The Queen v. Tsang Hing Yau

Case No.HCMA 1174/1990

Court

High Court CFI

Date20 Feb 1991

Judge—

Case Document

100%Judiciary

HCMA001174/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1174 OF 1990

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BETWEEN

	THE QUEEN	Respondent
	AND
	TSANG HING YAU	Appellant

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Coram: Hon. Hooper, J. in Court

Dates of hearing: 28 December 1990 & 7 February 1991

Date of delivery of judgment: 20 February 1991

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JUDGMENT

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1. On the 26th July 1990, the appellant was convicted on two charges in relation to a taxi which he was driving on the 23rd January 1990.

2. The 1st charge (A) alleged careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374, whilst the 2nd charge (B) alleged driving a vehicle with a defective tyre, contrary toRegulations 22(1) (f) (ii) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374.

3. On the 2nd August 1990, the appellant filed a notice of appeal against both convictions on the basis that there was "no sufficient evidence whereon to found the said conviction".

4. In his Statement of Findings, the learned Magistrate summarised the evidence and stated his findings as follows:

"	1. The Appellant was represented on Charge A (Careless Driving) by Mr Patrick D Lim and on Charge B (driving a vehicle with a defective tyre) by Mr Alfred Tang.
	2. PW1, POOH Man-kit, was a passenger in the front seat of a taxi driven by the Defendant. It was travelling from right to left on the plan P2 in the centre lane of Cheung Sha Wan Road. The witness saw some pedestrians cross the road from his right to left from a refuge which he marked with an 'X' on P3. He estimated the number of pedestrians crossing at between 5 to 6 and said that at the time he first saw them the taxi was about 10 - 20 feet from the crossing. He said he did not read the speedometer but felt the taxi was travelling "rather fast". The witness did not notice whether or not the lights were green in favour of the taxi but thought it likely as the vehicles to the side of the taxi were moving forward.
	3. PW1 said that when he noticed the pedestrians the_. taxi braked, the pedestrians were running, but the taxi could not stop in time to avoid an old lady who was the last of the pedestrians to be crossing.
	:4 . PW2, CHEUNG Yiu-wing, was a Motor Vehicle Examiner employed by the Transport Department of the Hong Kong Government. He was admitted to be capable of giving expert evidence by the Defence. On Charge A the witness agreed that if V.I. represents the final resting place of the deceased (on P2) the taxi came to a halt about two taxi lengths (or 30 feet)from the middle of the pedestrian crossing. He said that assuming the braking efficiency of the taxi was 88% (as he had found it to be at the Homantin police pound) if the taxi had stopped in 60.8 feet it would have been travelling at 40 mph. That calculation would also assume the road surface on the relevant portion of Cheung Sha Wan Road was the same as that at the Homantin police pound.
	5. On Charge B PW2 produced a photograph, P5, of the off-side rear wheel of the taxi that the Defendant had been driving at the time of the accident. PW2 marked with a black pen those parts of the tyre that were bald. I accepted from the photograph, P5 and PW2's testimony that 3/4 of the breadth of"the tread and round the entire circumference of the tyre there was not a,tread pattern with a depth of at least 1 milimetre.
	6. At the conclusion of PW2's cross-examination by Mr Tang, Mr Lim applied to ask some further questions of the witness for which I gave leave. PW2 was asked to consider for the first time "thinking distance" and said that assuming the overall stopping distance of the taxi was"'60 feet then at an 88% braking efficiency and with 30 feet being the thinking distance and 30 feet being the breaking distance, the taxi would have been going at 27 mph.
	7. PW3 was a passenger in the rear of the Defendant's taxi. She heard PW1 shout "Take care!" and then shortly thereafter saw an old lady being hit by the taxi. She felt that just before the impact the taxi was travelling at a uniform speed, neither accelerating nor decelerating.
	8. PW4, Miss LI Yuk-kei, was the final passenger in the Defendant's taxi to be called. She saw nothing of the accident until the moment of collision.
	9. The remainder of the evidence came from two police officers who produced plans and the caution statements of the Defendant. The Defendant himself elected not to give evidence nor call.witnesses.
	10. The photograph P9(2) shows the view the Defendant would have had as he approached the pedestrian crossing. He was travelling along a road which curved gently to the right. From the scale plan he would have been in a position to see the crossing from a distance of 36 metres away in daylight. I took into account, of course, that the accident happened at night.
	11. I accepted PW1's evidence that 5-6 pedestrians had run from right to left across the crossing in front of the taxi and that the deceased was to their rear. The Defendant in P10 said he saw no other persons cross the road in front of,together with or behind the deceased. The deceased, in order to be hit by the defendant's taxi which was travelling in the middle lane, would have had to cross the lane immediately to the right of the Defendant's taxi. I did not accept therefore that she dashed across the road as suddenly as the defendant claimed in P10. The fact that other pedestrians had successfully crossed in in front of the Defendant's taxi should have put him on notice that other pedestrians might well follow. I accepted PW1's feeling that the taxi was travelling "rather fast" as an honest and reliable impression which a passenger of a veicle could give despite not having looked at the speedometer; and I find that the Defendant's speed was excessive in all the circumstances, despite my finding that the traffic light was green in his favour.
	12. For these reasons and those already stated in paragraph 5 I convicted the Defendant on Charges A and B."

5. On the first day of the hearing of this appeal, the appellant, who was unrepresented, sought an adjournment to prepare his appeal. On the Crown indicating that it had no objection, his application for an adjournment was granted.

6. On the resumption of the appeal on the 7th February 1991, the appellant was represented by Mr Peter M.C. Lo of counsel, who' submitted Amended Grounds of Appeal. On the Crown raising no objection, he was allowed to argue the following Grounds of Appeal:

"1.         The trial magistrate erred in failing to apply the standard of proof required for a criminal conviction in that he proceeded to convict in spite of the presence of reasonable doubt whether the Appellant was driving too fast and whether the collision was caused by a pedestrian who dashed recklessly into the road.

2.          The trial magistrate erred in failing to properly consider the evidence and to give due regard to the presence of reasonable doubt as to whether the Appellant was_. driving too fast and whether the collision was caused by a pedestrian who dashed recklessly into the road.

3.           The trial magistrate erred in law and in fact in accepting PW1's "feeling" without corroboration that the Appellant was driving "rather fast" as evidence of his careless driving, in spite of evidence to the contrary.

4.          The trial magistrate failed to consider the whole of the evidence, in particular the evidence of the recklessness of the pedestrian which could have caused the collision without carelessness on the part of the Appellant.

5.           In all the above circumstances, the conviction of the Appellant is unsafe and unsatisfactory."

7. The conviction referred to is that on the (A) charge, the appellant having now abandoned his appeal in respect of the (B) charge.

8. Having referred to the reasons for the Magistrate's decision in paragraph 11 above, Mr Lo, for the appellant, argues that section 38(2) of the Road Traffic Ordinance, is concerne with the manner of the driving of the person concerned, not the consequences of his driving. He argues that "res ipsa loquitur" does not apply in criminal cases unless the circumstances give rise to an irresistible inference of guilt. If somebody is knocked down and dies, it does not necessarily mean that the manner of driving is careless. He submits there is plenty of evidence to point to another possibility which was not in reasonable doubt, i.e. that the collision was caused by the pedestrian running into the vehicle at close distance. The fact that she was behind a group of people who had successfully crossed, gives an indication that she was just following the crowd, forgetting to look at the traffic. At least, the probability was that the old lady of 70 years of age was lulled into a sense of security by the presence of five or six pedestrains preceding her, and did not pay attention tothe traffic. Furthermore, the evidence also points to the fact that she also ran. The post-mortem report indicated that she was a healthy old lady with no defects. In the circumstances, the taxi could not be expected to stop from a distance at which the accident was inevitable. The old lady had not crossed in front of the taxi, but hit the off-side of the taxi. The bonnet was dented. There was no evidence as to the old lady's eye-sight. There was evidence that the defendant took reasonable steps, and there was no positive evidence that he was careless. The lights were green in his favour.

9. Mr to also criticises the evidence of PW1, the passenger in the taxi sitting next to the appellant, when he was asked the following questions and made the following answers:

"	Q.	How long would you say a 5-seater taxi is?
	A.	9 - 10 feet.
	Q.	So when you first saw the crossing the taxi was 10 - 20 feet odd away so approximately (1/2 - 2 taxis' lengths away)?
	A.	Yes. I think so.
	Q.	From the time you first saw the people dashing across to. the collision, how long do you think that would have taken?
	A.	About 10 seconds. (Consults watch).
	Q.	When the crossing first come into your sight to when the people started dashing out the time lapse was 10 - 20 seconds?
	A.	Sorry, I don't think I gave the.evidence clearly. There was a slight.bend on the road. When the taxi turned the bed I could look ahead and then I saw some people running across the road.
	Q.	This group (5 - 6) in front of the old lady none of them got hit by the taxi? .
	A.	Correct."

Mr Lo also criticises the Magistrate for accepting this witness' estimate of speed. Furthermore, he argues that driving fast is not, in itself, evidence of negligence. In the ordinary course of events, a court should not accept the estimate of speed of one witness alone without corroboration. He concedes, however, that there is no rule of law to this effect, though he says that in England statutory provisions require at least two witnesses before an estimate of speed may be accepted. He argued that the Magistrate accepted the witness' evidence as to a "feeling" as to speed, despite the fact that PWl did not see the speedometer and had no experience in driving. Furtheremore there was clear evidence on page 16 of the appeal record that an expert opinion had estimated the speed as 27 mph. Nobody, other than PW1, said the taxi was travelling fast. He suggests that either the Magistrate did not consider the evidence properly, or he drew the wrong inference from evidence or. he applied the wrong test and used the wrong standard of proof. On the Crown evidence there must be a reasonable doubt, he says. The conviction is therefore unsafe and unsatisfactory.

10. Mr Bailey, for the Crown, supports the conviction. Whether the old lady was partly responsible for the accident is neither here nor there, he argues. The Magistrate had found and was perfectly entitled to find, that six or seven pedestrians had run from right to left to cross the pedestrian;crossing in front of the appellant's taxi and that the deceased was at the rear of this group. The Magistrate also found, as was open to him on the evidence, that the accident occurred in the centre lane. The deceased must have,crossed one lane to reach the point of collision. PW1 gave evidence that prior to the collision, the taxi had been travelling at a uniform speed. This was supported by the two other passengers, PW3 and PW4. The appellant should have noticed that the pedestrian may follow the other pedestrians. Mr. Bailey argues that the speed of the taxi was excessive in the circumstances. A reasonable prudent and competent driver would have slowed down. Mr Bailey argues,that this is not a case of speeding as such. Even if a driver was travelling at 5 mph he could still be driving at an excessive speed in a particular set of circumstances, and be guilty of careless driving. Mr Bailey also submits that the evidence of PW1's "feeling" as to speed, was direct evidence and was relevant evidence. The Magistrate was entitled to place what weight he felt upon that evidence. However, the fact that he described the acceptance of PWl's "feeling" as being a reliable and honest opinion indicates that the weight which he afforded to that evidence was rather low. The question is whether the speed of the taxi was appropriate in the circumstances. The evidence suggests that the taxi was proceeding at a uniform speed, that five or six pedestrians, having crossed the road in front of the taxi, should have put the appellant on notice and he should have taken some action in the form of slowing down at this point. Thus runs Mr Bailey's submission.

11. It is clear that the Magistrate gave careful consideration to the scene of the accident and in particular the photograph Exh. P9(2), and the scale plan referred to in paragraph 10 of his Statement of Findings. He was satisfied that the driver of a motor vehicle would have been able to see the crossing from a distance of 36 meters away in daylight, taking into account, of course, that the accident happened at night. He accepted the evidence of PW1 that five to six pedestrians had run from right to left across the crossing in front of the taxi and that the deceased was to their rear. He also took into consideration the fact that the appellant, in Exh. P10, said that he saw no other person cross the road in front of, together with or behind the deceased. This was a matter the Magistrate was perfectly entitled to take into consideration, bearing in mind that PW1 was an impartial third party with no axe to grind. If the appellant did not see the persons crossing the road when there were in fact persons crossing the road,he could not have been keeping a proper lookout. The Magistrate was also entitled to take into consideration the fact that the old lady was hit by the appellant's taxi when it was travelling in the middle lane which would have meant that the old lady would have had to cross the lane immediately to the right of the appellant's taxi. He only accepted PW1's "feeling" that the taxi was travelling rather fast as an honest and reliable impression withouth making any specific finding as to the speed of the vehicle. However, on a combination of all the above factors, he came to the conclusion that the appellant's speed was excessive in all the circumstances, despite his earlier finding that the traffic light was green in the appellant's favour. This conclusion was based on the evidence as a whole and not just the evidence of PW1 whose ideas of time and distance were open to question.

12. Of course, the fact that traffic lights are green does not exempt a driver from driving carefully.

13. I have come to the conclusion that on the above findings the Magistrate was perfectly entitled to take the view that the standard of the appellant's driving was such as to bring him in breach of section 36(2) of the Road Traffic ordinance.

14. Although he did not expressly state that he had regard to the normal standard of proof in criminal cases bearing in mind, he is a professional magistrate, it cannot be said, unless it appears obvious from the record, that he did not give himself the proper direction as to the burden and standard of proof. It may well be that, if he had been obliged to make a finding as to the conduct of the deceased, he would have reached a conclusion that she was negligent or careless as well. However, even if the collision was causedprimarily as a result of the negligence of the deceased, that would not exempt the appellant from driving carefully in the circumstances prevailing at that time.

15. In conclusion, I will only say that it was perfectly open to the magistrate to reach the verdict he did on the evidence and I can see nothing unsafe or unsatisfactory about it. In these circumstances, the appeal is dismissed and the conviction affirmed.

	(N.B. Hooper)
	Judge of the. High Court

Representation:

Mr Peter M..C. Lo, inst'd by M/s Jesse H.Y. Kwok & Co., for Appellant.

Mr S.R. Bailey, Crown Counsel, for Crown.