R. v. CHAN KIN KWOK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 889 OF 1995

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1. This was an appeal against a conviction for reckless driving causing death and a sentence of four months' imprisonment passed therefor.

2. The offence related to a fatal traffic accident in which two people were killed, which occurred at about 12:30 p.m. on 28th January 1995 in Nam Fung Road. Nam Fung Road has two lanes northbound and one lane southbound.

3. The evidence was that a private car was being driven in the inside lane on the northbound carriageway, at a speed of approximately 30 km/h, when it was overtaken by a taxi, being driven at a speed of 40 km/h. The taxi, having overtaken the private car, did not return to the inside lane but maintained the same speed on the outside lane. The appellant, driving his employer's BMW, then passed the private car in the outside lane, and after doing so, he switched to the inside lane to overtake the taxi, which had remained in the outside lane. The estimated speed of the appellant was 50-60 km/h. It was raining. When the appellant's vehicle was alongside the taxi, the two vehicles touched, possibly because of the appellant's carelessness, and the result was dramatic and tragic. A coach was travelling down the southbound lane of Nam Fung Road at that time at a speed estimated to be approximately 50 km/h. The taxi following its contact with the private car slewed across into the southbound lane and came into collision with the coach. The appellant's vehicle also came into collision with the coach. Both vehicles were badly damaged, and the driver and a passenger in the taxi were killed as a result of the collision.

4. In his Reasons for Verdict on conviction and sentence, the learned Magistrate said this :

" Having reviewed the Crown evidence and counsel's submissions, I considered that this was a very serious instance of the offence charged, aggravated as it was by the defendant's conscious decision to drive at speed, in and out of traffic in such difficult and dangerous conditions.

In the circumstances while I accepted that passing on the taxi's left might have been acceptable in some circumstances, I considered that it was highly dangerous in these conditions and particularly so since the defendant had just entered lane 1 behind and to the left of the taxi, and could not anticipate how the taxi driver might react to his (the defendant's) left side approach.

As against this I considered the defendant's excellent record and that which was set out in his cautioned statement, but found myself in no doubt that the Crown had discharged its burden.

As to sentence I do not seek to add much to that which I wrote on the bench and which is recorded in the transcript at page 18.

In my view the defendant's driving was deliberately reckless and involved by him, a decision to drive in this unacceptable manner, which decision he deliberately persued as he drove up Nam Fung Road."

5. I have to say that these were conclusions I found great difficulty in understanding. The speeds of all of the vehicles involved, according to the evidence, were, if not within the speed limit of 50 km/h, very little in excess of it. 50 km/h is better known to most of us as 30 m.p.h. which could never be described as a reckless speed, even on a wet road. And while it is true that it is always a risky manoeuvre to pass a vehicle on the inside, at speeds such as those described by the witnesses it could not be described as reckless. I do not know whether the learned Magistrate has confused kilometres with miles, and I do not know whether the witnesses' descriptions of the various speeds of the vehicles were grossly inaccurate. But that was the evidence, and it was upon that evidence that the Magistrate reached his conclusions.

6. If one applies the test in R. v. Lawrence (1982) AC 510, one can readily see that this was not a case of reckless driving. To satisfy that test, the appellant had to be driving his vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person, that in driving in that manner, the appellant had done so without having given thought to the possibility of there being any risk or, having recognised that there was some risk, had nonetheless gone on to take it. It may well be that the appellant was careless and as a result of his carelessness, the two vehicles came into contact one with the other, and that that caused this tragic accident. However, that is a far cry from describing the appellant's driving as recklessness in Lawrence terms, certainly not on the evidence before the learned Magistrate.

7. This appeal had to be allowed and the conviction quashed and the sentence set aside.