HKSAR v. SO WAI KEUNG

DCCC 14/2018

[2018] HKDC 1103

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 14 OF 2018

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Reasons for Verdict

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1.  The defendant has pleaded not guilty to one charge of causing death by dangerous driving. The prosecution say on 17 June 2017 he was driving his employer’s matte finish purple Maserati, JB 112, on Tolo Highway just before 10 pm when he drove dangerously, and as a result, directly caused a traffic accident involving a light goods vehicle (LGV) and the death of Leung Tsz-ching, a passenger in that vehicle.

Background and issue

2.  There was an amber rainstorm warning in force at the time of the accident that night and it was raining heavily.  Along the material section of the Tolo Highway there were four lanes, the first being the slow and the fourth being the fast lane.  Exhibit P7 is a sketch of the accident location marking the four lanes, damaged rails and the upturned LGV. Exhibit P1 is the admitted facts.  There are photographs of the accident location (P8 and 9) which are dark and of little use.  There are no photographs taken later during daylight hours.  There are photographs of the eye-catching purple Maserati (P10) and CCTV footage of it going through the Lion Rock Tunnel minutes after the accident (P17).  That tunnel is minutes away from the accident location.

3.  The prosecution’s case is the defendant came across the LGV, PL 4507, driven by PW1, Lee Wai-fung several minutes before the accident on the Tolo Highway in the third lane.  He drove up behind PL 4507 in the third lane and finding him driving too slowly, the defendant flashed his high beam headlights several times at PL 4507.  This was to indicate to him he should move out of the third lane because he was driving too slowly.  PW1’s reaction to this was to slow down from 70km per hour to about 40km per hour. He could not change lanes because there were double white lines.

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.  Not long after this, PW1 heard and then saw the defendant’s Maserati in his wing mirror come up the fourth lane, the fast lane, on his right at speed, pass him and then cut into his lane right in front of PL 4507.  Almost as soon as he cut into the third lane and even before his whole vehicle had entered the lane, the defendant braked suddenly and without reason.  PW1 had to brake hard to avoid hitting the defendant’s vehicle.  He lost control of his vehicle and it spun out of control, hit barriers and turned over.

5.  PW1 had three passengers with him and all of them bar one, Mr Leung Tsz-ching, was wearing a seatbelt.  Mr Leung was thrown out of the vehicle during the accident and his three friends found him trapped under the body of the vehicle after they climbed out of the vehicle through the shattered windscreen.  The ambulance men who attended to him at the scene found he had no respiration or pulse.  Mr Leung was certified dead at 10.25 pm that night at the Prince of Wales Hospital.

6.  Shortly before the accident, the other two passengers, PW2 and PW3, had heard and seen a Maserati pass their vehicle but then were heads down looking at their phones after spotting it.  They did not see what caused the accident or why it happened.  Their evidence only relates to what they saw sometime before the accident.

7.  The defence case is that the defendant did drive from Fanling to Kowloon along the Tolo Highway at about the same time as PW1 and at about the same time as the accident that happened but he did not flash his high beam headlights at anyone nor did he cut in front of a vehicle and brake suddenly.  His journey was uneventful.  The defence say it is either a case of mistaken identity, the wrong vehicle or PW1 is framing the defendant for the death of his friend; he is blaming the defendant instead of himself.

8.  The credibility of the witnesses is in issue. However, neither PW2 nor PW3 witnessed the accident nor what caused the accident.  They told the police that they did not see what happened and from what was quoted from PW2’s witness statement to him in cross-examination, he was told by PW1 it was caused by the Maserati.  It is logical they asked or were told after the accident by PW1 why he lost control of his vehicle.

The prosecution witnesses

9.  The prosecution witnesses were all friends and schoolmates.  PW3 gave evidence that he and the deceased were studying a 3 years’ car mechanics course at Kwai Chung Vocational Training College.  PW1 was already a car mechanic and had been for four years.  PW2 gave evidence that he and the deceased had a common interest; cars.  This was why it was not surprising that all three witnesses were able to identify the vehicle they said they saw as a Maserati despite the time of night and poor visibility due to heavy rain.  PW2 and PW3 described first hearing its loud exhaust pipes and looking up to see a Maserati drive past.  PW3 described recognising the rear emblem, the word “Maserati” written at the back.

10.  Besides recognising the type of car, PW1 described it as a “fantasy purple” Maserati, a description he made up because the colour was so distinctive.  PW2 described the Maserati he saw as being “buffed and polished” and when asked if he could attribute a colour to it, he said silver.  PW3 did not mention a colour but described it as metallic.

PW1’s evidence

11.  PW1 was an inexperienced young driver having only just passed his test one month before the accident and had only driven on Sundays, or Saturdays and Sundays after that.  On the date of the accident he was given permission to drive his father’s vehicle to Kowloon from Sheung Shui with his friends.  PW2 sat beside him and PW3 sat behind him.  The deceased sat behind PW2.  It was after 9 pm and he said he could barely see the road because of the heavy rain.  He was driving under 70km per hour in a 100km per hour zone.

12.  He was asked to describe if anything particular happened before the accident and he said when he was near Kwong Fuk Estate Tai Po in the third lane, a car behind him flashed its high beam at him several times.  He said in cross-examination this scared him.  He took that to mean that the driver thought he was driving slowly in that lane.  PW1 wanted to move left into the second lane but could not change lanes as there were double white lines.  At the same time, he decreased his speed from about 70 to about 40km per hour because he wanted to let that car behind him pass him.

13.  That car was behind him for less than 20 seconds but then cut to the left over two lanes and passed PW1’s vehicle which was when he and his friends saw it clearly.  This was when PW1 noticed it was a Maserati and an unusual purple colour he described as “fantasy purple”.  He also noticed its licence number plate, “112”.  PW1 then saw that there was a slow lorry in that lane which blocked the Maserati’s path.  This meant PW1’s vehicle drove past the Maserati because it became stuck behind that lorry.  He then drove on for three to four minutes at about 70km per hour when he saw the Maserati again.

14.  When he was near the Science Park and at Providence Bay, he saw in his right side mirror a fast car come up from behind him, pass him to his right in the fourth lane and then immediately cut into his lane, the third lane, and brake hard.  He recognised it was the purple Maserati because of its unusual colour.  It cut in front of his vehicle at a very short distance, he described a distance of a foot.  He said the Maserati was not completely in the third lane when he saw its brake lights go on and he knew it had braked.  PW1 immediately braked as well and lost control of his vehicle. He recalls it swerving to the right and he recalls it overturning.  It did stop on its side against the left hard shoulder as depicted in the sketches of P6 and P7 as well as the photographs of P8 and P9.

15.  PW1 said he was very scared and climbed out of the windscreen, followed by PW3.  He saw that PW2 had already climbed out. They could not find the deceased initially and when they did, he saw that his friend was trapped under the vehicle.  They tried but could not get him out. PW1 called the police and an ambulance came; we know from the admitted facts that the police console received a call for assistance at 21:56:02 pm and an ambulance arrived at 22:04 pm followed by the first police officer at 22:08 pm.

16.  PW5 was the first officer at the scene and he was tendered for cross-examination.  He did question PW1 at 22:08 pm at the scene of the accident.  He recalls it was raining heavily at the time.  PW1 told him about the Maserati.  He asked PW1 if he saw the number plate and he said he did not see it.  He asked PW1 if he saw what colour it was and he said it appeared to have adhesive tape stuck to it.  However, three days after the accident, on 20 June 2017, PW1 gave a statement to the police and described a “fantasy purple” Maserati and said he definitely saw the licence plate numbers “11” followed by possibly a “2”.

17.  In cross-examination, PW1 denied fabricating the evidence that the Maserati flashed his high beam behind him in the third lane and when he did not change lanes, the Maserati changed lanes and passed PW1’s vehicle only to get stuck behind a truck which meant PW1 drove past him.  He denied fabricating the evidence that not long after this the Maserati cut him up from the right and deliberately braked suddenly in front of him causing him to lose control, hitting the barrier and the deceased being thrown out of the vehicle.  He also denied telling his friends to blame the cause of the accident on the Maserati.

PW2

18.  Mr Cheung Chau-keung, like the others, was interested in cars and was sitting in the front seat of the LGV driven by PW1 as he drove along the Tolo Highway.  He was not familiar with this highway and was also a new driver having just passed his test in February 2017.  He had just bought his own car at the end of May 2017.  It was this interest in cars which meant he recognised the vehicle that drove past them, driving faster than them, as a Maserati.  He could not recall if it drove past them on the left or the right but said it cut in front of them whilst they were in the second lane from the left.  He first heard its exhaust pipe which made him look up before he saw the vehicle itself.  He described it as buffed polish and then silver.  After it passed them he did not pay it any further attention and looked at his phone.

19.  He said they just drove on and nothing happened after the Maserati passed them.  He was looking down at his phone when suddenly he felt the car skid and he looked up through the windscreen to see that the vehicle was already crashing towards the barrier on the right side of the Tolo Highway.  He describes their vehicle hitting the fast lane divider on the right side of the road first and then travel across the road and hit the barrier on the left side of the road.  After the crash, he kicked out the shattered windscreen and climbed through to get out of the overturned vehicle.

20.  In cross-examination, parts of his statement were read to him where he said PW1 did not do anything specific in relation to the Maserati and it sped away without doing anything to PW1’s vehicle and he agreed.  But it is not specific in his statement whether this was referring to “at the time of the accident” or before the accident nor was he asked this in cross-examination.  In fact, his statement goes on to say that he could not prove that this Maserati had any connection with the one at the accident time as referred to by PW1, however, he “felt they had a connection”.  His previous reference could be to the Maserati he saw at the time prior to the accident. It is not clear nor clarified.

PW3

21.  PW3 was also not familiar with the Tolo Highway.  He recalls heavy rain that night and recalls hearing loud exhaust pipes and then he said he saw a Maserati pass their LGV to their left.  Later, he said it had cut into their lane.  He is studying a vehicle mechanics course and cars are his hobby.  Like the others, he recognised it was a Maserati immediately.  He saw the rear emblem as it drove past.  He described it as a metallic colour.  He said it drove past and then he did not notice it again because he was playing on his phone.  Shortly after that, the accident occurred.  He did not know how their vehicle went out of control or why the accident occurred because he was on his phone at the time.

PW4

22.  PW4 was an investigating police officer who was tasked to look for a Maserati with a licence number plate “112” and on 22 June 2017 (PW1’s statement with that specific information was given on 20 June 2017) PW4 went to the Transport Department to look for this evidence.  He said that department gave him a list of all Maseratis in Hong Kong; there are over 1,000.  He found 79 with the combination of “11” in their number plates.  He then used a valid database system in the police force that is connected to the Transport Department to see if he could find a Maserati with a licence plate combination of “11” that was purple in colour and discovered only one such vehicle with the licence number plate - it was JB 112.  He then had the last known registered address of that owner and could track down the owner.  The police then sent a notice requiring the owner to identify the driver of the vehicle on the night of the accident.  The notice is a Pol 571 sent pursuant to section 63 of the Road Traffic Ordinance, Cap 374 (see Exhibit P18).  The driver was identified as the defendant.

PW5

23.  PW5 was the first officer who arrived at the scene of the accident and was tendered for cross-examination.  The defence wanted to confirm that although PW1 had told him a Maserati caused the accident, he told this officer that he did not see the licence number plate, and when asked what colour it was, he said he was not sure but it seemed to have adhesive tape stuck to it.  That was the extent of his evidence.

The defence case and submissions

24.  At the end of the prosecution case, Mr Boyton for the defence made a submission of no case to answer on the basis that PW1 was not a reliable witness.  His evidence was contradicted by the evidence of PW2 and PW3 which made his evidence unreliable.  Not only were there contradictions, there were material discrepancies when comparing PW2 and PW3’s evidence to his.  The submission was that the prosecution’s evidence was too tenuous for the case to continue.  I ruled that there was a case to answer and the defendant elected not to give evidence, which is his right - it is not indicative of his guilt in any way.

The law

25.  The prosecution has a duty to prove beyond reasonable doubt the defendant drove dangerously and caused a death.  The prosecution has the burden of proof and I repeat, the standard of proof is beyond reasonable doubt.  The defendant has no duty to prove anything.  A person drives dangerously according to section 36(4) of the Road Traffic Ordinance, Cap 374, if:

“(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

26.  Section 36(7) sets out the circumstances that should be taken into account 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 which 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.”

27.  Section 36 sets out a wholly objective test (see Lam Chi Fat CACC 89/2011, paragraph 31).  The court in Lam quoted Lord Woolf in AG’s Reference (No 4 of 2000) (R v GC) RTR 415 at page 425.  Whether the driver intends to drive dangerously is not relevant to any assessment as to whether the driving was dangerous.  I quote paragraph 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.”

CJ Lord Woolf in AG’s Reference (No 4 of 2000) 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 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.”

My findings

28.  The prosecution essentially relies on PW1’s evidence to prove the charge.  PW2 and PW3 do not give evidence that directly relates to the charge, to the act of dangerous driving.  They do not witness it.  Their evidence, at most, supports the identification to some extent; a Maserati passed them not long before the accident occurred.

29.  The defence submit that the prosecution cannot prove the charge beyond reasonable doubt because the witnesses contradict each other, mainly PW1’s, to such an extent that PW1’s evidence cannot be reliable. The material differences are as follows: PW2 said they were in the second lane whilst the others say they were in the third; PW2 said the Maserati had earlier cut in front of their vehicle but he does not remember if it came from the left or the right; PW3 first said that the Maserati earlier passed them on the left, then he said it had cut into their lane from the left; PW2 said it was silver, when it is purple.  It is true PW1 did not give evidence that the Maserati had cut into his lane at any time prior to the accident, he only said it passed them in another lane.

30.  I have carefully borne in mind all of the evidence by all the witnesses, the strengths, the weaknesses, the contradictions, the discrepancies and the support that is to be found amongst their evidence for one another, and all of the points that have been made about and against the prosecution witnesses.  I have considered the defence submissions, the discrepancies highlighted and the suggestion PW1 has framed the defendant so blame does not fall squarely on his own shoulders for the death of his friend.

31.  The question is, are the differences so material that I should reject PW1’s evidence?  One must not forget that PW1 was the driver concentrating on the road in dark teeming conditions whilst PW2 and PW3 were passengers and inattentive ones at that.  Clearly inattentive in that they were on their phones; PW3 said he was looking at his phone before he heard and saw the Maserati and then went back to his phone again after he identified the high-performance car as a Maserati.  Both say they do not know how the accident happened because they were looking at their phones at the time.  If the Maserati PW2 saw is the same one PW1 saw, he clearly did not pay as much attention as PW1 did because he described it as silver.  He did not know if it came from the left or the right when it passed them and he thought they were in the second lane.

32.  It is not unusual for a passenger to be less attentive than a driver; a passenger does not need to concentrate on the road and after hearing from these two passengers I am sure they did not pay attention to the road.  I am sure they heard and saw the Maserati some distance before the accident, more likely than not because of their interest in cars. Their ears pricked up when they heard loud exhaust pipes which indicated a high-performance car.  This was perhaps after the defendant flashed his high beam at their vehicle from behind but that was unbeknownst to them as passengers.  When I read their evidence again cumulatively, it appears to me that PW2 and PW3’s sighting of the Maserati supports PW1’s first sighting of the Maserati, but then they do not see it again.  After the Maserati drove past, they lost interest and no longer paid any attention to the road.

33.  Therefore, PW1’s evidence that the Maserati was then to have driven in another lane to their left ahead of them but then became stuck behind a slow truck, which meant that their vehicle drove past it, could very well be the truth but this went unnoticed by them because they were on their phones.  When I add this to the fact that there was a time lapse between this part of their evidence and the actual accident which they did not contribute to at all in terms of evidence because they did not witness what caused it, means that the discrepancies highlighted become less material or serious.

34.  PW1 does not give evidence that the Maserati had earlier cut in front of them but whether it did or not, whether he made a mistake or his passengers made a mistake is not so serious and material a discrepancy that I find PW1 unreliable.  The driving conditions that night for an experienced driver would have been extremely difficult, let alone a newly qualified driver.  So for him to then experience in such conditions, driving rain in darkness, a high-performance vehicle come up behind him, flash him, harass him and within minutes cause him to have a life changing accident where he sees a friend die in front of him, it is hardly surprising that the recollection of the prosecution witnesses of all the facts of what they saw before an accident that they did not see coming are not exactly the same.

35.  It is not at all surprising that the passengers’ recollection of what happened just prior to the accident is not clear because it was entirely unexpected, sudden and then traumatic.  It is PW1’s recollection of the accident itself later which is the most important and what he recalls leading up to it that is important and whether it has a ring of truth, likelihood and real possibility.

36.  PW1 immediately told the first police officer at the scene about a Maserati but did not mention the number plate nor the colour.  In fact, when asked about the colour he said he was not sure but it seemed to have adhesive tape stuck to it.  That is a very odd and nonsensical answer which could be because he had just been involved in a very serious car crash where his vehicle had hit numerous barriers and overturned.  The hospital report suspected he had sustained a head injury (P14).

37.  Three days later, when he had had time to recover and think about the accident, he was able to give more details about the Maserati.  The fact that he mentioned a Maserati at the scene immediately after the accident when he must have been in shock, to me means he was unlikely to have concocted a story or laid blame at someone else’s door so quickly.

38.  Needless to say those details recalled by PW1 were accurate and it is admitted by the defence that the defendant was driving a distinctive purple Maserati with a licence plate JB 112 at 9.55 pm along the Tolo Highway near the accident location.  It can be seen in CCTV footage, P17, that the Maserati went through the Lion Rock Tunnel at 10.02 pm, a few minutes after the accident.

39.  I do not doubt PW1’s evidence nor do I find he has concocted a story to frame the defendant to blame someone else for his friend’s death.  Sadly, his evidence has a ring of truth to it that led to an unnecessary and tragic ending.  He said that he slowed down when the Maserati flashed him with his high beam from behind because he wanted to let the Maserati pass by changing lanes but could not because of continuous white lines.  He also said that it scared him.  However, I suspect this slowing down quite significantly infuriated the defendant who was not to know PW1 was basically a learner driver.  I suspect the defendant thought PW1 deliberately slowed down as a response to his flashing to annoy or provoke him.  Instead of being able to drive faster, he had to slow down because of PW1’s decreasing his speed significantly.  I suspect it infuriated the defendant more when after he passed PW1, he was slowed down by a truck up ahead and overtaken by PW1 again.

40.  I believe PW1’s evidence and I am sure that once the defendant was able to overtake the truck that slowed him down, he then moved into the fourth lane.  I believe he then deliberately drove past PW1 with the intention of cutting in front of him and applying his brakes suddenly; it was tit-for-tat.  PW1 described a one foot gap - that was how close he felt the Maserati was when it cut into his lane.  In that split second and under such torrential rain, to an inexperienced driver it may well have seemed that close or indeed have been that close.  He saw the Maserati’s brake lights go on and was afraid to hit it so he braked as well.  With wet roads and suddenly braking probably too hard, it is unsurprising he lost control of his vehicle.

41.  I believe the defendant intended to cut in front of PW1 and brake suddenly so PW1 had to slow down suddenly.  There was no need for the defendant to cut into PW1’s lane or brake suddenly; he drove dangerously.  All those actions by the defendant must collectively and irresistibly constitute dangerous driving according to the objective careful and prudent driver.  There can be no other finding.  It was a deliberate act designed to antagonise or provoke PW1 that had horrendous consequences.  I have described it as tit-for-tat and that is what I am sure the defendant thought it was.  PW1 slowed down earlier when the defendant flashed him from behind but out of fear and inexperience rather than arrogance.

42.  The defendant misread the situation and instead of driving away he made it a tit-for-tat scenario which ended with PW1 losing control of his vehicle as a direct result of the dangerous way the defendant drove.  Accordingly, the prosecution has proved beyond reasonable doubt the defendant drove dangerously and caused a death.  He is convicted as charged.