FACC No. 8 of 2011 (Crim)

IpsofactoJ.com: International Cases [2012] Part 3 Case 10 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Hong Kong SAR

- vs -

C.K. Chan

(陳志強)

CHIEF JUSTICE GEOFFREY MA

JUSTICE KEMAL BOKHARY PJ

JUSTICE PATRICK CHAN PJ

JUSTICE R.A.V. RIBEIRO PJ

SIR ANTHONY MASON NPJ

23 FEBRUARY 2012


Judgment

Chief Justice Ma

  1. At the conclusion of the hearing, we allowed the appellant’s appeal, quashed the conviction and set aside the fine, with reasons to be handed down on a date to be notified. We also ordered that the costs here and before the Court of First Instance be to the appellant, to be taxed if not agreed. The reasons for our decision are now set out in the judgment of Mr Justice Chan PJ.

    Justice Chan PJ

    The issue in this appeal

  2. The appellant was charged with and convicted of failing to stop his vehicle after an accident whereby personal injury was caused to a person, contrary to s.56(1)(a) of the Road Traffic Ordinance, Cap 374. The question of law certified for determination in this appeal is:

    What are the elements of, and legal or evidential burdens relating to, the offence under section 56 of Cap 374?
  3. This question has arisen from the appellant’s final submission at the trial and one of his grounds of appeal before the judge, namely, that the prosecution had failed to prove beyond reasonable doubt that personal injury was caused to a living person in the accident in which the appellant was involved, thus requiring him to stop his vehicle immediately after the accident. His primary case was that he did not know he had run over a human being and thought it was a rubbish bag, but he also submitted that the person he had run over might already have died before he ran over him. Consideration of the certified question is thus narrowed down to this: is it necessary for the prosecution to prove as an element of an offence under s.56(1)(a) that personal injury was caused to a living person?

  4. The appellant contends that it is and complains that the judge had wrongly placed the burden of proof on the defence and the prosecution had failed to prove this ingredient of the offence to the requisite standard. On the other hand, the prosecution accepts that the burden of proving this ingredient is on the prosecution, but argues that there was no sufficient evidence to raise the issue.

    The facts

  5. The facts as found by the magistrate are as follows. The appellant was a taxi driver. At around 1 a.m. on the day in question, he was driving several passengers from Tsimshatsui to Tuen Mun. According to the two passengers (PW1 and PW2) who sat in the front seats next to him, when the taxi was travelling in the middle lane of the Tuen Mun Highway, they noticed a black object lying motionless in the same lane some distance away but as the taxi approached the object, they saw that it was a human body, with arms and legs and the head pointing towards Tuen Mun. The taxi however did not slow down but ran over the object and in the course of doing so, jolted 2 to 3 times. After that, it did not stop but continued its journey.

  6. PW1 said that she was not sure it was a human body but PW2 said he was sure, although he had found it difficult to believe it at the time. At some later stage, PW1 asked the appellant whether the object was a human being, but he did not give a clear or direct answer. PW2 also heard the appellant whispering: “how come there seems to be a human being lying there for no reason” (this is a translation of his evidence). Finally, when they arrived in Tuen Mun, they told the appellant that the object was a human being and asked him to report this matter to the police. In the event, they themselves made a report to the police about this incident.

  7. The police went to the scene to make investigations. A female officer (PW3) found a male lying between the hard shoulder and the left first lane with marks of his having been run over by vehicle wheels. She also found bone fragments, blood stains and the deceased’s belongings scattered in the vicinity. The ambulance men who arrived there confirmed that the male was dead. The forensic evidence showed that there were blood stains at the bottom of the appellant’s taxi indicating that it had come into contact with the deceased.

  8. PW3 saw the appellant at the scene. She said he admitted to her that he had earlier on driven to the scene and run over what he thought was a black “lump of thing” as he could not swerve to another lane to avoid running over it. On his return journey, he saw the police somewhere near the place where the incident took place and so he went back to that location to try to find out whether the matter had anything to do with him.

  9. The appellant gave evidence to a similar effect as what he told the female officer. But he claimed that the bottom of his taxi merely went past the object although he heard the sound of collision. He denied that the taxi had jolted 2 to 3 times or that he had uttered words to the effect that it seemed to be a human being. He said he did not stop immediately because he thought he could examine any possible damage to his taxi at a later stage. The appellant’s evidence on these matters was rejected by the magistrate. His claim that the taxi did not actually run over the deceased was contradicted by the forensic and other evidence.

    The magistrate

  10. In convicting the appellant, the magistrate found on the evidence that the appellant knew what he had run over was a human being. He also found that the appellant must be aware that more serious injury would be caused to that human being if that human being was run over by a vehicle. However, the magistrate did not give any ruling as to whether it was necessary for the prosecution to prove that personal injury was caused to a living person, although in closing submission, defence counsel made the point that the prosecution had failed to prove this beyond reasonable doubt and there was no obligation to stop if the appellant had only run over a dead body. Nor did the magistrate make any express finding that the deceased was still alive when he was run over by the appellant. This is rather unsatisfactory because it was a matter which had to be appropriately resolved by the court since it related to the question whether the prosecution had proved its case against the appellant.

    The judge

  11. On appeal, since this issue was one of the grounds of appeal, the judge had to deal with it. He first of all considered, rightly in our view, that the magistrate could not merely rely on the words uttered by the appellant to come to the conclusion that the person lying on the road must be alive at that time: those words only proved that he knew an accident had occurred. The judge took the view that no presumption could be made as to whether that person was alive or dead. He said (para.31 of his judgment):

    Of course, this person might possibly [incorrectly translated as probably] be dead but more probably [which would be the correct translation when read in the context] this person might be drunk or injured. But whether he is dead or not depends on the circumstances and situation at that time, and the decision of whether he is dead cannot be made casually.

  12. The judge then asked himself the question whether it was necessary for the prosecution to prove that the person run over by the appellant was not dead. It would appear that counsel for the prosecution before him then had acknowledged that the prosecution must prove that that person was still alive before the appellant could be found guilty of the charge. However, the judge did not indicate whether or not he agreed with that. Nor did he give a clear answer to that question. He said (para.34):

    I take the view that according to the circumstances of this case, if the Defence had raised the issue that the human body that the Appellant had run over was a dead body, then evidence in support of this conclusion must be adduced (no matter it was the Prosecution’s evidence or Defence’s evidence). At least there must be some prima facie evidence. But the Defence did not have any evidential basis showing that that human being was definitely dead, for example, that human body had been beheaded or other conditions, and hence I cannot make a judgment on the basis that the person had already been dead. On the other hand, I also agree with the views expressed by the learned magistrate that if a vehicle ran over a human being, it would definitely to some or to a certain extent cause injury to that human being. This would be sufficient to constitute the ingredient of the charge that an accident occurred on a road whereby personal injury was caused to a person.

  13. With respect, this passage is not easy to understand. On the one hand, it seems that the judge was of the view that it was for the appellant to adduce some evidence (at least prima facie evidence) to raise the issue that what was run over by him was a dead body. On the other hand, the judge appeared to require the appellant to produce some evidential basis to show that the human being was “definitely dead” and added that he, the judge, could not decide the case on the basis that the person was already dead.

    The section 56 regime

  14. No one will dispute that traffic accidents are a serious social problem. It is in the public interest that drivers are only permitted to drive their vehicles on the road subject to the strict regulatory controls provided by the Road Traffic Ordinance. One of the regulatory measures is s.56 which imposes various obligations on a driver involved in a traffic accident: he must stop his vehicle after the accident (s.56(1)); he must provide certain particulars to the police or any involved person upon request (s.56(2)); and he must report the accident to the police within strict time limits (s.56(2A) and (3)).

  15. This section is obviously aimed at overcoming the difficulties created in hit and run cases. It serves several important practical purposes: it enables the driver and other involved parties to find out what has happened, to ascertain the extent of the injury to any person or the damage to any vehicle, animal or any other thing and to see whether any medical attention is needed for the injured person or veterinary attention for the damaged animal; it also enables necessary follow up actions to be taken by the police immediately, including investigations and preservation of evidence for use in any future prosecution or civil claim and prompt actions to be taken by the authorities to remove any obstacle to the free flow of traffic.

    The section 56(1) offence

  16. This case is concerned with the obligation to stop after an accident under s.56(1), the important first step in the regime. The failure to stop if the circumstances specified in either (a) or (b) are satisfied is an offence. The relevant parts of s.56(1) are as follows:

    (1)

    Where, owing to the presence of a vehicle on a road, an accident occurs whereby –

    (a)

    personal injury is caused to a person other than the driver of that vehicle; or

    (b)

    damage is caused to –

    (i)

    a vehicle other than that vehicle or a trailer drawn thereby;

    (ii)

    an animal other than an animal in or on that vehicle or a trailer drawn thereby; or

    (iii)

    any other thing not being in or on that vehicle or a trailer drawn thereby,

    the driver of that vehicle shall stop.

  17. As mentioned above, there is little difference between the appellant and the prosecution on what are the elements of the s.56(1)(a) offence and what the prosecution must prove to secure a conviction. In his Written Case, Mr Kevin Zervos, SC, DPP (leading Ms Samantha Chiu) sets out a helpful analysis of the ingredients of the s.56(1) offence. The offence consists of the following ingredients which must be proved by the prosecution:

    1. There is an accident on the road.

    2. The accident occurs owing to the presence of a vehicle, i.e. there must be a causal connection between the presence of the vehicle and the accident. (See Quelch v Phipps [1955] 2 QB 107.)

    3. By reason of the accident, personal injury is caused to a person (s.56(1)(a)) or damage is caused to another vehicle or an animal or any other thing in another vehicle (s.56(1)(b)).

    4. The driver in question has knowledge of the accident, for if he is not even aware of the accident, he cannot be expected to stop. (See Harding v Price [1948] 1 KB 695.)

    5. The driver fails to stop after the accident.

  18. There is no dispute that there was an accident in the present case. The appellant’s taxi was clearly connected with the accident. At the trial, he alleged that his taxi only went past the person on the road without coming into contact with him. This argument was rightly rejected by the magistrate: there was clear evidence that the appellant had run over that person. The magistrate had also found that the appellant was aware he had run over the person on the road. There is also no dispute he did not stop after the accident.

  19. The dispute in this case relates to the element at (3). Mr C S Fu (leading Mr David Iu) for the appellant submits that the prosecution had to prove that the person injured was a living person. Mr Zervos accepts that. For the purpose of this appeal, he is also prepared to accept that “any other thing” might include a corpse.

    Meaning of “person” and “thing”

  20. The concession that “person” in s.56(1)(a) refers to a living person is a proper concession. Adopting a common sense approach and construing the word in its context, this is plainly the meaning intended by the legislation. There is no definition of “person” in this statute. But when one speaks of a person, it is commonly understood to refer to a living person unless it is clear from the context of the conversation that one is talking about a person who had already passed away. This meaning is also supported by the presence of the words “personal injury”: it is unusual to say that personal injury has been inflicted on a dead person. By way of contrast, while s.56(1)(a) relates to a “person”, s.56(1)(b) concerns vehicles, animals and any other thing and this suggests that “person” is intended to refer to a living person. The Chinese version of this section tends to add support to this construction: the Chinese for “person” is (人) which, without any qualification, usually means a living person.

  21. Reference is made to the words “any other thing” in s.56(1)(b) in the discussion of the meaning of “person”, although it is not necessary in this appeal to examine the meaning or scope of these words. Nor have we heard submissions on the ambit of this particular provision. However, we note that this term has a very wide ambit. In a statutory provision which carries criminal sanctions, we do not believe that it is intended to cover just anything: it would be surprising to say the least to punish a driver for not stopping after he has run over a very insignificant article (such as a book or an apple or a box of matches) on the road. Appearing in s.56(1)(b), “any other thing” must refer to anything other than a vehicle ((b)(i)) or an animal (restrictively defined in (b)(ii)). Bearing in mind the object and purposes for which s.56 was enacted, we consider that this term is intended to refer to things which are of such a nature that if they are damaged in a traffic accident, the driver involved in the accident would, as a matter of common sense, be expected to stop and provide particulars to the police or parties concerned and to report the matter to the police, in compliance with the obligations under s.56(2), (2A) and (3).

  22. We also note that Mr Zervos concedes that “any other thing” may include a corpse. Considering the reasons behind imposing an obligation on a driver involved in an accident which has caused injury or damage to stop after the accident, we are inclined to agree with that proposition. It does not make much sense that a driver is obliged to stop after he has hit a living person but can simply drive off if he runs over a person who is already dead. One would expect the driver to stop whether he hits a living person or runs over a dead body. This would be consistent with the intention of the legislation. However, we did not have the benefit of hearing full arguments on this point and it is not necessary in the present case to come to a firm conclusion.

    The situation in this case

  23. While he accepts that the prosecution has the burden of proving that personal injury was caused to a living person, Mr Zervos submits that in the present case, it is not open to the appellant to argue that the prosecution had failed to discharge that burden. This is, it is submitted, because there was no sufficient evidential basis to raise this issue for determination and this point was only made by the appellant in his closing submission. Briefly stated, Mr Zervos’ argument is that here, a person was found lying on his back motionless on the road before the appellant’s taxi ran over him; there was no evidence to suggest that he was already dead; and in the absence of such evidence, the only reasonable inference was that that person was still alive when the taxi drove over him. Counsel complains that it was not fair to the prosecution for the defence to raise this issue only in closing submission since the prosecution could have called other evidence on this matter, had it known much earlier that this would be raised.

  24. We do not think this argument can be sustained. In the vast majority of cases, the question whether the person injured in a traffic accident, be he a driver, passenger or pedestrian, was still a living person at the time when he was injured does not arise for consideration. This is not because of any presumption or inference. It is usually an observable fact. This question will only arise if there is some evidence which suggests that the injured person might already be dead before he was injured. This is not a matter of defence (such as self defence, automatism or provocation) which has to be raised by the accused in which case, he bears the evidential burden to raise the issue. (See Phipson on Evidence, 17th ed. Paras. 6.09 to 6.15.) It is a matter which goes to the crucial question whether the prosecution has proved all the ingredients of the charge beyond reasonable doubt. It is a point which can be legitimately made by the accused or the court at any time. Whether there is sufficient evidence to raise such a doubt depends on the circumstances of each case and is to be decided by applying common sense to the evidence. (See R v Bonnick 66 Cr App R 266, 269.) Unless there is such evidence, either from the prosecution’s case or defence case, the mere assertion by the driver or suspicion on his part is not good enough. If he has a suspicion that the person might already be dead before he was run over, it is all the more important that he should stop and find out whether this is the case. There must be evidence sufficient to raise the possibility that the body on the road is not a living person. When this happens, it is for the prosecution to remove that doubt by evidence or otherwise before the accused can be found guilty of the offence.

  25. We do not think there would be any unfairness to the prosecution. It is the prosecution which brings the charge against the accused. If there is anything in the evidence which may suggest this can be a possible issue at the trial, it is always open to the prosecution to rely on s.56(1)(b) by including it in the particulars of the charge in the first place or consider applying to amend the charge if it is raised at a later stage and/or applying for an adjournment to recall any witness or tender any evidence to deal with this issue.

  26. In the present case, although the appellant did not make this point until his closing submission, there is, in our view, sufficient evidence to cast doubt as to whether the person run over by him was a living person at the time of the accident. This accident occurred in the early hours of the morning. That person was seen lying motionless on his back in the middle lane of a highway which was nowhere near any housing estate or residential building. How he got there was unknown. There could be many possible reasons why he was there at such time of the day and in such conditions. The forensic evidence indicated that he had been run over by the appellant’s taxi, although the magistrate was not in a position to say that the appellant’s taxi was the first vehicle which ran over that person. The autopsy report showed that he had sustained multiple injuries. The police who later arrived at the scene found bone fragments, blood stains and his belongings scattered in the vicinity, although it could not be certain when they were found there. He could still be alive but he could also be dead when he was run over by the appellant. One simply cannot draw any inference, let alone an irresistible inference, that he must still be alive. That he might be dead is a reasonable possibility which could not and should not have been ignored. There is thus a reasonable doubt as to whether an ingredient of the offence under s.56(1)(a), i.e. whether personal injury was caused to a living person, had been proved.

  27. Even if the question was not raised in the course of the evidence, this was a matter which was required to be proved beyond reasonable doubt by the prosecution. It was a matter which the magistrate was not only entitled but was obliged to consider and resolve (adjourning the case to do so if necessary) before coming to a verdict on the charge. Neither the magistrate nor the judge dealt with this legal issue or purported to resolve it on the evidence.

  28. For the reasons given above, the appeal must be allowed and the conviction must be quashed and the fine set aside.


Representations

C S Fu and Mr David Iu (instructed by Tang, Lai & Leung), for the appellant.

Kevin P Zervos, SC, DPP and Samantha Chiu SPP (Ag), of the Department of Justice, for the respondent.


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