HKSAR v. Qasim-rehman

DCCC416/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 416 OF 2012

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Reasons for Verdict

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1.The defendant faces two charges, causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374, Charge 1, and using a defective vehicle, contrary to regulation 24(2)(a) and section 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374.

2.There was no dispute that the traffic accident occurred near lamppost No. KHM 337, Lin Cheung Road, Yau Ma Tei,  northbound carriageway (‘the location’) at about 2355 hours on 4 November 2011 which resulted in the death of Mr Li Shu-kan (‘the deceased’) and that a light goods vehicle HT 8999 (‘the van) driven by the defendant was involved.

3.In respect of Charge 1, the only issue was whether the defendant drove his vehicle in a dangerous manner within the meaning of section 36(1) of the Road Traffic Ordinance.

4.As for Charge 2, there was no dispute that the hand of the speedometer was missing after the accident.  The prosecution’s case is that there was no hand on the speedometer prior to the accident.  The defence case is that the dashboard of the defendant’s vehicle was severely damaged during the accident which resulted in the loss of the hand of the speedometer.

Undisputed facts

5.Most of the prosecution’s case was not in dispute.  Facts admitted by the parties pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221, were produced as P26 and P26A respectively.

The prosecution’s evidence

6.Lin Cheung Road northbound is a dual lane, single direction carriageway.  The location was an uphill stretch with a slight bend towards the left.  The speed limit at the location was 80 kilometres per hour.  See paragraphs 30 to 31 of P26.

7.The deceased and Mr Cheung Cheuk-wai (‘PW3’) were employees of a company called Talent Mark Development Limited (‘Talent Mark’).  In the evening of 4 November 2011, the deceased and PW3 were on board a roadwork vehicle, FM 2358 (‘the truck’).  PW3 was the driver of the truck. See paragraphs 2 to 4 of P26.

8.Talent Mark was the registered owner of the truck.  See paragraph 24 of P26 and P6 to P8.

9.The defendant was the driver of the van.  The defendant’s father was the registered owner of the van.  See paragraphs 6, 25 to 26 of P26 and P9 to 10.

10.On 4 November 2011 at about 2355 hours a traffic accident occurred at the location.  Prior to the accident, the truck was parked on the right lane of Lin Cheung Road near lamppost No. KHM 337.  According to PW3, the truck had been parked at the location for 15 minutes prior to the accident.  There was no dispute that both the deceased and PW3 had alighted from the truck.  The truck had a large self-illuminated flashing left arrow signage.  See paragraphs 1 to 2, 5 to 8 of P26.

11.PW1 was an eyewitness to the accident.  At about 2355 hours on 4 November 2011, PW1 was a passenger in the front passenger seat of a taxi (‘the taxi’).  Her three friends from Malaysia were sitting in the rear passenger seat.  The taxi was travelling along the left lane of Lin Cheung Road.  PW1 saw the van in front of her in the same lane.  The van was about three car spaces in front of the taxi.  There was a 20-seater single-decker residential shuttle bus (‘the bus’) in front of the van in the same lane.  The van was very close to the bus.

12.PW1 noticed the van and the bus because they were repeatedly cutting across the two lanes for some time and everyone inside the taxi were commenting on the manner of driving of the van and the bus driver. After about 4 to 5 seconds, the bus cut into the right lane.  The van followed the bus onto the right lane and the distance between them was about one car space.  The taxi remained on the left lane.

13.At about 1 to 2 seconds later, the bus swerved back towards the left whilst the van swerved further to the right and attempted to overtake the bus at a high speed.  PW1 then heard a loud braking noise.  She saw the truck with a self-illuminating left arrow signage and a man behind the truck on the right lane.  The van crashed into the back of the truck and the man was trapped between the van and the truck.  See also paragraphs 1 and 2 of P26.

14.The truck was pushed approximately one metre forward due to the impact of the crash.  As a result, PW3 who was in front of the truck was hit by the offside front of the truck.  See paragraphs 1 to 2 and paragraphs 5 to 8 of P26.

15.At the time of the accident, the weather was fine and the road surface was dry.  There was sufficient lighting from the street lamps and the traffic flow was smooth.

16.An ambulance arrived at the scene of the accident at about 0011 hours on 5 November 2011.  At that time the deceased was still trapped between the van and the truck.  The deceased showed no pulse and no breath.  Visible fracture was found on the deceased’s right leg.  See paragraph 9 of P26.

17.The deceased, PW3 and the defendant were all admitted to the Queen Elizabeth Hospital (‘QEH’) immediately after the accident.  The deceased showed no sign of life when he was admitted and was certified death at 0036 hours on 5 November 2011.  The cause of death was multiple injuries.  The deceased’s medical certificate, autopsy and toxicology reports were produced as P17 to P19 respectively.

18.PW3 and the defendant also suffered minor injuries.  PW3’s medical certificate and medical report were produced as P12 and P13.  The defendant’s medical certificate and two medical reports were produced as P14 to P16.  See paragraphs 10 to 15 of P26.

19.PW3 reported the matter to the police shortly after the accident.  Police officers conducted a breath test on the defendant and the reading was zero.  See paragraph 1 of P26A.

20.The police also took photographs and prepared sketches of the scene of the accident.  Those photographs and sketches were produced as P1 to P5.  In the sketches V1 denotes the truck and V2 denotes the van.  Two lines of skid marks measuring 17.1 metres and 15 metres were left by the van.  Both the van and the truck were damaged as a result of the accident. The MVE accident reports of both vehicles dated 7 November 2011 were produced as P23 and P24 respectively.

21.Police officers including PC58705 (‘PW2’) who arrived at the location found that the hand of the speedometer of the van was missing.  PW2 stated that there were two cracks on the plastic cover of the speedometer cluster but the mounting of the plastic cover was completely intact.  PW2 could not dismantle the plastic cover of the speedometer cluster at the location.  He looked through the plastic cover but no broken speedometer hand could be found.  Although it was not possible for the speedometer hand to fall out of the plastic cover, PW2 also searched inside the van but in vain. See paragraph 28 of P26.

22.Using a simple formula provided by the government laboratory, PW2 estimated that the approximate speed of the van prior to the accident was 50 kilometres per hour.  However, he admitted that the formula he used was not applicable to cases where there had been a collision. 

23.On 8 November 2011 PW2 met with the vehicle examiner, Mr Lau Wai-kwok, to dismantle the speedometer cluster.  PW2 was still unable to find the hand of the speedometer after he removed the cluster from the dashboard of the van.  The speedometer cluster was subsequently sent to the government chemist, Wong Tai-wai, PW4, on 9 November 2011 for further examination.  See paragraph 29 of P26.

24.When PW4 received the speedometer, its plastic cover was already loose.  There were two cracks on the cover but they were not wide enough for the speedometer hand to fall out.  PW4 was of the view that the impact from a front collision could cause the speedometer hand to fall off.

25.Normally in cases of front collision, the pressure from behind the speedometer dial would push the dial towards the hand of the speedometer and this would result in scratch marks on the dial.  PW4 would then be able to retrieve information in respect of the vehicle speed from the scratch marks.  However, in the present case PW4 found that no significant scratch marks were on the speedometer dial.  He also found some dust, dirt or debris on the axle of the speedometer hand and in a void of the axle.  He concluded that there was a possibility that the speedometer hand was already missing before the accident.

The defence evidence

26.The defence only called the defendant’s father, Mr Atta-Ur-Rehman(?) (‘DW1’) as a witness.  In short, DW1 stated that the defendant was his elder son who lived with him in Tuen Mun.  The van belonged to DW1, it was a second-hand car manufactured in 1995.  He purchased it 4 to 5 years ago to take his children to school.  He drove the van everyday including the morning of the accident, and the speedometer hand was still present and in good working condition.  The van had passed its annual inspection in 2011.

27.This is a criminal court; the onus is on the prosecution to prove each of the charges beyond all reasonable doubt.  If there were any reasonable doubt, the benefit of that doubt goes to the defendant.

28.The defendant has a clear record.  See paragraph 2 of P26A.  I remind myself that he is more likely to tell the truth and less likely to commit an offence.

29.I am indebted to counsel for both parties for their detailed written submissions.  I have considered all those submissions very carefully.  However, since they are set out in writing, I do not propose to repeat them in full here.

30.The defence conceded that the testimony of PW1 was not contested.  Her evidence was clear and direct.  She was hardly cross-examined.  I found her honest and reliable.  I accept her evidence.

31.Part of PW2’s evidence was criticized by counsel.  He submitted that according to his witness statement in March 2012, it was the vehicle examiner who had dismantled the speedometer cluster from the van.  PW2 explained that he had made a mistake in his witness statement.  He had made a detailed record of his involvement in the investigation, in the investigation report and the record in that report is consistent with his evidence and memory.

32.PW2’s witness statement was made about 4 months after the event.  I accept his explanation.

33.Counsel submitted that PW2 only arrived at the scene at 3 am, there was no evidence whether the speedometer cluster had been tampered with prior to his arrival.  However, according to PW2, the mounting of the plastic cover of the speedometer cluster was intact when he arrived.  There were two cracks on the plastic cover but no gaps between the plastic cover and the mounting.

34.According to PW2, it was impossible for the speedometer hand to fall out of the plastic cover in that condition.  His evidence was consistent with the MVE report of the van, P24.  The van was examined by the vehicle examiner on 7 November 2011, that is before the speedometer cluster was dismantled.  There was no suggestion that there was any damage to the mounting of the speedometer cluster in the report.

35.I found PW2 to be honest and credible.  I accept his evidence.

36.Counsel urged the court to accept PW2’s estimate of the van speed, 50 kilometres per hour.  According to PW2, the formula he used for the calculation of speed was not applicable to a case of collision. PW2’s explanation was wholly reasonable.

37.It would be simple for the police to calculate the speed of the vehicle by looking at the skid marks if there were no collision.   However, if there were a collision, the forward momentum of the vehicle would be cut short by the collision.  An accident reconstruction expert had been called as a witness but no questions were put to him in this respect.

38.In the circumstances the court has no way of knowing whether it was possible to calculate the speed of the van.

39.PW3’s evidence was highly criticized by the defence.  Counsel submitted that he had refused to provide the police with a witness statement all along.  PW3 stated that he had parked the truck at the location to carry out roadwork pursuant to an order from his employer. According to PW2, PW3 explained that he had heard some noise from the truck and that was the reason why he had stopped the truck at the location.  The deceased had gone to the rear of the car to see if there were any problems.

40.Counsel submitted that this was denied by PW3 and his evidence was contrary to that of PW2.  According to the cross-examination of PW3, the police had notified him of their intention to prosecute.  He clearly had a right to silence and cannot be criticized for failing to give a witness statement. 

41.PW3 stated that he does not recall what he said to the police officers at the scene.  He did not contradict PW2’s version on the events.

42.Despite the length of the cross-examination, it appears that the only dispute in respect of PW3’s evidence was the length of time the truck had stopped at the location before the accident.  In fact, that is not even crucial.  There was no dispute that the truck was stationary prior to the accident.  PW3 and the deceased had alighted from the truck and the deceased had gone to the rear of the truck before the collision.

43.It seems that PW3 does have a vested interest in the court’s finding of facts.  His explanation to PW2 was wholly different from that given in court.  In the circumstances I do not propose to place any weight on the disputed evidence.  The part of his evidence which was undisputed is already included in P26.

44.PW4’s evidence was not challenged.  His findings were in fact agreed by the parties.  See paragraph 29 of P26.  He was only asked to clarify certain matters in cross-examination.  I found him to be honest and credible.  I accept his evidence.

45.I did not believe DW1.  His evidence was self-contradictory and inconsistent with undisputed documents.  For example:

(1) DW1 stated that the defendant lived with him and the rest of his family in Tuen Mun. However, according to P11 dated 6 November 2011, the residential address which the defendant reported to the Commissioner of Transport was in Hung Hom;

(2) In examination-in-chief DW1 stated that the van was purchased to take his children to school. He told the court that he drove the van everyday and only seldom drove his other 7-seater private car. However, in cross-examination he admitted that he in fact drove the 7-seater everyday and only used the van for work when necessary;

(3) DW1 stated that he had driven the van on the morning of the accident. The van was normally parked in Kowloon. In the morning of the accident, DW1 had to pick up a cabinet for his family. He therefore took a bus to Kowloon to pick up the van and returned to his home in Tuen Mun with the van and the cabinet. He then drove the van back to Kowloon and returned home in public transport. Subsequently, he drove his 7-seater to work and asked the defendant to drive the van to Tuen Mun because DW1 needed it for work the next morning. That explanation was simply preposterous. The van was already in Tuen Mun after DW1 picked up the cabinet. If DW1 needed the van the next morning, there was simply no reason for him to waste time and effort to take it back out to Kowloon and then asked the defendant to bring it back to Tuen Mun later;

(4) Counsel alleged that it was admitted that the van passed its annual inspection on 21 October 2011. That was wholly untrue. What was admitted in paragraph 26 of P26 was that a private car certificate of road worthiness was issued by the Transport Department on 21 October 2011. DW1 agreed with counsel that the van passed its annual inspection on 21 October 2011. However, according to P9, the vehicle licence of the van was issued on 21 July 2011. Section 88B(1) and (2) of the Road Traffic Ordinance, Cap. 374, provides that: (1) before licensing a private car or a light goods vehicle, the Commissioner may, for the purpose of ascertaining whether the private car or light goods vehicle is road worthy, require the registered owner to have the private car or light goods vehicle examined by a car testing centre; (2) Subsection (1) applies to any private car manufactured not less than 6 years before the date with effect from which the private car is to be licensed and to any light goods vehicle manufactured not less than one year before the date with effect from which the light goods vehicle is to be licensed. In other words, the van must have passed its annual inspection before 21 July 2011 and not in October 2011.

46.I found DW1 wholly incredible and unreliable.  I reject his evidence.

47.In relation to Charge 1, counsel submitted that the defendant’s view was obstructed by the bus.  The layout of the road and the flyover which was being constructed, the defendant was unable to see the illuminated signage until it was too late for him to stop.  It is evident from P1 that the illuminated signage could be seen from a substantial distance away.  Any competent and careful driver would have noticed it.  In any event no competent and careful driver would attempt to overtake if his view of the road ahead were obstructed or unclear.  In addition, I entirely agree with the prosecution that any competent and careful driver should maintain a safe distance from the vehicle ahead and be alert to any imminent hazards ahead.

48.Prior to the accident, the defendant and the bus were repeatedly cutting across two lanes.  I agree that there was no evidence as to speed.  However, PW1 stated that the van was travelling at a high speed. This was consistent with the skid marks and the damage to the two vehicles.  The skid marks left by the van were 15 to 17 metres.  In other words, the defendant began braking when he was about 17 metres away from the truck.

49.According to the Road Users’ Code, the braking distance for a car with good brakes and tyres travelling at 40 kilometres per hour on a dry road is 10 metres, and the braking distance for a car travelling at 60 kilometres per hour in those conditions is 20 metres.  In other words, the braking distance for a car travelling at 50 kilometres per hour would be 15 metres. 

50.According to P24, all the brakes and four tyres of the van were in satisfactory condition.  If the van had been travelling at 50 kilometres per hour, it would have come to a stop or was near to coming into a stop after 15 metres and would not have caused the severe damage to the two vehicles. 

51.In all the circumstances I find that the defendant’s manner of driving fell far below what would be expected of a competent and careful driver and the danger was wholly obvious.

52.As for Charge 2, there was no dispute that no speedometer hand could be found inside the plastic cover of the speedometer cluster or inside the van.  Counsel submitted that there was no evidence to show that the speedometer had not been tampered with prior to the arrival of PW2.  However, according to PW2, the plastic cover of the speedometer could not be removed when he arrived at the scene and there was no gap in its mounting.

53.Not only was the speedometer hand not found by the police, dust, dirt or debris was found in the axle void and on the axle where the speedometer hand should have been.  In addition, in a case of front collision one would normally expect the speedometer hand to leave scratches on the speedometer dial.  In the present case, no such scratch marks were found.

54.In all the circumstances the only and irresistible inference is that the speedometer hand was missing prior to the accident. 

55.I find both charges proved beyond all reasonable doubt.  The defendant is accordingly convicted.