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Secretary For Justice v Leung Chiu Yu

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date02 March 2012
Citation[2012] 2 HKLRD 313
Judgement NumberCAAR5/2011
CourtCourt of Appeal (Hong Kong)
Subject MatterApplication for Review
CACC248/2011 SECRETARY FOR JUSTICE v. LEUNG CHIU YU

CACC248/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 248 OF 2011

(ON APPEAL FROM DCCC NO. 1029 OF 2010)

________________________

BETWEEN

HKSAR Respondent
And
LEUNG CHIU YU (梁朝宇) Applicant

________________________

And

CAAR5/2011

APPLICATION FOR REVIEW NO. CAAR 5/2011

(ON REVIEW FROM DCCC NO. 1029 OF 2010)

BETWEEN

SECRETARY FOR JUSTICE Applicant
And
LEUNG CHIU YU (梁朝宇) Respondent

________________________

Before: Hon Stock VP, Yeung VP and Saw J in Court

Date of Hearing: 15 February 2012

Date of Handing Down Judgment: 2 March 2012

________________________

J U D G M E N T

________________________

Hon Stock VP (giving the judgment of the Court):

Introduction

1. On 27 February 2010 there occurred a tragic accident at a pedestrian crossing on Chi Cheong Road, Sheung Shui as a result of which a boy aged four years was killed. He was knocked down at or near the crossing by an Audi vehicle driven by Leung Chiu Yu. Leung was charged with dangerous driving causing death but, on 3 June 2011, after trial before Judge Browne in the District Court, was convicted of the alternative offence of careless driving contrary to s 36(10) and 38(1) of the Road Traffic Ordinance, Cap 374. The sentence imposed was a fine of HK$4,000.

2. We have before us two applications:

(1) an application by Leung for leave to appeal that conviction; and

(2) an application by the Secretary for Justice for review of sentence pursuant to s 81A of the Criminal Procedure Ordinance, Cap 221, for which leave was granted on 24 June 2011.

The evidence

3. The accident occurred at about 1:40 pm on a Saturday. The weather was fine and dry. The road in question runs west to east and Leung was driving in an easterly direction. In the direction he was driving, the road takes a gentle curve towards the right. Along the curve is a pedestrian crossing. Well before the crossing is a sign warning motorists of the pedestrian crossing ahead and there are traffic lights at the crossing, visible to east-bound traffic from about 95 m before the crossing. There are also “green–man” traffic lights for the benefit of pedestrians. These lights are stationed on either side of the road as well is at its centre. At the centre of the road, where the crossing sits, are two bollards between which is an open waiting area, or reservation, for the pedestrians; open in the sense that a pedestrian is able to walk directly across the road at the crossing without any fencing or other impediment at the central reservation.

4. The evidence about what transpired is in many respects not clear. The boy, Wei Chung-on, lived in Sheung Shui with his sister aged 8 years and parents. A Mdm Li had just visited them with her 8 year-old son. She, her son, as well as Chung-on, his mother and sister all left Chung-on’s home together, walked along Chi Cheong Road and intended to cross from south to north at the pedestrian crossing. Chung-on’s mother took a slight detour to put something in a refuse bin. A number of people commenced walking across the crossing, including the three children to whom I have referred, who walked ahead of their respective mothers. No one was holding Chung-on’s hand. It would appear that the two elder children as well as a number of adults stopped at the central area of the crossing but that Chung-on did not. That is when he was struck by Leung’s vehicle.

5. A couple of pedestrians gave evidence as did the mother and Mdm Li, several police officers who attended the scene after the accident and also Leung and one of the passengers in his car (his sister) and an expert on his behalf.

6. We have a very detailed account of the evidence in the Reasons for Verdict. It is necessary for present purposes to refer to only one or two parts of that evidence.

7. Mdm Li’s evidence was described by the judge as confused and confusing, which in the circumstances was not intended as any criticism of her whatsoever. The evidence suggests that everything occurred very quickly and no doubt Mdm Li was much traumatized by what happened to the boy. But there is one aspect of her testimony which accords with what Leung said when he was first spoken to by the police who attended the scene of the accident and which is not contradicted by any of the other evidence. It is that when the children reached the middle of the crossing and she saw Leung’s vehicle, she told the children not to cross, that there were vehicles coming. The two elder children stopped but Chung-on did not. He continued and then, as the judge described her evidence, the boy “changed his route and walked to his right quickly along the double white lines in the centre of the carriageway. … he took one step away from the double white lines and was hit on his left leg, fell to the ground and ended up with his head pressed under the front wheel of the car and his body underneath the vehicle pointing towards the rear offside wheel.” After the vehicle was lifted off the boy, it was put down on the road and rolled backwards coming to a halt on the pedestrian crossing.

8. This, in essence, accords with much of what Leung told the police at the scene of the accident, save that Mdm Li said that Leung was driving fast and Leung said he was not. What Leung said to the police was as follows:

“At the time I was driving forward at a speed of below 50 km/h. I was very sure the traffic signal was green in colour, I was permitted to drive past. But a group of parents and children, 3 to 4 people, walked from the right side to the left side without complying with the traffic light signal. At this moment I looked to the right and braked my car as I feared that they would cross the road carelessly. Then they stopped inside the safety island. I started moving my car again without acceleration. After my car completely moved past the pedestrian crossing, a shadow came out from left to the right. I just braked my car. I together with my father lifted my car up and moved it backward … .”

9. It is relevant to note that there were no skid marks on the road.

10. The judge concluded that there was no reliable evidence as to what happened to Chung-on after he reached the centre of the crossing. The statements from the prosecution witnesses in this regard were conflicting and it was not possible to determine from the evidence whether the lights were in favour or against Leung when he approached the crossing. Some of the evidence suggested that they were against him and even his own comments immediately after the accident appeared to be ambivalent in this regard. Clearly, the judge remarked, everything happened very quickly. He noted that at the time of or just before the accident, there were other people, apart from the children, gathered at the centre of the crossing so that Leung’s view of anyone on the east side of the road or of the crossing was, because of the presence of those people and the curve in the road, likely to have been obstructed.

11. Leung’s testimony was that when he was 2 to 3 car lengths from the crossing he noticed that the lights were green in his favour. He was travelling at only 20 km hour, he said, and slowed down further.

Findings

12. In all the circumstances, the judge could not be sure that the lights controlling vehicular traffic travelling in an easterly direction were not showing green at the relevant time. Further, he said – indeed, he said it twice – there was no evidence of excessive speed on the part of Leung. It is not clear whether by this the judge meant that be the speed limit was not exceeded or that there was no evidence that Leung was driving at speed greater than that which was wise in the circumstances. Given that there was evidence – whether reliable or not – that he was driving fast and given as well the implication in the findings that he took insufficient care in his driving beyond the pedestrian crossing it seems to us that the judge must have meant that there was no evidence of exceeding the limit.

13. It is entirely understandable in the circumstances that the judge felt the evidence inadequate upon which to conclude that Leung drove in a way that fell far below the standard which would be expected of a competent and careful driver, the test for dangerous driving. But, since we are faced with an application for leave to appeal the conviction for careless driving, the basis upon which that conviction rested now falls for examination.

14. The judge noted Leung’s evidence that he only looked at the lights for the first time when he was about 80 m from the crossing, even though those lights are visible from 95 m away and it is clear from his concluding remarks that he was critical of Leung’s failure to notice the lights earlier. He remarked that beyond the crossing, going east, “the road bends slightly to the right at that point [and that] anyone on that side of the crossing would...

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