Chan Ka KinHKSAR v. Chan Ka Kin

DCCC 555/2018

[2018] HKDC 1428

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 555 OF 2018

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Reasons for Verdict

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1.The defendant faces a single charge of causing grievous bodily harm by dangerous driving.

2.On 17 December 2017, a collision occurred on Tai Po Road between the defendant’s vehicle and a motorcycle driven by the first prosecution witness.  PW1 was injured and there is no dispute as to the extent of his injuries.

3.The road is a dual carriageway in the Tai Wai direction separated by a double white line.  There is a 50-kilometre speed limit at the place where the accident occurred.  Immediately prior to the scene of the accident there is a road separation by way of cylinders to prevent traffic turning right into the opposite carriageway where there is a garage.

4.The accident occurred in the afternoon.  It was daylight, good visibility.  The weather was fine.  The road was dry and there was no obstruction to the line of sight of drivers.

5.At the time of the accident, the defendant did admit that he was preparing to make a U-turn into the opposite carriageway. Both the defendant, who was in front, and the motorcyclist, who was behind his vehicle, say they were in the offside lane.

6.Now, the prosecution say that the accident occurred because the defendant had substantially executed the U-turn manoeuvre, causing PW1’s motorcycle to impact with the rear of the defendant’s vehicle.

7.The defendant, in his record of interview, said that he had made a slight right turn to the double white lines which separated the carriageways and that as he was straightening his vehicle the collision occurred.  The collision resulted in the offside headlight slightly clearing the double white lines.  He attributed the accident to PW1’s motorcycle travelling too quickly and not keeping a proper separation behind his vehicle.

8.PW1’s evidence was that he was in the offside lane closest to the traffic cones.  He said he was going straight and then the driver in front, the defendant, had made a U-turn.  PW1 said he had been three vehicles’ length behind the vehicle and the defendant’s vehicle was close to the line in the middle of the carriageway.

9.PW1 was explicit that he said that the defendant did a U-turn, he said, and he said he hit the right bodywork of the defendant’s vehicle as it turned.

10.The 1st prosecution witness had flown off his vehicle and gone into the opposite lane but had eventually crawled back into the lane where the accident had occurred.  He said that there had been no indication before turning and they were travelling about the same speed.

11.In cross-examination, he had said that they were travelling at roughly 40 kilometres per hour and the defendant had slowed down to about 30 kilometres per hour on the stretch of road.  He said it was more or less the speed.

12.He was cross-examined about not keeping an adequate distance.  He said he was aware he should have kept at least a - I think it was a - two-second distance and admitted that distance had not been maintained, although he disagreed that he had been too close.

13.He was asked about -- in a sketch that he had drawn, he had shown in that sketch the defendant’s vehicle right front side had been over the double white line and he said this:  “It was not stationary, but I cannot be sure the defendant’s vehicle passed over the double white line,” and he agreed he had hit the back of the right back corner of the defendant’s car.

14.There was another witness, a Mr Wong (PW2), who had actually seen the whole accident himself.  His account was completely at odds with that of the defendant and of the 1st prosecution witness.  He said the collision occurred when the defendant was switching lanes from the first lane to the second lane within the carriageway.  He drew a sketch to that effect.  He said the private car blocked the vehicle.  There was a collision and the vehicles were horizontal.  Of course, he places the vehicles in a different lane and describes a changing-lane manoeuvre.

15.Having said that, he did have, of course, the best view of all the witnesses I have.

16.There is no other evidence such as CCTV camera or positions of the vehicle at the time recording the time of collision, because certainly the defendant’s vehicle had been moved before the police arrived.

17.The defendant did not give or call evidence and no adverse inference can be drawn from that decision. 

18.He did give a record of interview to the police after the accident, setting out what he says happened.

19.He had said that when he reached the stretch of road where the accident occurred, his speed was approximately 20 to 30 kilometres an hour.  He decided he could make a U-turn after passing the traffic cones between the central dividing lines.

20.He looked in his mirrors - nearside, offside mirrors - and at the opposite lane to ensure there was no vehicles.  He then began to slightly turn right.  Having made that part of the turn, he found the double white lines were to the right and as he straightened his vehicle he heard a bang from behind, and that was the collision.

21.He applied his brakes, went to help the other driver.  He was worried about the position of his vehicle on the road so he decided to place his vehicle onto the opposite carriageway where it was out of the way. 

22.The defendant maintains that to be the position in relation to how the accident occurred and he says, on the basis of that, the prosecution could not make out a case of dangerous driving against him.

23.Dangerous driving is defined by the Road Traffic Ordinance, Cap 374, in section 37(4), where a person is regarded as driving dangerously if his driving falls “far below what would be expected of a competent and careful driver” and “it would be obvious to” such “a competent and careful driver that driving in that way would be dangerous”, and in determining what should be expected of a competent and careful driver, the court should refer to section 37(7), which sets out the circumstances such a driver should take cognizance of, such as the nature, and condition and use of the road; the amount of traffic; and the circumstances.

24.Prosecution say that the evidence of the defendant making a U-turn whilst another vehicle was behind him is clear evidence of driving that would fall far below that of a competent and careful driver.

25.Unfortunately for the prosecution, I do not believe that the evidence I have heard can substantially sustain that as a factual conclusion in this case, certainly not to a criminal standard.

26.I note that PW1 said in his evidence the defendant was, as he said, was executing a U-turn.  He did concede in cross-examination that he could not be sure whether the defendant’s vehicle had passed over the double white line.

27.Secondly, the 2nd prosecution witness, although he places the collision in the intersection between the first and second lanes of the carriageway, his evidence is that the defendant was changing lanes and had not at that point executed a U-turn.  That probably is the highest the prosecution case can go against the defendant.

28.As I said, I do not consider the evidence can, to a criminal standard, establish the defendant had substantially executed the U-turn he was proposing to do and that thus his driving cannot be said at the point of collision to have fallen far below the standard of a competent and careful driver.

29.However, of course, the offence under section 38(2) of careless driving still exists and is still an option to be considered in respect of the defendant’s driving in this case.  That is where the defendant drives without due care and attention or without reasonable consideration for other persons using the road.  That is where the driving falls below what would be expected of a competent and careful driver.  Again, this is an objective standard.

30.Now, I find that, on the evidence I heard, it is apparent that at the time of the accident, the defendant was proposing to execute the manoeuvre, the U-turn manoeuvre, that he describes in his cautioned statement, and, in the execution of that manoeuvre he had begun to manoeuvre his vehicle to the edge of the double white line.  The defendant had initiated the action of changing lanes.  Neither PW1 nor PW2 described any indication preceding that manoeuvre.  The defendant says in his statement that he had checked for other traffic, but, if he had done so, he certainly had not been able to or registered the existence of the motorcycle close behind him in the same lane.

31.I find that on the evidence I have heard I can be sure the defendant was proposing to execute a manoeuvre.  In pursuit of that manoeuvre, however, he had moved towards and onto the double white lines separating the carriageways.  He had altered his lane position whilst being unaware of the risk created to and by the vehicle that was following him, and I find that, as a level of driving, that must be without due care and attention or without reasonable consideration for other persons using the road.

32.So, on the evidence I have heard, I am sure to a criminal standard - that is, beyond reasonable doubt - the defendant has committed the offence of careless driving in relation to his driving in respect of this accident.

33.I note that the motorcycle may have been in too close proximity to the defendant’s car.  Accidents can have multiple causes and it does not relieve the driver - the defendant in this case - of his responsibility of driving with sufficient care and attention to other road users.

34.So I will enter a conviction of careless driving.

(T Casewell) District Judge