractions like putting on a radio, a momentary negligent error of judgment or a single negligent manoeuvre.  Dangerous driving is where the standard of driving falls far below this standard and it would be obvious to a competent and careful driver that driving in such a way is dangerous.

27.Examples of such dangerous driving are aggressive driving, and falling within that are sudden lane changes, racing or competitive driving, or, as the prosecution would say here, using highly inappropriate speed.  Another example would be driving a vehicle with a disregard of traffic lights or other signs and conditions which, on an objective analysis, appear to be deliberate.

28.There were objective standards that have been established.  Those facts are that at the material time, the defendant’s speed was at least 59 kilometres per hour based on the defendant’s own answer in cross-examination, and taken at its most generous interpretation, the analysis of Dr Cheng.  The amber light would have appeared when the defendant was at least 41 metres from the stop line on the junction based on the duration of the amber light being three seconds and the speed range established for the vehicle.  The light governing the southbound carriageway for the defendant was red at the time of his collision with the deceased, and that the collision, it would appear, occurred some five seconds after the amber light appeared on the southbound carriageway traffic light.

29.It was established that the defendant had noticed the car reversing into Po Hong Road, and we can see that, in fact, on one of the CCTV recordings.  However, this car was only ever one foot into the road carriageway of Po Hong Road.  It never constituted an obstruction.  At most, it was a momentary distraction, and the defendant passed it at what was described by both independent observers as at a high speed.  Although the defendant cannot be said to have jumped the lights, clearly the changing of the lights to amber would require an added caution from the defendant when approaching the junction.

30.My conclusion, after hearing all this evidence, is that the defendant’s speed was too high when approaching a traffic light controlled junction with green man pedestrian crossing in an urban area at night time.  He does not appear to have appreciated the light change that was occurring as he approached the junction, and took no steps to reduce his speed given that pedestrians were and must have been present in the vicinity of these crossings. 

31.There is therefore a speed which is excessively high for the objective circumstances, coupled with a disregard for signage containing warnings, and the objective risk in the form of pedestrians using the crossing.

32.This combination of factors evidences that the defendant’s standard of driving was both continuous and continued in the presence of objective external risks that were ignored or unappreciated.

33.That is driving that I find to be proved to be far below the standard of a competent and careful driver.

34.Although the deceased ran into the defendant’s evasive manoeuvre, this does not remit the defendant from the liability of his own dangerous driving, which was overall causative of the deceased’s death.

35.I therefore find the prosecution proved all the elements of this charge the defendant faces, and I convict him accordingly.