Secretary for Justice v. Cheung Kim Lun

[English Translation – 英譯本]

CACC 233/2021

[2022] HKCA 686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL CASE NO 233 OF 2021

(ON APPEAL FROM DCCC NO 331 OF 2020)

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REASONS FOR JUDGMENT

Hon M Poon JA (giving the Reasons for Judgment of the Court):

Introduction

1.The respondent was convicted after trial on “Charge 2”, namely, “wounding with intent” [1] among the five charges he faced before HH Judge Sham (“the trial judge”) in the District Court, but was found not guilty for the remaining charges, including “common assault”[2] (“Charge 1”), “causing grievous bodily harm by dangerous driving” (“Charge 3”, an alternative to “Charge 2”)[3], “failing to stop after an accident whereby personal injury was caused to a person” (“Charge 4”)[4], and “failing to report an accident involving personal injury to other persons” (“Charge 5”)[5]. On “Charge 2”, the respondent was sentenced to 30 months’ imprisonment and disqualified from driving for three years by the trial judge on 29 July 2021.

2.On 15 July 2021, the Secretary for Justice, pursuant to section 84 of the District Court Ordinance, Cap 336, appealed by way of case stated by the trial judge on the matter of law against the acquittal for Charges 4 and 5.

3.The appeal is allowed and the answer to the question of law in the stated case is “Yes” with no consequential order made.

Facts of the case and the verdict of the trial judge

4.The prosecution case was that at around 1 pm on 5 October 2019, “Mr Chin” (transliteration) (PW1) was on board a private car with his friend being the driver. When the respondent was driving his private car on his way back to his residence at Wan Tau Tong Estate in Tai Po, he cut into PW1’s lane on Nam Wan Road in Tai Po. Then, PW1’s friend tailed the respondent to the road off Wan Tau Tong Estate where both cars stopped with five metres apart. The respondent was sitting in the driver’s seat when he said to the other party, “Are [you] done tailing [me], wanna fight [?]”. PW1 alighted and went over to argue with the respondent. PW1 alleged that during the dispute, the respondent took out a metal rod to hit him and then reversed with the front of his car facing PW1, accelerated and knocked down PW1 causing PW1 to be jammed under the car for about five seconds. The respondent then stopped the car, reversed and left the scene.

5.The prosecution alleged that the respondent deliberately drove his car at PW1 to knock him down, causing PW1 grievous bodily harm. The respondent then drove away and left the scene. At no time did he make any report to the police as soon as reasonably practicable.

6.The trial judge refused to accept the contention that the respondent had mistakenly stepped on the accelerator causing the motor vehicle to dash forward and knock down PW1. He held that at the time of the incident the respondent was in conscious control of his motor vehicle, but he deliberately knocked down PW1 causing PW1 grievous bodily harm. However, the trial judge found PW1’s allegation that the respondent had attacked him with a metal rod not credible. He cited the interpretation of the word “accident” as defined in R v Morris[6] and took the view that as the respondent had deliberately used the motor vehicle as a weapon to harm other persons, that was not an “unexpected” occurrence involving the driving of a motor vehicle which caused injuries to others as referred to in Morris. He acquitted the respondent of Charges 1, 4 and 5.

Case Stated

7.It was the appellant’s contention that the trial judge had misapprehended the said case and erred in the law in ruling that the collision in the present case could not fall within the meaning of “accident” under the ordinance and acquitted the respondent. The appellant invited this court to clarify the interpretation of the word “accident” under section 56 of the Road Traffic Ordinance (“the Ordinance”), Cap 374 of the Laws of Hong Kong.

8.On the stated case signed by the trial judge on 15 October 2021, the question of law which he sought the opinion of the Court of Appeal was set out as follows:

“Did I err in finding that the respondent’s deliberate act of using a motor vehicle to harm other persons did not constitute ‘accident’ as referred to under Part 7 of the Road Traffic Ordinance, Cap 374 of the Laws of Hong Kong?”

Appellant’s submission

9.Section 56 of the Ordinance provides as follows:

“ (1) Where, owing to the presence of a vehicle on a road, an accident occurs whereby—

(a) personal injury is caused to a person other than the driver of that vehicle; or

(b) damage is caused to—

(i) a vehicle other than that vehicle or a trailer drawn thereby;

(ii) a specified animal (other than one in or on that vehicle or a trailer drawn by that vehicle); or

(iii) any other thing not being in or on that vehicle or a trailer drawn thereby,

the driver of that vehicle shall stop.

…

(3) If the accident involves injury to any person including the driver, the driver shall report the accident in person at the nearest police station or to any police officer as soon as reasonably practicable, and in any case not later than 24 hours after the accident, unless the driver is incapable of doing so by reason of injuries sustained by him in the accident.”

10.The appellant submitted that the legislative intent should be taken into account together with the usual and natural meaning of the word in construing the said provision. The meaning of “accident” under section 56 of the Ordinance should not be restricted to an unexpected occurrence involving the driving of a motor vehicle which caused injuries to others. Several English cases after R v Morris clearly stated that “accident” refers to “unintended occurrence which had an adverse physical result”, which would include unintended occurrence on the road and “occurrence arising from a deliberate act which had an adverse physical result”: Chief Constable of West Midlands Police v Billingham[7]. The appellant argued that it is clear from the English cases that from the point of view of an ordinary person and common sense, any occurrence involving collision of a motor vehicle on the road would not occur in the ordinary course and could all be regarded as “accidents”. The word “accident” is concerned with its objective consequences instead of the cause of the consequences, which does not depend on the subjective intent of the driver involved. In the light of the wording and the context of the provision, the appellant submitted that the court does not need to adopt other definitions of the word “accident” apart from its usual and natural meaning.

11.In addition, the appellant cited HKSAR v Chan Chi Keung[8], and stated that the legislative intent of section 56 is to overcome the difficulties of law enforcement when the driver in question failed to stop after an accident. If the application of the provision is restricted to “unintended” traffic accidents, it could hardly remedy the mischief that the provision seeks to tackle, but would indirectly encourage drivers to leave the scene without making a report after an “intended” accident.

Respondent’s reply

12.The respondent did not make any submission on the question of law raised in the case stated.

Our view

13.First of all, the appellant applied for a case stated and this court was invited to clarify the question of law on the construction of the word “accident”. The appellant did not ask this court to interfere with the acquittal by the trial judge for Charges 4 and 5 or to make any consequential order.

14.It was pointed out by Lord Justice Bridge in Chief Constable of West Midlands Police v Billingham[9] that the word “accident” should be construed according to an ordinary person’s understanding, taking into account the legislative intent of the provision. Two examples were given by Lord Justice Bridge:

(1)  A person maliciously placed an obstacle on the rail which caused the derailing of the train; and

(2)  A drunken driver deliberately drove at another person’s vehicle.

Under these circumstances, an ordinary person would find that traffic accidents had occurred[10]. Therefore, the word “accident” is capable of applying to an untoward occurrence which has adverse physical results which would also include “deliberate” acts:

“The word is capable of applying to an untoward occurrence which has adverse physical results, notwithstanding that one event in the chain of events which led to the untoward consequence was a deliberate act on the part of some mischievous person.”

15.In R v Currie[11], Lord Justice Scott Baker cited Billingham and said:

“…That the occurrence should have been unintended, as suggested in Morris, does not seem to have been regarded as an essential element in subsequent cases. …”[12]

16.In Chief Constable of Staffordshire v Lees[13], it was also held that a collision caused by a deliberate act can be regarded as an “accident”. Lord Justice Donaldson adopted the analysis in Billingham and held that even driving a car at a gate deliberately could fall within the meaning of the word “accident” under the relevant legislation. The court also quoted the Oxford English Dictionary, stating that “accident” means “an unfortunate event” or “an event not occurring in the ordinary course”. The central issue in these two cases is whether a constable is entitled to exercise his statutory power to take a breath test of a defendant who deliberately caused an accident involving a motor car. Bingham J said:

“It would be an insult to commonsense if a collision involving a motor car arising from some careless and inadvertent act entitled a constable to exercise his powers under the Act but a similar result caused by a deliberate anti-social act did not. Previous cases have made it clear that one should look at the ordinary meaning of the word ‘accident’, and it is relevant to note that in the Oxford English Dictionary, among other meanings, is to be found ‘an unfortunate event, a mishap,’ which definition, it seems to me, is wide enough to include an event not occurring in the ordinary course, of such a nature as in this case.”

17.The Court of Appeal confirmed in R v Branchflower[14] that a deliberate act can be an “accident” as referred to in the provision. The word “accident” literally means “something which happens”, but it does not have to be “unintended” or “fortuitous”:

“…this undoubtedly, in our judgment, is a word which takes its meaning from where and how it is used. Etymologically the word means “something which happens” but it does not have to be unintended or fortuitous…”[15]

18.Lord Justice Kennedy pointed out that the word “accident” as referred to in the provision is concerned with the consequences of what occurred instead of the way in which those consequences came about:

“…is intended to have regard to the consequences of what occurred and is not really concerned with the way in which those consequences came about.”[16]

19.In HKSAR v Chan Chi Keung, the Court of Final Appeal analysed the legislative intent of section 56 of the Road Traffic Ordinance and pointed out that traffic accidents are a serious social problem. It is in the public interest that drivers are only permitted to drive their vehicles on the road subject to the strict regulatory controls under the Road Traffic Ordinance. Section 56 imposes various obligations on a driver involved in a traffic accident.

20.This section aims at overcoming the difficulties of law enforcement in hit and run cases and enables the police to take enforcement actions as quickly as possible, so that the injured person or animal can be medically attended to promptly, any obstacle on the road can be removed for traffic to be resumed. It also enables the police to take follow up actions, which include investigation of the cause of the accident and preservation of evidence for use in any future prosecution or civil claim:

“14. No one will dispute that traffic accidents are a serious social problem. It is in the public interest that drivers are only permitted to drive their vehicles on the road subject to the strict regulatory controls provided by the Road Traffic Ordinance. One of the regulatory measures is s.56 which imposes various obligations on a driver involved in a traffic accident: …

15. This section is obviously aimed at overcoming the difficulties created in hit and run cases. It serves several important practical purposes: it enables the driver and other involved parties to find out what has happened, to ascertain the extent of the injury to any person or the damage to any vehicle, animal or any other thing and to see whether any medical attention is needed for the injured person or veterinary attention for the damaged animal; it also enables necessary follow up actions to be taken by the police immediately, including investigations and preservation of evidence for use in any future prosecution or civil claim and prompt actions to be taken by the authorities to remove any obstacle to the free flow of traffic.”

21.In our view, to exclude “deliberate” acts from the definition of “accident” and only to restrict such “unexpected” occurrence is inconsistent with the provisions, and the legislative intent will be completely obliterated.

22.In our view, HKSAR v Chu Tak Yau (transliteration) [17] did not take into account the interpretation and analysis of the word “accident” as explained in the English cases and HKSAR v Chan Siu Ping[18] failed to take account of the dicta in Billingham after Morris. The holdings in both cases that a “deliberate” collision is not an “accident” are, in our view, incorrect as they are inconsistent with the interpretation in the current case law.

Conclusion

23.We find that the trial judge misinterpreted the word “accident”. He erred in law in returning a verdict of not guilty for Charges 4 and 5. The answer to the question of law in the stated case where he sought the opinion of the Court of Appeal is “Yes”.

Mr Lau Tak Wai Derek, Senior Assistant Director of Public Prosecutions (Acting) and Mr Isaac Guan, Public Prosecutor of the Department of Justice, for the Secretary for Justice, the appellant.

The respondent appeared in person.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.