HKSAR v. TANG WING KEUNG

HCMA326/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 326 OF 1999

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J U D G M E N T

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1. The Appellant was convicted on 2nd March 1999 of causing death by reckless driving and of driving a motor vehicle with an alcohol concentration above the prescribed limit. He was sentenced to six months' imprisonment on the first charge and three months' imprisonment on the second, the sentences of imprisonment to run concurrently. He appeals both the convictions and the sentences.

2. The charges in the summons arose out of an accident that occurred at about 3:40 a.m. on 10th July 1998. The Appellant was driving a private car and in the front passenger seat was one Tang Ka Fai. The Appellant was travelling along the middle lane of Tsun Wen Road from Kin Sang Estate towards Pui To Road. At the intersection of Tsun Wen Road with Tsing Chung Koon Road, a light goods vehicle driven by one of the witnesses coming in the opposite direction made a right turn into Tsing Chung Koon Road, across the path of the vehicle driven by the Appellant. The intersection was controlled by traffic lights and the light for the light goods vehicle was green. He had the right-of-way. The front of the Appellant's vehicle impacted into the near side of the light goods vehicle which was turned over. Mr Tang Ka Fai in the front passenger seat of the Appellant's vehicle sustained serious injuries and died as a result.

3. The Appellant at 5:35 a.m. gave a blood specimen which was found to contain not less than 125 milligrams of alcohol per 100 millilitres of blood. The prescribed maximum concentration of blood pursuant to the Road Traffic Ordinance is 80 milligrams of alcohol per 100 millilitres of blood. There was no dispute that the traffic signal having signalled green for the light goods vehicle, that it must have been red in respect of the passage of the Appellant.

4. The perfected grounds of appeal were that the learned Magistrate wrongly failed to follow the evidence and wrongly found as a fact matters which did not reflect the evidence; that he erred in law and wrongly failed to take into proper account his own findings or conclusions concerning the manner in which the Appellant had consumed alcohol, or that, alternatively, he wrongly failed to consider or direct himself that the inadvertent consumption or taking of alcohol was a defence of law; that he failed to direct himself that the evidence of alcohol was inadmissible for the purpose of establishing the first limb of the test in R. v. Lawrence [1982] AC 510. And that the Magistrate was not consistent, or sufficiently so, with regard to his treatment of matters of fact and evidence, when he gave his reasons for convicting and sentencing the Appellant, at the time of the trial and then in his Statement of Findings and Reasons for Sentence.

5. The first matter complained of by Mr Grounds is the different treatments given by the learned Magistrate to the speed of the vehicle. There were a number of different pieces of evidence to which the Magistrate could have looked in ascertaining the speed at which the Appellant was driving. In his oral reasons for conviction at the end of the trial, the Magistrate said :

"...And also there had been evidence to show that, at the time, the defendant's speed was at an estimate most favourable to him at 55 kilometres per hour."

In his Statement of Findings, the Magistrate said in respect of expert testimony concerning speed :

"...Thus, by adopting a calculation to the best advantage of the Defendant, his accident was at the least 64 Km/h and thereby exceeding the legal limit by 28%. PW8 further conceded that if the LGV was moving at a speed of 20 Km/h, then his estimate of the Defendant's vehicle would be altered to 74 Km/h, plus or minus 20%. Adopting the calculation to the best advantage to the Defendant, his speed before the collision was at least 59.2 Km/h."

6. In fact on an analysis of the evidence of the expert, who was PW8, as is conceded by the Respondent to this appeal, the learned Magistrate should have held that if the light goods vehicle was moving at a speed of 20 Km/h, then his estimate of the speed of the Appellant's vehicle would be altered to 68 Km/h plus or minus 20%, and, therefore, the speed adopted by the Magistrate at this point in his deliberation should have been 54.2 Km/h and not the 59.2 Km/h he used.

7. A magistrate has an obligation to provide reasons for his coming to a particular verdict when an appeal is mounted against his decision. It is also desirable that at the end of a trial when a decision is given by a magistrate that he gives some reason for arriving at it, he is not compelled to do so by law, but clearly it is desirable that the defendant, if he is convicted, know upon what basis he has been convicted. It is also clear that the reasons given on each of these two occasions should be in agreement. It is, of course, inevitable that from time to time matters of detail may vary between the two versions, but matters of principle, that is the legal principles upon which the decision is made, together with the facts relied upon by the Magistrate, should remain constant and unchanged.

8. A further error in respect of the Statement of Findings is that the expert, PW8, stated that the angle of collision between the vehicle driven by the Appellant and the light goods vehicle was that of 54(, this was stated by the Magistrate to be 35(. However, it is clear from the evidence of PW8 that the angle between the two vehicles makes little difference.

9. A third matter complained of was that the Magistrate was a little less than strictly accurate in his description as to whether a taxi driven by another witness had actually stopped prior to the accident or not. Again, whilst this matter is not of great significance in arriving at the verdict, the argument by Mr Grounds is that firstly on matters which are relevant to the decision, and speed must be one of them, it is undesirable and unsatisfactory that variations exist between the evidence and between the two versions of the Reasons for Verdict given by the Magistrate. He argues that this will raise in an appellant a belief that the Magistrate may not have considered carefully and properly the issues before him, and the evidence, when coming to his decision.

10. A further difference between the two Reasons for Verdict as pointed to by Mr Grounds is that at the end of the trial the Magistrate said this in his oral reasons :

"At the time, after the accident, the defendant's blood sample had been taken and it turned out that he had an alcohol content in his blood that exceeds the legally allowed limit. However, by itself it is not a particularly important element in considering the recklessness, because the prosecution has failed or has decided not to produce any evidence showing that the blood alcohol level in the defendant, at the time of the accident, had in any way impaired his judgment or manner of driving. This, at the most, is only part of the background circumstances which I took into account." (at p.147)

In his written reasons for verdict, the Magistrate said :

"Since Charge 2 was relatively more straight forward and as my findings on the same would be of relevance to Charge 1, for the sake of convenience I would first deal with Charge 2." (at p.173)

Charge 1 was the reckless driving causing death charge. Then in relation to the charge of reckless driving causing death, the Magistrate said :

"At the time the Defendant's blood alcohol was higher than the legally permissible. An ordinary prudent user of the road would have easily thought of such risks and would not have driven in the way he did, if he or she would drive at all under these circumstances. That the Defendant chose to drive into the junction indicated that he at the least was affected by the high alcohol contents in making decisions. By driving into the junction as he did, the Defendant had created an obvious and serious risk of physical injuries to other persons and substantial damage to properties.

The facts were such that the only inference I felt compelled to draw was that when driving into the junction anyway, the Defendant had not given any thought to the possibility of there being such risks. Even if he had nonetheless he went on to take it. In short he had driven recklessly and his recklessness had resulted in the death of his passenger." (at p.179)

It is clear from this passage that the learned Magistrate had in mind that the level of alcohol in the blood of the Appellant was a substantial factor in his coming to the conclusion that the Appellant had been driving recklessly. Leaving aside the issue as to whether or not it is properly to be taken into account for that purpose, this is clearly at odds and variance with the statement by the Magistrate after conviction in his oral reasons that, at the most, the content of alcohol in the blood of the Appellant was background circumstances which were taken into account.

11. In my view, the Appellant is entitled to be concerned of this difference and without going further into the grounds of appeal, I find that this variation is sufficient for the appeal against conviction, in respect of both of the charges for which the Appellant was convicted, to be allowed.

12. The appeal will be allowed and the sentences will be set aside. This was a serious matter and the evidence was strong.

13. I am of the view that it is in the public interest that the matter be retried, and I order that both of the charges faced by the Appellant be retried.