HKSAR v. Kan Hung Kwong

[English Translation 英譯本]

HCMA 1005/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1005 OF 2009

(ON APPEAL FROM KCS 32058 OF 2009)

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Coram: Hon. Barnes J

Date of Hearing: 27 May 2010

Date of Judgment: 27 May 2010

Date of Reasons for Judgment: 3 June 2010

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REASONS FOR JUDGMENT

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1.The Appellant was convicted after trial by a magistrate on one count of “careless driving”, contrary to s.38(1), Road Traffic Ordinance, Cap. 374, Laws of Hong Kong, and was fined $1,400. The Appellant appealed against conviction.

2.At the conclusion of the hearing, I dismissed the appeal and upheld the sentence. I now set out the reasons for my judgment.

Prosecution Case

3.The prosecution case, in short, is that on the day of the offence as the Appellant, while driving a taxi [KG2068] along the third lane from the left in the west-bound carriageway of Ching Cheung Road near Caritas Medical Centre, failed to keep a proper distance between his taxi and the vehicle ahead of him [private car ET2613], and as a result he could not apply the brakes in time and his taxi rammed into the preceding vehicle after the preceding vehicle had come to a halt.  The Appellant thus committed the offence of careless driving.

Prosecution Evidence

4.The Magistrate in his Statement of Findings noted the admitted facts and the evidence of the two prosecution witnesses.  I now set it out below:

“2. Before the trial commenced, certain facts were admitted by the prosecution and the defence, including:

(i) At the time of the offence, private car EG726 [1^st vehicle], taxi KR7782 [2^nd vehicle], private car HY3327 [3^rd vehicle], private car MD5900 [4^th vehicle], private car ET2613 [5^th vehicle] and taxi KG2068 [6^th vehicle, the Defendant’s vehicle] were travelling in that sequence along the 3^rd lane from the left in the west-bound carriageway of Ching Cheung Road. While travelling along the 3^rd lane near the Caritas Medical Centre, the above 6 vehicles in that sequence were involved in a 6-vehicle chain collision. As a result of the collision, four persons, namely, the driver of the 4^th vehicle, a passenger of the 5^th vehicle, the Defendant and a passenger of his vehicle, were injured.

(ii) At 8:41 a.m. on 5 June 2009, Police Constable 45581 arrived at the scene where he drew a sketch showing the final stop positions of the 10 vehicles involved in the accident [including the above 6 vehicles]. He also took 6 photos respectively showing the road surface condition (and) the damaged condition in respect of the 1^st vehicle to the 4^th vehicle [Prosecution Exhibit P2(1-6)] and took 12 photos respectively showing the damaged condition in respect of the 7^th vehicle to the 10^th vehicle [Prosecution Exhibit P3(1-12)].

Prosecution Evidence

3. The prosecution called PW1 Mr. Leung Kwok-chung, i.e. the driver of the 5^th vehicle in the collision, to give evidence. At the material time, he was driving a private car ET2613 along the fast lane, i.e. the 3^rd lane from the left, in the west-bound carriageway of Ching Cheung Road at about 70 km.p.h. At that time the traffic was smooth. Upon seeing the brake lights of the vehicle ahead of him were on, he then reduced the speed and stopped his car behind the preceding vehicle. At the time when he stopped his car, there was no collision between his car and the vehicle ahead of him. After he had stopped his car and before he pulled up the handbrake, there was a huge impact from behind. PW1 pointed out that before he stopped his car, he was maintaining a distance of 6 to 7 vehicles’ length from the vehicle ahead of him. At the time he stopped his car, he was 2 to 3 feet away from the vehicle ahead of him. PW1 also alleged that before the collision, from the rear-view mirror he saw a taxi following closely behind him, which was only a taxi’s length away from PW1’s car. PW1 said that before his car was hit by the following vehicle, he did not hear other sound of collision. After the collision, he alighted from his car and found that the front of the Defendant’s taxi was almost completely damaged, while the rear of his own car was also seriously damaged.

4. Under cross-examination by the defence counsel, PW1 said he was not sure whether the vehicle which hit his car was the taxi he saw following him in the rear-view mirror as mentioned during the examination-in-chief. PW1 firmly said that he did maintain a distance of 6 to 7 vehicles’ length between his car and the preceding vehicle [MD5900] as he did not want to follow it too closely; at that time he was very attentive in driving, and he did not turn on the radio, nor did he talk to his wife or speak on mobile phone.

5. The prosecution called PW2, Police Constable 45581, to give evidence. He arrived at the scene after the incident where he made investigation into the accident.  He confirmed that it was he who drew a sketch showing the respective final stop positions of the 10 vehicles on the road after the accident, and that the sketch also bore the respective signatures of all the drivers.  In giving evidence, he pointed out that from his observation at that time, the front of the Defendant’s taxi was seriously damaged and there was no damage to its other parts.  There was no damage to the front of the 7^th vehicle.  During cross-examination, the defence counsel asked PW2 why it was written in his notebook that there was damage to the rear of the Defendant’s vehicle.  PW2 explained that it was just a slip of the pen.  I accepted the explanation given by the witness.”

Defence Case

5.The Appellant did not give evidence, nor did he call any witness.

Verdict of the Magistrate

6.The verdict of the Magistrate is set out below:

“6. I bear in mind that the prosecution bears the burden of establishing the guilt of the Appellant. The prosecution has to prove beyond reasonable doubt each and every element of the offence in the present case. The Appellant is under no duty to prove his innocence. I have considered the evidence of the prosecution witnesses, the exhibits produced to the court and the demeanour of the prosecution witnesses while giving evidence in court. I have also taken into account the evidence and submissions of the defence. I have also observed the demeanour of the Appellant when he gave evidence in court. In my observation, the evidence of the prosecution witnesses in the present case is very clear, straightforward and not at all evasive, and the witnesses were unshaken under cross-examination. From PW1’s evidence, it is clearly known that he was keeping a sufficient travelling distance between his car and the preceding vehicle, that the rear of his car and the front of the Defendant’s taxi were seriously damaged after the collision, and that there was no damage to the front of the 7^th vehicle. The defence counsel submits that it is possible that it was the 7^th vehicle which first crashed into the Defendant’s taxi, thereby pushing the Defendant’s taxi forward to crash into PW1’s car. This argument cannot stand and I do not accept it. Based on the final stop positions of the vehicles as shown in the sketch and the damaged condition of the relevant vehicles, the only reasonable and irresistible inference that can be drawn is that the Defendant was following the vehicle ahead of him too closely; when PW1’s car stopped behind the preceding vehicle, the Defendant failed to apply the brakes in time and his taxi crashed into PW1’s car. I rule that the Defendant was careless so far as his driving manner is concerned.”

Grounds of Appeal

7.The ground of appeal advanced by Ms. Catherine K.K. Wong, counsel for the Appellant, is basically that on the evidence adduced by the prosecution, the inference that the Appellant was driving carelessly is not the only reasonable inference that can be drawn.  She submits that in view of all the circumstances at the material time, the fact that there was collision between the Appellant’s vehicle and the preceding vehicle, and the fact that there were also other vehicles at the back and on the left of the Defendant’s vehicle being involved in this traffic accident, one of the reasonable inferences is thus that the Appellant’s vehicle crashed into the preceding vehicle as a result of the Appellant having been affected by the traffic condition at the back and on the left, rather than the Appellant failing to keep a proper distance between his vehicle and the preceding vehicle ---- in particular there is no evidence to show that the Appellant’s vehicle was speeding at the time.

8.Ms. Wong submits that although the Appellant exercised his right and elected not to give evidence, nor did he call any witness, the prosecution should have excluded the possibility of the Appellant having been affected (sic), given the fact that there were other vehicles involved in the incident.

9.Ms. Wong also submits that the Magistrate seemed to have wrongly adopted the legal principle of “res ipsa loquitur”.

Discussion

10.A common traffic accident is a vehicle being hit by a following vehicle.  The mere occurrence of such collision does not automatically mean that the driver of the following vehicle was careless.  Whether that driver was careless must depend on all the circumstances.

11.The doctrine of “res ipsa loquitur” does not apply to criminal charges [see the case of Kit Wing Wo[1]]. However, I do not agree with Ms. Wong’s submission.  The Magistrate did not apply the doctrine of “res ipsa loquitur” in the present case.

12.Regarding the duty of a following driver, I have already dealt with it by citing cases in Wong Tsz-mau[2]. I am going to repeat it here.

13.In Brown & Lynn v Western SMT Co. Ltd [3], Lord Justice Clerk [Lord Cooper] had this to say [at p. 35]:

“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 factor –– 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.”

14.Put simply, in Lord Cooper’s observation, the distance which a following vehicle should keep from the vehicle in front depends on all the circumstances such as their speed and the circumstances of the road.  The following driver should, so far as reasonably possible, drive in such a fashion as will enable him to deal successfully with all traffic emergencies which can reasonably be anticipated.  Whether the driver has discharged that duty is a matter of the factual circumstances of the case.  What was the emergency?  Was the reaction of the following driver one that could reasonably be expected in the circumstances at that time?

15.The above observations have been adopted by the English Court of Appeal in Scott v Warren[4].

16.In Scott v Warren, Lord Widgery CJ also quoted the following passage of the judgment of Lord Stevenson in Brown & Lynn [at p. 44]:

“… I think there is a general duty on the driver of a vehicle to keep between him and the vehicle ahead such a space as will enable him to draw up without colliding with the forward vehicle after he sees that it is about to stop, or has stopped. I admit a possible exception, viz, that the conditions of road and traffic do not compel him to shorten the distance. I do not think that the fact that the forward vehicle makes an emergency stop is by itself sufficient to justify breach of the rule I have laid down. A motor driver constantly has to face unexpected situations. If he drives with care he will be alert to meet them and take all reasonable precautions to do so.”

17.Lord Widgery CJ took the view that the judgment of Lord Stevenson, apart from pointing out that a driver may not simply rely on the emergency stop of the vehicle in front as a defence, did not differ from the test laid down by Lord Justice Clerk.  Lord Widgery CJ pointed out that even for emergency stops, the matter was one of degree in every case.

18.In Kit Wing Wo, Penlington J also cited Brown & Lynn and Scott v Warren.  I respectfully concur with and adopt the said test.

19.On the testimony and evidence of the present case, although PW1 quite fairly agreed that he could not be sure whether the taxi he saw in the rear-view mirror was the same taxi which rammed into his car subsequently, it is simply unlikely that the vehicle he saw was not the Appellant’s taxi, given that according to his description he saw a taxi before the collision and that the Appellant’s taxi was the one which rammed into PW1’s car subsequently.

20.The situation as described by PW1 is that a taxi [the Appellant’s taxi] was “immediately” following his car along the same lane.  The witness could stop his car normally, but before he had time to pull up the handbrake the Appellant’s taxi rammed into his car.  The impact of the collision was so huge that PW1’s glasses fell off as a result.  The undisputed fact is that the front of the Appellant’s taxi was seriously damaged. The Magistrate was satisfied with the evidence of the police constable that there was no damage to the rear of the Appellant’s taxi and that the front of the vehicle immediately behind the Appellant’s taxi was not damaged either. According to the sketch drawn by the police [Exhibit P1], there was no contact between the Appellant’s taxi and the vehicle behind it or the vehicle on its left.

21.It is the right of the Appellant to elect not to give evidence.  There is no evidence in the present case to support the hypothesis put forward by the defence, which was that the Appellant’s taxi hit the vehicle ahead of him as a result of having been affected by other vehicles.  In drawing any inference based on facts, it is not necessary for the court to speculate.  The court must rely on common sense and logic to draw inferences based on facts.  On the facts of the present case, I agree with the verdict of the Magistrate: the only reasonable inference that can be drawn is that the Appellant did not keep a proper distance between his taxi and the preceding vehicle.

22.As a driver has a duty to keep a distance between his vehicle and the preceding vehicle so as to enable him to stop and avoid any collision with the preceding vehicle when the preceding vehicle stops, the driving manner of the Appellant at the material time was such that he lacked the due care and attention and failed to give reasonable regard to other road users.  Therefore, the Appellant was driving carelessly at that time.

23.For the above reasons, I dismissed the appeal.

Rosa Law Sum-yee, Public Prosecutor of the Department of Justice, for the HKSAR.

Catherine K.K. Wong, instructed by Lam & Co., M.K., for the defence.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.