Lai Kwai Hing v. The Queen

HCMA000384/1985

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 384 OF 1985

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BETWEEN

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Coram: Deputy Judge Leonard in Court

Date of hearing: 14 May 1985

Date of delivery of Judgment: 20 May 1985

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JUDGMENT

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1. On the 28th March 1985 the appellant, Lai Kwai Hing a professional driver of five years' experience was convicted by a magistrate sitting at Tsuen Wan of an offence of causing death by reckless driving contrary to section 36(1) of the Road Traffic Ordinance Cap. 374 Laws of Hong Kong. For that offence he was sentenced to imprisonment for a term of seven months and ordered to pay costs of $1,000. In addition, he was disqualified for a period of three years from holding or obtaining a driving licence and was further disqualified until passing a driving test. He now appeals against both conviction and sentence.

2. At the trial, Crown Counsel prosecuted and the appellant was represented by a solicitor. It was common ground at the trial that on the 11th October 1984 at about 9:40 p.m. the appellant was driving a borrowed car along Castle Peak Road, travelling from Kowloon on his way home to Tuen Mun. When he came to the large and complex junction of Castle Peak Road and Kwai Chung Road which is controlled by automatic traffic lights for vehicular and pedestrian traffic, he drove through the junction. His car then struck and killed a pedestrian who, with others, had been crossing the appellant's path from left to right, on or near a pedestrian crossing marked by studs in the road. Skid marks 17 metres long were found extending from the rear wheels of the appellant's car, the front of which came to rest, according to an agreed scale plan, about 40 metres past the stop line associated with the traffic lights controlling the appellant's approach to the junction.

3. When the appellant was interviewed by police, it was put to him that he had jumped the red light. Crown Counsel at the trial opened his case on the basis that the appellant went through lights which had turned red by the time he came to the stop line. That assertion must have been based upon the evidence which Crown Counsel expected to elicit from the sole independent witness to the accident, Mr Chan Hon Yue (P.W. 3).

4. The evidence given by P.W. 3 was to the effect that the lights had turned green for him as he waited to drive his taxi out of Kwai Chung Road where it merges from the left into Castle Peak Road going towards Tuen Mun. As he edged forward, he glanced to his right and saw the appellant's car just before it entered the yellow box at the main crossroads in the centre of the junction.

5. There was unchallenged evidence from a police witness who had checked the phasing of the lights that, when the lights turned green for P.W. 3, they would already have been red for the appellant for nine seconds, (during which time a car moving at 40 m.p.h., the speed at which the appellant approached the lights according to his own evidence, would travel some 530 feet.).

6. The only other witness to the accident who was called for the Crown was Mr. Chung Yiu Kwan (P.W.5) a friend of the appellant who had been a passenger in his car at the material time. He said that when the car had nearly reached the light it seemed to be yellow but he was not sure.

7. In a voluntary statement tendered by the Crown the appellant said that the lights changed to amber when he was 15 metres from the stop line. In court the appellant changed his story, saying that the lights only changed from green when he was half a car's length past them. His sister, giving evidence on his behalf, having been a passenger in the rear seat of his car, said that the lights were green and never changed colour.

8. Thus the only evidence from which it could be inferred that the lights were red against the appellant was that of P.W.3. That witness, however, also testified that he saw a "red man" showing, but he did not know at which set of lights. The layout of the junction as shown on the plan and photographs strongly suggests that if P.W.3 could see a ''red man" it must have been on the pedestrian traffic lights facing the deceased. The uncontradicted police evidence about the lights indicated that if the pedestrian light for the deceased was red, the traffic light for the appellant would be green.

9. Thus there was a substantial inconsistency in the evidence of P.W.3 so far as the state of the traffic lights was concerned. Moreover that part of his evidence suggesting that the light had been red against the appellant for some nine seconds was contradicted by the evidence of P.W.5.

10. In the original grounds of appeal settled by Counsel, these evidential difficulties were relied upon as indicating that the conviction was unsafe and unsatisfactory and it was pointed out that the evidence of P.W.5 supported the appellant's evidence that when the appellant's car came to the junction, the lights turned to amber. This was the gist of grounds (i) to (iv) inclusive.

11. Ground (v) of the original grounds was not argued at the hearing of the appeal. That was to the effect that the cause of the accident was not reckless driving by the appellant but rather the act of the deceased "running into the path of the appellant's car". The Court of Appeal in England in the case of R. v. Henningan [1971] 3 All E.R. 133 dealt with the question of causation in cases of causing death by dangerous driving. The Lord Chief Justice Lord Parker at p. 135 of the Report stated:

12. I would respectfully adopt those words as a correct statement of principle which is applicable equally to cases of causing death by reckless driving.

13. Ground (v) is misconceived as regards the law. Furthermore, on the evidence, the deceased was not running into the road from the pavement into the path of a passing car, she was running in apparent panic to escape the appellant's car which at that time was bearing dorm upon her.

14. Grounds (i) to (iv) were dealt with by the trial magistrate in his Statement of Findings. He said that in coming to his conclusion he did not ignore the evidence of P.W.3 and P.W.5 which the defence had used as the main grounds of appeal. He treated their evidence with some reservations. P.W.3 was confused in court. P.W.5 was a friend of the defendant and was obviously not keen to give damaging evidence against him. He would have reached the same conclusions without the relevant evidence of P.W.3 and P.W.5.

15. Mr. Alderdice, who appeared for the appellant at the hearing of the appeal, had not settled the original grounds but faced with the magistrate's subsequent statement of findings, he settled additional grounds which were filed the day before the hearing and upon which he mainly relied. In essence, the additional grounds were that the magistrate failed to demonstrate in his Statement of Findings how he had reconciled conflicting accounts given by P.W.3 and P.W.5 and that he had failed to make specific findings of fact as to which witnesses he believed and which parts of the testimony he rejected.

16. Mr. Alderdice pointed out to the court the following remarks made by The Chief Justice in The Queen v. Lau Chi Pui & Anor. (1983 Criminal Appeal No. 1140) an appeal in the Supreme Court from a magistrate's decision:

"It is usually difficult for an Appellate Court which has not had the advantage of seeing and hearing the witnesses, to disagree with a trial court on its finding as to the credibility of a witness, if that court has recognised before accepting the witness that there are inconsistencies in his evidence. In this case, however, I am disturbed by the failure of the magistrate to mention that there is a major discrepancy going to the heart of the case between the statement made by the complainant (P.W.1) to the police on the evening of the incident, that is to say, the 12th September 1982, and the evidence which he gave to the magistrate on 8th April 1983."

17. In the instant case, the magistrate has made it clear in his Statement of Findings that he appreciated the difficulties relating to the evidence of P.W.3 and P.W.5, He did not set them out in full because they were listed in detail in grounds (i) to (iv) to which he referred. He did, however, as I have mentioned, explain the approach he took to those witnesses and it is apparent from his specific findings of fact that he was not prepared to hold that the appellant crossed the stop line when the light was red. He proceeded on the basis that the appellant's cautioned statement read in the light of his evidence in court ryas true.

18. Mr. Alderdice also drew to my attention a passage in the judgment of McMullin J. as he then was in the case of Yeung Chiu and the Queen Criminal Appeal No. 1043 of 1975 which read :-

"But where the body of evidence upon which the Crown relies in a criminal case shows on the face of it difficulties and incoherences of a substantial sort, then I think in any such case it must always be the duty of a magistrate or a judge in giving reasons for deciding which body of testimony he believes to discuss those difficulties and to give some reasonable indication of the manner in which he has disposed of them.".

19. I would respectfully agree with that statement of general principle but it does not assist the appellant here. In the present case, having indicated his appreciation of the difficulties, the magistrate expressed reservations about the evidence of P.W.3 and P.W.5, explained what his findings of fact were and how he arrived at them, saying that they would have been the same without the evidence of P.W.3 and P.W.5. The magistrate relied upon the appellant's own cautioned statement viewed in the light of what he said in court. With regard to the manner of the appellant's driving, the magistrate found inter alia that the appellant at the material time, on an October evening at 9.40 p.m. was driving a small vehicle containing four passengers and himself on a wet road. He had only driven the vehicle once before. He was driving down slope in fourth gear at 40 m.p.h. approaching a complex light controlled box junction in a residential district. The speed limit was 30 m.p.h. (In fact the evidence was that the limit was 50 k.p.h. but the difference is immaterial). There were pedestrians in the vicinity of the junction. All the traffic lights were operating correctly in the sequence described by the police witness. The appellant increased his speed to 46 m.p.h. as he entered the box although he had seen the amber light at 80 feet away from the stop line. Though the distance given by the appellant in his statement was 50 metres rather than 80 feet, he was asked to estimate in court how far a distance of 50 metres was and he indicated by reference to the length of the court a distance of 80 feet. The windscreen wipers were on and the headlights were dipped.

20. The magistrate found that had the appellant been a prudent motorist driving at the correct speed at some 80 feet away from the stop line when the light was amber, he would have had adequate time to stop his vehicle in comfort. He was not impressed by the appellant's explanation for driving on, (that is, his desire to avoid being booked for stopping in a box junction). He found himself satisfied beyond doubt that the appellant was guilty of reckless driving within the provisions of Section 36 (1) of the Road Traffic Ordinance.

21. The magistrate did not list in his Findings of Fact a finding as to the occurrence of the death or its causation by the reckless driving. It would have been better to do so but he presumably assumed that anyone dealing with the appeal would read his record and see that it was an agreed fact that the pedestrian died as a result of contact with the appellant's vehicle. He does of course refer to Section 36(1), indicating that he appreciated that he was not merely trying a case of reckless driving, and at the very end of his Statement of Findings he does refer to the appellant having caused the death of a young woman.

22. Looking at the evidence as a whole, I am satisfied that the magistrate was entitled to find the facts which he did find, based as they were upon the appellant's own statement, made only a few hours after the accident.

23. There is no doubt that the magistrate had a clear idea as to what constituted reckless driving. He dealt at length with that matter by reference to the judgment of Lord Diplock in the House of Lords case of R. v. Lawrence 1981 1 All E.R. 974, in which he said that in reaching a decision on a charge of reckless driving, the jury must be satisfied of trio things: first,

that the defendant was in fact driving a vehicle in such a manner as to create an obvious and serious risk of causing physical harm to some other person who might happen to be using the road or of doing substantial damage to property; and, second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nevertheless gone on to take it.

Lord Diplock further said that it is

for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves. If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do; so but regard must be given to any explanation he gives as to his state of mind which may displace the inference.

24. In practice the courts of Hong Kong treat decisions of the House of Lords as binding upon them. Our Section 36(1) and Section 37(1) of the Road Traffic Ordinance Cap. 374 are modelled on Sections 1 and 2 of the Road Traffic Act 1972 as amended and the definition of reckless driving in Lawrence which applies to that term in the English Act is applicable to the same term in our legislation. Mr. Alderdice takes no issue as to that.

25. Applying the law to the facts as found by him, the magistrate was perfectly entitled to find that the driving by the appellant was reckless. Amber is not a signal to accelerate, it is a qualified signal to stop. Regulation 17(1)(e) of the Road Traffic (Traffic Control) Regulations Cap. 374 provides in effect that the vehicle is prohibited from proceeding beyond the stop line when the amber light shows alone, except when the vehicle is so close to the stop line that it cannot safely be stopped before passing the stop line. It has not been suggested that it would have been unsafe for the appellant to stop before the stop line when he saw the amber light, but even if it had been so, it was not necessary for him to drive all the way across a wide junction at an increasing speed towards the pedestrians. He could easily have stopped short of them. Faced with the possible inconvenience of coming to rest in the box junction, he chose to accelerate on a wet road towards a group of pedestrians, relying upon his horn to clear the way, thus knowingly creating an obvious and serious risk of harm to them.

26. The appeal against conviction is dismissed.

Sentence

27. The general gounds of appeal state that the sentence was too severe. Mr. Alderdice submitted that it was wrong in principle to impose an immediate custodial sentence for this type of offence on a man of good character. He referred to an unreported case in which he had appeared for the prosecution in 1977 where for dangerous driving causing death a policeman who killed the family of four people was fined $1,500 and disqualified for three years.

28. In England, before the offence of causing death by dangerous driving was replaced by that of causing death by reckless driving, cases were divided into two broad categories : one where the accident had arisen through momentary inattention or misjudgment, and the other where there was a selfish disregard for the safety of other road users or where there was recklessness. (See Guilfoyle (1973) 57 Criminal Appeal Reports 549). In the former case a fine coupled with disqualification was normally considered appropriate. In the latter, a custodial sentence with a long period of disqualification was considered normal, the term of imprisonment usually being something less than twelve months. This principle was adopted in the High Court in Hong Kong at the suggestion of Counsel in Mak-Kau v. The Queen (1978) H.K.L.R. 39, though no English case was cited to the court. In that case the court went onto say that it was not proper to approach the question of sentence with a view to deterring a class of driver as a whole. Since in every case of causing death by reckless driving it goes without saying that there is recklessness, a custodial sentence will usually be appropriate, the term depending on the circumstances, and suspension of the sentence being a matter of discretion. The maximum penalty on summary conviction for this offence is a fine of $12,500 and imprisonment for two years.

29. In my view the sentence of imprisonment was not manifestly excessive or wrong in principle nor is there any other reason to interfere with it. The magistrate took into account the clear driving record of the accused, his good character and the circumstances generally of the case.

30. Bearing in mind the fact that the appellant is a man who earns his living by driving, and that the mandatory statutory minimum disqualification for a second offence of this type is two years, I have formed the view that a three year disqualification in this case is excessive in all the circumstances. The appellant has expressed remorse for his misdeed and has to serve a term of imprisonment. The appeal against sentence is therefore allowed to the extent that the period of disqualification will be reduced to one of twelve months. The order for disqualification until the appellant passes a driving test will stand, as well as the order for costs.

Representation:

Mr. McClelland, Senior Crown Counsel for Crown.

Mr. Gray W. Alderdice instructed by M/S. Tong Kan & Ho for the Appellant.