HKSAR v. Chan Yau

HCMA1108/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1108 OF 2007

(ON APPEAL FROM KCCC 5357 OF 2007)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 29 January 2008

Date of Judgment : 29 January 2008

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JUDGMENT

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1.The appellant was convicted of dangerous driving at Kowloon City Magistracy and appeals that conviction.  He was acquitted on a 2^nd charge of failing to provide a blood sample.

2.The facts of the case were not disputed and were straightforward.  The appellant’s car had collided with a taxi as the former exited from Lion Rock Tunnel en route to Shatin.  At the time, approximately 4:50 a.m., the tunnel was operating as a single tunnel with two-way traffic.  As the appellant’s vehicle exited the northern end of the tunnel, it crossed the double separation lines into the oncoming traffic lane and collided with the taxi.

3.The appellant’s defence at trial was that his vehicle had for some unknown reason “lost direction”.  The appellant admitted he had driven carelessly but disputed that his driving had been dangerous.  The appellant was not a stranger to the tunnel.  He had driven through it before and was aware that, at least at that time of day, it was carrying two-way traffic.

4.The magistrate noted the following matters in his Statement of Findings :

“	(1)	the defendant was well aware that there was oncoming traffic on the opposite lane.
	(2)	there were double white lines separating the lanes the defendant was travelling on and the opposite lane.
	(3)	according to the tape, the whole body of defendant’s private car crossed over the double white lane.
	(4)	[the] defendant’s car had travelled some distance on the opposite lane.
	(5)	[the] defendant applied the brake at quite a late stage [when] the taxi appeared at the front.
	(6)	the lighting condition on that section of road was fine.
	(7)	the vision at that time was clear.
	(8)	[the] defendant had drunk some beer before driving.
	(9)	[the] defendant felt tired while driving.”

5.He then concluded :

“

Judging from the facts and considering the definition of dangerous driving, ... I find the way the defendant drove at the material time fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.  I find the driving manner of the defendant at the material time does amount to dangerous driving as defined under section 37.  The prosecution had proved the case beyond reasonable doubt.  I accordingly convict the defendant on Charge (1).”

6.The substantive grounds of appeal advanced are :

(1)	that the magistrate erred in concluding that the accident was caused by a combination of the appellant’s tiredness, lack of attention and having previously consumed some alcohol; and
(2)	that the magistrate failed to consider that the appellant’s driving lapse was momentary.

The 1^st ground

7.Dangerous driving is defined by section 37(4) of the Road Traffic Ordinance, Cap.374 :

“	A person is to be regarded as driving dangerously if :
	(a)	the way he drives falls far below what would be expected of a competent and careful driver; and
	(b)	it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

8.The test of dangerous driving is an objective one : see R. v. Collins (Lezlie) (1997) RTR 439 CA.  Whether the offender intents to transgress or not is irrelevant to any assessment as to whether his driving was dangerous.

9.The magistrate applied the test in section 37(4) in arriving at his consideration and it matters little what combination of factors personal to the driver, whether they were tiredness, lack of attention or otherwise, brought about his dangerous driving so long as he was in conscious control of his vehicle at the time.  There was nothing hanging on the magistrate’s observations in this regard.

10.In my judgment, the magistrate’s findings were correct.  Driving in traffic on the wrong side of the road where there is a two-way system in operation is dangerous by any measure and is certainly dangerous within the terms of section 37(4).

The 2^nd ground

11.Regarding the appellant’s 2^nd ground of appeal, I have seen CCTV tape of the appellant’s driving leading up to the collision with the taxi.  The appellant travelled nearly wholly on the wrong side of the road for several seconds.  His transgression could not be described as “momentary” in the context of traffic moving at relatively high speed on a busy road.  But in any event, there is no reason why even a momentary driving event could not properly be considered dangerous.

12.There is nothing in either ground, the appeal is without merit and is dismissed.

Mr Frederick Chung, SGC of the Department of Justice, for the Respondent

Mr John M. Pickavant, of Messrs John M. Pickavant & Co., for the Appellant