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5 June 2020 | by LexisNexis Hong Kong

In HKSAR v Ng Siu Bun [2019] HKCU 4837, the Court of Appeal allowed the applicant’s appeal against a dangerous driving conviction, and by exercising its powers under the Criminal Procedure Ordinance (Cap 221), the court substituted a lesser offence of careless driving to the applicant.

Facts

The accident took place at a junction around 3am on 15 October 2017. The deceased was struck by the applicant’s taxi while he was crossing a pedestrian crossing disobeying a red pedestrian signal. The deceased was 91 years old and suffering from dementia and lung cancer.

On that night, Typhoon signal No. 3 had been hoisted, it was raining and the road surface was wet. The traffic signal governing the applicant was green when the applicant’s taxi arrived at the junction before turning right into Tung Chau street. Whilst turning right, the applicant realized the deceased was in front of him in the middle of the pedestrian crossing. The applicant braked hard, skidded, and sadly, hit the pedestrian.

The applicant stopped his taxi, immediately turned on his hazard lights and alighted from his taxi. He reported to the police, covered the deceased with newspapers to shield him from the rain and attempted to prevent oncoming traffic from hitting the deceased. However, while the applicant was trying to identify the accident location to the police, another taxi drove over the deceased. The deceased died few days later from his injuries.

The applicant was charged with and convicted of causing death by dangerous driving under section 36(1) of the Road Traffic Ordinance (Cap 374) (“RTO”) and was sentenced to 15 months of imprisonment. He was also disqualified to drive for 5 years and had to attend and complete a driving improvement course before the end of the disqualification period.

Judgment

The Court of Appeal permitted the applicant’s appeal and determined that it was careless driving rather than dangerous driving. It also substituted the original sentence of 15 months of imprisonment for dangerous driving to 4 weeks of imprisonment for careless driving. The court set aside the 5-year disqualification order and the requirement to take and complete a driving improvement course. Further, the court granted the applicant costs of the trial.

The court found that the applicant’s driving was careless after having considered that it did not meet the test for dangerous driving under section 37(4) of the RTO. In other words, it could not be said to have fallen far below what would be expected of a competent and careful driver. The judge ruled in favour of the applicant for various reasons:

  • at no stage had the applicant violated any traffic regulation or provision under the RTO;
  • at the time he turned at the junction, the traffic signals were green in his favour, so he was entitled to proceed. There was never any suggestion that he was “jumping” or “running” the lights;
  • the pedestrian lights governing the pedestrian crossing which the deceased was trying to cross were, at the material time, red against him;
  • there was no evidence that the applicant was speeding above the legal limit as he turned into Tung Chau Street;
  • At the applicant’s position, the pedestrian crossing across Tung Chau Street was almost completely obscured by a large concrete pillar;
  • it was 3am in the morning, a time that an individual would not necessarily anticipate many pedestrians to be around; andhe was entitled to assume that the pedestrian and any others were obeying the traffic signals as he was turning right with the green light in his favour.

Further, the court cited HKSAR v. Li Chau Wing that differentiated careless driving from dangerous driving. Citing Li Chau Wing, the court quoted“…The consequences of this accident were tragic, aggravated by the numbers who lost their lives. As the judge recognised, the fact that the consequence was tragic does not of itself characterise the cause. If the accident was caused by the applicant’s lack of care, the consequences of the lack of care do not turn an act of careless driving into one of dangerous driving.”


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