HKSAR v. Wong Wai Yat

HCMA 598/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 598 OF 2010

(ON APPEAL FROM KCS 6154/2010)

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BETWEEN

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Before: Hon Mackintosh J in Court

Date of Hearing: 22 October 2010

Date of Judgment: 22 October 2010

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J U D G M E N T

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1.It has never been disputed in this case, either before the Deputy Special Magistrate Mr Dennis Sit Wing-kwun, or before me on appeal, that on 15 November 2009 the appellant drove his car across a junction against a red light, and collided with a car being driven through the junction with the green light in its favour. As a result of the collision, minor injuries were suffered by the passengers in the other car. There was evidence before the Magistrate, which was not contradicted by other evidence, that the appellant’s car was being driven in excess of the 50 kph speed limit; and that it made no attempt to slow down before entering the junction against the red light. The Magistrate convicted the appellant of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374. The appellant submits that he was wrong to do so and appeals against his conviction. He was fined $5,000, was disqualified from driving for eight months, and was ordered to attend a driving improvement course under section 72A of the Ordinance. The appellant submits that the penalty was excessive and he appeals against the sentence. The appeal was focused principally on the period of disqualification.

2.Mr Oliver Davies has represented the appellant at trial and represents him today in this appeal.  The sole ground of appeal against conviction is expressed in terms of the Magistrate being wrong, on the evidence, to find that the appellant was driving in excess of the speed limit at the material time.

3.Facts admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221, showed that at about 11 pm on the night in question, a car driven by a Mr Lee approached the junction of Tonkin Street West and Lin Cheung Road in Cheung Sha Wan at about 40 kph.  The junction was controlled by traffic lights which were green in Mr Lee’s favour and he therefore proceeded into the junction. At the same time, a car was being driven in the same direction but in a different lane, by an off duty police officer who was called as the only live witness in the trial, PW1.

4.The traffic lights in PW1’s direction turned to red and he stopped at the line and waited.

5.The road crossing the junction with Tonkin Street West is Lin Cheung Road.  The sequence of lights at the junction resulted in the traffic lights on Lin Cheung Road being at red when traffic lights on Tonkin Road West were green.

6.It was admitted that in due course, PW1’s lights turned to green permitting him to enter the junction.  As he was about to start, he looked to his right along Lin Cheung Road and saw a car approaching the junction which, it was admitted, was being driven by the appellant.  By then, Mr Lee’s car having crossed through its green light was 2 to 3 cars’ spaces into the junction.  PW1 estimated the speed of the appellant’s car as it approached the junction along Lin Cheung Road as being 60 to 70 kph.  The speed limit was 50 kph.

7.The appellant’s car entered the junction and collided with Mr Lee’s car in the middle of the junction, causing damage and the minor injuries to the passengers of Mr Lee’s car.

8.It was admitted that the traffic light system was in proper working order at the material time.  There was no question that the appellant’s car had crossed against a red light and collided with another car which had crossed into the junction with the green light in its favour.  The road surface was wet and slippery at the time.

9.PW1 agreed in cross-examination that his view of the appellant’s car at this time had been “very brief”; various fractions of a second were put to him, which in my view take the case little further forward.  The point was, as he readily agreed, that he could not be “very sure” of the speed of the appellant’s vehicle.  In other words, he was estimating its speed.

10.Since the appellant elected not to give evidence or call witnesses, there was no direct evidence to contradict PW1’s evidence as to speed.

11.The Magistrate found PW1 to be an honest and reliable witness.  I bear in mind that the Magistrate had the advantage of seeing him give evidence and that considerable weight must be given to his judgment of his qualities as a witness.  I have read a transcript of his evidence: there is nothing there to suggest that the Magistrate was wrong in his conclusion.  In his statement of findings, the Magistrate focused on the brevity of PW1’s view of the appellant’s car and the fact that PW1 could not “say for sure” what its speed was at the material time.  His account of speed, the Magistrate pointed out, was an “estimate only”.  Of course, such an estimatenecessarily involved a judgment on the part of PW1.

12.PW1 had been working in the traffic section of the police force for 16 years.  Although he was not presented to the court as an expert witness, he had been trained in the use and operation of speed detection equipment.  He therefore had some experience in relation to judging the speed of vehicles.  His first sight of the appellant’s car, he said, had been when it was about 10 metres from the stop line relating to its direction of travel.  At that point, his own light had just turned green so that the appellant’s traffic light had by then gone through the amber phase to red.

13.It is well established that opinion evidence as to the speed of vehicles is receivable, especially where the witness has some relevant experience, for example as a driver (see Wilkinson’s Road Traffic Offences, 24^th ed, para 6.101).  However, such estimates must be treated with considerable caution, especially so far as they relate to exact speed.  They may well carry more weight to the extent that they are describing whether or not the speed in question was in general terms excessive, given the prevailing circumstances.

14.This approach must be taken to PW1’s estimate of the speed of the appellant’s car to be 60 to 70 kph, especially given the brevity of his view.  PW1 also testified that there was no change in the speed of the appellant’s car at the time it was going to the junction.  So that his evidence was that it continued past the red traffic light, and into the junction at the same speed.

15.I note particularly that there was no direct challenge in cross-examination that PW1’s estimate of speed was wrong.  It was not put to him that the appellant’s vehicle had been travelling at a slower speed; neither was it suggested that the appellant’s vehicle had slowed as it approached the red traffic light.  The evidence was all one-way on these aspects of the case.  It was inevitable, once the Magistrate found, as he was entitled to do, that PW1 was an honest and reliable witness, that he would conclude that the appellant drove into the junction at a relatively high speed, that is, too fast in the circumstances, viz entering a junction against a red light, having made no attempt to slow down.  He also made a finding that the appellant was driving at an excessive speed – 10 to 20 kph over the speed limit at the time.

16.In my judgment, whilst the Magistrate was entitled to draw the conclusion from PW1’s uncontradicted evidence that the appellant’s car was being driven at an excessive speed for the prevailing circumstances, he placed too much reliance on the exact figure given by PW1’s original estimate of 60 to 70 kph.  Mr Davies today points to the limited scale of the damage to the vehicles and the position as to where the vehicle stopped as an indication that the speed may not have been as high as 60 to 70 kph.

17.The prevailing circumstances were the approach by the appellant to a set of traffic lights, on a wet and slippery road, and the fact that as he approached those traffic lights must have started to change through green/amber to red.

18.The Magistrate was entitled to conclude on the evidence of PW1 that the appellant made no attempt to slow down – and his speed into the junction therefore remained relatively high even if it was impossible to say that it was as high as 60 to 70 kph.

19.Given that the Magistrate accepted PW1’s evidence that the speed of the appellant’s vehicle was maintained as it passed the stop line in contravention of the red traffic light, he found that the “irresistible inference” was that the appellant did not intend to stop at the stop line at all, despite the red light.  Consequently, the Magistrate said his driving fell far below what could be expected of a competent and careful driver; and it would be obvious to such a driver that driving in such manner would be dangerous.  He therefore convicted the appellant of dangerous driving.

20.In my judgment, on the evidence, the appellant had a significant opportunity prior to passing the traffic lights, to see that he was going to be required to stop before entering the junction.  I might say that, it is of no avail to say, well, what if a driver did not notice the change in the lights. It is the driver’s obligation to make sure that he does observe any traffic lights which he is approaching, and that he drives at a speed which enables him to stop at the red light if those lights change from green to amber prior to turning to red.  Indeed Regulation 17(3) of the Road Traffic (Traffic Control) Regulations expressly provides that drivers of vehicles passing traffic lights “shall proceed with due regard to the safety of other drivers and users of the road ...”. It only takes a moment of thought to appreciate the mayhem that would result on our roads if these responsibilities did not rest on drivers.

21.In my judgment, what mattered in this case was not the exact speed of the appellant’s vehicle as it approached and entered the junction, nor whether it was exceeding the speed limit.  More important was the evidence that as it approached the junction, it was being driven at a relatively high speed, one which was excessive in all the circumstances, that is to say, the fact that there was vehicle approaching traffic light controlled junction and that the lights were changing through amber to red before the vehicle reached the stop line; and that the appellant made no change to its speed of his vehicle.

22.The Magistrate concluded that he could accept the evidence of PW1 as to the speed of the appellant’s car, notwithstanding the brevity of his view.  PW1, who was manifestly experienced in determining the speed of motor vehicles, saw the appellant’s car some 10 metres prior to the stop line and then after it crossed the line and entered the junction and collided with Mr Lee’s car.  Although he agreed that he could not be “very sure” of the speed of the appellant’s car, his description clearly demonstrated the vehicle that was being driven at a speed much greater than was appropriate in the circumstances.  The Magistrate was entitled to give weight to the description of speed, even if PW1 was unable to be sure as to the exact speed.

23.I am in no doubt that given PW1’s uncontradicted evidence, it was proper to find that the appellant was driving at an excessive speed and which his driving fell far below what could be expected of a competent and careful driver; and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.  It follows that the appellant was guilty of dangerous driving and was rightly convicted by the Magistrate.

24.This appeal against conviction is dismissed.

Record

25.I have raised some concern with the counsel today, about the admitted facts in this case: that the defendant had a “clear driving record”.  There was some emphasis in submissions in relation to that “clear driving record”.  The Magistrate in deciding the case, considered that it was appropriate to give himself what he called a “Berrada” direction which, since the appellant had not given evidence, meant a direction that the appellant was, less likely to have committed the offence.

26.In fact, the appellant had no conviction record.  However, he had a record for three fixed penalty offences of speeding and using a mobile telephone in a moving vehicle.  But because they were fixed penalty cases, the offences did not result in convictions.  Fixed penalty notices are issued when a police officer has reasonable grounds to suspect an offence has been committed, and if the fixed penalty is paid, the offender is not liable to prosecution or conviction.

27.Nevertheless to put forward a person with such a record of fixed penalty notices as a person who has “a clear driving record” is, in my judgment, wrong and it could be misleading.  If it is appropriate to say anything about a person’s record in such circumstances, that it should be made clear that in effect, the defendant has no conviction record for driving offences.

Sentence

28.I turn into the sentence.  The appeal against sentence is put on those limited grounds, there is no appeal against the fine of $5,000 or the order requiring the appellant was to complete a driving improvement course under section 72A of the Road Traffic Ordinance.  He complains that the disqualification of 8 months, which is 2 months longer than the minimum prescribed by section 72 of the Road Traffic Ordinance, was unnecessary.  Given of this standard of driving could not be categorised as the worst of its type and that consequently there was no need to add to this minimum period.  I have considered what has been said, but in my judgment, the disqualification was slightly longer than the minimum period, was well within the Magistrate’s discretion given that he had heard the trial and considered the evidence.  The appellant drove his car across a junction against a red light, at a speed excessive in the circumstances into the junction and collided with another vehicle.  It is an offence – which justifies the disqualification of 8 months and therefore there is no merit for the complaint.

29.The appeal against sentence is dismissed.

Mr Alex Lee, Senior Assistant Director of Public Prosecutions, for the Respondent

Mr Oliver H Davies, instructed by Messrs Chong, Fu & Co, for the Appellant