HKSAR v Ng Siu Bun
Court of Appeal
Criminal Appeal No. 123 of 2019
Macrae VP, Zervos JA and Li J
24th December 2019

The Applicant was charged with causing death by dangerous driving. He pleaded not guilty to the offence in the District Court but admitted the lesser offence of careless driving. He was convicted of causing death by dangerous driving after trial and sentenced to 15 months’ imprisonment (in addition to being disqualified from driving for 5 years and ordered to attend a driving improvement course). The Applicant appealed against his conviction.

The accident took place at about 3 am on 15th October 2017 at the junction of Hing Wah Street West and Tung Chau Street. At the time, typhoon signal no. 3 had been hoisted and the road surface was wet from the rain.

The deceased was a 91 year old man suffering from dementia (amongst other conditions) who had left home for a walk. At the material time, the Applicant was driving his taxi and whilst turning right into Tung Chau Street from Hing Wah Street West the Applicant noticed the deceased in front of him in the middle of the pedestrian crossing on Tung Chau Street. The Applicant braked but his taxi skidded and hit the deceased.

The Applicant immediately activated his hazard lights and alighted from his taxi. He covered the deceased with newspaper to shield the deceased from the rain and made a report to the police. Whilst trying to assist the police to identify the location of the accident, another taxi drove over the deceased. The deceased died five days later from his injuries.

After trial, the Judge considered that the Applicant had driven at a speed “inappropriate for the prevailing conditions”, given that the road surface was wet and that there was a concrete pillar at the material junction obstructing the Applicant’s view of the pedestrian crossing. The Judge 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”.

The ground of appeal against conviction originally put forward by the Applicant was that the Judge had failed to properly deal with the issue of causation. The Court of Appeal invited the parties to address it on the issue of whether the Applicant’s driving amounted to dangerous driving or careless driving. Accordingly, the Applicant’s grounds of appeal were amended so as to argue that this was a case of careless driving instead of dangerous driving.

Consideration

The test for dangerous driving can only be met if the driving can be said to have fallen far below what would be expected of a competent and careful driver (section 37(4) of the Road Traffic Ordinance), having taken into account all the circumstances of the case including (a) the nature, condition and use of the road concerned at the material time; and (b) the amount of traffic which is actually on the road concerned or which might reasonably be expected to be on the road concerned at the material time (section 37(7)(a) & (b) of the Road Traffic Ordinance).

The Court of Appeal found that the Applicant’s driving was careless but could not be said to have fallen far below what would have been expected of a competent and careful driver, given that:

  • At no stage had the Applicant infringed any traffic regulation or provision and the traffic lights were green in his favour when he negotiated the turn;
  • There was no evidence that the Applicant was driving at a speed above the speed limit or had lost control of his vehicle at the time;
  • The Applicant’s view of the material pedestrian crossing had been almost entirely obscured by a concrete pillar;
  • Whilst the fact that it was drizzling should make motorists more cautious, it should not be given undue emphasis in this case as the rain was relatively light at the time and it would not have been drizzling directly under a flyover (which was where the accident took place);
  • It was 3 o’clock in the morning, a time at which one would not necessarily expect many pedestrians to be about;
  • Whilst a green light in a driver’s favour does not provide him with a licence to drive through pedestrians, he is entitled to assume that others are obeying traffic signals.

The Court of Appeal also considered the judgment in HKSAR v Li Chau Wing (Unrep., CACC 347/2005, 20 February 2006), where the Court in that case observed that “… the consequences of this accident were tragic, aggravated by the numbers who lost their lives. As the judge recognized, the fact that the consequence was tragic does not of itself characterize 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.”

Held:

The Court of Appeal allowed the Applicant’s appeal against conviction and substituted a conviction for careless driving. The Court of Appeal also set aside the disqualification period and the requirement to attend a driving improvement course. The original sentence of 15 months’ imprisonment was substituted with 4 weeks’ imprisonment. In addition, the Applicant was awarded costs of the trial.

Jurisdictions: