HKSAR v. SO WAI KEUNG

CACC 295/2018

[2019] HKCA 970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 295 OF 2018

(ON APPEAL FROM DCCC 14 OF 2018)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with “Causing death by dangerous driving”, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (“the Ordinance”). He pleaded not guilty to this charge and was tried before District Judge Woodcock (“the judge”). On 27 August 2018, he was convicted as charged and subsequently sentenced to 4 years’ imprisonment and disqualified from driving for 5 years.

2.  On 28 September 2018, the applicantfiled a Notice of Application for Leave to Appeal (Form XI) against his conviction.

3.  At the hearing of the application I refused it and said I would hand down my reasons for doing so in due course.  These are my reasons.

The prosecution case

4.  Shortly before 10:00 pm on 17 June 2018 on the Tolo Highway, Tai Po, a motor vehicle accident occurred in which a person was killed and which the prosecution alleged was caused by the dangerous driving of the applicant. It was not disputed that      the applicant was driving a purple coloured Maserati Ghibli S with registration marks “JB112” and “粵Z K250 港” (“the Maserati”) along the Tolo Highway, Kowloon bound.

5.  At the time of the accident PW1, who was an inexperienced young driver having just passed his driving test one month before the accident, was driving his father’s Nissan lightgoods vehicle (“LGV”) along the Tolo Highway, Kowloon bound, with three passengers on board.  They were PW2 who was sitting in the front passenger seat next to PW1, PW3 who was sitting behind PW1 and the deceased who was sitting behind PW2.  All of them had fastened their seatbelts except for the deceased.

6.  There was an amber rain storm warning in force and PW1 could barely see the road.  

7.  The prosecution case was that the applicant’s Maserati had in fact encountered PW1’s LGV some minutes before the accident happened.  The applicant was dissatisfied with the speed of the LGV which was travelling ahead of him in the third lane of a four lane road and repeatedly flashed its high beam headlights 4 or 5 times at PW1’s LGV signalling it to move over to the slow lane.  However, PW1 could not do so as at that time there were double lines on the roadway.  But, in order to assist the driver of the Maserati to overtake him, PW1 slowed his vehicle to 40-50 km/hr. 

8.  The applicant then attempted to overtake the LGV by moving into the second lane, to the left of PW1’s LGV, and then into the first lane.  However, he was thwarted in achieving his aim by a heavy goods vehicle which was then travelling in this lane.  Consequently, PW1 ended up passing the applicant’s vehicle as it was temporarily trapped in the first lane.

9.  A few minutes later, when approaching the accident location, the applicant passed PW1’s LGV whilst travelling in the fourth lane but then the applicantmoved into the third lane, immediately in front of PW1, and braked suddenly.  The close proximity of the applicant’s Maserati to PW1’s LGV and the applicant’s sudden braking of his vehicle caused PW1 to lose control of his LGV.  It skidded sideways, overturned and stopped on its side against the left shoulder of the road. PW1, PW2 and PW3, survived the accident but the deceased was trapped under the LGV and suffered multiple injuries from which he died.

10.  It was the prosecution case that the sudden intentional braking by the applicant, in such a short distance in front of PW1’s vehicle, and under such adverse weather conditions, constituted dangerous driving. 

11.  On 11 December 2017, the applicant voluntarily attended a video record of interview with police officers.  In the interview, he admitted that he was driving a Maserati at the material time from Fanling along Tolo Highway (Kowloon bound) with no passenger on board.  He said he drove past the accident location.  He denied having braked abruptly at high speed. He said nothing special happened on that night.  He had no involvement in or responsibility for the accident with PW1’s car.

12.  The only other witnesses to the accident were PW2 and PW3. However, neither of them saw how the accident occurred because both were concentrating on their mobile phones.  But both were aware of the existence of the Maserati as both heard the roar of its engine and saw it driving past PW1’s vehicle.

13.  PW2 said he was playing with his mobile phone when he heard the loud noise of an exhaust pipe and he looked up.  He then saw a Maserati drive past them but he could not recall if it drove past them on the left or the right.  He said that the Maserati cut in front of the LGV whilst they were travelling in the second lane from left.  He did not pay further attention to the Maserati car and continued looking at his phone.  He said nothing happened as they drove on until he suddenly felt the car skid and he looked up through the windscreen to find the LGV already crashing towards the right side barrier of the road. 

14.  PW3 said he recalled hearing the loud noise of exhaust pipes and seeing a Maserati drive pass the LGV to their left.  He also said the Maserati cut into the lane in which they were then travelling.  However, he did not pay attention to it after it drove past as he continued playing with his phone.  He said the accident took place shortly after this but he could not tell how it happened. 

15.  The issue at trial and on appeal is whether the evidence of PW2 and PW3 related to the time PW1 said the Maserati was flashing its lights and moving past them in the left adjacent lane or whether it related to the time of the accident.  If the latter then their evidence contradicted PW1’s testimony and exculpated the applicant from any involvement in the accident. 

The defence case

16.  The applicant did not testify or call any witness.  He relied entirely upon his exculpatory answers as contained in his video record of interview that was adduced in the prosecution case.  It was the defence case that the applicant had been misidentified and/or that PW1 had falsely accused the applicantin order to avoid responsibility for his friend’s death.  

The judge’s Reasons for Verdict

17.  The judge considered the various discrepancies between PW1, PW2 and PW3 as submitted by the defence in the closing submissions and found they were not so material that PW1’s evidence should be rejected, taking into account that fact that PW1 was the driver of the LGV whilst both PW2 and PW3 were only passengers mainly focusing on their phones, and both said they did not know how the accident occurred.  She found PW2 and PW3 only paid momentary attentionto the Maserati as their ears picked up the loud noise from its exhaust pipe.

18.  The judge then moved on to accept PW1’s evidence in full.  She found the applicant’s conduct of cutting and suddenly braking in front of PW1 constituted dangerous driving.   

The applicant’s ground of appeal

19.  The applicant’s counsel both at trial and on this application was Mr David Boyton.  In his Perfected Ground of Appeal, Mr Boyton complained that the judge “failed to evaluate the evidence properly, and/or show that she had analysed the evidence properly, thereby rendering the conviction unsafe and unsatisfactory” [1].  In support of this ground of appeal Mr Boyton referred to five areas of the Reasons for Verdict where he complained of the adequacy of the judge’s reasons, the correctness of her analysis or the accuracy of her understanding of the evidence.  They are:

(i)  the inconsistency between the evidence of PW1 and PW2 which the judge failed to correctly analyse and consequently erroneously resolved;

(ii)  the evidence of the duration of the Maserati flashing its high beam headlights at PW1’s car which the judge failed to correctly appreciate and this led her to erroneously prevent cross-examination on it;

(iii)  the clear exaggeration by PW1 that the distance between his car and the Maserati was only one foot, which was also relevant to whether PW1 could see the Maserati’s number plate;

(iv)  the judge’s finding as to the applicant’s intention in suddenly braking hard was speculative and not proven beyond reasonable doubt; and

(v)  the misdescription by the judge of the prosecution case which demonstrated her misunderstanding of a significant part of the evidence. 

The respondent’s submissions

20.  Mr Ivan Cheung, for the respondent, opposed the application and submitted that the applicant was essentially trying to re-argue factual matters which had been adequately and satisfactorily dealt with in the Reasons for Verdict.

Discussion

(i)   The inconsistency between PW1 and PW2

21.  The alleged material inconsistency between the evidence of PW1 and PW2 concerned whether there was only one involvement with the Maserati or whether there were two occasions of involvement.  PW1 said there were two occasions.  The defence case was that the evidence of PW2 and PW3 supported there being only one occasion, that occasion was as testified to by them and on the basis of their testimony the applicant did not drive in the manner as alleged by PW1 on what he claimed was a second involvement and, therefore, did not cause the accident.

22.  Mr Boyton argued that this inconsistency between the evidence of PW1 and PW2 cast doubt on the credibility and reliability of PW1.  The judge’s attempt to resolve the inconsistency by saying that PW2 was referring to what was, on PW1’s evidence, the first occasion when the Maserati passed PW1’s vehicle cannot be correct as at that time, on PW1’s evidence, the Maserati drove past PW1’s vehicle without cutting into his lane.  On PW1’s evidence there was only one incidentof lane cutting and PW2 said that after the lane cutting the Maserati sped off.  

23.  I do not consider this ground to be reasonably arguable.  The judge was acutely aware of the discrepancy and dealt with it in her Reasons for Verdict.  I can detect nothing irrational or unreasonable in her analysis of this discrepancy or her resolution of it.  The judge was entitled to choose which pieces of evidence of each witness she would believe and to analyse and resolve the discrepancy between PW1 and PW2 in the way that she did. 

24.  The judge made it quite clear that the reliability of all witnesses was an issue at the forefront of her mind and that she was aware of the variousconflicts, contradictions and inconsistencies in the evidence.  Any ground of appeal that relies for its foundation on a submission that the judge had failed to consider the reliability of the prosecution witnesses is not, in my view, reasonably arguable.

(ii)   The evidence of the Maserati’s flashing of its high beam headlights

25.  On this matter PW1 testified as follows:

“ Q. So from where this flashing took place, the flashing of the high beams, until the accident location, how far is that?

A. It flashed at the Kwong Fuk Estate until the accident happened.”[2] (Emphasis added.)

26.  Mr Boyton complained that the judge failed to follow the evidence of PW1 and as a consequence wrongly disallowed his cross- examination of PW1 on it.  The following exchange reveals what happened:

“Q. And you never mentioned in any of your statements that any vehicle had flashed you from Kwong Fuk all the way to the scene of the accident.

MR CHAU: That wasn’t his evidence anyway.

COURT: No, it’s not his evidence.

MR BOYTON: It was. That’s what we’ve all got.

MR CHAU: No.

COURT: No. What, today?

MR CHAU: It flashed and then it -- the ...

COURT: No.

MR CHAU: ... purple vehicle overtook on the inside and then he encountered the vehicle again in -- when it went past him on the right-hand side.

COURT: He has not said he’s flashed all the way down there.

MR BOYTON: No, it -- he said it flashed all the way to the incident where the accident occurred.

COURT: No, he didn’t.

MR CHAU: No.

COURT: He has not said that today.

MR BOYTON: Well, the three of us all got the same note.

COURT: He has not said that today.

MR BOYTON: All right. He’s not said that. Thank you.

COURT: You can ask him to clarify that if you like.

MR BOYTON: No, I’m not going -- if the court says he’s not said it, I’m not going to go down ...

COURT: He has not said he’s flashed all the way to the accident spot, no.

MR BOYTON: Right.”[3] (Emphasis added.)

27.  From the transcript it would appear that it was PW1’s evidence that the Maserati flashed high beam headlights at him from Kwong Fuk Estate all the way to the scene of accident and the judge and Mr Chau were both in error in their recollection of what had been said.  In the circumstances he faced, Mr Boyton, who is a very experienced counsel, could have asked for the audio tape to be played back so that the court could verify what it was that PW1 said or he could have taken up the judge’s invitation to clarify the matter through further questioning of PW1.  In the exercise of his professional judgment Mr Boyton made a tactical decision not to pursue the first of these options. 

28.  However, later in his cross-examination he did return to this issue as the following exchange demonstrates:

“ MR BOYTON: Right. I’ve been asked to put this, your Honour, your Honour.

COURT: Yes.

Q. You -- earlier today, did you tell the court that you were flashed all the way from Kwong Fuk to the accident site?

A. No.” [4]

29.  Mr Boyton then moved on to another topic and did not return to this issue.  He had the opportunity to challenge the witness but chose to do so only in this limited way.  He cannot now complain to the Court of Appeal of the consequences of that decision.

30.  However, I do note that the judge in fact clarified this aspect of PW1’s evidence in the following exchange with him:

“Q. Right. All right, and then you were asked how many flashes there were when the car behind you was flashing his high beam at you. Right.

A. Yes.

Q. And you said you couldn’t recall.

A. That’s right.

Q. Right, but you said it was more than once.

A. (Answer not interpreted) 係.

Q. Right.

A. (Interpreted evidence continues) Correct.

Q. And it was continuous.

A. Correct.

Q. Right. That -- by ‘continuous’, you mean he -- it was ...

MR CHAU: ‘Repeat’, ‘repeated’.

COURT: Thank you.

Q. ... repeatedly, repeated more than once.

COURT: Thank you.

Q. Yes.

A. Correct.

Q. Yes. Obviously you can’t -- you don’t -- you’re not able to give an accurate number of how many times he repeated it, but approximately can you give an idea of how many times he repeated the flash?

A. I guess four to five times.”[5] (Emphasis added.)

31.  I cannot see that the applicant was prejudiced in the way this matter was dealt with.

(iii)    PW1’s exaggeration of the distance between the two cars

32.  Mr Boyton also complained that the judge considered the inherent improbability of PW1’s evidence that the Maserati was only one foot from his LGV just prior to the accident.  Mr Boyton submitted that had that measurement been correct, the two vehicles would have collided and it would not have been possible for PW1 to see the licence plate of the Maserati at all.

33.  PW1’s examination-in-chief was as follows:

“ Q. When it cut in, how far a distance were you from the Maserati?

A. I think there was just ...

INTERPRETER: 一英呎.

A. ... one-foot distance left.

COURT: Very close to you.

A. Correct.

MR BOYTON: ‘One foot’, he said.

INTERPRETER: ‘One foot’.

Q. One foot. So about that.

A. Around 30 centimetres.

Q. So it moved from a -- the fourth lane into the third lane. The car, did it actually move into the third lane, the Maserati?

A. It just cut in. The vehicle was not completely straightened yet.

Q. Right, and how did you know it braked?

A. I saw the brake light.

Q. The rear brake lights, the red lights.

A. Correct.

Q. Right.”[6] (Emphasis added.)

34.  In cross-examination he said:

“ Q. Yes, but your conviction was affected by your inexperience and the rain, which you admitted made it difficult to judge distances.

INTERPRETER: Sorry, ‘the rain and’ ...

MR BOYTON: ‘Made it difficult for you to judge distances’.

A. The rain did affect, but I am very sure that it was at a very -- it braked at a very close distance, so I had no other choice but to brake and swerve myself.”[7] (Emphasis added.)

35.  A witness’s assessment of distance can be quite imprecise. What PW1 was clearly trying to convey was that the Maserati was very close to the front of his vehicle.  To attribute to his evidence any greater precision than this would be unwise given the circumstances at the time.  The judge was conscious of this and that is no doubt what prompted her intervention when she said to PW1 “Very close to you” and to which he replied “Correct”.

36.  The fact that PW1 asserted that the distance was only one foot and that this assessment must be inaccurate does not, by itself, necessarily render him an unreliable witness.  Nor, in my view, is it of such significance that when it is added to other difficulties that might be thought to be associated with PW1’s evidence, render that evidence unreliable.

(iv)   The judge’s finding as to the applicant’s intention

37.  Mr Boyton in this ground complained that the judge erred in making speculative findings of facts in respect of the applicant’s sudden and hard braking when he was in such close proximity to PW1’s vehicle.

38.  The issue before the judge was whether dangerous driving had taken place and, if so, whether the applicant was the author of it.  In order to conclude that the manner of driving was dangerous the judge had to find that the applicant intended to suddenly apply his brakes and to apply them hard knowing that the LGV was in close proximity to his vehicle.  There is nothing necessarily dangerous in suddenly and forcefully applying the brakes of a motor vehicle.  But when the circumstance of having a vehicleimmediately behind you is added then the driving clearly becomes dangerous.

39.  Thus, this was a case where the prosecution was alleging that the applicant deliberately created a situation of danger by his manner of driving. Finding an explanation for what, on its face, was abnormal and dangerous driving was relevant to both whether the applicant intended to drive as he did and whether the evidence of PW1 was credible.  The second element of the definition of dangerous driving is that it would be obvious to a competent and careful driver that driving in the way the applicant drove would be dangerous.  Relevant to proof of this, and the first element, is that there was a reason why the applicant would deliberately choose to drive in such a dangerous manner; so dangerous that any miscalculation by him could actually imperil himself.   

40.  The explanation the judge found was essentially an explanation of road rage, a phenomenon that nowadays is, unfortunately, not uncommon and when a driver does become enraged by the driving conduct of other road users that driver can behave quite recklessly.  This explanation was supported by the evidence in the sense that there existed primary facts from which this inference of motive could reasonably be drawn.  The judgedid not confuse intention and motive but she was entitled to use evidence of motive to prove intention. 

(v)   The misdescription of the prosecution case

41.  Mr Boyton complained that it was significant that the judge had made an erroneous statement of the prosecution case in her Reasons for Verdict,showing that she was confused about the issue of “lane-changing” at the trial.  The relevant paragraph is as follows:

“ 4.     PW1 then changed lanes himself and then went from the third lane to the first lane and moved past PL 4507.  However, PW1 then became stuck behind a slower truck in that first lane and PL4507 moved past the defendant in the third lane.”[8]  (Emphasis added.)

42.  This ground can be disposed of quickly.  Clearly the paragraph above makes perfect sense if the references to “PW1” are substituted with “the defendant” and vice versa as PW1 was the driver of “PL4507”.

43.  In the rest of the Reasons of Verdict, the judge did not fall into the same error again.  In my view the errors are clearly inadvertent and it is not reasonably arguablethat the judge laboured under any confusion or misunderstanding regarding the prosecution case at trial or the evidence adduced in support of it.

Conclusion

44.  I could not find anything in the judge’s reasoning process that could found a reasonably arguable ground of appeal that the conviction of the applicantis unsafe or unsatisfactory. 

Disposition

45.  For these reasons I refused the applicant leave to appeal his conviction.  I reminded the applicant of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.

[1] The Perfected Ground of Appeal, page 4

[2] Appeal Bundle, page 58S-T.

[3] Appeal Bundle, pages 76D-77A.

[4] Appeal Bundle, page 77M–P.

[5] Appeal Bundle, page 80G-R.

[6] Appeal Bundle, pages 61M-62B. 

[7] Appeal Bundle, page 77G-K. 

[8] Appeal Bundle, page 16L-N.