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Hksar v Ng Siu Bun

Judgment Cited authorities 4 Cited in 1 Precedent Map Related
Vincent
Judgment Date24 December 2019
Neutral Citation[2019] HKCA 1457
Judgement NumberCACC123/2019
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC123/2019 HKSAR v. NG SIU BUN

CACC 123 /2019

[2019] HKCA 1457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 123 OF 2019

(ON APPEAL FROM DCCC NO 506 OF 2018)

________________________

BETWEEN
HKSAR Respondent
and
Ng Siu Bun (吳紹賓) Applicant

________________________

Before: Hon Macrae VP, Zervos JA and Li J in Court

Date of Hearing: 18 December 2019

Date of Judgment: 18 December 2019

Date of Reasons for Judgment: 24 December 2019

________________________

REASONS FOR JUDGMENT

________________________

Hon Macrae VP (giving the Reasons for Judgment of the Court):

1. The applicant was charged with causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (“the RTO”). He pleaded not guilty to the offence in the District Court but admitted the lesser offence of careless driving at the outset of proceedings. Following a trial, he was convicted as charged of causing death by dangerous driving by HH Judge Casewell (“the judge”) and sentenced to 15 months’ imprisonment. He now appeals against his conviction only.

2. The applicant was the 1st defendant in the trial. He was tried together with the 2nd defendant (“D2”). D2 faced a separate charge of causing death by dangerous driving, in addition to two other charges, namely, failing to stop after an accident and failing to report an accident. D2 was acquitted of causing death by dangerous driving but convicted, in the alternative, of careless driving, as well as of the two other charges.

3. In addition to his sentence of imprisonment, the applicant was disqualified from driving for 5 years and ordered to attend and complete a driving improvement course before the end of the disqualification period. D2, on the other hand, was sentenced to a Community Service Order for 200 hours and disqualified from driving for 2 years. He was also required to attend and complete a driving improvement course.

4. On 18 December 2019, we allowed the applicant’s appeal against conviction and, in the exercise of our powers under section 83A of the Criminal Procedure Ordinance, Cap 221, substituted a conviction for careless driving, contrary to section 38 of the RTO. We also set aside the disqualification period and the requirement to attend a driving improvement course, and said we would hand down the reasons for our decision in due course. These are our reasons.

The prosecution case

5. At about 3 am on 15 October 2017, at the junction of Hing Wah Street West and Tung Chau Street in Cheung Sha Wan, Kowloon, the deceased was struck by the applicant’s taxi as he was crossing a pedestrian crossing in Tung Chau Street, in defiance of a red pedestrian signal. The deceased, who was 91 years of age and suffering from dementia and lung cancer, had apparently left home for a walk at about 6 pm on 14 October 2017, but been reported missing by his family at about 10 pm. He had, therefore, been wandering the streets of Kowloon for some 9 hours.

6. The applicant’s taxi arrived at the junction in the right outer (or fourth) lane of Hing Wah Street West, intending to turn right into Tung Chau Street. Hing Wah Street West is a four-lane carriageway, the two right hand lanes turning right into Tung Chau Street. The traffic signal governing the applicant was, at the time, green in the applicant’s favour.

7. The junction was described by the judge as a “complex” one, with six roads converging on the junction, each controlled by traffic lights with pedestrian crossings[1]. The angle of the turn from Hing Wah Street West into Tung Chau Street was an acute one (of about 70°) and, for some of the way during the turn, the pedestrian crossing on Tung Chau Street was blocked from view by a large V-shaped concrete pillar of a substantial flyover supporting the West Kowloon Highway. On the night in question, Typhoon signal No 3 had been hoisted, it was drizzling and the road surface was wet. The speed limit at the junction was 50 kph.

8. After he was struck by the applicant’s taxi, the deceased fell towards the nearside kerb of Tung Chau Street, which is a two lane carriageway heading in a south-easterly direction. The applicant stopped his taxi, immediately activated his hazard lights, and tried to assist the deceased, who was still conscious and able to communicate with him, by covering him with newspapers to shield him from the rain. He made a report to the police on his mobile telephone and attempted to prevent oncoming traffic from hitting the deceased. However, whilst trying to identify the exact location of the accident for the benefit of the police console, another taxi driven by D2 drove over the deceased. D2 did not stop at the scene, despite the shouts of the applicant alerting him to what he had done, nor did he report to the police. Since the applicant was still speaking to the police console when the incident happened, he was immediately able to read and report the registration number of D2’s taxi over the telephone. D2 was thus arrested two days later.

9. PW2 and PW3 saw the applicant’s taxi entering the junction. PW2 was driving another taxi and was stationary at the head of the first of the two outer lanes (the left outer lane) in Hing Wah Street West, which turn right into Tung Chau Street, waiting for the traffic lights to turn green so that he could proceed. PW2’s taxi would, therefore, have been parallel to the applicant’s taxi for a short time as they both prepared to turn right into Tung Chau Street. When the lights turned green in favour of the traffic waiting to turn right from Hing Wah Street West into Tung Chau Street, PW2 described the applicant’s taxi as driving past him “very quickly”[2]. In his evidence-in-chief, he estimated that the speed was “almost or more or less than 50 (kph)”[3], whilst in cross‑examination, he said that “it should be less than 50 (kph)”, but that he was only guessing as to the speed[4]. In answer to the suggestion in cross-examination that the applicant’s vehicle had been travelling at 20 or 25 kph, he said he “could not guess, but it was very quick and then it made the turn”[5]. He himself then turned into Tung Chau Street and saw the deceased lying in the road.

10. PW3 was driving another taxi and was in the right outer lane of Hing Wah Street West, the same lane as the applicant’s taxi but about two cars behind him. PW3 entered the junction slowly, since he knew there was a pedestrian crossing after the right turn in Tung Chau Street. He saw the applicant’s taxi stopped in Tung Chau Street and the deceased lying on the ground. He then saw D2’s taxi drive over the deceased[6] at about 20 kph[7].

11. The deceased was taken to Caritas Medical Centre and later transferred to Princess Margaret Hospital. Regrettably, he died five days later on 20 October 2017. The cause of death was multiple traumatic injuries and fractures.

The defence case

12. The applicant did not give evidence but relied on what he had said in his video-recorded interview (VRI) to the police. In that VRI, the applicant explained that he had not completely come to a halt when he arrived at the junction, but accelerated as the lights turned green to execute the turn. He maintained that he had kept a “steady speed”[8] of about 25 kph[9] in executing the turn into Tung Chau Street. The deceased suddenly appeared in the road in front of him, whereupon the applicant immediately “slammed on the brake”[10]. However, the wheels locked[11], the vehicle skidded[12] and he hit the deceased. He alighted from his taxi and made a report to the police, whilst trying to alert other vehicles to the danger posed by the accident. He then saw D2’s taxi drive over the deceased.

13. Apart from disputing the speed at which it was said he was driving, the applicant also argued at trial that the court could not be sure that he had killed the deceased, since D2’s act of running over the victim was a novus actus interveniens, which could have caused the death of the deceased.

14. Although what D2 told the police in his VRI could not be evidence against the applicant, we think it necessary to give his explanation as to why he ran over the deceased. In his VRI, D2 said that at the time he had a passenger on board his taxi. He saw two vehicles stopped at the junction, one being the applicant's taxi. Seeing a white car cutting through the junction ahead of him, he drove his taxi around the junction to avoid the vehicles parked in the road. As he did so, he felt his taxi vibrate vertically when driving over something, but only saw what he thought was rubbish in his rear view mirror. He did not stop to check and was not aware that he had driven over a person until he was contacted by the police.

The reasons for verdict

15. The judge did not appear to accept that the applicant had been driving at about 20 or 25 kph because, if he had been, he should have been able to come to a halt before the pedestrian crossing. But nor did the judge find that the applicant had driven in excess of the speed limit. Rather, he considered that the applicant had driven at a speed that was “inappropriate for the prevailing conditions”[13]; given, inter alia, the condition of the road surface which was wet, thus compromising his braking ability and grip, and the existence of the concrete pillar obstructing the view of the pedestrian crossing[14]. He found that the applicant’s driving amounted to dangerous driving because it created “a significant and objective risk of danger in the circumstances of that junction, and … fell far below the standard expected … of a competent and careful driver”[15].

16. With regard to causation, the judge held[16]:

“44. The 1st defendant struck the deceased whilst driving dangerously, in such a way as to propel the deceased to the...

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2 cases
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    • Court of Appeal (Hong Kong)
    • 26 September 2023
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