HKSAR v. Cheung Shek Wai

HCMA 1061/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1061 OF 2004

(ON APPEAL FROM KCS 4115/2004)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 1 February 2005

Date of Judgment: 12 April 2005

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J U D G M E N T

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1.The Appellant was convicted in the Magistracy of one charge of Dangerous Driving and was sentenced to a fine of $5,000.00 and disqualified for a period of six months.

2.The basis of the prosecution case was that the Appellant drove his double-decker bus through a red light at an intersection and caused another double-decker bus, which was lawfully in the intersection, to collide with it.  An unusual feature of the case was that all vehicles involved were buses; their respective drivers being the Appellant and PWs 1, 2 and 3.

3.The Magistrate considered the evidence of PW1, but found it self-serving as that particular driver was himself in breach of the Road User’s Code.  The 2^nd witness was found by the Magistrate to be unreliable and he gave his evidence little weight.  The 3^rd witness, the Magistrate found to be a honest and reliable; he believed him and accepted his evidence.  PW3 was the driver of another double-decker bus, employed by the same company as the Appellant and PW1, but was not himself involved in the accident.  His evidence, which the court accepted, showed the sequence of events to be as follows: PW3 was stopped in his bus at the stop line in the middle lane on a red light.  PW1’s bus was in the first or slow lane on the left of King Ling Road North.  In the moments leading up to the collision, PW1’s bus was well south of the junction driving north.  PW3’s bus was stopped at the red light, in the middle lane, and was the first bus behind the stop line.  There was no vehicle beside PW3 in the left-hand or first lane at the time the traffic light, which governed his progress to the north, switched to green.  At that stage, PW3 released his handbrake and started out slowly into the intersection.

4.Almost simultaneously, he became aware of PW1’s double-decker bus driving up behind him in the left-hand lane.  Again simultaneously, he saw the Appellant’s bus to his right, going unexpectedly across his path from right to left, that is westbound through the intersection on Choi Ming Street.  PW3 sounded his horn and braked immediately.  To this point, according to PW3, one to two seconds had elapsed from the light going green.

5.The Magistrate found that three events happened almost simultaneously.  PW3 started his vehicle north-bound when the green light came on.  He saw PW1 coming up in the same direction on his left and saw the Appellant’s vehicle bearing down on him from his right. 

6.PW3 found it difficult to assess the speed of the Appellant’s bus.  When pressed in cross-examination, he agreed with a suggestion that it was going approximately 40 to 50 kilometers as it came towards him from the right.  Although under re-examination, he confirmed this estimate he reiterated that he had no clear impression of speed.

7.PW3 estimated, which estimate the Magistrate considered reliable, that the total lapse of time, from the time the green light came on until the collision, was between two and three seconds.

8.The Appellant gave evidence that, when he passed the traffic light governing his direction north it was green.  After he passed the green light he felt the light changed from green to amber.  At that point his vehicle was about two-thirds past the stop line governing his lane, and the intersection was clear at that point.  His speed as he went through the stop line, according to him, was 20 to 30 kilometers per hour.  His bus was carrying numerous passengers and he was concerned about the vehicles behind him, as it was rush hour.  He was worried particularly about stopping abruptly and the problems that might cause the vehicles that followed him.

9.The perfected grounds of appeal against conviction were as follows:

(1)	The Magistrate erred in finding the Appellant’s bus was at the time travelling at a speed of 40 to 50 kilometers per hour, as that finding was against the evidence.
(2)	The Magistrate failed to make any proper finding as to the time taken by the Appellant’s bus to travel from the white line of the traffic lights to the position where the collision occurred.
(3)	The Magistrate erred in finding that the collision occurred within about three seconds of the traffic light for northbound traffic of King Ling Road turning green, as that was against the evidence.
(4)	On the proper findings and the facts of the case, it cannot be said that the only reasonable inference to draw was that the Appellant entered the junction when he was prohibited from doing so by the traffic lights and thus the conviction was unsafe and unsatisfactory.

10.There were lengthy submissions made by counsel in respect of matters raised in the perfected grounds of appeal.  Basically, the submissions appeared to be a complete repetition of the matters that had been canvassed at trial.  Mr Tai, who appeared for the Appellant, had also appeared at the trial.

11.The Magistrate commented at para. 15 of his Statement of Findings:

“There was substantial cross-examination of the prosecution professional witnesses as to certain models, combinations and parameters relating to traffic-light times, sequencing, distances, positions and speeds.  The validity and relevance of each of these hypothetical models were dependent upon other facts which might have been found by the trier of fact.  I considered all that evidence.  Having disbelieved the defendant’s evidence as to the color of his traffic light at the material time, these hypothetical models became irrelevant.”

12.Having considered the evidence and the arguments raised on the appeal, I am of the view that there is no basis for interfering with this conviction.  The Magistrate stated at para. 20:

“There was only one manner in which his (defendant’s) vehicle could have moved through the junction to the position that I have found it was at when the collision occurred within approximately three seconds of PW3’s green light.  I find the only reasonable inference to draw from these facts is that the defendant entered the junction when he was prohibited from doing so by the traffic lights.  The defendant was required to stop by a red light at this stop line west-bound Choi Ming Street, and he did not.”

The Magistrate also noted that the place where the accident occurred was a major intersection.  It was dark and the prevailing lighting was dim; it was raining and the road surface was wet; it was rush hour and the traffic conditions were busy.  He was well aware that he was dealing with a case, not of speeding but of dangerous driving.  He applied the correct test and found that the Appellant had driven in a manner far below that would be expected of a competent and careful driver, and that it would have been obvious to a competent and careful driver that driving in that manner would be dangerous.  Accordingly, he found the charge proved beyond reasonable doubt and convicted the Appellant.

13.Having heard the submissions of counsel, I found that the Magistrate dealt with the matter properly.  He considered the relevant evidence and did not decide the matter on the issue of speeding, but by considering the circumstances in which the accident occurred.  Once the Magistrate found the Appellant was not telling the truth about the traffic light colour when he entered the intersection it was open to him to find the Appellant was driving dangerously. 

14.Despite counsel’s assertions to the contrary, I do not find that the Magistrate had come to the conclusion that the speed of the Appellant’s vehicle was 40 to 50 kilometers.  All he did in his Statement of Findings was repeat the testimony of PW3 as to the approximate speed.  The Magistrate could not have under any illusions about the accuracy of the estimate of speed, given PW3’s refusal to commit himself on that point.

15.This appeal against conviction is dismissed.  manslaughter

Mr David Leung, SGC of Department of Justice, for the Respondent

Mr Tai Siu Ching, instructed by Messrs W. K. To & Co, for the Appellant