HKSAR v. LAM CHI FAT

[English Translation- 英譯本]
CACC89/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.89 OF 2011

(ON APPEAL FROM DCCC NO. 951 OF 2010)

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BETWEEN

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JUDGMENT

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Hon Yeung VP (giving the Judgment of the Court):

1.  At about 1 p.m. on 7 February 2010, the applicant (Lam Chi Fat) was driving a goods vehicle of registration number DT 2398 (“the goods vehicle”) travelling towards Mongkok along the southbound carriageway of Tai Po Road. It was raining heavily at that time and the road surface was wet and slippery.

2.  When the goods vehicle reached the intersection of Tai Po Road and Shek Kip Mei Street, it suddenly went out of control and crashed into the metal railings by the pavement on the left before the intersection.  Then it mounted the pavement after the intersection and only came to a halt after hitting the canopies and a lamppost outside the shops at Nos. 152 and 154 Tai Po Road.

3.  As a result of the accident, the applicant’s wife (Ms Kwok), who was on board the goods vehicle at the time, was thrown out of the vehicle and died three days afterwards.  Seven other passers-by also suffered minor injuries, while severe damage was caused to the objects outside the shops at Nos. 152 and 154.

4.  Eventually the applicant was charged with dangerous driving causing death.  He denied the charge and was tried before Judge Stanley Chan in the District Court.

5.  On 1 February 2011, Judge Chan convicted the applicant of the charge and sentenced him to a term of imprisonment of 18 months.  He was also disqualified from driving for 4 years.

6.  Feeling aggrieved, the applicant seeks leave to appeal against his conviction.

The Prosecution Allegations and Evidence

7.  There was no dispute about most of the background facts and the course of the accident, which were put before the court by way of admitted facts.

8.  The speed limit on the stretch of road in question was 50 km/hr.  At the time of the accident, the traffic lights at the scene were functioning properly, while the road surface was wet and slippery because of the rain.

9.  After the accident, the alcohol test on the applicant showed that he had not consumed any alcohol.  The vehicle examination also confirmed that there had been no mechanical failure in the vehicle.  No skid marks were found on the road.

10.  The owner of the goods vehicle indicated that the vehicle had been repaired one month before the accident and the foot brake had also been checked.   In addition, the goods vehicle had been examined before the vehicle licence was renewed about a year ago.

11.  Numerous passers-by testified that when the goods vehicle drove past the intersection at high speed, it went out of control and mounted the pavement.  However, they did not hear any “sounding of horns” or braking sounds.  There was evidence that the goods vehicle was travelling at a speed of about 40 to 50 km/hr.

12.  When the police was carrying out an investigation at the scene, the applicant claimed that the brake of the goods vehicle had not responded or had been defective.  The vehicle examination report, however, showed that the vehicle was on the whole satisfactorily maintained.  Its foot brake and parking braking system were functioning properly and there was no leakage or overheating at all.

13.  The prosecution case was that the way the applicant drove fell far below what would be expected of a competent and careful driver, and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.

The Defence

14.  The applicant did not give evidence in his own defence, nor did he call any witnesses to explain the cause of the accident.

Findings by the trial judge

15.  The trial judge found that there was no evidence to suggest that the applicant was speeding, and the absence of any skid marks or grease stains on the road might have been caused by the accumulation of water, the slipperiness of the road or other reasons.

16.  The learned judge stressed that the immense force of the impact caused by the accident was borne out by the damage to the objects on the road and Ms Kwok’s being thrown out of the vehicle.  He stressed that the applicant was driving in the slow lane, but given the rainy weather and the slippery road condition, a speed of 40 to 50 km/hr could lead to serious consequences.

17.  The learned judge emphasized that the goods vehicle had been mechanically sound according to the evidence, and the applicant’s claim that the braking system had failed to respond was just an excuse.  The learned judge pointed out that the goods vehicle was not carrying any goods, the road was flat and at the time of the accident, the applicant did not use the hand brake to brake or to reduce speed.  The learned judge found that the reasonable and irresistible inference to be drawn was that the applicant had driven dangerously.

Grounds of appeal

18.  The main ground of appeal put forward by Mr Michael Leung for the applicant was that there was no concrete evidence to support the charge of dangerous driving.  Mr Leung stressed that the trial judge had not specified the evidential basis on which he found the applicant’s way of driving to be dangerous so as to convict him as charged.

19.  Mr Leung also submitted that in rejecting the applicant’s claim that the braking system had been inoperative, the trial judge only considered the complaint he made to the police at the scene but failed to take into account the fact that he had made the same complaint to the investigating police while in hospital and that he had asked the vehicle owner to have the vehicle examined.

20.  Mr Leung emphasized that the vehicle examiner’s conclusion that the braking system of the goods vehicle had been functioning normally was only based on a stationary test instead of a road test.  He argued that the vehicle examiner’s conclusion was not inconsistent with the applicant’s claim made after the accident that the brakes had been ineffective.  Mr Leung’s stance was that the result of a road test might have supported the applicant’s case.

21.  Mr Leung submitted that the applicant’s conviction was unsafe and unsatisfactory.

Discussion

22.  The trial judge’s finding that the goods vehicle had been mechanically sound was based on evidence from various sources.

23.  Apart from the undisputed expert report which showed that the foot braking system and the parking braking system were functioning properly, the trial judge pointed out that at the time of the accident, there were no braking sounds or “sounding of the horn”, nor had the applicant cried out or used the hand brake to stop or slow down the goods vehicle.

24.  The trial judge stressed that the goods vehicle had been repaired one month before the accident and the foot brake had also been checked.  Moreover, the goods vehicle was required to be examined annually for the renewal of the vehicle licence.

25.  At the trial, the applicant did not produce any evidence to show that there had been any problem with the braking system of the goods vehicle, nor did he allege or adduce any evidence that while a stationary test showed the braking system of the goods vehicle to be functioning normally, that did not necessarily mean that it was normal when the vehicle was moving.  In those circumstances, there were absolutely ample reasons for the trial judge to find that at the time of the accident, the mechanical parts of the goods vehicle, including the braking system, were functioning properly.  Mr Leung’s complaint on this ground could not stand.

26.  After the accident, the applicant told the investigating police that the braking system of the goods vehicle had been ineffective, and he later made the same claim in hospital.  That claim, however, was his one-sided story.   The applicant did not give evidence and hence did not make the same claim under oath.  His one-sided assertion was not tested.

27.  In our view, it was absolutely reasonable and correct for the trial judge to reject the applicant’s explanation that the braking system of the goods vehicle had become ineffective and dismiss that as an excuse.

28.  The main contention in this appeal was whether there was sufficient evidence to allow the trial judge to draw the only reasonable inference, namely that the applicant’s way of driving constituted dangerous driving.

29.  Pursuant to section 36(4) of Chapter 374 of the Laws of Hong Kong, a person is to be regarded as driving dangerously if the way he drives falls far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

30.  Sections 36(6) and 36 (7) set out what constitutes “dangerous” driving as follows:

“(6) For the purposes of subsections (4) and (5), “dangerous” refers to danger either of injury to any person or of serious damage to property.

(7) For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including –

(a) the nature, condition and use of the road concerned at

the material time;

(b) the amount of traffic which is actually on the road

concerned at the material time or what might reasonably

be expected to be on the road concerned at the material

time; and

(c) the circumstances (including the physical condition

of the accused) of which the accused could be expected

to be aware and any circumstances (including the

physical condition of the accused) shown to have been

within the knowledge of the accused.”

31.  Whether a person’s way of driving is dangerous is a matter to be decided objectively, but the elements of the offence of dangerous driving do not include any specific intent to drive dangerously.  Lord Woolf CJ, in AG’s Reference (No. 4 of 2000) (R v GC) [2001] R. T. R. 415 at p. 425, made the following comments:

“As is pointed out by the Attorney General, there are two limbs to the definition of “dangerous driving”: first, that the driving fell far below that of a careful and competent driver; and secondly, that it would be obvious to a careful and competent driver that driving in such a way would be dangerous. The essential limbs, as is common ground, do not require any specific intent to drive dangerously.  The section [sic] sets out a wholly objective test.  The concept of what is obvious to a careful driver places the question of what constitutes dangerous driving within the province of the jury.  It is the jury who should set the standard as to what is or what is not dangerous driving.”

32.  The accident in the present case led to extremely serious consequences, including death to Ms Kwok, in addition to injuries to numerous passers-by and serious damage to property.  However, in deciding whether the applicant was guilty of dangerous driving, the court must base its consideration on his way of driving rather than the consequences of the accident.

33.  Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way of driving.  Evidence that supports the charge of dangerous driving may include:

   (1) Excessive speeding, particularly when it is raining and the road is slippery.

   (2) Non-compliance with traffic signs, such as driving through a police road block; “jumping a red light”; failure to stop in front of a “zebra crossing” to give way to pedestrians; ignoring pedestrian   stud crossing and driving past at high speed; driving into a “No entry” section of road; speeding at double white lines, etc.

   (3) Ignoring road safety regulations, such as intentionally driving a   vehicle that is not maintained in good condition; driving a goods vehicle that is greatly overloaded; going against traffic directions and driving a heavy goods vehicle down a very steep slope illegal car racing, etc.

   (4) Disregarding the danger and going on driving, while knowing full well that one’s physical condition is not good and hence not suitable to drive, such as being under the influence of alcohol or drugs or being generally ill.

34.  Of course the above examples are just factors to be considered in dealing with acts of dangerous driving and they by no means represent an exhaustive list of all relevant factors.

35.  If the above or similar way of driving falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous, then the driver concerned would be guilty of dangerous driving.

36.  To support the charge of dangerous driving, the prosecution must point out what driving acts of the defendant constitute dangerous driving.  They must also adduce sufficient evidence to establish that those driving acts fall far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that the defendant’s driving in that way would be dangerous.

37.  The prosecution cannot rely on the doctrine of res ipsa loquitur to prove dangerous driving (see R v Kit Wing-wo [1985] 1 HKC 204).

38.  In the present case, the trial judge pointed out that the applicant had not “sounded the horn”, shouted loudly, “braked”, turned on the hazard light or used the hand brake to brake and stop the goods vehicle.  Hence he found that the applicant’s way of driving fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

39.  The above factors set out by the learned judge only show that the applicant had failed to take appropriate measures to prevent the accident from further worsening after the accident had happened and in a split of a second, but they were not factors that constituted dangerous driving.  They were therefore irrelevant to the charge.

40.  The accident in this case was most likely caused by a momentary loss of control when the applicant was driving at a relatively high speed in the circumstances concerned, when it was raining and the road was slippery.  Mr Robert Lee, SADPP, who appeared on behalf of the respondent stressed that taking into account the road conditions at the material time, the applicant’s speed alone was sufficient to support the allegation of dangerous driving, and judging from the trial judge’s reasons for verdict as a whole, it was on that very basis that the applicant was convicted.

41.  We do not agree with Mr Lee’s submission.  Although the learned judge said that the applicant was driving at a speed of 40 to 50 km/hr at the material time and found that the road conditions at that time were such that a speed of 40 to 50 km/hr could lead to serious consequences, he did not convict him for dangerous driving on the basis of his speed.  Nor did he set out other objective factors relevant to the applicant’s way of driving to show that his speed at the material time was sufficient to constitute dangerous driving.

42.  We agree with Mr Leung’s submission that the trial judge did not identify what way of driving of the applicant constituted dangerous driving.  We do not agree that on the facts of this case, the applicant’s speed at the material time alone was sufficient to establish that he was guilty of dangerous driving.

43.  In those circumstances, we concluded that the applicant’s conviction for dangerous driving causing death was unsafe.  However, taking into account the facts of this case and the fact that the applicant did not testify to explain the reasons for the accident, a reasonable and irresistible inference to be drawn was that the applicant had driven carelessly (see R v Kit Wing-wo [1985] 1 HKC 204, Wright v Wenlock [1971] RTR 228, Rabjohns v Burgar [1971] RTR 234, etc cited by Mr Lee).  Mr Leung raised no dispute in that regard.

44.  In the result, we allow the applicant’s application for leave to appeal and, treating the application as the appeal proper, allow the applicant’s appeal.  We quash his conviction for dangerous driving causing death and substitute a conviction for careless driving.

Sentence

45.  Having heard submissions from Mr Leung, we found that the applicant’s offence of careless driving was serious and the accident resulted in extremely serious consequences, including casualties and severe damage to property.  Hence a short term of imprisonment would be appropriate.  In view of the fact that the applicant has been in prison for over two months, and that this matter must have left him extremely troubled, we order that in respect of the sentence for careless driving, the applicant shall serve such period of imprisonment as will allow his immediate release without imposing any further penalty on him. However, we do order that the applicant be disqualified from holding or obtaining any types of driving licence for two years starting from the date of the original sentence, namely, that he be disqualified from driving for two years.