Hksar v Wu Yat Cheung

CACC 450/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 450 OF 2012

(ON APPEAL FROM DCCC 668 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the reasons for judgment of the court):

1. At the outset of the hearing the applicant, who appeared in person in this respect, abandoned his application for leave to appeal against his conviction on 29 October 2012 after trial by District Court Judge Browne of an offence (charge 1) of causing death by dangerous driving, contrary to section 36(1) and an offence of (charge 2) of causing grievous bodily harm by dangerous driving, contrary to section 36 A respectively of the Road Traffic Ordinance, Cap. 374. Accordingly, we dismissed the application.

2. In his application for leave to appeal against sentence the applicant was represented by Mr Lam Shun Chiu. The applicant was sentenced to 4 years’ imprisonment in respect of charge 1 and 2 years and 6 months’ imprisonment in respect of charge 2, which sentences were ordered to be served concurrently. In addition, the applicant was disqualified from driving any class of vehicle for a period of 5 years, after which period of disqualification that the applicant was ordered to pass a test of competence at his own expense before being permitted to drive again. At the hearing we dismissed the application for leave to appeal against sentence and said that we would give our reasons for so doing in due course. This, we do now.

THE CHARGES

3. The two charges arose from the applicant’s driving of a Public Light Bus (“PLB”) on 31 December 2011 at the junction of Kwun Tong Road and Choi Shek Lane. By charge 1, the applicant was alleged to have caused the death of Chow Yee by driving that PLB on a road dangerously. By charge 2, the applicant was alleged to have caused grievous bodily harm to Sin Wai Keung, Wong Wai Chun and Chan Ka Ho by the same conduct.

THE TRIAL

4. There was no dispute at trial that the applicant was the driver of a PLB, with the registration mark EK 3613, which crashed into railings on a pavement and then a bus stop at the junction of Kwun Tong Road and Choi Shek Lane at about 14:42 on the afternoon of 31 December 2012 causing the death of Madam Chow Yee, a passenger on the PLB, and grievous bodily harm to Sin Wai Keung, also a passenger on the PLB, and to Wong Wai Chun and Chan Ka Ho, respectively grandmother and grandson who were pedestrians in the vicinity of the bus stop. Madam Chow Yee’s death was caused by injuries to her skull sustained in the crash. The applicant was trapped inside the PLB for some minutes and sustained some injuries, for which he was treated at hospital.

5. It was an admitted fact, as confirmed by the tachograph recovered from the PLB, that in the 10 seconds prior to the crash the PLB was travelling at the speed of 61-62 km per hour. The PLB, with about 10 passengers, was being driven by the applicant in an easterly direction along Kwun Tong Road, which road was subject to a 70 km/h speed limit. As the PLB approached the junction of Kwun Tong Road with Choi Shek Lane, the PLB travelled from the third and fast lane to the nearside lane without warning, at which place it mounted the pavement and crashed into roadside railings and a street sign before smashing into the bus shelter, where it came to a stop. There were no skid marks on the surface of the road on which the PLB had travelled shortly before the crash. Subsequent examination of the PLB revealed that it had no relevant mechanical defects which would have contributed to the accident.

The prosecution case

6. The prosecution adduced into evidence video camera film taken from both the PLB itself and also a passing motor vehicle which depicted the movements of the PLB leading up to the crash. The former film depicted the PLB moving from the third lane into the second lane and then diagonally across the nearside lane onto the pavement, where the crash occurred, at a constant speed. The latter film depicted the rear of the PLB and evidenced the fact that no brake light was illuminated or indicator light was used during those manoeuvres. In the opinion of Mr Li Ka Ho, a driving examiner of the Hong Kong Transport Department, there was nothing to indicate that the vehicle was out of control before it mounted the pavement.

7. The prosecution adduced into evidence assertions said to have been made by the applicant to SPC 3659 Wong Chi Kin whilst he was in an ambulance, shortly after the former had been freed from where he was trapped in the PLB. The prosecution said that the applicant’s assertions were lies. The applicant asserted that whilst he was travelling on Kwun Tong Road eastbound a light goods vehicle had cut in front of him, causing him to manoeuvre the PLB to the left with the result that he had crashed into the pavement. For the same purpose, the prosecution relied on similar assertions made by the applicant to Dr Cheng Kai Chu at United Christian Hospital sometime after 8 p.m. on the evening of 31 December 2011.

The defence case

8. The applicant gave evidence in the defence case. He said that he had obtained a driving licence first of all in 1998/9 and that he had been a PLB driver since 2005. He had driven the PLB involved in the crash for two years. He rented the vehicle and, having picked up the vehicle at 05:00 on 31 December 2011 and having had breakfast, he began working at 05:40 that day. He took a meal break at about 10:30 for about 15-20 minutes. The journey on which the crash occurred was to have been his last journey before he returned the vehicle at 15:00. Part of his regular route was to travel from Jordan along Kwun Tong Road, ultimately to Sau Mau Ping. It was habit to manoeuvre his PLB from the third lane of Kwun Tong Road towards the nearside lane when he reached Choi Shek Lane. He did so in order to be able to turn into Choi Wan Road in due course. As he did so, his foot became trapped between the brake pedal and the accelerator and he was unable to break. There followed the crash.

9. The applicant agreed that he had not operated the PLB indicator light as he changed lanes nor had he sounded his horn in advance of the crash. There was no time to do the latter. The applicant denied telling SPC 3659 or Dr Cheng that he had swerved the PLB in order to avoid another vehicle that cut across his path.

Reasons for Verdict

10. The judge determined that the applicant had made the assertions to SPC 3659 and his later assertions to Dr Cheng and that they were lies. He found that the video camera film made it clear that no vehicle had cut across the path of the applicant as he drove the PLB. However, he said that he treated those lies as going only to the credibility of the applicant.

11. The judge went on to determine that the applicant’s testimony that his foot had become caught between the accelerator and brake pedal was also a lie. He noted that not only were none of the passengers of the PLB aware of any problem in driving the PLB but also there was no deceleration of the vehicle, which would have followed removal of the applicant's foot from the accelerator. The applicant did not sound the horn to alert others that there was anything untoward. Furthermore, he noted that there was no change in the direction taken by the PLB towards the pavement, observing that there was nothing to stop the applicant from steering the PLB even if he is foot had been stuck.

12. Having noted the many hours that the applicant had been working that day, interrupted only by a short meal break, the judge determined (appeal bundle, page 41) :

“ I was quite sure that immediately before the accident the defendant had lost concentration due to fatigue. I was sure that this was a physical condition of which he could be expected to be aware and which was within his knowledge. I was sure that it would be obvious to a competent...