HKSAR v. Cheung Kee Hung
Read the full judgment text of DCCC 526/2017 on BabelCite. This District Court judgment was delivered on 13 December 2018.
1. This is a very sad case indeed. On 19 November 2016 at about 1:37 pm, Mr and Mrs Lam, together with their younger son, Yun-sang, were on their way from home, which was in San Tin village, to Sheung Shui. Their plan that afternoon was to catch the yellow bus at Castle Peak Road, San Tin section, which I will simply call Castle Peak Road from now on.
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DCCC 526/2017 [2018] HKDC 1638 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 526 OF 2017 --------------------------
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----------------------------------------- REASONS FOR VERDICT ----------------------------------------- 1.This is a very sad case indeed. On 19 November 2016 at about 1:37 pm, Mr and Mrs Lam, together with their younger son, Yun-sang, were on their way from home, which was in San Tin village, to Sheung Shui. Their plan that afternoon was to catch the yellow bus at Castle Peak Road, San Tin section, which I will simply call Castle Peak Road from now on. 2.This they did by first walking along the pavement on the right side of Tung Wing On Road after they came out from the village. When reaching the junction with Castle Peak Road, they would cross to the other side of Tung Wing On Road and continue to walk along Castle Peak Road in Sheung Shui direction. 3.When they were getting close to the said junction, Mr Lam, who was holding the hand of Yun-sang, crossed Tung Wing On Road with Yun-sang. Mrs Lam was following a little behind. 4.In the meantime, the defendant, who was driving a light goods vehicle with the registration number of KV1218, was turning right into Tung Wing On Road from the Yuen Long bound carriageway of Castle Peak Road. The defendant’s vehicle ran into Mr Lam and Yun-sang, resulting in some very serious injuries to the latter from which he died shortly thereafter. 5.The defendant, following the accident, was charged with causing death by dangerous driving. He pleaded not guilty to the charge, but admits careless driving. The prosecution declined to accept the lesser plea, and a trial ensued. 6.At the trial a set of Admitted Facts, Exhibit P1, was produced. This deals with a number of matters including:-
7.On top of these there were also the medical reports, one for Yun-sang and the other one for Mr Lam, and there is also of course before me the autopsy report for Yun-sang. These reports were respectively marked as Exhibit P10, 11 and 12 respectively. 8.Apart from the above, five witnesses were called by the prosecution, and that does not include the rebuttal witness, whom I shall deal with later. 9.PW1 was Mr Lam Ming-fai. Mr Lam is a 53-year-old gentleman. He is a transport worker by occupation. He is married to PW2, Madam Zhu Shiqiu. The couple had two children. Yun-sang was the younger one and was 6 years old at the time of the accident. 10.On 19 November 2016, which was a Saturday, a day on which Mr Lam did not have to work, he and his wife planned to go to Sheung Shui in the afternoon with Yun-sang. Apparently Mr Lam was not paying much attention to the time, because when asked, he said they set off at around 12 o’clock to 1 o’clock. After coming out from the village, they were walking down Tung Wing On Road, using the pavement on the right side of the road until they went past the entrance to the open car park of Fortune Nine or “Kau Kei”. After they walked past the entrance to the car park they reached the studded area. This is where the crossing was at the material time. This crossing was described as an uncontrolled cautionary crossing in the Transport Planning and Design Manual, and by reason of its design and the presence of the yellow studs in the ground was clearly meant to be a crossing place. 11.According to Mr Lam, he and his family stopped at or near the yellow studs on the floor with the intention to cross to the other side of the road. Up to that point, Mrs Lam was the one holding the hand of Yun-sang, as could indeed be seen on the video footage produced as Exhibit P7. However, as they arrived at the studded area, Mrs Lam passed Yun-sang to her husband, as she wanted to make sure that she had got her Octopus card with her in her backpack. 12.Mr Lam then took hold of Yun-sang’s left hand with his right hand and, according to Mr Lam, while he was standing there, he checked with all three directions, namely Tung Wing On Road in the direction of San Tin village, and also Castle Peak Road in the direction of Yuen Long, and the direction of Sheung Shui. According to Mr Lam, there seemed to be a red minibus heading for Sheung Shui to his right, a little behind him, but as he knew that it is not going to turn left into Tung Wing On Road, he did not have to worry about it. After he was satisfied that no vehicle was coming in their direction, he started to cross with Yun‑sang to his right. They were abreast with each other at the time. His wife, he said, was a little behind them. 13.When he and Yun-sang were close to the central dividing line he heard his wife shouting words to the effect, “Hubby, there is a vehicle of ‘Kau Kei’”. He tried to turn his head to that side to look, but the defendant’s vehicle was already closing in. All that he managed to see as he turned was the windscreen of the defendant’s vehicle, and then he was hit on his right, tossed up, and thrown to what he felt was a fair distance away. 14.After he landed on the ground, he pulled himself up and tried to look for Yun-sang. In the course of that he saw the driver and accused the driver of bad driving. 15.The defendant’s vehicle at that time, according to Mr Lam, was about 10 feet away. At any rate, after looking around, Mr Lam eventually found Yun-sang lying underneath the defendant’s vehicle. The boy’s head, he said, was just in front of the rear wheel and his legs were just behind the front wheel. Clearly, Yun-sang was barely alive at that point. As Mr Lam scooped him up, Yun-sang was having blood run down from his mouth and was not responding. Mr Lam then asked Mrs Lam to call the police, which she did. 16.In cross-examination the following issues were taken by defence counsel: one, the defence suggested that there was a queue of traffic on Castle Peak Road Sheung Shui bound carriageway. As a result of that, a truck had to stop at the rear right of Mr Lam just before the yellow box. To this, Mr Lam said “No, not on that day”. Mr Lam secondly was asked whether they may not have intended to take the red minibus to go to Sheung Shui. The question was asked no doubt in light of Mrs Lam’s attempt to find her Octopus card at the crossing earlier. Mr Lam’s answer is a definite no, because they would not have been able to take advantage of the child concession by taking the red minibus. 17.Considerable time was then also spent on why did Mr Lam not see the defendant’s vehicle if he had looked. Mr Lam was asked also about the observation he made on the traffic condition before he crossed, and it was put to Mr Lam that although he may be holding Yun-sang’s hand, the boy was dashing out so that he was about two feet ahead when the collision occurred. This Mr Lam very firmly rejected. 18.Mr Lam in cross-examination was also asked whether he had heard the blowing of horn or the screeching of tyres or the roaring of engine just before the collision, to which Mr Lam said he did not hear any of that. Lastly, the witness was also asked about one or two differences between what Mr Lam had said in court and what he had said in his police statement. This relates mainly to the sequence of orders he looked at the different directions of the road, and I do not think it is necessary for me to go into that here. 19.Mrs Lam was called as the second prosecution witness. Her evidence as to what happened on the day of the accident is actually quite similar to that given by PW1. Whilst agreeing that she is trying to dig her Octopus card out before Mr Lam crossed, she denied that she was planning to take the red minibus, and in explaining, she also in fact referred to the child concession which they would only be able to read by taking the bus and not the minibus. 20.Mrs Lam added in her evidence that just before PW1 walked out with Yun-sang from the pavement he had told her to come along. She was at that time a few steps behind. When she was about to follow suit she looked to her right and saw the defendant’s vehicle coming in their direction from Castle Peak Road. The defendant’s vehicle was at that time on the Yuen Long bound carriageway and was coming in, she said, at great speed like “flying towards them”. She said she did not see any indicator’s light being put on on the defendant’s vehicle, and she said also that she did not see it being stopped at Castle Peak Road before it turned into Tung Wing On Road, and like her husband, when asked by the defence, she said she did not hear any blowing of the horn, roaring of the engine or screeching of the tyres. 21.She was asked by the defence to mark on Exhibit D2, a sketch, the position of her husband and Yun-sang when they were hit, her own position at the time, and the defendant’s vehicle’s position as well. Mrs Lam maintained that her husband was hand in hand with Yun-sang and were abreast with each other at the time and she was likewise adamant that her son did not dash forward as suggested by the defence. Lastly, when she was asked about this under cross-examination, she was sure that when she shouted to her husband, she said words to the effect, “Hubby, there is a ‘Kau Kei’ car.” 22.The third witness called by the prosecution was PC34604. He did two things: basically, one, the breathalyser test, and two, inquiry with the defendant at the scene. I pause here to note, gentlemen, that when I referred to the Admitted Facts earlier I must have mixed his service number up with that of 41780. The one who did the breathalyser test was indeed PW3 and not PC41680. 23.According to PW3, whilst at the scene he asked the defendant why he hit the boy. The defendant said in reply that he was driving along Castle Peak Road in the direction of Yuen Long, but when he reached the scene of the accident, the oncoming traffic on the other lane of Castle Peak Road was congested. However, there was, he said, a gap enough for him to turn right into Tung Wing On Road. Once he turned right, he said he immediately saw a kid rushing out from the car park. He said he could not apply his brake in time and caused the accident. He said lastly that he even ran over the kid. 24.PW4 - that is, PC48780 - this officer arrived at the scene at about 1:50 p.m. on the day in question. Basically, he did three things. One, he made a sketch, and that is produced as Exhibit P13. Later, he cautioned the defendant and arrested him. The defendant’s response was, he said, recorded on Exhibit P2. Three, he took the photographs which were produced as P3. 25.Under cross-examination the officer admitted that the yellow box he has drawn on Exhibit P13 is a little longer than it really was, and at my request he revised it by putting two red lines onto the two sides of the yellow box on another sketch, Exhibit P13A, to cut away the area which was oversized. He however made it clear that the rest of the sketch, including the layout of the junction shown on it, remained correct. 26.This officer did one other thing. He talked to Mrs Lam - PW2, that is - at the hospital, and according to his witness statement, which was taken on 20 October 2017, when Mrs Lam was asked to recount what she did just before Mr Lam and their son were hit, PW2 said to the officer that she shouted out, “Hubby, car.” She did not seem, therefore, according to the officer’s statement, to have mentioned the name “Kau Kei”. However, one must add that according to the officer, Mrs Lam was emotionally unstable at the time, which is only to be expected in the circumstances, and the officer also added that when he gave the statement it was based only on some rough notes. 27.The fifth prosecution witness called was PC900. On the day of the accident he arrived at the scene at about 4 p.m., and whilst there he took the pictures which are now contained in Exhibit P4. In the afternoon of 30 December 2016 he returned to the scene with the defendant’s vehicle and took the photos now contained in Exhibit P5. These are much better used as they show what a driver could see from the driver’s seat of the defendant’s vehicle when it was at a distance of 20, 15, 10 and 5 metres respectively from the point of collision. The latter was shown in the picture by the use of a cone placed near the dividing line on Tung Wing On Road. 28.Under cross‑examination the officer agreed that when the vehicle was about 20 and 15 metres away from the point of collision the A column and the rain guard could have caused a bit of obstruction of the place where PW1 and 2 were crossing. On this, I think one must remember that for a vehicle on the move, as it moved forward and turned, what might have been previously obstructed could have become perfectly visible in the next second. Having looked at the pictures and bearing in mind the distance from the point the defendant’s vehicle was turning in from Castle Peak Road to the point of collision, the obstruction caused by the A column and the rain guard is, in my view, minimal. Certainly as the vehicle levelled out at about 10 metres from the point of collision the driver would have a completely unobstructed view of the crossing. 29.According to PW5, he returned to the scene on 11 January 2017 with PW1. On that occasion, PW1 pointed out for him the point of collision and the point where he started to cross with Yun-sang. The officer took two pictures, which were produced as P6, on that day. In these pictures one could see two traffic cones. The one in red was put there to denote the position where PW1 said he started to cross, whereas the one in red and white shows the position where PW1 said he and his son were hit. The latter was 3.9 metres away from the pavement on the side where the car park was. 30.According to PW5, whilst there is a small difference between the point of collision he was told by PW1 on that day - that is, 11 January 2017 - and the position he believed to be on 30 December 2016, the difference is not a significant one. His estimate was that the position was moved a little closer maybe by half a metre to the central dividing line on Tung Wing On Road. Lastly, the officer also confirmed under cross‑examination that by reference to one of the pictures taken by another officer he believed that the point when the defendant’s vehicle stopped after the collision, the back of that vehicle was about 3.1 metres away from the position where he placed the red and white cone. 31.After the prosecution closed its case I found that there was a case for the defendant to answer. 32.The defendant elected not to testify, which is of course within his right. However, he called an expert witness, Mr Wong Ping Wong, who in the course of his evidence produced two reports respectively marked D3 and D6, together with copies of the articles and textbooks cited in his report. Mr Wong is a seasoned forensic scientist who has spent over 30 years in that capacity with the Forensic Science Division of the Hong Kong Government Laboratory. As his qualifications, training and experience have been set out in appendix 1 of Exhibit D3, I do not think there is a need for me to repeat them here. Indeed, the prosecution has no objection to him being called as an expert on traffic reconstruction, but take issue with his expertise and hence admissibility of his evidence on one aspect. This I shall come back to shortly. 33.In Mr Wong’s report and his oral evidence in court he basically dealt with the following aspects. The first matter he dealt with was the traffic condition at the junction in question when he went to conduct his site investigation between 10:30 a.m. and 12:30 p.m. on 28 November 2017. Now, that day I note was a Tuesday, and a normal working day. According to Mr Wong, because of the traffic volume on Castle Peak Road which included a significant number of trucks, there were occasions when queues of vehicles were built up on the Sheung Shui bound carriageway of Castle Peak Road. As a result, Mr Wong said he had seen vehicles stopping on both sides of the yellow box, leaving only a gap in between for vehicles which had to turn right or left into Tung Wing On Road to go past. This is set out in some detail in paragraph 6 of Exhibit D3. 34.The second matter Mr Wong referred to in his report and evidence is the A column and the rain guard on the defendant’s vehicle. These, he said, could have caused a certain degree of obstruction of the defendant’s view when turning into Tung Wing On Road. See paragraph 8 of Exhibit D3 for details. 35.The third matter Mr Wong went into is what he has termed the age effect on the defendant’s driving. Relying on a study conducted by Mr Edwards and his colleague at the University of Calgary in 2003 which gave a mean reaction time of 1.44 seconds for older drivers (meaning people between 65 and 83 years of age), Mr Wong argued that in assessing whether the defendant had enough time to react in order to avoid the accident, the court should use that figure - that is, 1.44 second - instead of the 0.9 second which was used by the Transport Department in drawing up the stopping distance table one finds in the Road Users’ Code. 36.Indeed, it is this aspect which the prosecution is taking issue with. In the prosecution’s view, as Mr Wong personally has no expertise in the age effect and is simply taking what the authors of the University of Calgary study have come up with after a small study with limited samples, his evidence on this aspect and the analysis he then conducted on that basis should not be admitted. In support of their argument, Mr Ho for the prosecution relied on the ruling given by Deputy Judge Bruce in the case of HKSAR v McCall HCCC 446/2016. 37.In addition, the prosecution also called their own expert, Dr Cheng Yuk Ki, of the Forensic Science Division of the Hong Kong Government Laboratory, to testify in rebuttal. This again I shall come back to later. 38.The fourth matter Mr Wong dealt with was the speed which the defendant’s vehicle would have been travelling if PW2’s description is to be relied on. This aspect is the subject matter for the second report of Mr Wong, Exhibit P6. 39.What happened here is that when Mrs Lam was under cross‑examination, one of the questions put to her by Mr Grounds, for the defence, after referring to evidence about seeing the defendant’s vehicle at Castle Peak Road, the question is this: “All this must have happened in the split of a second”, and PW2 answered by agreeing to that. Now, taking that answer of PW2 literally, Mr Wong then set out to calculate in effect by way of reverse engineering the speed of the defendant’s vehicle, and came up with the figure of 23.4 metres per second or 84 kilometres per hour. 40.That is obviously not possible given the stopping position of the defendant’s vehicle after the collision, the defendant’s argument being, no doubt, that PW2’s evidence must hence be viewed with scepticism. Again, I shall deal with this point in one go later. 41.The fifth matter Mr Wong goes into is what he has called the analysis of the accident scenario set out in detail in paragraph 9 of Exhibit D3. What Mr Wong did in this section is that armed with the 1.44 second thinking time and adopting a walking speed of 1.5 metres per second and a running speed of about 3 metres per second, he tried by way of reverse engineering again to find out whether the accident could have been avoided in different scenarios. 42.When what he called Scenario A, which is broadly premised upon PW1 and 2’s evidence in court, Mr Wong came back with the conclusion that the accident could have been avoided if the defendant was travelling at a speed up to 20 kilometres per hour. This could be seen in paragraph 9.1(c)(i) and (ii) of Exhibit D3. 43.In what Mr Wong called Scenario B and C, which are both premised upon what the defendant had told the police officer, the essential feature being that Yun-sang had dashed out onto the road, Mr Wong suggested in his report that the defendant in such case might not have enough time to react and stop the vehicle. However, as he did not have the speed information for the defendant’s vehicle, he is “not able to determine the reliable position of the van at the moment that the deceased ran onto the road, and could not decide if the accident could be avoided.” 44.I pause here to note another point. In fact, the prosecution also takes issue with the walking speed used by Mr Wong in his analysis. According to Dr Cheng, this is a little higher than the figure used by the Transport Department in Hong Kong, which is 1.2 metres per second. 45.As I have mentioned earlier, after Mr Wong finished his evidence, the prosecution called Dr Cheng. Now, in short, Dr Cheng agreed that age might indeed lead to a longer thinking time on an older driver’s part, but he does not agree that the figure of 1.44 seconds of thinking time should be adopted. The sample, as I have mentioned earlier, he said is too small, and the way the drivers were tested in the study is, in his view, very different from the situation in this case where a driver was approaching a pedestrian crossing. The expectancy factor, as he called it, would have caused a significant difference. 46.In Dr Cheng’s view, in the absence of more convincing data, he is of the view that the 0.9 second thinking time adopted in Hong Kong should be used. Last week Dr Cheng also commented on the approach taken by Mr Wong in his second report; that is, D6. In short, Dr Cheng is saying that one must read PW2’s evidence with common sense. When one adds in the time needed for the citing, the thinking and the yelling out of the words, one could easily be talking about two to three seconds, if not more. To read the phrase “split of the second”, which as I said earlier was actually used by Mr Grounds in his question as to mean one second or less, which was what Mr Wong did, was both, in his view, unsafe and unfair. 47.That is the long and short of the evidence heard in this trial by the court. Discussion 48.I think it may be more convenient for the court to start with the evidence of Mr Wong as, one, there is in his case a question of admissibility, and two, that his evidence may have a bearing on how PW2’s evidence is to be assessed. 49.Without repeating the arguments put before me by the parties which they have very kindly rendered in writing and included in their final submission, I am of the view that it is really more a question of weight than admissibility. Mr Grounds’ arguments here are certainly to be preferred. 50.Having said that, however, I am far from being convinced that in the present case the court should adopt the figure of 1.44 seconds as the thinking or reaction time for the defendant. Accordingly, I have great doubts as to the calculations produced by Mr Wong on that basis. The Court of Appeal has indicated on various occasions the danger of relying on reverse engineering when some of the figures were clearly plucked out from some studies done somewhere. They were seldom helpful for a court in having to decide a case on the evidence before it. 51.In fact, I have also had doubts as to Mr Wong’s choice of the walking speed used in his calculation. However, given the conclusion I have arrived at on his choice of the thinking time, I do not think I need to go into that aspect here. 52.Also, I have no hesitation in rejecting Mr Wong’s opinion expressed in his second report, Exhibit D6. Whilst the calculations done by Mr Wong in D6 must have been correct, what Dr Cheng has said about the way PW2’s evidence should be read makes, in my view, perfect sense. What Mr Wong was doing was, in effect, splitting the hair, and does not, in my view, help with the court’s assessment. 53.On top of the above matters I should add this. According to Mr Wong, he had seen traffic queues at the time when he did his site visit, but one must remember that the day he went was, as I have said earlier, a Tuesday, a normal working day, whereas the accident happened on a Saturday afternoon. Indeed, what Mr Wong might have seen on a particular day could not possibly be taken as being necessarily the situation on the day of the accident. 54.That said, let me now come back to the evidence given by the prosecution witnesses. The only witnesses the defence is taking issue with are in fact PW1 and 2. Having looked at the way these witnesses testified in court and having considered their evidence, in particular the answers they gave under cross‑examination, I am satisfied that they are both honest and reliable witnesses. Without repeating the points taken by Mr Grounds in his cross-examination, I do not think that there is any inherent weakness or that the inconsistencies pointed out were such as to cast doubt on their reliability or credibility. 55.In PW1’s case I do not think that the difference in which side of the road he was looking at first are of any significance. In my view it is unreasonable to expect a pedestrian to be absolutely sure under the circumstances whether he had looked to his left or his right or his back. PW1 said he had looked in all these directions in a sweeping arc, and I see no reason to doubt that. 56.In fact, both PW1 and 2 have been asked under cross‑examination about their choice of crossing Tung Wing On Road at the location in question. It was put to them by Mr Grounds that it would have been much safer if they were to cross a little way back. Now, PW2 in answer has explained why she did not agree with that suggestion, and I have no reason to doubt her answer. The fact that a young man was seen on the video footage, P7, to have done that does not mean that it was necessarily dangerous for the Lam family to cross at the spot in question. 57.More importantly, in my view, the place where Mr and Mrs Lam crossed with their son being a designated place for crossing with the studs and the dropped kerbs there, I do not see how they could be blamed in any way for using that point to cross. 58.Now, there are two other things which I think I should also mention here. The first thing relates to the red minibus. The defence tried to suggest that as neither PW1 nor PW2 were able to say with any certainty exactly where that van was or whether it was still there when PW1 started to cross, they were clearly, so the defence argued, not paying attention to their surroundings. 59.I do not accept that. As PW1 explained, since the van was not coming into Tung Wing On Road, there was no reason actually for him to have to pay attention to it. 60.The second matter relates to PW2’s attempt to locate her Octopus card as they were near the studded area. The defence suggestion at one point was that maybe the family was actually going to take or considering taking the red minibus at the spot. 61.This suggestion was firmly denied by both Mr and Mrs Lam. Without repeating the reason they gave, I will simply say that the point is also without substance and does not cast any doubt, in my view, on their credibility. 62.Before I shall wrap up this part of the discussion, a word on the defendant’s claim to the officer after the accident is called for. The defendant has put before me his traffic record and his criminal record, the former certainly in his favour, and whilst he had one or two records, they were so old that I am more than willing to treat him as a man of good character, and for that reason he will have the benefit of a lesser propensity to commit an unlawful act and a greater likelihood of telling the truth. 63.However, in spite of that, I am convinced that no weight should be given to the defendant’s claim. Words he uttered to the officer were not tested as he has chosen not to testify. More importantly, they are wholly at odds with what PW1 and 2 have told the court which, as I have said earlier, I accept fully. His claim that Yun-sang had at the material time dashed out is therefore rejected. 64.On the basis of the aforesaid discussion, I find as a fact that:-
65.In my judgment, the defendant’s failure to see the family of three goes well beyond a momentary lapse of attention. Under section 36(4) of the Road Traffic Ordinance, a person is to be regarded as driving dangerously if:-
66.Under subsection (7) of the same section it is provided that in determining what would be expected of a competent and careful driver in a particular case, regard should be had to all the circumstances of the case, including, among others, the nature and use of the road, the amount of traffic which is actually on the road concerned or which might reasonably be expected to be on the road concerned. 67.Having taken all these matters into account, I am satisfied beyond a reasonable doubt that the way the defendant drove falls far below what would be expected of a competent and careful driver, and I have no doubt that it would be obvious to a competent and careful driver that driving in that way would be dangerous. 68.By reason of the matters I have just gone into, the defendant is hence convicted as charged.
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