Kwong Fu Lee v. The Queen
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CACC000631/1968 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 631 OF 1968 -----------------
Coram: Huggins, J. Date of Judgment: 5 December 1968 ----------------- JUDGMENT ----------------- Huggins, J.: The appellant was convicted on charges of failing to halt at a "Halt" sign and of dangerous driving causing death and he appeals against conviction. The case arose out of an accident which occurred at the junction of Tai Po Road and Ching Cheung Road at about 8.40 a.m. on 2nd January. There was a collision between a vehicle driven by the appellant and a utility van, as a result of which collision the two occupants were alleged to have received injuries from which they subsequently died. 1. The evidence was that the vehicle being driven by the appellant had a bus body built upon a lorry chassis. The appellant was driving in an easterly direction along Ching Cheung Road and came to the junction with Tai Po Road, where he was faced with a "Halt" sign. It seems clear that the van was coming north-westwards along Tai Po Road from Kowloon and there was evidence which suggested that its destination was Tai Po. This is an extremely dangerous junction where two major roads, each having dual carriage-ways and carrying a very heavy load of traffic, meet at an acute angle. The Tai Po Road, which by virtue of the traffic signs which have been erected appears to be regarded as the major road, itself makes a sharp s-bend at the junction so that any vehicle approaching eastwards along Ching Cheung Road which fails to halt at the junction will almost inevitably cause grave danger to any vehicle endeavouring to negotiate this bend. Both vehicles in this case were travelling uphill. There was no evidence except some photographs to indicate the gradient of the Tai Po Road and, with respect to the learned magistrate. I cannot think that such oral evidence as there was of the gradient of the Ching Cheung Road ought to have been believed: it was said that this road had a gradient of 30 degrees - or 1 in ...(illegible) 2. The substance of the case for the prosecution was that the bus had approached the junction at an excessive speed and had failed to stop, thus placing itself in the path of the oncoming van. Apart from the fact of the collision and the position of the bus thereafter the vital evidence for the prosecution was the finding of two brake marks which a constable said were made by the tyres of the bus. Although I can find no answer in the notes of the proceedings and no measurement entered upon the plan produced in evidence, it appears to have been common ground that the skid marks were 25 feet in length, for the solicitor for the appellant referred to such measurement in his submission of no case to answer. What does appear is that the marks started on the west side of the halt line and ended on the east side of it and well into the carriage-way of the Tai Po Road. The plan and photographs show that the front of the bus had traversed the west-bound carriage-way of the Tai Po Road and had mounted the island between the two carriage-ways. The van was on its side by the island, with its bonnet protruding into the east-bound carriage-way of the Tai Po Road. The van had sustained serious damage on its front near side. 3. The defence of the appellant was that he approac hed the junction and duly halted. He then saw the van approaching and noticed that it was signalling its intention to turn left into Ching Cheung Road, so that it would not cross his path as he turned right into Tai Po Road. There being no other traffic in the vicinity the appellant moved off and at that monent, he says, he heard a crash on his right. He immediately looked right and saw what he describes as "a black shadow sweeping past in front of me". He swerved and the collision occurred. The suggestion is that the crash which the appellant heard on his right was caused by a collision of the van with the crash barrier erected on the pavement on the south side of the Tai Po Road. It is further said that as a result of that collision the driver of the van lost control and failed to make the left turn which its trafficator was indicating. Corroboration of this story is sought from the fact that after the accident it was found that the crash barrier was very severely damaged and that no other explanation of this damage was forthcoming. In addition it is said that there was damage on the near-side of the van which could not have been caused by the collision with the bus: it was, however, consistent with a collision with the crash barrier. There was no evidence of paint marks either on the barrier or on the van which would establish beyond doubt that there had been a collision between the two. 4. I think it is manifest that the learned magistrate did not believe the evidence of the appellant that the van was indicating an intention to turn left. Whether such an indication would have been a complete defence to the dangerous driving charge in all the circumstances of this case it is not necessary to decide: it might have gone a long way towards doing so, but on the appellant's own evidence the van was approaching the junction at 30 to 40 miles an hour and it must have been apparent to him that at that speed it would be impossible for the van to negotiate the left turn which the appellant says he was expecting it to make. In this respect the photographs show that the plan does not give an accurate representation of the corner which the van would have had to negotiate. It appeared from the cross-examination of the appellant that he was not keeping a proper look-out on his right-hand side and I see no reason to disagree with the magistrate's rejection of his explanation. The appellant said that he was in second gear at the time of the accident and if he had in truth halted on coming to the junction it is hard to believe that in a distance of only 29 feet he could already have changed up into second gear. While I am unable to accept the learned magistrate's calculation of the speed of the appellant's bus I am satisfied that his finding that the appellant drove on to the Tai Po Road without stopping and in a highly dangerous manner was amply justified. Even if the van did collide with the crash barrier that was no reason why the appellant should drive in the manner which he did. 5. The matter which has caused me more anxiety is the finding that the two persons in the van were killed by the dangerous driving of the appellant. Two questions have been considered: the first is whether the magistrate was justified in rejecting the possibility that the van did collide with the crash barrier and the second is whether the magistrate's implied finding that the deaths did not result from injuries caused in any such collision was justified. In my view it was not open to the magistrate on all the evidence before him to rule out the possibility that there was a collision with the crash barrier. He did so relying to a large extent on the fact Constable Wong Tai-wai had said he could trace no sign of any glass fragments near the barrier. That was certainly an important piece of evidence but for my part I do not think it necessarily follows that there was no collision. Whether the injuries which caused the deaths could have been caused by a collision with the barrier is more problematical: they are certainly far more likely to have been caused by the collision with the bus. At the same time it is perhaps dangerous to assume that the van was overturned as a result of the collision with the bus. There is no evidence that that was the case and it is not impossible that at the moment of collision with the bus the van was already overturning as a result of the driver's losing control after collision with the crash barrier. Equally the injuries may have been caused by the overturning of the van and not by the collision with the bus. This is a criminal case and the degree of proof required is very high. I have come to the conclusion that it would be unsafe to assume that the injuries which caused the death were caused by the dangerous driving of the appellant. 6. In these circumstances I allow the appeal to the extent that I substitute for the verdict of guilty of dangerous driving causing death a verdict of dangerous driving simpliciter. I have carefully considered the sentence which was imposed and in my opinion a fine of $400 was inadequate for the offence for which it was imposed: it is a proper sentence for the offence which I find to have been proved and that sentence will stand. I think, however, that it would be right to reduce the period of disqualification from two years to one year and I so order. 5th December, 1968. Representation: Gunston & Smart for the Appellant Mr. M. Wong for the Respondent |