HKSAR v. Yick Kwong Hung

[English Translation - 英譯本]
HCMA 91/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 91 OF 2009

(ON APPEAL FROM ESS NO. 15990 OF 2008)

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Before: Hon Barnes J in Court

Date of Judgment: 28 April 2009

Date of Reasons for Judgment: 4 May 2009

Reasons for Judgment

1.The appellant was convicted after trial by a deputy special magistrate on one count of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong, and was fined $2,000.  He appealed against conviction.

2.After hearing, I allowed the appeal and ordered that the conviction be quashed and the fine set aside.  The appellant was awarded costs of the appeal and costs at the magistracy.

Prosecution case

3.The case of the prosecution was that at 8.15 a.m. on the day of the offence, the appellant was driving a public bus along the near lane on the eastward carriageway of Connaught Road Central.  He allegedly did not drive with due care and attention in that he failed to notice PW1, who at that time had alighted from his bicycle and was standing in the space between the bicycle and the kerb to the left of the near lane on the eastward carriageway, talking over the telephone; and as a result of such failure the front left part of the bus hit PW1 and his bicycle.

Defence case

4.The defence presented a different version of events.  The defendant alleged that at the material time, as the bicycle ridden by PW1 was carrying a large quantity of cleaned chicken and therefore moved unsteadily and lost balance, causing it to be hit by the bus from behind.  The defendant denied having driven carelessly.

Grounds of appeal

5.In essence, the grounds of appeal put forward by Ms. Ma, counsel for the appellant, were that the magistrate had not considered all the circumstances of the incident, and that, in finding the appellant guilty of the offence, the magistrate had erroneously applied a no-fault standard which was too high and unrealistic.

6.Ms. Ma did not take issue with the magistrate’s rejection of the defence version of events.  The grounds of appeal focused on the prosecution case and PW1’s version of what happened.

7.Ms. Ma asserted that the facts of the present case were as follows:

(1)    The incident occurred during the rush hour in the morning and on a road with heavy traffic;

(2)    The appellant was driving a high capacity bus;

(3)    PW1 was present at a spot where driving was prohibited and where a traffic sign that prohibited stopping ‘from 7 to 7’ and a single yellow line were in place;

(4)    PW1 stopped his bicycle abruptly without making any hand signal or giving any sign, and then alighted from the bicycle and stood on the road talking over the phone.

Citing the case of Brown & Lynn v. Western S.M.T. Co. Ltd 1945 S.C. 31, which involved a vehicle being hit by another vehicle from behind, Ms Ma contended that the magistrate seemed to have required the appellant to be perfect as opposed to what the law required of an ordinary driver, namely to be reasonable, careful and prudent.

Discussion

8.Having considered Ms. Ma’s submission and the evidence in the present case, I respectfully accept Ms. Ma’s views.

9.Although the present case does not involve a leading vehicle being hit by a following vehicle, assistance can be obtained from the observations made by Lord Justice Clerk (Lord Cooper) in Brown & Lynn on the duty of the driver of a following vehicle:

We were urged in the course of debate to substitute our own definition of the limits of a following driver’s duty, and even to prescribe the proper interval at which successive vehicles should keep station when travelling in a city street.  I am not prepared to do so.  The distance which should separate two vehicles travelling one behind the other must depend upon many variable factors — their speed, the nature of the locality, the other traffic present or to be expected, the opportunity available to the following driver of commanding a view ahead of the leading vehicle, the distance within which the following vehicle can be pulled up, and many other things.  The following driver is, in my view, bound, so far as reasonably possible, to take up such a position, and to drive in such a fashion, as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated: but whether he has fulfilled this duty must in every case be a question of fact, just as it is a question of fact whether, on any emergency disclosing itself, the following driver acted with the alertness, skill and judgment reasonably to be expected in the circumstances.

10.Put simply, Lord Cooper pointed out that the appropriate distance between two vehicles travelling one behind the other would depend upon a number of factors including the speed of each vehicle and the road condition.  The following driver is bound, so far as reasonably possible, to drive in such a fashion as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated. Whether a driver has fulfilled that duty turns on the facts of the particular case, including what the exigency was and whether the following driver responded in a way reasonably to be expected in the circumstances.

11.In the stretch of the road where the incident happened, there were no facilities for pedestrians to cross the road.  Only vehicles were allowed to proceed on that stretch of the road, and stopping was clearly prohibited.  The incident happened during the rush hour.  PW1’s evidence was that his telephone rang, so he stopped his bicycle, stood on the road surface between the bicycle and the kerb and talked over the telephone, with his back against the approaching vehicles.  He was hit from behind after he had spoken only a few words.  A short time elapsed between his stopping his bicycle and his being hit.

12.A driver should drive in a reasonable, careful and prudent manner.  Although PW1 was riding a bicycle, he too should observe the traffic rules.  But instead, he not only entirely disregarded the traffic signs and stopped his bicycle on a stretch of road where stopping was prohibited, but also stood on the road and talked over the telephone with his back against the vehicles.  In all the circumstances at the material time, PW1’s conduct cannot be said to be what a driver could reasonably be expected.  Had PW1 been standing on the road for some time, a driver would have had the opportunity to see him and hence avoided hitting him and his bicycle.  However, PW1 was hit soon after he alighted from the bicycle. There was no evidence as to what and how many vehicles had proceeded past PW1 before he was hit by the bus.

13.A careful and prudent driver not only pays attention to the lane in which he is driving, but also keeps a lookout for all his surroundings and is alert to all the traffic around him.  PW1 did the acts in question within a short interval of time.  On the one hand, there was no evidence as to what vehicles were in front of the appellant and whether his view was obstructed.  On the other hand, it is not the case that the appellant made no reaction upon seeing PW1.  He did swerve the bus to the right; only that it failed to avoid hitting PW1 and his bicycle.

14.Judging from all the circumstances at the material time, this traffic exigency was not within the reasonable expectation of a driver.  The prosecution evidence failed to prove that the appellant’s driving manner fell short of the common standard of due care and attention.  The conviction is unsafe.  I have therefore allowed the appeal, quashed the conviction and set aside the fine.

15.In light of my findings, the respondent did not object to the appellant’s application for costs, and I ordered that the appellant be awarded costs of the appeal and the trial.

Ms. Chan Shook Man Alice, Senior Public Prosecutor, for the HKSAR.

Ms. Anita Ma, instructed by Tai, Mak & Partners, for the Defendant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.