HKSAR v. Cheung Kwok Leung

[English Translation – 英譯本]

CACC 287/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.287 OF 2013

(ON APPEAL FROM DCCC299OF 2013)

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REASONS FORJUDGMENT

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Hon Chu JA giving the Reasons forJudgment of the Court:

1.The applicant was convicted after trial in the District Court of one count of causing death by dangerous driving. On 5 August 2013, Judge Frankie Yiu (the trial judge) sentenced him to 15 months’ imprisonment, and ordered that he be disqualified from driving for a period of 18 months and that he must attend and complete a driving improvement course within 3 months prior to the end of the disqualification period at his own expense. The applicant also pleaded guilty to one count of using a vehicle with a defective warning instrument and one count of using a vehicle with stop lamps maintained other than in a clean and efficient condition and was fined $1,000 for each offence.

2.The applicant applied for leave to appeal against conviction and sentence in relation to the offence of causing death by dangerous driving. On 3 December 2013, he abandoned the application in respect of sentence. At the end of the hearing, we dismissed the application for leave to appeal against conviction. We now give our reasons.

The Facts

3.At around 3 pm on 31 July 2012, the applicant was driving a 5.5 tonnes goods vehicle turning right into Hai Tan Street from the left first lane of Pei Ho Street, Shamshuipo, Kowloon. On approaching the pedestrian crossing, the offside front wing mirror of the goods vehicle hit the right side of the back of a male’s head. The offside rear wheels of the goods vehicle rolled over the male’s right leg. As a result, he sustained severe head injury, a fractured right hip and laceration on the right lower leg and foot. He was certified dead at 1854 hours on the same day. The deceased was aged 86 and 165 cm tall.

4.Both Pei Ho Street and Hai Tan Street were dual carriageways. The left first lane of Pei Ho Street was a go-straight-only lane and no right turn was allowed, whereas in the left second lane, traffic was allowed to either go straight or turn right. The applicant raised no dispute that by turning right into Hai Tan Street from Pei Ho Street, he was in breach of the traffic signs. At the time of the accident, the weather was fine. The road surface was in good condition.

5.Police officers attended the scene for investigation and discovered that the offside front of the vehicle was slightly dented and the offside front wing mirror bent inward. There was no brake mark on the road.

6.The applicant told the police officer who first arrived at the scene that he had made a right turn into Hai Tan Street from Pei Ho Street. While he was manoeuvring the bend, he heard a collision sound. He immediately stopped the vehicle, got off to have a look and found that the deceased was lying on the ground. Subsequently, when he related the course of the accident to another police officer, he said he was driving along the left first lane of Pei Ho Street and stopped in front of the traffic lights stop line. The lights turned green and he drove the goods vehicle turning right into Hai Tan Street. The offside front wing mirror struck the right side of the back of the deceased’s head in the course of negotiating the bend. He did not see where the deceased came from. The applicant claimed that the left second lane of Pei Ho Street was full of parked vehicles. Nevertheless, the police officer who arrived at the scene approximately 10 minutes after the accident did not see the same.

7.The prosecution called Dr. CHENG Yuk-ki as their expert witness. By conducting on-the-spot observation and tests to find out the time needed for various goods vehicles of the same class to negotiate the right turn from the left first lane of Pei Ho Street into the point of impact, Dr. CHENG made a series of calculations. He drew the inference that the accident could have been avoided if the applicant had managed to catch sight of the deceased 1.5 seconds prior to the impact and apply emergency braking at least 3.9 metres before the point of impact.

8.Dr. CHENG also testified that: (i) the stop line of Pei Ho Street was 14 metres away from the point of impact. When a vehicle was at the stop line of Pei Ho Street, the driver’s vision of the pedestrian crossing at Hai Tan Street was slightly blocked on the right side by the offside wing mirror, although it was still clear; and (ii) when the vehicle turned right from Pei Ho Street and was 7 metres away from the point of impact, the driver’s vision was unobstructed both in front and to the right.

The Trial Judge’s Verdict

9.In respect of Dr. CHENG’s inference mentioned in paragraph 7 above, the trial judge was of the view that there could be errors and uncertainties in the calculations. He therefore held that Dr. CHENG’s inference and calculations were of limited assistance and they should not be relied upon to draw inference on the applicant’s way and manner of driving. Having said that, the trial judge was of the view that the photos showing the offside frontal view looking out from the goods vehicle which were provided by Dr. CHENG in his expert report [Exhibit P14], were of considerable value to the case. The trial judge found that when the goods vehicle stopped at the stop line of the traffic lights at Pei Ho Street, as shown in the photos in Appendix II to the report, the offside wing mirror of the goods vehicle only blocked a small part of one’s vision to the right. Furthermore, when the goods vehicle turned right into Hai Tan Street, the driver’s view was unobstructed both in front and to the right.

10.The trial judge also found that, in the circumstances where the applicant’s view was totally unobstructed, given the fact that he had completely failed to notice the deceased’s presence and did not know where the deceased came from, and was only aware of the deceased at the time of impact, the only inference to be drawn was that he had failed to keep a proper lookout to the road conditions ahead when turning right.

11.The trial judge further pointed out that the applicant increased the danger of driving by breaching the traffic regulations to turn right into Hai Tan Street from the left first lane of Pei Ho Street. It would be difficult for other road users to foresee and assess the situation of the approaching goods vehicle since the position of the vehicle, the angle of conducting the turn, the route in which the vehicle travelled and the speed would all differ from a vehicle turning right from the left second lane. Under such circumstances, it was manifestly dangerous for the applicant to turn right against the regulations. By turning right without keeping a proper lookout of the road conditions ahead, the applicant was driving in a manner which fell far below what would be expected of a competent and careful driver.

12.The trial judge remarked that since the applicant opted to turn right against the regulations from the left first lane and his view to the right was slightly blocked when he stopped at the stop line, he should have taken extra care and caution when he started to negotiate the right turn, coupled with an appropriate speed when necessary. He should have endeavoured to keep a proper lookout of the road conditions ahead before continuing to manoeuvre his vehicle into Hai Tan Street.

Grounds of Appeal

13.The applicant advanced two grounds of appeal:

(1)There was no sufficient evidence to support the trial judge’s findings; and

(2)The trial judge erred in finding that the evidence in this case had met the threshold requirement of dangerous driving as defined by law.

Discussion

14.For the first ground of appeal, Mr. Li, who appeared for the applicant, argued that there was no evidence to prove that the applicant must have been able to see the deceased before the collision, or that if he had been able to see the deceased, he must have been capable of making a timely reaction so as to avoid the accident. Mr. Li highlighted that there was no evidence in this case to show where the deceased came from or how he went out onto the road, nor was there evidence to indicate the speed at which the applicant was driving. In respect of Dr CHENG’s evidence that the accident could have been avoided had the applicant seen the deceased 1.5 seconds before the collision, Mr. Li submitted that it was a matter of split second, and the time in which the applicant could see the deceased would have been even shorter if the latter had run out. Further, the deceased did not cross the road at the pedestrian crossing. In those circumstances, it was wrong for the trial judge to convict the applicant of dangerous driving on the basis of his failure to keep a proper lookout of the road conditions ahead when he turned right and his failure to notice where the deceased came from when his view to the right was completely unobstructed.

15.In our view, as clearly shown in photos 1 and 2 in Appendix II to Dr CHENG’s expert report, the applicant would have been able to see clearly the situation in front, i.e. the junction of Hai Tan Street when he stopped his goods vehicle at the traffic lights stop line of Pei Ho Street, even though his view to the right was slightly blocked by the right wing mirror. When the goods vehicle was negotiating the right turn into Hai Tan Street, the applicant’s view would have been unobstructed both in front and to the right. As the trial judge pointed out, given the fact that the applicant completely failed to notice the deceased’s presence and did not know where the deceased came from, and he was only aware of the deceased after the impact, the only irresistible inference to be drawn was he failed to keep a proper lookout of the road conditions. Although there was no direct evidence to indicate the position of the deceased before the impact, the route he took or the speed at which the applicant’s vehicle was travelling, upon considering the circumstances of the clear and unobstructed view that one would have had both in front and to the right, and the impossibility of the deceased, an elderly person of 86, running at a high speed or sprinting onto the road so abruptly that he would suddenly appear in front of the goods vehicle when the applicant could not reasonably have seen him, resulting in him being struck on the back of his head by the right front wing mirror of the vehicle and falling onto the ground, it can be demonstrated that the applicant should have been able to see the deceased had he kept a proper lookout of the road conditions.

16.Regarding the inference drawn by Dr CHENG that the accident could have been avoided, the trial judge did not adopt it as the basis of his findings. The applicant, therefore, cannot rely on it as a ground of appeal. Besides, Dr CHENG’s testimony was: the accident could have been avoided if the applicant had seen the deceased 1.5 seconds before the collision, which should have afforded him sufficient time to react and stop the vehicle. Dr CHENG did not suggest that the applicant could only have been able to see the deceased 1.5 seconds before the collision. Mr. Li’s argument, namely, that 1.5 seconds was the most fleeting of moments, that even if the applicant had been able to see the deceased, he might not necessarily have managed to make a timely response to brake and stop the vehicle to avoid the collision considering both the vehicle and the deceased were in motion, must fail.

17.In our judgment, there was sufficient evidence before the trial judge to enable him to draw the inference that the applicant had failed to keep a proper lookout of the road conditions at the time of turning right into Hai Tan Street from the left first lane of Pei Ho Street. The trial judge did not err when he adopted this as an essential consideration to find that the applicant was driving dangerously.

18.It is plainly irrelevant whether the deceased crossed the road at the pedestrian crossing or whether he was in breach of traffic light signals when doing so. The thrust of this case is whether the applicant’s manner and way of driving fell far below what would be expected of a competent and careful driver. As Ms Wong, for the respondent, put it, a cautious and careful driver should pay particular attention to pedestrians and traffic condition when reaching a traffic lights controlled pedestrian crossing. He should also be aware of the possibility that pedestrians might cross the road without complying with the regulations.

19.Mr Li mentioned in his submission that the trial judge had failed to take into account that the left second lane of Pei Ho Street had been full of parked vehicles, so that the applicant was left with no alternative but to turn right from the left first lane. In our view, it matters not whether the applicant was deliberate or left with no alternative but to turn right against the regulations from the left first lane. The fundamental concern of this court is the applicant’s way and manner of driving during the course when he turned right into Hai Tan Street. As rightly pointed out by the trial judge, the issue was whether, given that the applicant turned right against the regulations from the left first lane, his driving manner and speed were appropriate to ensure that he drove past the junction into Hai Tan Street in safe circumstances.

20.The first ground of appeal raised by the applicant fails.

21.Regarding the second ground of appeal, Section 36(4) of the Road Traffic Ordinance, Cap 374 of the Laws of Hong Kong provides that:

“(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if-

(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b)   it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

22.We agree that in dangerous driving cases, there is a high threshold to surmount: R v Conteh [2004] RTR 1,5; HKSAR v Lam Chi Fat [2012] 1 HKLRD 961 Para 28 to 30; and HKSAR v Lam Ho Yin (unreported) CACC10/2010, Paras 20 and 21.

23.Mr Li submitted that the applicant made no denial that his manner of driving was unsatisfactory, but it was nothing more than a momentary lapse of attention, which had not reached the very high threshold as defined by law in respect of dangerous driving. Mr Li averred that prior to the occurrence of the accident, both the vehicle and the deceased were in motion. Furthermore, based on Dr CHENG’s inference and calculations, 1.5 seconds was but a fleeting moment. The applicant just pulled out from the stop line and the speed of the vehicle was very slow. Under those circumstances, although the applicant did not notice the deceased or was unaware of the danger so as to make an appropriate response, or although he failed to pay attention to the road conditions on the right side, such conduct did not amount to dangerous driving.

24.We do not agree with those submissions. It is incumbent upon a competent and careful driver to be wary and observant of the road conditions and pedestrian traffic at all times. A competent and careful driver would consider it a risky move to turn right into Hai Tan Street from the left first lane of Pei Ho Street, because the other road users might not normally expect vehicles to turn right against the regulations from the left first lane, and it would be hard for them to foresee the driving angle, the route and the speed of the approaching vehicle. It would be obvious to a competent and careful driver that driving in that way, namely turning right into Hai Tan Street from the left first lane of Pei Ho Street without keeping a proper lookout, would be dangerous.

25.Hence, regardless of the reasons that prompted the applicant to turn right into Hai Tan Street from the left first lane of Pei Ho Street, in view of his failure to keep a proper lookout of the road conditions and the pedestrian traffic during driving, it is apparent that the way he drove fell far below what would be expected of a competent and careful driver; and a competent and careful driver would regard driving in the way the applicant did would obviously be dangerous.

26.The trial judge was entirely correct to find the applicant guilty of causing death by dangerous driving.

Conclusion

27.In light of the above reasons and analysis, we dismiss the applicant’s application for leave to appeal against conviction.

Tony LI, instructed by Messrs Simon C.W. Yung & Co., assigned by Director of Legal Aid, for the Applicant.

WONG Kam Hing, Senior Assistant Director of Public Prosecution of the Department of Justice, for the Respondent

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