THE QUEEN v. LEE YIU-KWONG AND ANOTHER

Headnote

                Causing death by dangerous driving - over-loaded vehicle - employer of driver liable if it is shown that he must have boon aware that the load carried at his instance was likely to cause danger to other road users -.

                In such circumstances an employer's responsibility will usually be regarded as higher than that of his employee and he must expect heavier punishment - Allowance made in the present case for the fact that it was the first of its kind in Hong Kong.

IN THE COURT OF APPEAL

BETWEEN

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JUDGMENT

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McMullin, V.-P.

1. On the afternoon of the 14th April, 1984, a heavy goods vehicle registered No. BV4875 came into collision with a double-decker motor bus owned by the China Motor Bus Co. at the junction of King's Road and Tong Chong Street, Kowloon. Some metal bars being carried on the truck penetrated the near side of the bus at the level of the lower windows to the rear of the central exit door and as a result a small boy who was travelling with his mother was killed while she and several other passengers were injured.

2. The driver of the truck, LEE Yiu-kwong (the first defendant), was charged under Section 11(3) of the Road Traffic Ordinance with dangerous driving causing death and the registered owner of the truck, WAN Kee-wong (the second defendant), was charged with aiding, abetting, counselling and procuring that offence. The two defendants were convicted after trial in the District Court. Neither of them gave evidence at the trial.

3. Certain facts were agreed and there was evidence from passengers in the bus - partly oral and partly by way of agreed statements. Two delivery workers who had been on board the truck at the time of the accident, FUNG Yin-chuen (PW3) and CHIU Yui-hung (PW4) also gave evidence for the Crown. Their evidence is largely uncontroversial and establishes the circumstances leading up to the accident.

4. The second defendant is co-proprietor with his father of the Wong Lee Transportation Co. The company engages in the collection and transportation of goods of various kinds for its customers, using a number of its own vehicles for that purpose. It was the company's practice to engage independently operating teams of delivery workers to load, man and unload the goods vehicles driven by its own drivers on the company's errands.

5. On the 14th April, PW4, as headman of a gang of delivery workers approached the company for work. He had frequently been employed by the defendant's company on other occasions. Payment for this work was calculated on the basis of the weight of the actual load carried on any trip. In the early morning of that day he received from the second defendant two delivery orders for the collection, from two different depots, of a quantity of steel rods for delivery to a single destination. One order related to 86 and the other to 54 steel rods. In each case the rods were described as high tensile steel of 32 mm by 50 ft. in length.

6. PW4 was directed by the defendant to use goods vehicle BV4875, the driver of which was the first defendant.

7. There was in existence in respect of that vehicle a Long Load Permit issued under Regulation 100(3) of the Road Traffic (Construction and Use) Regulations (Cap. 220) which permitted the carriage aboard that vehicle of goods, between certain stipulated hours and certain stipulated dates, of loads which would project not more than 2 feet beyond the front and not more than 5 feet beyond the rear of the vehicle. There was evidence that the length of the vehicle itself was 10.1 meters (33 feet 4 inches). There was thus a total overhang - forward and rearward - of 17 to 18 feet and therefore a total excess over the permitted extensions of about 10 to 11 feet.

8. There was no general agreement in the evidence as is how far the rods were projecting to the rear at the time of the accident. The headman PW4 thought that "overall they were 10' in excess", though he was not asked if the excess was the full amount of overhang or the excess over the permitted additional overhang. If the latter, his estimate does not differ much from that of PW3 who gave the overhang at the front as about 6 to 7 feet and the rear overhang as 8 feet. A more reliable estimate was given by a government vehicle examiner, Mr. Morton, who made an elaborate series of measurements and tests after the vehicle had been removed to the police pound on the day of the accident. Making allowance for the possibility that the impact might have shifted the load, he estimated an overhang of about 13 feet at the rear and about 5 feet at the front, which is consistent with 50 foot rods being placed on a 33 foot long lorry.

9. Although nowhere in his reasons for decision does the judge find the extent of overhang as a fact, we consider that Mr. Morton's assessments, from which those of PW3 and PW4 differ little, can safely be accepted.

10. It is clear that both the driver and PW4 were aware that the lorry was overloaded and might present a danger to the public. Although the first defendant did not give evidence, PW4 testified that he had discussed the possibility of injury to people with the first defendant and the other members of his team before the journey commenced. He said that when they had crossed the harbour by ferry and entered King's Road, the first defendant had proceeded very slowly and cautiously to obviate any danger.

11. A light rain was falling at the time of the accident in King's Road and subsequent investigation disclosed that the brakes of the vehicle were not in very good order but neither of these factors can be said to have contributed in any material way to the accident.

12. The judge found that the accident had been caused by a combination of the dangerous way in which the vehicle was loaded, both as to the weight it was carrying and as to the length of the load, together with the manner in which - partly because of the overloading - the first defendant had attempted to make his turn off King's Road into Tong Chong Street. It is not suggested that the judge was wrong in these conclusions insofar as the first defendant is concerned. It was never disputed that the accident had come about as a result of the fact that, as the truck turned left into Tong Chong Street, the bars protruding at the back intruded across the line separating the inner and the centre traffic lanes so that they struck and entered the centre portion of the lower deck o￡ the bus which had been travelling somewhat to the rear of the truck in the centre lane prior to the accident.

13. The judge found that the bus-driver, notwithstanding his evidence to the contrary, had also driven dangerously. Several of the passengers on the bus said that it had been travelling at high speed immediately before the accident. This is not, however, a complicating feature in the case, it being conceded by the defence that, to support such a charge as the present, the Crown need only show that the act complained of was, "more than de minimis", a contributing cause of the accident (per Lord Parker, C.J. in R. v. Hennigan⁽¹⁾).

14. Mr. Swaine complains that, in considering the case of the second defendant, the judge seems to have concluded that once it had been established that the vehicle was being driven by the first defendant at the instance of the second defendant with a load which exceeded the permitted limits in weight and length - and therefore in contravention of the Construction & Use Regulations - this was of itself sufficient to make him an accessory to the offence of the first defendant in the sense of having procured the commission of that offence. This, Counsel says, is wrong in two ways. Firstly, he says, the judge erred in concluding that, merely because the second defendant had instructed the first defendant to use this vehicle to deliver goods described in the two delivery orders, he must therefore be assumed to have known that the first defendant would use the vehicle in contravention of the Regulations; and, secondly, even if the second defendant had such knowledge, that could not of itself constitute him an accessory to the dangerous driving which occurred.

15. The first of these contentions is based upon the fact that - as the prosecution have conceded - the headman PW4 was in practice given a considerable discretion in carrying out the tasks appointed to him by the company. It would be for him to say how much of the goods should be loaded on to the truck for any particular trip so that it was in his power to see that the truck was not overloaded in respect of weight. Secondly, it was open to him to reject the vehicle actually appointed to him for his task if he thought it unsuitable for the purpose as - it is again conceded - he had actually done on at least one previous occasion.

16. Mr. McCoy for the Crown replies that, although it was within the discretion of PW4 to break up the load in this way, both he and the second defendant were well aware that this was unlikely, since the headman would be paid by weight and it was therefore in his interest to carry as much of the load appointed to him as was possible in a single trip. Secondly, and more importantly, Mr. McCoy maintains that the discretion to refuse to carry this excessively long load upon this particular vehicle is irrelevant since, in the event, the headman did not choose to exercise it. The expectation of the second defendant, therefore can only have been that, until some objection of the kind had been made, his instructions to the headman would be necessarily be carried out by the latter loading the truck in such a way that the conditions of the Long Load Permit must inevitably be breached. That is clearly right.

17. In the absence of any evidence to the contrary, the judge could not have come to any conclusion other than that the second defendant expected and intended that his truck would be loaded with these rods and that he knew from the information contained in the delivery orders that they were not only in excess of the length permitted under the Regulations but were, as the evidence showed, the longest rods of that description which had ever been transported for the company by the headman.

18. Mr. Swaine's second point caused us more difficulty. There is no doubt that the judge concentrated to a very considerable extent on the fact of there having been a contravention of the Construction and Use Regulations. He says (page 123) that these contraventions "are of the utmost significance" in leading to the death of the boy WONG Cheong-yin and at page 124 he observes that the purpose of making contraventions of the Regulations absolute offences is: "to impress upon persons using vehicles on the road that vehicles that did not comply with the provisions as to Construction & Use could create dangers of varying kinds to other road users ...............".

19. At page 134 he says, "As the owner of the goods vehicle BV4875 in respect of which a Long Load Permit had been issued to him, he must have known or should have known that any excess in overhang beyond what was allowed by the permit was likely to give rise to risk of serious harm to other road users. By handing these two delivery orders to PW4 without any instructions, he set in motion the agencies which led to the fatal accident."

20. At page 139, towards the end of his reasons for decision, he concludes:

"In the present case D2 on the evidence had failed to take any steps to prevent any contravention of the Construction and Use Regulations. ........... The fatal accident need not have happened if D2 had had regard to the responsibilities imposed upon him as the owner of the goods vehicle."

21. Mr. Swaine argues that these quotations show that the judge was addressing himself to the wrong question viz: "Did the evidence show that the second defendant knew that the rods were loaded so as to constitute a contravention of the regulations?" What he should have been asking himself, Mr. Swaine says, was whether the evidence showed that the second defendant must have known that the vehicle would be loaded and driven by the first defendant in such a way that danger to the public was likely.

22. Mr. Swaine enlists the dicta of Humphreys, J. and Devlin, J. in Ackroyds Air Travel v. D.P.P.⁽²⁾ to the effect that a person can only be convicted as an accessory to the offence of another when the alleged accessory knows all the circumstances which constituted the offence. It cannot be, Mr. Swaine says, that any contravention of these Regulations whether by weight or length of load, even if minimal, could of itself constitute the driving of the vehicle dangerous - and here he reminds us that the judge seems to have thought that any contravention would suffice because he did not apparently deem it necessary to resolve the factual conflict as to how long the overhang was. Mr. Swaine concedes that had the second defendant given PW4 sepcific instructions to deliver all the goods in one load and to use that partiuclar vehicle and no other then, provided the court was satisfied that the second defendant was aware of the weight and length of the load, that would have been a clear case of procuring. Lacking such evidence, Counsel says, there is a break in the "causal link between what the alleged procurer did and the commission of the offence" (per Lord Widgery C.J. in A.G.'s ref. No. 1 of 1975 2 All E.R. 684 at 686) and this, he maintains, is fatal to the conviction.

23. The causal link relied upon by the judge in the present case is of course the giving of the delivery orders to PA by the second defendant - the registered proprietor of the goods vehicle - those orders disclosing on the face of them the number and length of the steel bars.

24. Mr. Swaine contends that the judge's finding as to the second defendant's culpability is vitiated by the cumulative or compounding effect of two serious errors viz.: (a) that, although he had specifically warned himself on more than one occasion that he was not dealing with an absolute offence, the judge nevertheless believed that any infraction of the Regulations in relation to permitted load would mean that the vehicle was being driven dangerously and (b) that the failure on the part of the second defendant to see that his agent PW4 obeyed the Regulations made him a party to the latter's offence.

25. Mr. McCoy does not deny that many of the expressions used by the judge in his extensive excursion through the arguments of Counsel and the many cases cited by them does lend colour to these complaints. He says, however, that they were superfluous to the judge's final conclusions, which were based upon the implicit finding that the overhang at the rear, which was the primary cause of the disaster, was of such considerable extent as to have been manifestly dangerous. Insofar as the reasons for decision may be clouded by a consideration of the many decided cases in which courts, here and elsewhere, have dealt with absolute offences created under Regulations of this kind, Mr. McCoy asks us to say that the judge nevertheless came to what was quite clearly the right conclusion in the end.

26. To whatever extent the judge may have been diverted from considering the real question at issue, the evidence, Mr. McCoy says, was clearly there and the proviso if necessary should be applied. The real question, he says, was whether in sending PW4 upon this journey the second defendant must have been aware that the vehicle so loaded would, when driven upon the highway, present a possible danger to other persons using the highway at the same time.

27. Mr. Swaine, to the contrary, contends that, before he could justifiably convict, the judge would need to be satisfied upon the evidence that the second defendant was aware that the creation of a dangerous situation was the likely result of his mandate to the headman. Here again Mr. Swaine asks us to say that the discretion reposed in PW4 is sufficient to break the chain of causation by which the Crown seeks to attach the second defendant to the first defendant's offence.

28. Mr. McCoy does not deny that an issue of remoteness, in the nature of novus actus, may arise in cases such as these. He concedes that the second defendant should not be convicted if his mens rea went no further than an appreciation of the fact that his vehicle was being driven in contravention of the Regulations. He agrees that the test is a subjective one: i.e. what, in the absence of evidence from the second defendant must be assumed to have been within his contemplation as a consequence of his sending his agents and his employee on this journey? The second defendant he says, must be assumed to have contemplated at least that danger to the public was a possible consequence of his having done so. Counsel does not concede that it would be necessary for the Crown to prove that this prospect must have been foreseen by the applicant as a likely or probable consequence of his act. In this regard he referred us to the Privy Council decision in CHAN Wing -siu and others v. The Queen⁽³⁾ and also to D.P.P. for Northern Ireland v. Maxwell⁽⁴⁾ and R. v. Mayberry⁽⁵⁾ . These, however, were cases of homicide, in each of which the accessory had been convicted on the basis of aiding and abetting, rather than of counselling and procuring, the principal offender.

29. It is unnecessary in the present case to decide whether the principle, which Mr. McCoy draws from these decisions, is applicable to procuring of the kind with which we are here concerned. For there is one decision of the Court of Appeal in England so directly in point and so persuasive in principle that is quite unnecessary to consider the many cases explored in great detail both by Counsel and the judge in the court below. Mr. McCoy makes it the centre piece of his legal submissions and Mr. Swaine concedes that it is his most formidable obstacle.

30. In R. v. Robert Millar (Contractors) Ltd. and Robert Millar⁽⁶⁾, a lorry driver employed by the defendant company was sent upon a long journey which would involve carrying heavy loads with a tyre which he knew to be defective in the front off-side wheel of the lorry. These circumstances were known also to his employers. While he was driving in England the tyre burst causing the lorry to swerve and crash into an oncoming car killing six people. The driver was charged with dangerous driving causing death and, although it was not suggested that the manner of his driving had been dangerous, he was convicted on the basis that to drive with such a tyre at any speed was manifestly dangerous. The company was fined £750 and Robert Millar, the man who had given the driver his orders, was sentenced to 9 months' imprisonment. At page 579 Fenton-Atkinson, L.J. says:

"In our view, if the driver is sent out by his employer to drive a heavy vehicle on a trip extending over some hundreds of miles carrying heavy loads with a dangerously defective front off-side tyre, by an employer who knows that the tyre is dangerous, and there is a serious risk of harm resulting to other road users, then if that tyre does burst and thereby causes an accident killing somebody, the employer is guilty of counselling and procuring death by dangerous driving…….."

31. A little before that, he had approved a part of the argument of Counsel for the prosecution which was to the effect that "a man may properly be found guilty of being an accessory before the fact to involuntary manslaughter if he counsels or procures an unlawful act and one likely to do harm to another person and death results, even though the death was neither intended nor foreseen." We think that this passage must be understood as meaning that, provided the evidence is sufficient to show that the defendant must have foreseen that some harm was likely as a result of his sending his vehicle out in a defective state, it was unnecessary to prove in addition that he must have appreciated that death was a likely - or even a possible - consequence.

32. The conclusion is unavoidable that, in giving the delivery orders to PW4, the applicant was aware that his lorry would be greatly overloaded beyond the permitted limits and we cannot conceive that he did not at the same time appreciate that to drive the lorry thus loaded would create the likelihood of danger to other users of the road. We think that this was in substance the judge's finding and that it is not necessary to invoke the proviso to S. 83(c) of the Criminal Procedure Ordinance in dismissing the appeal.

33. Before parting from this case, we feel obliged to comment the length of the written reasons for decision prepared by the trial judge in this case. These reasons extend to some 140 pages of typescript and include what appears to be a full note of the oral evidence taken by the judge in the course of the trial and also a repetition of large portions of that note in several subsequent passages, together with an unnecessarily extended account of the arguments of Counsel and a somewhat repetitious examination of the cited authorities.

34. We appreciate the very considerable diligence and care expended upon this task and are in no doubt that what was done was intended to be helpful but we must draw attention once again to the provisions of Section 80 of the District Court Ordinance which calls for the judge to "place on record a short statement of the reasons for the verdict".

35. While it is necessary for a District Judge, in recording his reasons for conviction, to indicate the nature of the evidence, his conclusions thereon and his reasons therefor, and also to deal succinctly with any legal arguments which have been advanced before him and his determination of any issues which have been raised thereby, what was done in the present case was so wholly out of keeping with the requirements of the section as to merit comment. This was not an especially complicated case. There may be cases in the District Court, which by their complication of facts and legal issues, will oblige a fairly extensive exposition. But even then the approach taken in the' present case would not only be unhelpful but might hinder a proper understanding of the issues involved while possibly affording scope for ingenious if unmeritorious submissions.

36. We deal now with the application for leave to appeal against sentence by the second defendant. He received a sentence of three years' imprisonment and a fine of $5,000. The other defendant, whose application for leave to appeal against sentence was dealt with on the occasion when this case was first before the court, i.e. the driver of the vehicle, received a sentence of 6 months' imprisonment. He appealed only against a three-year period of disqualification. We allowed his appeal and reduced the period of disqualification from 3 years to 12 months.

37. In passing sentence upon the present applicant, the judge took the view that as the owner of the goods vehicle he must bear the major responsibility for what occurred on the 14th April. He regarded his record as very bad noting that out of some thirteen previous offences against the Traffic Ordinance and Regulations, twelve had been for projecting long loads either because there was no permit in existence or because the vehicle had been used in contravention of the terms of the Permit. He was also aware of the fact that subsequent to the accident which occasioned the present prosecution, there bad been at the date upon which he imposed sentence, two further offences in respect of projecting long loads. We are informed this morning by Mr. McCoy that the full record reveals that there were four such subsequent offences. It must be added that none of these offences was subsequent to the conviction in this case. What the subsequent offences show however, is that, notwithstanding the accident upon the 14th April, the employer was not sufficiently impressed to take greater care in supervising the loading of the vehicle. That is clearly a factor which must tell against him.

38. Mr. Swaine urges several factors in mitigation. Firstly, it is true that in the case of this applicant, it can be said that there was, as distinct from the case of Millar⁽⁶⁾ upon which we have heavily relied, the fact that PW4, the headman, had a certain discretion which the employer might have been entitled to rely upon to the extent that the headman could have objected to carrying the load upon that particular vehicle, although that may not perhaps in the circumstances have been a very realistic possibility.

39. Again, there is the fact that this very unfortunate and tragic accident might possibly not have occurred if there had not been, as the judge found, a degree of negligence on the part of the driver of the bus. Although there was no prosecution of the driver for any offence, the judge specifically found, on the evidence before him, that he had driven dangerously. In particular, he had driven very fast and if he had not been driving at such a speed, it is just possible that the accident might not have occurred or might have been greatly mitigated in its severity.

40. In the case of Millar, which was a case of dangerous driving causing death - the prosecution had been brought before the change of the law in England which abolished that offence - the driver was given a fine and a period of disqualification. A sentence of 9 months' imprisonment was imposed upon the employer who was, however, directly aware of the nature of the defective tyre. The knowledge of the employer in the present case cannot be said to be quite so direct in respect of the dangerous character of the load being carried.

41. Nevertheless, we think that in cases of this kind the fault of an employer who, knowing that his vehicle is likely to be driven in a manner which will cause danger to the public will normally be regarded by the court as being greater than that of the employed driver in whose case inevitably there must be some degree of pressure to carry out the act which results in the dangerous driving. Although that is no excuse in the case of the driver, one cannot wholly disregard the fact of that pressure which may reasonably be described as economic duress.

42. This factor would therefore have justified a sentence of imprisonment heavier than that imposed upon the driver in the present case. We are however assured, that this is the first case of its kind against an employer and therefore in a sense a test case. That is something which may be held to some extent in favour of the applicant. It must however be emphasized that where such accidents occur the employer, as counsellor or procurer, must expect to receive a sentence of imprisonment.

43. Taking all these matters into account, we think that the sentence imposed was disproportionate to the offence. Had this not been a test case we would have said that nine months was the appropriate sentence. Having regard to that factor however we grant the application and allow the appeal. We set aside the sentence of 3 years' imprisonment and substitute therefor a sentence of 3 months only. The fine will of course stand.

(1)    (1971) 3 All E.R. 133 at page 135

(2)    (1950) 1 All E.R. 933 at 936

(3)    (1984) 3 W.L.R. 677

(4)    (1978) 3 All E.R. 1140

(5)    (1973) Queensland Reports 211

(6)    (1970) 1 All E.R. 577