Cheung Ying Luen v. The Queen

CACC000259/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 259 OF 1972

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Coram: Huggins, J.

Date of Judgment: 16th May, 1972.

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JUDGMENT

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1. Two Informations were laid before the magistrate and summonses were issued in respect of a charge of driving a motor vehicle dangerously and thereby causing the death of a pedestrian and driving a motor vehicle when its brakes were not in good and efficient working order. The Appellant apparently pleaded Not guilty to both charges but it must be observed that if, as I must assume, the learned magistrate complied with the provisions of s.19 of the Magistrates Ordinance the Appellant was allowed to plead to both charges at the same time, which is not a proper procedure. So far as I can gather from the record the Appellant was acquitted of the second charge at the close of the prosecution case for there appears the brief entry "Charge dismissed" - there were, as I have said, two charges before the Court. He was, however, convicted on the first charge and was sentenced to a fine of $800 and was disqualified from holding a licence for a period of four years.

2. The charge of dangerous driving causing death arose out of an accident which occurred at the junction of Jordan Road and Shanghai Street on 4th August last at about 4:10 in the afternoon. This is a cross-roads, controlled by traffic lights, Shanghai Street, at that point anyway, being a one way street from north to south. Jordan Road is a 6-lane highway, a dual carriageway with three lanes in each direction. The Deceased, a woman aged 45 years, and her seventeen-year old son were crossing Jordan Poad from south to north on the east side of the junction. The Appellant was driving a new motor vehicle from east to west in what he chose to call the "fast lane" of the appropriate carriageway: it was in fact the right hand of the three lanes. There is at the point where the Deceased crossed the road a studded crossing, but I would emphasise that it is, of course, controlled by the traffic lights. This is important, because even a zebra-crossing gives pedestrians no right of precedence when it is a controlled crossing.

3. The only issue in the case was whether the collision was due to the dangerous driving of the Appellant. There is, anyway at this stage, no question that the Deceased died as a result of the accident. There was eye-witness evidence from two witnesses. One can be disposed of very quickly. That was the evidence of a 15-year-old boy called by the Appellant, the boy having been in the motor vehicle. The learned magistrate said that he was satisfied that the boy had no clear recollection of what happened. He attached no weight to his evidence and that disposes of it. There was then the evidence of the son of the Deceased. He said that he and his mother were the only two persons wishing to cross at the time. They were, according to him, standing in a position where there was a traffic light on his immediate left so that he could raise his head and look up at the light. He quite clearly indicated the position of the traffic lights and the learned magistrate in his notes drew a sketch showing where the witness indicated the lights were. There was one set of lights in the middle of the road on the west side of the junction: there was another set of lights in the middle of the road on the east side of the junction: and there was another set of lights also on the east side of the junction but on the pavement on the south of Jordan Road where the two pedestrians would start their crossing - but the traffic light at that point was on the right hand side of the studded crossing for anybody who was actually on or about to step on to the crossing. Therefore, if, as he said, the traffic light was on his immediate left he must have been several feet from the crossing along the pavement, and it is to be noted from the photographs which were taken shortly after the material time that there is a railing for several feet - 10 or 12 feet one would say at a guess from the photograph - along the pavement to the east of the crossing. There was then the further evidence of that witness that when he looked up at the traffic light on his immediate left he saw that the lights were red. He also said that the light at the centre of the road to the west of the crossing was red, and, indeed, one would expect all the traffic lights in one direction to be showing the same colour at the same time. He said that he and his mother then crossed the road at a normal speed, she being slightly in front of him and to his right. He said that there was no traffic on the road when he started to cross. Now, if that is true and if, as appears to be accepted, the Appellant was driving along Jordan Road from Nathan Road the Appellant must have been driving very fast indeed to have reached the Shanghai Street cross-roads by the time these two pedestrians reached the point of impact, which was in the third lane of this carriageway: and indeed this witness says that the Appellant was driving fast, but he gives as his reason that it came suddenly as far as he could remember and he saw it for the first time when it was ten yards away from him, and he said that it was then going at a speed which made it impossible for it to stop. That in itself seems to me a most material fact to bear in mind. He was obviously not accurate when he said that he looked to his right and saw this on-coming vehicle when he himself was "near the central railing", because he had not yet entered the third of the three lanes of this carriageway. He contradicted himself as to whether or not he saw the collision, because he said he did not see it but he did see the car hit the right side of his mother. The car then travelled a distance of some 20 yards across Shanghai Street and ended up on the west side of the cross-roads still in the third lane of Jordan Road.

4. Apart from that evidence there was the evidence of the plan which was put in evidence. That merely confirms the position of the traffic lights, but it should be noted that when it was first produced the traffic light on the south-east corner of the cross-roads was incorrectly shown as being on the left hand side of the pedestrian crossing and not on the right hand side of it. If it had been in that position then, of course, anybody standing at the entrance to the crossing and looking up to his left would have been able to see whether the light was red or green. Anybody standing at the entrance to the crossing and looking at the light as it in fact was would have been quite unable to see what colour it was because it was facing away from him.

5. The evidence of the Appellant can also be dealt with quite shortly, because, strangely, it was disbelieved by the learned magistrate in toto. I do not wish to be facetious, but he apparently did not even believe the witness when he gave his name and address. I have commented in previous cases about the wholesale belief or disbelief of witnesses in this way. It is quite obvious that the witness was not telling lies from beginning to end, but the learned magistrate in his decision quite clearly states that he "rejected the evidence of the [Appellant]", and this is most significant because he subsequently found as a fact that the Appellant had the Deceased under observation for some hundred feet before he struck the Deceased. Once one rejects the evidence of the Appellant there was no evidence whatsoever to justify that finding.

6. There was, in addition, some evidence in support of the charge that the Appellant was driving a vehicle with inefficient brakes, but that charge appears to have been dismissed because there was some suggestion that the brakes had been deliberately tampered with after the accident. At any rate, it is clear that on the evidence the magistrate did not find that the brakes were inefficient on that day.

7. In a judgment of some 6 1/2 pages the findings are compressed into some 12 1/2 lines. It is, of course, perfectly proper for a magistrate to review the evidence in full as was done here and it may well ensure that no part of the evidence is overlooked, but the object of a Statement of Findings is, as its name indicates, to state what are the findings. The learned magistrate said that he was satisfied beyond reasonable doubt that the Appellant was at fault as he had failed to exercise the care and skill of a competent driver. Of course, it was very right that he should consider whether the Appellant had failed to exercise the care and skill of a competent driver because that was the issue of dangerous driving, but unfortunately he did not indicate in what way he thought the Appellant had failed. He went on to say that this finding was "reinforced" - that is to say this was something over and above the first finding - by the fact that if the Appellant had been travelling as slowly as he claimed - and that was 13 to 15 miles an hour, but of course, as I have said, that was disbelieved - he would have been able to stop before reaching the other side of the junction. I accept that, but the point is that whether or not the Appellant was able to stop depended upon the speed at which he was driving, and it assumes that the Appellant tried to stop before he had gone twenty yards. His evidence, it is true, was disbelieved when he said that he did not try to stop because he was frightened, but it seems to me that it is going too far to assume that because he did not in fact stop he must have tried to stop and, therefore, was not able to stop before reaching the other side of the junction. The learned magistrate made no finding whether the lights were red or green - no doubt because of his doubts about the evidence as to whether the son had in fact looked up at traffic lights on his left - but he, as I have already indicated, went on to say that the Appellant had the Deceased under observation for some hundred feet, a fact which he could not find on the evidence once he had rejected the Appellant's evidence, and said that he would have been able to stop had he kept a proper lookout and taken the necessary action. The Appellant's evidence - but this presumably must have been rejected with all the rest of his evidence - was that he did see the Deceased.

8. These cases are never easy and I have some sympathy with the learned magistrate in having to come to a decision upon a very difficult and important matter on such a paucity of evidence. Nevertheless I think that counsel for the Appellant has some justification when he says that the evidence of the son was certainly open to criticism and also that the decision is open to criticism in that it appears to rely upon evidence which has been expressly rejected by the learned magistrate. The only ground, it seems to me, upon which a conviction could have been founded once it was assumed that the lights were in favour of the Appellant was either that he was going at an excessive speed or that he failed to keep a proper lookout. As I have said, the second of these is contradicted by his own evidence that he saw the Deceased and it is difficult to understand why that evidence was rejected, but it was rejected and I must accept that. But even if he was not keeping a proper lookout, it still required the Appellant to have been travelling too fast, and the only evidence of his travelling too fast in addition to the statement that he drove across and stopped on the other side of Shanghai Street is the evidence of the son that he suddenly saw this vehicle ten yards away and that it was going too fast to stop. I can readily believe that if that vehicle was travelling at a proper speed it would still have been going too fast to stop if somebody walked from the second lane into the third lane immediately in front of it. The duty on a driver is a heavy one, but he is not to be expected to take successful steps to avoid people who walk right under his vehicle. The Deceased must have been able to see this vehicle for hundreds of yards from the moment when she stepped off this pavement on to the road. She walked across two lanes and then walked into the third lane immediately in front of an on-coming vehicle. The driver was entitled to assume, if the traffic lights were green, that anybody crossing that crossing would go as far as it would be safe to do so and then stop. Only when it became obvious that the pedestrian was not going to stop did it become incumbent upon him to take necessary avoiding action. It seems to me almost certain that by that time an accident was unavoidable, and certainly, in my view, it is unsafe to allow this conviction to stand.

9. The conviction is quashed and the sentence and the order of disqualification are set aside.

16th May, 1972.

Representation: