HKSAR v. Lui Mei Han Maggie

HCMA 489/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 489 OF 2009

(ON APPEAL FROM FLCC 1504/2008)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing:  6 November 2009

Date of Judgment:  20 November 2009

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J U D G M E N T

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1.This is an appeal by way of case stated brought by the Secretary of Justice, pursuant to section 105 of the Magistrates Ordinance, Cap. 277.

Background

2.The Respondent was charged with one count of “Dangerous Driving Causing Death”, contrary to section 36(1) of the Road Traffic Ordinance, Cap.374. The charge was preferred after a traffic accident involving a bus driven by the Respondent resulted in the death of a 77-year-old female pedestrian.

3.On 5 August 2008, the Respondent was tried before Deputy Magistrate, Jerry Ng, at Fan Ling Magistrates Court. The prosecution evidence was put before the court by way of Admitted Facts; the prosecution did not call live witnesses. The Respondent elected to give evidence at the trial. On 26 August 2008 the Respondent was acquitted of the charge of dangerous driving causing death, but convicted of “Careless Driving” an alternative verdict available to the Magistrate.

4.The Appellant applied to review the Magistrate’s acquittal of the Respondent, on 3 September 2008. The review was heard on 9 February 2009 and on 24 February 2009 the Magistrate dismissed the application and awarded costs of the review to the Respondent.

5.The Secretary for Justice sought by way of a case stated by the Magistrate, the opinion of a judge on the following points of law:-

(1)  Did I err in stating and applying the test for determining dangerous driving within the meaning of section 36 of the Road Traffic Ordinance, Cap 374, and given the facts found by me and in particular those set out in paragraph 4(j), did I err in finding the Respondent’s manner of driving did not fall far below what would be expected of competent and careful driver and was not obvious to a competent and careful driver that driving in that way would be dangerous?

(2)  Did I err in acquitting the Respondent of dangerous driving causing death on the facts of this case?

(3)  Did I err in dismissing the Appellant’s application for review on 24 February 2009 and awarding costs of the review hearing to the Respondent?

6.The Appellant contended that the Magistrate “came to a conclusion or finding of fact which no reasonable Magistrate, applying his mind to the proper considerations and giving himself the proper directions could have come to”. For this reason the Appellant asserted that the Magistrate had committed errors of law in his determination.

Facts

7.The Respondent was driving a bus at about 7:30 a.m. from Sheung Shui Landmark to Ta Kwu Ling. At that stage there were passengers on the bus. During her hours of duty she was required to complete five return journeys; the journey at 7:30 a.m. was probably the first of the day. The Respondent had held a driving licence for 10 years and had been driving buses for five and a half years. She was not very familiar with that particular road but had driven there before and was familiar with the layout. The speed limit was 50 kph.

8.The Respondent was driving the bus towards a light-controlled pedestrian crossing; she had a clear, unobstructed view of the crossing. She saw that the traffic light governing drivers was red and that some pedestrians were crossing the road using the crossing. It was raining slightly at the time and the road was wet.

9.A 77-year-old female pedestrian on the crossing was crossing the road from the offside of the bus towards the near side of the bus. When she reached the central location of the left second lane of the north-east bound Sha Tau Kok Road, the bus slowed to about 30 km/h but it did not stop and continued to travel forward.

10.The Respondent applied the brake only after the front of the bus had passed the horizontal white line on the ground at the location of the traffic light. The distance between the pedestrian and the bus at that time was approximately 1.2m. The left front of the bus hit the deceased who later died as a result of injuries sustained in the accident.

11.The Respondent made a voluntary statement to the police, under caution, after the incident. She said that at that time it was raining and the road surface was wet and slippery. She saw the traffic light was red and so she slowed the speed of the bus to stop before the light. Suddenly she saw a flash of something at a very close distance in front of the vehicle, which she could not identify. She was frightened and wondered why she had not stopped the bus. She braked sharply and heard a “bang” sound; the bus stopped. It was then that she saw an elderly woman lying in front of the bus.

12.The bus was examined after the accident and found to be in normal working conditions. The traffic lights at the location were checked and found to be functioning properly at the material time.

The Evidence of the Respondent

13.The Respondent said that when the bus was near the accident location she saw that the light was red so she reduced the speed to about 30 km/h and was prepared to stop in front of the traffic light. There was a moment when she either felt faint or saw a flash and then it was very noisy. She saw the pedestrian crossing the road and applied the brake very hard. The bus stopped and she felt the bus hit the deceased. She said that it was the flash that caused her to be unable to stop.

14.When cross-examined the Respondent admitted seeing the traffic light when it was less than 30m from the bus. She saw several people crossing the road at the pedestrian crossing and maintained that before impact, she had full control of the bus.

15.The Respondent said that she could not recall the initial speed of the bus as she approached the lights. She put this down to her being frightened and nervous in the aftermath of the incident. She recalled that she did reduce her speed as she approached with a view to stopping at the lights.

16.There was no evidence to suggest that she was speeding, driving erratically, or that she was driving in excess of the speed limit which was 50 km/h in that area. The Admitted Facts (Exh. P1 para. 5) incorporated the evidence of PW1, a male passenger sitting in the left front seat of the bus, to the following effect:-

“The deceased was crossing along the pedestrian crossing from the offside of the bus towards the nearside at normal speed, while the traffic light had already turned red for a while.  When the deceased was crossing the road at the middle of the pedestrian crossing, the bus was 20 odd metres away from the deceased but the bus was still moving and did not slow down.  At that time there was no other vehicle near the traffic light.  The deceased continued to walk and reached the central location of the left second lane of NE-Bound Sha Tau Kok Road.  At that time the bus was slowed down and reduced to 30-odd km/h but it did not stop.”

“The vehicle front of the bus passed the horizontal white line on the ground at the location of the traffic light.  By that time the deceased had already reached the central location of the left first lane of NE-Bound Sha Tau Kok Road and the distance between her and the vehicle front of the bus was only 1.2 metres.  At this moment, the Defendant shouted loudly and applied the brake hard.  The deceased was hit by the left front of the bus and the bus stopped completely afterwards.”

17.The Magistrate rejected the evidence of the Respondent about seeing a flash and said he did not find her an honest or reliable witness. He found that the following inferences were available to him from the evidence:-

(1)  Serious misjudgement by the Respondent who braked too late to stop the bus.

(2)  The Respondent braked, but the condition of the road was such that the bus did not stop and the possibility of skidding could not be excluded.

(3)  The Respondent’s concentration lapsed momentarily.

18.The Magistrate found that there was no evidence of dangerous driving other than the failure to stop the bus. In particular he rejected the prosecution contention (which has been maintained throughout these proceedings) that the Respondent intended to run the red light.

19.The road was wet and slippery and although the Respondent was reducing speed as she approached the light, she did not pay due care and attention to the road condition, the proximity of the pedestrian crossing and the need for a greater braking distance to compensate for the road condition.

20.As a result of these considerations the Magistrate found that the Respondent had driven not dangerously, but carelessly.

The Review

21.The Appellant at the review contended that the only inference to be drawn from the facts was that the Respondent intended to jump the red light, thus causing the accident. Further, her driving standard was alleged to have fallen far below that expected of a competent and careful driver and that it would have been obvious to a competent careful driver that her manner of driving would be dangerous in the circumstances of the case. After hearing submissions the Magistrate maintained his view that the behaviour of the Respondent was not consistent with that of someone who had an intention to run the light. He upheld his previous decision to acquit the Respondent of dangerous driving causing death.

The Law

22.A person drives dangerously, in terms of section 36(4) of the Traffic Ordinance, Cap. 374, if the way he drives falls far below what would be expected of a competent and careful driver and if it would be obvious to a competent and careful driver that driving in that way would be dangerous. “Dangerous” refers to the danger of injury to any person, or serious damage to property (section 36(6) of the Road Traffic Ordinance, Cap. 374).

23.Section 36(7) sets out the circumstances that should be taken into account in determining what is to be expected of, or should be obvious to, the competent careful driver:-

(a)  the nature, condition and use of the road concerned at the material time;

(b)  the amount of traffic which is actually on the road at the time or which might reasonably be expected to be on the road at the time;

(c)  the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware in any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.

24.Section 109(5) of the Road Traffic Ordinance, Cap. 374, provides that failure on the part of any person to observe any provisions in the Road Users’ Code may be relied on by a party as tending to establish any liability which is in question in the proceedings.

Submissions by the Appellant on the Evidence

25.The Appellant contended that the Respondent had a clear and obstructed view of the pedestrian crossing and knew that pedestrians were crossing the road in both directions. It was submitted that she reduced the speed of the bus from an unknown prior speed to 30 km/h only when the bus was about 20 odd metres from the crossing. She allowed the bus to continue to move forward, but did nothing in the interim and applied the brakes only when the bus was 1.2 m from the deceased.

26.As the Magistrate had rejected the Respondent’s evidence about seeing a flash just before the collision, the Appellant submitted that there was no evidence showing the Respondent had done anything to stop the bus between the time she reduced the speed to 30 km/h and the time she knocked down the deceased. The Appellant submitted that this was not a case where the Respondent had tried, or taken steps, to stop in front of the white line and had failed; rather it was a case where she had not done anything.

27.After the bus stopped, more than a third of its length protruded into the pedestrian crossing and more than half of its length extended past the white line behind which vehicles were supposed to stop at the traffic light.

28.The Appellant submitted that the only reasonable inference to be drawn from the evidence is that the Respondent did not intend to stop before the red light and had turned a blind eye as to whether the bus would run into pedestrians. The Appellant categorised the case as one of selfish disregard by the Respondent for the safety of other road users and not simply a case of misjudgement or lapse of concentration. In consequence it was argued she drove in a manner far below that expected of a competent and careful driver.

The Respondent’s Submission

29.It was the Respondent’s case that the Magistrate had not failed to consider the relevant facts, nor had he misinterpreted, ignored, or overlooked relevant facts; rather he had examined the evidence carefully and come to a considered view. The matters that he took into account were set out in paragraph 86 of the transcript of trial:-

“Other than the fact that the bus failed to stop in time, which resulted in the death of the deceased ... there was no evidence of the defendant driving dangerously.  Firstly she was slowing down the bus as it approached the incident spot.  There was no evidence that the defendant was going to run the lights.  There was no evidence that she was doing anything unusual.  There was no evidence that the defendant had an illness, or was using a mobile telephone or had taken medication, or was under the influence of alcohol, or driving erratically.  As it was stated in defence counsel’s submissions, there was rational behaviour right up to the moment of impact.  I am satisfied beyond reasonable doubt that the prosecution has proved that the defendant drove carelessly and that is that the defendant drove a vehicle without due care and attention.  However unfortunate the incident was, this is a case of careless driving as such.  The defendant was convicted of careless driving.”

30.At a later stage he said:-

“As such I am not satisfied that the defendant’s driving fell far below what will be expected of a competent and careful driver and that it would be obvious to a competent careful driver that driving in that way would be dangerous.  However given the fact that the road was wet and slippery at the time of the incident and despite [the fact] that the defendant approached the junction at a gradually decreasing speed, the defendant is not paid due care and attention as to the condition of the road and that there was a pedestrian crossing and that more braking distance was required. And therefore the defendant drove carelessly.”

31.The Magistrate [at page 15 transcript] made the following comments:-

“Furthermore I find it illogical and unreasonable for the prosecution to submit the following two points:

Firstly, people slowing down does not necessarily mean they have no intention of running the traffic lights.  Secondly, perhaps slowing down a bit and letting pedestrians cross the road and then speed up to run the lights.”

32.Those comments by the Magistrate addressed the prosecutor’s submissions, at trial, that the Respondent had intended to run the red light and that her reducing speed did not mean she did not intend to do so, but rather it could be inferred that she was slowing down to allow pedestrians to cross and then intended to increase speed to run the light.

33.There was evidence that the Respondent had slowed from a “normal” speed to around 30 kph as she approached the light and that she was aware of the need to stop. To suggest, as the prosecutor did, that her slowing down could mean she intended to run the red light had no evidential basis and was unjustifiable speculation on the part of the prosecutor.

Consideration

34.The test for dangerous driving is an objective one – whether the driver intends to drive dangerously is not relevant to any assessment as to whether his or her driving was dangerous. Although examples of dangerous driving abound in the case law, each case depends very much on the particular circumstances which prevail at the time.

35.A tragic outcome, as in this case where a pedestrian was killed, does not necessarily turn careless driving e.g. a momentary lapse of attention, into dangerous driving, although I agree with McMahon J’s obiter comment in HKSAR v. Chan Yan HCMA 1108/2007 that there is no reason why even a momentary driving event could not properly be considered dangerous.

36.The mere fact that there was an accident on a pedestrian crossing, is insufficient in itself to show that the standard of driving fell far below that of a competent and careful driver.

37.I have examined the facts of the case and considered the way the Magistrate dealt with the evidence. There was no clear evidence from any independent source as to what happened. There was no skid mark, to indicate a sudden sharp braking at a high-speed or to confirm a sliding on a damp and slippery road. The Magistrate had looked at all the relevant matters; the conditions at the incident spot; the personal particulars of the Respondent including her driving history; the physical condition of the Respondent at the time of the incident and the mechanical condition of the bus.

38.The Magistrate had set out three possible scenarios, no one of which, from the evidence, appeared more or less likely than the others. Although he had found the Respondent to be untruthful, in relation to her allegations about her seeing something flashing, the fact that the Respondent lied, or might have lied, at trial did not mean, necessarily, that she was guilty of dangerous driving causing death.

39.There were no skid marks on the road which might indicate heavy braking at a high speed. Further, the Autopsy Report (Exh. P8) although it recorded the fatal head injuries of the deceased did not record any fractures or other injuries which might show that the deceased had been dragged along the ground, or run over by the wheels of the bus, both of which occurrences could indicate speed.

40.The Magistrate, in the absence of any contrary evidence, was obliged to look at the evidence in the most positive manner for the Respondent. The facts as they appear from the evidence indicate a probable momentary lapse of concentration by the Respondent resulting in a misjudged and ill-timed attempt to stop the bus, at a time when it was too late to do so successfully given the damp road condition. It was not possible on the evidence available for the Magistrate to find that the manner of driving fell so far below the driving expected of a competent and careful driver that it must be dangerous.

41.Accordingly I would answer the questions set out in the case stated as follows:-

(1)  “No”.

(2)  “No”.

(3)  “No”.

42.I order costs of these proceedings to be to the Respondent, to be taxed if not agreed.

Ms Kathie Cheung, SPP, of the Department of Justice, for Appellant

Mr McGuinniety Edward Luke, instructed by Messrs Jennifer Lee & Co, assigned by DLA, for the Respondent