HKSAR v. Wong Ho Ming

DCCC 1010/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1010 OF 2014

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Reasons for Verdict

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1.The defendant has been charged with two offences, causing death by dangerous driving, contrary to Section 36(1) of the Road Traffic Ordinance, Cap 374; and using a motor vehicle with an illegal display unit contrary to Regulations 37 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicle) Regulations made under the Road Traffic Ordinance, Cap 374.

2.He pleaded guilty to the 2nd charge only.

The Background

3.This fatal traffic accident on 14 May 2014 happened outside the Japanese International School on Tai Po Road, Tai Po Kau, New Territories, at about 2 pm. 

4.This accident took place at a pedestrian crossing controlled by separate traffic lights for both vehicles and pedestrians.

5.The deceased, a 61 year old lady, ran out onto the crossing, despite the vehicles having the right of way, and was hit by the defendant driving a lights goods vehicle (LGV).

6.She ran out in front of the defendant when his vehicle was about 2 metres from her. 

7.Sadly she died from multiple injuries sustained as a result of the collision.

8.The issue is whether or not the defendant was driving his vehicle dangerously at the material time.

9.Did he drive in such a manner that fell far below what would be expected of a competent and careful driver?  Was it obvious to a competent and careful driver that driving in that way would be dangerous?

10.Not much of the prosecution’s case was challenged.

The Prosecution Case

11.The agreed sketch, P4, and the photographs P3 best illustrate the accident location. 

12.The pedestrian crossing was on a road with a safety island in the middle of it for pedestrians to wait on.

13.On either side of the island were areas with hatched lines that separated the roads going in opposite directions. 

14.At the time, there was a bus parked on each of the hatched areas, facing each other, waiting to enter the school to pick up children.

15.The defendant was driving his vehicle southbound or Shatin-bound. 

16.It was drizzling at the time and the roads were wet, but it was not raining hard.  The photographs taken half an hour after the accident showed mainly dry roads.

17.The speed limit on that stretch of road was 70 kilometres per hour, and the traffic light for the defendant’s vehicle at the material time was green.

18.Much of the prosecution’s case was agreed, and Admitted Facts submitted, Exhibit P9.

19.The defendant was driving Shatin-bound at about 1.58 pm when he saw on the opposite side of the road, at the pedestrian crossing ahead, the deceased crossing the Tai Po‑bound road at the crossing towards the safety island in the middle.

20.She would have disappeared from his view because of the bus parked in front of the safety island on the hatched area of the road.

21.At the time, the vehicular traffic light was green and the pedestrian traffic light was red. 

22.As he drove towards the crossing and just before he entered it, the deceased walked out in front of his vehicle and he hit her.

23.He could not stop in time.

24.A witness said he was 2 metres from the crossing when she hurried across the road. 

25.The defendant drove on and past the entrance of the school before he stopped his vehicle.  He stopped about 40 metres from the crossing.

26.The deceased was rescued and rushed to hospital but certified dead upon arrival.

27.PW6, SPC51477 arrived at 2.10 pm in response to the accident.

28.The defendant did tell the officer, not under caution, that he was driving about 40 to 50 kilometres per hour as he approached the crossing.

29.He saw the deceased run across the road from the safety island right in front of him.

30.He honked his horn and slowed down but he hit her.  He got out of his vehicle and called the police.

31.He did give an interview under caution, which was not challenged, Exhibit P7 and 7A.  In that, he said he was travelling at about 45 kilometres per hour at the time, on a very familiar road.

32.From about 40 to 50 metres away, he saw the deceased cross the Tai Po-bound road at the crossing.

33.He saw the coach of PW2 park in front of the safety island.  He explained he was worried the pedestrian may not have seen him, and took his foot off the accelerator and honked three times.

34.When he was a few metres from the crossing, she suddenly ran out across the road right in front of him, he could not stop in time.

35.Just prior to this, his view of the safety island was blocked by PW2’s coach. 

36.He did not come to a halt immediately after the accident as the road was wet. 

37.There was a bus parked on the hatched box outside the school facing the Tai Po direction, therefore facing the crossing, the deceased and the defendant driving towards it. 

38.It was parked about 10 to 20 metres from the crossing. 

39.The driver of the bus was sitting in his seat and he witnessed the accident. 

40.He, Mr Sum Kai-lam gave evidence as PW1, and said the deceased crossed the Tai Po-bound road at the crossing.  She was holding an open umbrella and a bag in the other hand. 

41.He saw her reach the safety island but not stop completely.

42.He saw the defendant driving towards the crossing on the opposite side of the road. 

43.He saw the deceased suddenly speed up and walk across the road in a quick pace right in front of the defendant’s vehicle. 

44.He was only about 2 metres away, and unfortunately, hit her.

45.He thought the defendant was travelling at an estimated speed of between 50 and 70 hours an hour.  He did not hear the defendant sound his horn before he reached the crossing.

46.He saw that the other school bus was parked directly opposite him and facing him also on the hatched area of the road.

47.He said this bus would have obstructed the view of the deceased before she crossed the Shatin-bound road. 

48.The other bus parked on the hatched area facing Shatin and PW1’s bus was driven by PW2, Mr Mohammed Rehmat. 

49.He too gave evidence that he was waiting for instructions to drive into the school.

50.He saw the deceased cross the Tai Po-bound road and stop after entering the safety island.  He was facing her. 

51.His bus was only about 2 metres from the safety island.

52.The defendant drove up from behind him to the left of his coach.

53.He said he could see the vehicular traffic light was green at that time.

54.He said he did not see what happened next, as he happened to turn around in his seat, but he heard a bang.  He did not see the deceased leave the safety island to cross the road.

55.He saw the defendant’s van stop up ahead, just past the school entrance. 

56.Within a minute or two, he was then told to drive into the school.

57.He said he did not hear any horn sound just before the accident.

58.In July 2014, he helped the police reconstruct the accident, and parked his coach as close to its original position as he could recall on the date of the accident. 

59.He agreed photographs in P3, particularly 73 to 80, showed his bus location on the date of reconstruction. 

60.Mr Or Hua-yan, PW3, was driving his vehicle out of the Japanese school and waiting at the entrance at a give way line at the material time.

61.As he waited, the defendant’s vehicle drove past him and the accident had just happened, but he did not see it.

62.The defendant stopped a few metres past the entrance.

63.He said he spoke to the driver afterwards, and the defendant said to him the lady had run through the lights and he could not stop in time.

64.There is CCTV footage from the school entrance, Exhibit P8, that captures the defendant’s vehicle drive past the entrance and stop next to PW1’s coach.  It also captures PW3’s car waiting to drive out of the school.

65.Exhibit P8A are five still photographs taken from the CCTV footage. 

66.PW4, Mr Law Hong-tai was driving his vehicle Tai Po‑bound.

67.And as he drove towards the school entrance and PW1’s bus parked in the hatched line area to his right, he saw the accident happen up ahead on the opposite side of the road.

68.He saw the deceased bounce and hit the front of the defendant’s vehicle.

69.He could not estimate the defendant’s speed as he was too far away.

70.He got out of his vehicle and gave the defendant his phone number, and said if it was necessary, he could call him as he had seen the accident happen.

71.There was an expert witness, PW5, a government chemist, who reconstructed the accident.

72.His unchallenged report is Exhibit P10.

73.Using the CCTV footage of the school, he could determine that the defendant, when passing the school, was travelling at 39 kilometres per hour.

74.PW2’s coach was parked on the hatched lines, but it was a guess that it was in the same position as it was at the material time.

75.He placed a manikin holding an umbrella right on the edge of the crossing, and then he sat in a vehicle, not the same model as the defendant’s, at various distances from the crossing.  He concluded what the defendant could see and could not see of the coach, safety island and crossing.

76.Certainly the coach blocked the view of the safety island. 

77.He said the placement of the manikin was just for illustration and what a driver could see approaching that crossing Shatin-bound.

78.He agreed that he had no detail where the deceased was, or if she stood still before she hurried out onto the road, hence his use of a manikin was for illustration only.

79.He agreed that if she had been behind the coach, no driver would have seen her upon approaching the crossing.

80.He did not have enough information to determine the defendant’s speed as he drove through the crossing and agreed that if the defendant was travelling at 45 kilometres per hour and the deceased ran in front of him when he was only 2 metres away, there is no way he could have avoided hitting her.

81.The highway code braking times and distances were read to him and he confirmed them.

82.If a vehicle was travelling at 40 kilometres per hour, the stopping distance would be 20 metres on a dry road, and if the road surface was wet, the stopping distance would be 30 metres.

83.This calculation is in the highway code, but it is in a scenario where no accident has occurred.  The shock of an accident without warning could affect these measurements, I am sure.

84.He also agreed, PW5, that although when the van was first scene in the CCTV footage, the brake light was not on, it is possible the drive braked before the entrance, and then released the brake, and then braked again to stop the vehicle swerving.

85.He says the tape shows different speed of the defendant’s vehicle, but it is hard to tell from the CCTV how many times the defendant braked.

86.He drew two conclusions.

87.They concerned what the defendant could have seen 100 metres and 45 metres from the crossing based on his reconstruction exercise, as well as when the defendant started to brake after the impact, based on the CCTV footage.

88.However, he would not have taken into account the possibility the defendant braked more than once and before the school CCTV camera to stop the vehicle swerving.  This may affect his calculations.

89.He says based on his calculations and the CCTV footage, the defendant could have started to react to the impact after he had passed the crossing, about 2 seconds or 20 metres after the impact.

90.The prosecution submitted the defendant drove dangerously by not slowing down enough to be able to stop his vehicle in case the deceased cross the road.  He had seen her cross the first section towards the safety island, and because his view was blocked by the bus, he should have slowed right down. 

The Defence Case

91.The defence case is as set out in the statement and what he told the officer at the scene as well as PW3.

92.The only contentious issue is whether he honked his horn as he approached the crossing.  He told the police he did sound his horn, yet PW1 and 2 did not hear a horn just before the accident.

93.There is no evidence to prove he did not decelerate as he alleges.

94.He did not give evidence and relies on what he told the witnesses and what he said in his interview under caution.

95.The defence also relied on what the independent witnesses saw.

The Law

96.I repeat the two limb definition of driving dangerously pursuant to Section 36(4) of Cap 374. 

97.A person is to be regarded as driving dangerously within the meaning of Section 36(4)(1) if the way he drives falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

98.The Ordinance goes on to set out what should, in determining what would be expected of or obvious to a competent and careful driver, be taken into account in all the circumstances of the case.

99.Such factors include the nature and condition and use of the road concerned at the material time, the amount of traffic on the road at that time, and the circumstances including the physical condition of the defendant, of which the defendant could be expected to be aware, and in the circumstances, shown to have been within the knowledge of the defendant.

100.Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way the defendant drove at the material time.

101.The prosecution must prove the charge against the defendant beyond reasonable doubt.  Whether a person’s way of driving is dangerous is a matter to be decided objectively.  The test does not require any specific intent to drive dangerously.  To support the charge of dangerous driving, the prosecution must point out what driving acts of the defendant constitutes dangerous driving.  They must also adduce evidence to show that those driving acts fell far below what would be expected of a competent and careful driver.

102.Is there sufficient evidence to allow me to draw the only reasonable inference, that the defendant’s driving manner constituted dangerous driving?

103.The defendant did not give evidence, which is his right.  It proves nothing one way or the other and certainly not his guilt.

104.This is a case where not much was in contention, and what he had to say had been said in an interview relied upon by both parties.

My Findings

105.I have considered the final submissions made, including written submissions from the defence, MFI-1. 

106.As I have said above, the prosecution must provide and point out the evidence of dangerous driving, what the defendant do to constitute dangerous driving. 

107.What is admitted is that the defendant was driving on a road that was wet.  It was not pouring with rain, but drizzling. It was daylight and the traffic on the road was light. 

108.The road was straight, approaching the crossing from both directions, but on both sides of the safety and in the middle of the road was a coach parked on the hatched lines. 

109.The coaches face each other.

110.It is also admitted the defendant was breathalysed and had not consumed any alcohol.

111.It is admitted that at the time of the accident, the vehicular traffic signal was green, whereas the pedestrian traffic light was red.

112.It is not in dispute the deceased hurried out onto the crossing against the light when the defendant was about 2 metres away from it.

113.There is nothing to contradict the evidence that the deceased did hurry out into the path of the defendant’s vehicle. 

114.Obviously, unless the defendant was going much, much slower, the accident was unavoidable. 

115.There is nothing to contradict PW1’s evidence that the deceased did not stop on the safety island.  There is nothing to contradict the defendant’s evidence that he decelerated after spotting the deceased crossed the road towards the safety island.

116.He explained he was doing about 45 kilometres per hour when he drove through the crossing and was not speeding.

117.PW1 guessed that the defendant was driving at between 50 to 70 kilometres per hour, but he was looking at the defendant’s vehicle head-on and from a distance of well over 40 metres  when the defendant approached the crossing, so I do doubt the accuracy of his assumption. 

118.The same applies for hearing a horn.  PW1 is sure he did not, but he was a good distance away and inside his coach.

119.PW2 said he did not hear any horn either, but PW2 gave evidence that made me wary. 

120.He said he turned his head away just as the accident happened and saw nothing.  Observing him give evidence I had my doubts on the veracity of it.  He was happy to give evidence on all but the actual accident itself. 

121.The expert report did not, in my finding, advance the prosecution case.  PW5 had no information where the deceased was before the accident, so the manikin’s position was but a guess.  Without that further information, there can be no accurate finding of the defendant’s view of the deceased before the accident. 

122.PW5 had no information of the defendant’s speed before the accident.  His findings were limited to the CCTV footage of the van after the accident and some distance from the crossing.  I see no conclusion or opinion that points to acts of dangerous driving on the part of the defendant at the material time of the accident.

123.In fact, the prosecution could only say the following when asked in final submissions what were the driving acts of the defendant that constituted dangerous driving.  Prosecution says his dangerous act was, I quote, “Was not to slow down enough to be able to stop, not knowing if the deceased would carry on crossing the road when she was blocked from his view by a bus.”

124.Is this an act that falls far below what would be expected of a competent and careful driver, and would it be obvious to a competent and careful driver that driving that way would be dangerous?

125.There has to be sufficient evidence from the prosecution to establish this.

126.The defence case was that he did slow down as he approached the crossing by decelerating, despite his vehicle having the right of way, because he was aware of a pedestrian.

127.Could he have done much more?  The deceased appeared out of nowhere when he was 2 metres away.  If he had been driving much slower, for example 20 kilometres per hour, he still could not have stopped in time. 

128.I am well aware that drivers have the legal and moral responsibility to take proper care to avoid accidents with pedestrians at all times and places.  Even if the pedestrian is jaywalking or the driver has the right of way.

129.Here, however, I accept the defendant did take action by slowing down.  He says he honked his horn, even if he did not do that, this omission alone would not make him a dangerous driver.  If he did, that is another precautionary action he took.

130.His manner of driving towards and over the crossing, however, must be proved to be dangerous.

131.The coach parked is, I am sure, the root of the problem.  It was wet, the deceased hurried across the road carrying an open umbrella, the coach would have obstructed her view of the road, and the coach would have obstructed the defendant’s view of the safety island.  She kept going and he could not avoid her.

132.I accept he did decelerate. 

133.I do not see any act or omission on the defendant’s part that shows his driving manner fell far below that of a competent and careful driver. 

134.It is a tragedy the deceased died long before her time, but fatal consequences do not automatically mean it was a result of dangerous driving or even careless driving.  I must look at the way the defendant drove rather than the consequences of the accident.

135.It is for the prosecution to prove the dangerous acts, and after applying the two limb definition objectively, I find none proved beyond reasonable doubt.

136.The prosecution submits if there is insufficient evidence to prove dangerous driving, then the defendant was at least driving carelessly.

137.A person drives carelessly if he drives without due care and attention or without reasonable consideration for other persons using the road.  Applying my findings, I do not find the prosecution has proved this either.  

138.Accordingly, the defendant is acquitted of Charge 1.