HKSAR v. KELSEY LORD MICHAEL MUDD

CACC 411/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 411 OF 2010

(ON APPEAL FROM HCCC NO. 52 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.  On 27 October 2010, after a trial before Wright J and a jury, the applicant was convicted of the following four offences: manslaughter (by reason of gross negligence), taking a conveyance without authority, dangerous driving and driving with an alcohol concentration above the prescribed limit.  The applicant was sentenced to a total of four years and three months’ imprisonment.

2.  The applicant sought leave to appeal his conviction in respect of all four offences.

3.  The applicant initially sought leave also to appeal sentence but abandoned that application prior to the hearing.

4.  The events that gave rise to the four charges of which the applicant was convicted resulted in a very considerable amount of evidence being led at trial.  Much of that evidence was expert evidence, both the prosecution and the defence leading such evidence.  Much of it was contested.

5.  In the result, before considering the grounds of appeal themselves, it is necessary at some length to look not only at the nature of the events that led to the charges faced by the applicant but to the nature of the evidence that was led at trial.

Background

6.  Wong Chi Ming was a taxi driver, his taxi bearing the registration number KL9547.

7.  At about 3.30 in the morning of 27 June 2009, Wong, who must have been driving his vehicle in an easterly direction along Connaught Road, that is, from Central towards Wanchai, brought his vehicle to a halt on the far left of the carriageway in the vicinity of City Hall.  Why he did so will never be known. It was, it appears, not a normal place to stop.

8.  Although it was a wet night, Wong was seen standing outside his taxi by the open driver’s door.  His words could not be heard but he appeared to be arguing with the single passenger in the taxi who was seated in the front of the vehicle.

9.  As is usual in Hong Kong taxis, the front seat was of the ‘bench’ kind enabling a person sitting in the front seat to move from one side of the vehicle to the other.

10.  A witness, a taxi driver by the name of Wong Chi Yung, testified that Wong appeared to be struggling with the passenger in the front seat of the vehicle, attempting to drag him from the vehicle.

11.  The single passenger in the vehicle was the applicant.  

12.  The applicant had been drinking heavily.  The evidence revealed that at that time in the morning the concentration of alcohol in his blood would have been at least 250 milligrams per 100 millilitres.  In layman’s language, the applicant was very drunk.  Expert evidence given at trial was to the effect that such a level of blood alcohol would have seriously impaired the applicant’s faculties.  A defence expert, Dr Edmund Woo, accepted that it would affect a person’s judgment and may cause him to be disinhibited and to think and behave irrationally.

13.  Another person whose attention was drawn to the scene, particularly the confrontation between the taxi driver standing outside his taxi and the single passenger in the front seat, was a man by the name of Dung Ka Lok.  He was also driving a taxi.  Dung decided to stop his taxi behind Wong’s.  He testified that he had almost come to a halt, being only about a car’s length behind Wong’s taxi, when he saw it begin to move.

14.  Dung described the taxi moving forward and to its right, arcing towards the central concrete barrier that divided the eastbound carriageway from the westbound carriageway.

15.  Dung and the witnesses testified that Wong was still outside his taxi when it began to move.  It appeared that initially, as he ran alongside his vehicle, Wong was reaching into the vehicle through the open door, his hands on the steering wheel.  He was shouting out.  Wong then fell and, being entangled somehow in the driver’s seat belt, was dragged alongside the taxi.

16.  The taxi collided with the central concrete barrier dividing the eastbound carriageway from the westbound carriageway.  It did so close to a gap in the barrier where there were iron railings, described by the judge as ‘emergency railings’.  These railings were painted a red colour.  The taxi was seen to be deflected off, or to ride along the concrete barrier, and into the railings, doing so with sufficient force to knock down two of them.  The taxi then encroached into the westbound carriageway, coming to a halt when it hit other vehicles.

17.  There was evidence that, because of the angle and speed at which the iron railings were hit by the taxi, one of them at least became airborne or rose up, rising to a sufficient height to damage and leave paint marks on the taxi’s nearside pillar of the front windscreen and the nearside door mirror.

18.  In this regard, the judge reminded the jury of the evidence of an expert witness called by the prosecution, Tam Chi Ching, a laboratory specialist services officer.  It was his evidence that, due to the angle and speed at which they were hit, the railings could have become airborne.  As the judge directed the jury, it was the opinion of this witness that the damage to the railings was due to–

“major compression and tension to the upper and lower rails on one end respectively, and torque which broke a leg at the opposite end. This had been caused by what he described as ‘not a small force’.”

19.  In reminding the jury of the evidence of this witness, the judge also reminded them of the evidence of a defence expert, Dr Lim Chow Hung, a mechanical engineer, who thought it unlikely that the railings would have been hit with sufficient force to become ‘airborne’ but who acknowledged that the paint marks found on the front windscreen pillar and the door mirror matched the paint from the railings.

20.  As to the paint found on the nearside windscreen pillar and nearside door mirror of the taxi, there was evidence that it matched the paint on the railings in colour and chemical composition.

21.  As to the distance covered by the taxi across the carriageway and into the concrete barrier, evidence at trial revealed that the distance covered was some 29 metres up an incline of approximately 1.5 degrees.

22.  Those who witnessed the event had different estimates of the speed of the taxi.  The witness, Wong Chi Yung, estimated that the taxi was travelling at between 20 and 30 km an hour when it hit the concrete barrier.  Dung estimated that it was travelling at approximately 20 km an hour.  Another witness spoke in general terms of the taxi travelling fast enough to overtake a vehicle.  That being said, a witness by the name of Tam Chi Hei, a taxi driver too, said that at the time he was driving very slowly, at about 5 to 10 km an hour, and he believed that the taxi was also travelling slowly.

23.  Whatever the true speed, it was sufficient to have tragic consequences.  Wong, who was being dragged along the ground entangled in the driver’s seat belt, hit the concrete barrier.  One witness described Wong bouncing or flying up into the air to a height of about a metre.  Wong suffered multiple injuries from which he died some five hours later.

24.  Matters however did not end there.

25.  After the taxi had come to a halt partially into the westbound carriageway, the applicant was left seated in the front of the taxi.  He had been injured and there was bleeding to his head.

26.  A television cameraman arrived at the scene and thereafter intermittently filmed what was happening.  In this regard, it is significant to note that, when the cameraman was filming the applicant seated in the front seat of the taxi, the applicant appeared to give the camera a ‘thumbs up’ sign.

27.  Dr Lau, a toxicologist, testified that the applicant’s consciousness would have been impaired by the amount of alcohol in his blood and by the injury to the head.  He expressed the view, however, that there was nothing to suggest that the applicant had lost consciousness.  In this regard, for example, he pointed to the recording of the applicant giving the ‘thumbs up’ sign as evidence that the applicant was responding to the camera.

28.  A passing ambulance stopped at the scene and the ambulancemen attended to the grievously injured taxi driver, Wong.

29.  A second ambulance arrived three or four minutes later.  Two of the ambulancemen in that vehicle attended to the applicant.  One of the two, Chan Ka Wah, testified that he was partially in the taxi when he saw the applicant attempt to ‘fiddle’ with the gear lever.  He told him not to do so.  Chan testified that shortly thereafter he saw the applicant reach for the gear lever again.  He then saw the applicant step on the accelerator pedal with his right foot.  He said that he climbed out of the taxi just before it began to move.

30.  Chan’s sudden withdrawal from the taxi followed almost immediately by the taxi taking off was captured on film.  This supported his evidence that he withdrew from the taxi because he believed, from what he had just witnessed, that the applicant was about to drive it away.

31.  Another witness by the name of Tam Chi Hei, also a taxi driver, testified that he had stopped his taxi and gone to the central concrete barrier.  He said that he climbed onto it, looking into the taxi KL9547.  He testified that the applicant was sitting in the middle of the front seat.  He said that a police officer approached and the applicant had then driven off in the taxi.  In this respect, the judge said the following to the jury:

“He said that when he had seen the accused, half of the accused’s body was already seated on the driver’s side and he had one leg into the driver’s foot-well, the whole leg. Both of the accused’s hands were holding the steering wheel. He had driven off only when the police officer approached him.”

32.  The short journey of the taxi was itself captured on film.  It swung in an easterly direction, that is, towards Wanchai, doing so against the path of on-coming traffic.  The taxi moved to the far side of the westbound carriageway appearing to slow right down, so much so that a policeman chasing the vehicle on foot almost caught up with it, before it veered back into the centre of the carriageway and then – while remaining in the centre of the carriageway – travelled uphill, still in the face of on-coming traffic.  The taxi was then involved in a head-on collision with an approaching vehicle.

33.  The film record of the course taken by the taxi away from the scene of the first collision was evidence which would have assisted the jury to determine whether they could be sure that the applicant at that time must have been controlling, or attempting to control, the taxi, indeed attempting to flee the scene in it.

34.  Unsurprisingly, there was considerable damage to the taxi.

35.  Among other matters, a matter of contention during the course of the trial was related to two areas of damage to the windscreen, both indicating a central point of impact from which cracks spread out in a spider web pattern. The cause of the damage was disputed.  The expert witness called by the prosecution was of the opinion that the cracks had been caused by external force, probably one of the railings, the one crack being high up to the centre of the windscreen and the other close to the damaged windscreen pillar and nearside door mirror.  The expert called by the defence was of the opinion that it had been caused by an internal force, namely, the applicant’s head striking the windscreen in the course of the two collisions.  The positioning of the damage was directly relevant because, if caused by the applicant's head striking the inside of the windscreen, it would have indicated where the applicant was seated at the time of the two collisions.

36.  This evidence, however, had to be considered together with the evidence of blood spatters which were found on the upper corner of the windscreen on the driver’s side.  It was the evidence of Tam Chi Ching, a scientific officer called by the prosecution, that this was consistent with the applicant’s head having hit the windscreen on the inside, pointing to the conclusion that at the time the applicant would have been behind or close to the steering wheel.  This was disputed by a defence expert, Dr Beh, who gave a different analysis of causation, one that did not require the applicant to have been behind the steering wheel or close to it.

37.  Where the applicant had been seated in the front seat at different times during the events of that night was a matter of central importance.  In this regard, the judge summarised the evidence of the various witnesses who testified they had seen the applicant at different times and from different angles.

38.  As for the applicant himself, after the second collision, he was taken to hospital where he was examined some four hours after the incident.  Dr Ho Lok Yan, who attended to him, testified that he was fully conscious but was restrained in bed because apparently on admittance he had been agitated, confused and uncooperative.  The doctor said that by the time she examined the applicant, he was calm, his speech was coherent and he was responsive.  The doctor noticed a superficial scalp laceration about 1 cm long which the applicant refused to have stitched.  The applicant, she said, told her that he had been drinking before getting into a taxi but he did not know what happened after that.

39.  While there was no evidence that the applicant suffered amnesia, Dr Edmund Woo, a specialist in neurosurgery, testified that it would not be surprising if he did.

40.  The applicant was aged 22 when these events took place.

41.  He was a licensed driver, carrying a licence issued in California.  On that evidence, he would have known the basic requirements of how to drive a vehicle, for example how to press the accelerator pedal and how to bring a vehicle to a halt by the application of pressure to the brake pedal.

42.  The applicant did not give evidence at trial.

The defence case

43.  It was the defence case that the applicant did not at any time ‘drive’ the taxi.  He did not at any time intentionally put his foot on the accelerator pedal, seeking thereby to control the movement and direction of the vehicle.  It was further the defence case that if at any time he did take hold of the steering wheel he did so in order to mitigate, as best as he could, an already dangerous situation.

44.  How then did the vehicle move, indeed move with sufficient speed to bring about the death of Wong and to cause the damage that it did?  In this regard, it was the defence case supported by expert evidence that in respect of any vehicle, if the engine is on and the vehicle is in gear, it will move without the need for the accelerator pedal to be depressed provided the idling speed is set sufficiently high.  The higher the idling speed, the greater the speed at which the vehicle will move.

45.  Dr Poon Chin Hei, a motor vehicle examiner called as a prosecution witness, tested the taxi.  He found that, when the engine was warmed up, the idling speed was 1,000 rpm and remained at this level when the vehicle was in gear.

46.  It was the defence case that, at this idling speed, the taxi would have reached a speed of up to 15 kph and would have been capable of causing the damage that it did to the concrete barrier and iron railings.  It was therefore the defence case that, in respect of both the first and second phases, in some accidental manner, the taxi must have been put into gear and, because of the idling speed of 1,000 rpm, would have begun to move of its own accord without any intention on the part of the applicant to set it in motion.

47.  As the judge directed the jury, the central issue in respect of each charge was therefore whether they could be sure that the applicant ‘drove’ the taxi in the sense that he intentionally set it in motion, seeking to control its movement.

The reconstruction tests

48.  Wong Tai Wai, a forensic scientist called by the prosecution, undertook two reconstruction tests.  In both tests he used a taxi similar to taxi KL9547.

49.  In the first test, following the course of taxi KL9547 across Connaught Road, he put the vehicle into gear without any depression of the accelerator pedal.  It took the vehicle over 40 seconds to travel the distance.  Wong said that at that speed insignificant damage would have been caused and the taxi would have been stopped by the iron railings.

50.  However, in respect of that test, the idling speed of the vehicle was not checked, Wong assuming that the idling speed would have been approximately 800 to 900 rpm.

51.  In the second test, Wong drove the vehicle in a straight line a distance of 29 metres along Connaught Road, pressing the acceleration pedal so as to obtain maximum acceleration.  Making the necessary adjustments to take account of the fact that taxi KL9547 travelled in an arc and that there was an incline, it was estimated that, if the accelerator pedal had been depressed in order to achieve maximum acceleration, taxi KL9547 would have been travelling at 31 kph when it hit the concrete barrier and the iron railings.

52.  In respect of this second test, it followed of course that, if the accelerator pedal had not at all times been pressed to the floor, the speed of the vehicle would have been correspondingly slower.

53.  Dr Lim, the defence expert, testified that he had conducted tests on a similar vehicle, setting the idling speed at 1,000 rpm when in gear.  It was his finding that over a distance of 30 metres, taxi KL9547 would have achieved a maximum speed of 15 kilometres per hour.

54.  In respect of Dr Lim’s evidence, the judge directed the jury to the following effect:

“There was no evidence how he [Dr Lim] recorded these speeds or whether they were simply calculations based on time and mileage. He told you that if a taxi was pulling away without any accelerator input, simply relying on the idling speed, it would start off slowly and would take approximately five seconds to achieve the maximum speed shown by his experiments.”

The ‘first phase’ and the ‘second phase’

55.  In order to assist the jury in its analysis of the evidence, the judge spoke of what happened up to the time when the taxi crashed into the central concrete barrier and the iron railings as the ‘first phase’.  It was as a result of events in that first phase that Wong met his death.  The judge spoke of what happened thereafter as the ‘second phase’.  The judge emphasised however that this division was for convenience only.  He said to the jury:

“… although I shall refer to these as separate phases, I do so merely as a matter of convenience and I hope in an attempt to bring some clarity in my something-up, as this was one ongoing incident. When considering each of the counts, you should consider it in the light of the evidence as a whole.”

56.  The first charge on the indictment was that of manslaughter, the prosecution alleging that the unlawful killing of Wong was occasioned by the applicant’s gross negligence.  There was an alternative charge to the first charge, namely, a charge of causing death by dangerous driving.  Clearly, both charges were confined to what the judge described as the first phase.

57.  The jury convicted the applicant of the charge of manslaughter by a majority of 5:2.

58.  The fourth charge on the indictment, that of dangerous driving, was confined to what the judge described as the second phase.  The verdict of the jury in respect of this charge was unanimous.

59.  The remaining two charges, namely, taking a conveyance without authority and driving a motor vehicle with an alcohol concentration above the prescribed limit, related to both the first and second phases or to either one of them.  Again, the verdicts of the jury were unanimous.

Looking briefly to the dangerous driving conviction

60.  In determining on a unanimous basis that the applicant was guilty of the fourth charge, that of dangerous driving, the jury had direct (as opposed to opinion) evidence before them.

61.  First, there was the eyewitness testimony of the taxi driver, Tam, who said he was standing on the concrete barrier and looking into the taxi and saw the applicant take actions entirely consistent with a successful attempt to drive the vehicle.  Second, there was the eyewitness testimony of the ambulanceman, Chan, who said that he saw the applicant taking the steps necessary to drive the vehicle away; hence his hurried withdrawal from the taxi.  Third, there was the evidence of the video film itself which showed Chan withdrawing from the taxi and which then showed the taxi moving away and, having corrected its course, driving in the middle of the carriageway away from the scene.

62.  While these three pieces of evidence were subject to criticism, it was clearly open to the jury, on the basis of such evidence, to find that the applicant must have been in control of the vehicle, that is, driving it, and, in doing so, rather than attempting to mitigate an already dangerous situation, was consciously seeking to drive away from the scene.

63.  On the basis of this evidence it was further open to the jury to find that the applicant was also guilty of the charges of taking a conveyance without authority and driving a motor vehicle with an alcohol concentration above the prescribed limit.  In respect of these two charges, it was never disputed that the applicant had any authority to drive the taxi nor was it ever disputed that, if he did drive the taxi, the applicant did so with a blood alcohol level some five times over the prescribed limit.

Looking briefly to the manslaughter conviction

64.  In respect of the manslaughter conviction, there was no such direct evidence.  The prosecution case was circumstantial.

65.  As to why it was that the applicant would take the extraordinary step of seeking to drive the taxi, the prosecution was able to point to two matters.

66.  First, there was the uncontested evidence that the applicant had been drinking heavily, so much so that, under the influence of alcohol, he would have been capable of acting in an uninhibited and irrational manner, taking risks that he would never have done if sober.

67.  Second, there was the uncontested evidence that just before the taxi took off there was some kind of confrontation between the applicant and Wong, the taxi driver.  There was indeed the evidence of one witness that some form of physical struggle took place, it appearing to be the case that Wong was attempting to eject the applicant from his taxi.

68.  But, as to the critical issue of whether the jury could be satisfied so that they were sure that the applicant did indeed ‘drive’ the taxi the 29 metres across the carriageway into the concrete barrier, there was conflicting evidence.

69.  As an introduction to the prosecution case, the judge said the following to the jury:

“… in respect of the first phase, the prosecution says there is direct evidence that the accused was the only occupant of KL9547 at the time that it started to move and at the time of its collision with the concrete divider and the railings, that based on the evidence of its experts as to the speed at which KL9547 must have collided with the concrete divider and railings, that speed was such that the only reasonable inference to draw is that the accused depressed the accelerator, thereby intending to be, and being, in control of KL9547.”

70.  As an introduction to the defence case, the judge then said:

“…the defence says that that is not the only reasonable inference that may be drawn. The defence says that you should adopt the evidence of its experts which was to the effect that KL9547 would have been able to achieve a sufficient end speed as to cause the damage to the railings and to the vehicle itself simply as a result of the transmission being engaged, given the high idling speed at which the engine had been set, and that it was possible for the transmission to have been engaged accidentally and without any intention on the part of the accused.”

71.  The judge went on to summarise all relevant evidence, being at pains to compare and contrast the prosecution expert evidence and the defence expert evidence.

72.  Matters were not left at that.  Later in his summing-up, the judge suggested a route by which it would be open to the jury “to draw the irresistible inference that the accelerator pedal was being depressed during the first phase”, that is, that the applicant drove the vehicle.  As he had earlier indicated to the jury, the route was one based on findings as to the approximate speed of the taxi, more specifically whether it was travelling at 20 kph or a greater speed when it collided with the central concrete barrier and the iron railings.

73.  In this regard, the judge asked the jury to consider the following:

(1)   The evidence of the eyewitnesses as to the approximate speed at which the taxi travelled. One witness spoke of the taxi travelling between 20 to 30 kph, another witness spoke of it travelling at about 20 kph.  The evidence of these two witnesses, it may be found, was given broad support in the testimony of another witness who said that it was travelling at a speed fast enough to overtake another vehicle.

(2)   The evidence of the forensic scientist, Wong Tai Wai, who said that he conducted a reconstruction in which a similar vehicle to taxi KL9547 was driven with maximum acceleration, attaining a speed of 31 kph when it hit the central barrier.  The qualification was that, if the accelerator was not at all times pressed to maximum, the taxi would travel at a correspondingly slower rate.

(3)   The evidence relating to the damage caused to taxi KL9547 when it hit the central concrete barrier and the iron railings.

74.  We would add that not only was there evidence as to the damage sustained by the taxi itself but there was also evidence that the taxi had knocked down the iron railings with such force that at least one of them (which the jury had the benefit of examining to determine weight and similar matters) had become airborne or had risen up to a sufficient height to damage the nearside pillar of the front windscreen – therefore (in part at least) rising above the level of the bonnet itself – and the nearside door mirror.

75.  In looking to the evidence as a whole, as the jury were elsewhere directed, they were entitled to take into account the finding of the defence expert, Dr Lim, that at an idling speed of 1,000 rpm, a vehicle similar to taxi KL9547, being propelled without any accelerator input, would have taken approximately five seconds to achieve a maximum speed of up to 15 kph at the time it collided with the central concrete barrier.

76.  The judge then emphasised that, if the jury were not satisfied that, at the time the taxi hit the concrete barrier, it must have been travelling at a speed greater than the speed of up to 15 kph estimated by Dr Lim, that is, the maximum speed it would have achieved moving only at its elevated idling speed, they would have to acquit the applicant of the manslaughter charge.  This was because they would be unable to draw the inference that the accelerator pedal must (to a greater or lesser degree) have been intentionally depressed by the applicant.

The grounds of appeal

77.  Mr Bruce SC, leading counsel for the applicant, submitted that each verdict rendered by the jury was unsafe and unsatisfactory.  In support of this submission, he advanced five grounds.

The first ground of appeal

78.  This ground was to the effect that the evidence as to how taxi KL9547 was propelled and the role, if any, of the applicant in that process was so vague and contradictory that it undermined the safety of the convictions.

79.  In advancing this ground, Mr Bruce made reference to two passages in the judge’s summing-up, his contention being that both were materially flawed.  We have summarised both passages earlier in this judgment: see paragraphs 72 and 73 in respect of the first passage and paragraphs 75 and 76 in respect of the second passage.  However, for the purposes of considering Mr Bruce’s criticisms, both passages (and a short intervening passage) need to be cited in full:

“In summary, in respect of Counts 1 and 2 [the charges of manslaughter and dangerous driving causing death], you may take the view that the effect on the evidence of PW15 {Wong Tai Wai}, the forensic scientist, namely, that KL9547 had been travelling at a speed approaching that shown by his tests to be achievable when the throttle was fully depressed, combined with the assessment, if you were to accept it, of PW1 and PW3 [two eye witnesses] that, at the time it hit the railings, KL9547 was travelling at approximately 20, or between 20 and 30 kilometres per hour respectively, and of PW14 [another eye witness] who said it was travelling fast enough to overtake a vehicle, and combined with the physical damage to KL9547, it would be open to you to draw the irresistible inference that the accelerator pedal was being depressed during the first phase.

PW15 [Wong Tai Wai] came to the conclusion that if it were admitted, as it is, that the accused was the only person inside KL9547, then it would be he who would have applied the throttle.

Conversely, if for any reason, including the evidence of Dr Lim concerning the results of his reconstruction tests, you are not satisfied that at the time when it hit the concrete divider and emergency railings, KL9547 had been travelling at a speed greater than the evidence satisfies you it likely would have achieved, with the engine turning only at its elevated idling speed, whether that be the speed spoken to by the forensic scientist or by Dr Lim, then you would likely be unable to draw any inferences as to whether the accelerator pedal was being depressed or not.  In the absence of being able to draw that inference, you would acquit the accused on Counts 1 and 2.”

80.  In the first passage, as we have earlier summarised, the judge made reference to the second reconstruction test conducted by Wong Tai Wai, the forensic scientist called by the prosecution.  Mr Wong had conducted two tests, the first to test the speed of a vehicle similar to taxi KL9547 when propelled by its idling speed only, the second to test the speed of the vehicle with its accelerator pedal fully depressed.

81.  The second test conducted by Mr Wong resulted in a finding that, if the accelerator pedal of taxi KL9547 had been fully depressed, the vehicle would have hit the central barrier at a speed of about 31 kph.  In making reference to that test, the judge directed the jury that it was open to them to take the results of that test into account in conjunction with other indicators in order to come to a finding that the taxi, at the time of the collision with the central barrier must have been travelling at a speed in excess of the 15 kph it would have been travelling if propelled by its idling speed only.

82.  In respect of the first reconstruction test, the one based on the idling speed only, Mr Wong accepted that he had not checked the actual idling speed of taxi KL9547, working on the assumption that it would have been set within normal parameters which he took to be 800 – 900 rpm.

83.  Mr Bruce submitted that the failure to ascertain the idling speed in respect of the first test undermined the second test too, the one in which the accelerator pedal was depressed.  As Mr Bruce put it: like was not being compared with like.  However, nothing was put before us to demonstrate that evidence was presented at trial to the effect that the idling speed of a vehicle would have a material effect on the speed of the vehicle when it was no longer idling but was being propelled by the application of the accelerator.  A failure to confirm the actual idling speed of taxi KL9547 may have undermined the validity of the first reconstruction test but, in the absence of such evidence, we do not see how it would have undermined the second test.

84.  In our view, therefore, the judge was entitled to refer to the second test without qualifying it as a test of dubious effect.  Whether, in the light of all the evidence, including matters taken into account in conducting the first reconstruction test, the jury was prepared to accept the validity of the second test was a matter for them.

85.  In the first passage, the judge directed the jury that it was open to them to consider the results of the second reconstruction test in conjunction with eye witness estimates as to the speed at which taxi KL9547 must have been travelling when it hit the central barrier and railings.  In this regard, the judge referred to the evidence of three eye witnesses: the first had estimated a speed of 20-30 kph, the second had estimated a speed of 20 kph, both estimates being higher than the estimated maximum speed of 15 kph that the defence evidence demonstrated the taxi would have obtained when propelled by its idling speed only.

86.  In addition to the two estimates of actual speed, the judge further made reference to the evidence of a third eye witness who said that the taxi had been travelling fast enough to overtake another vehicle.  While we accept that this expression was vague and open to a number of interpretations, if the jury were prepared to give it any weight, it was at least an indication that the vehicle was travelling as if under active acceleration, the way in which the accelerator pedal would be depressed in order to pass another vehicle.

87.  Mr Bruce submitted that the evidence of these three eye witnesses was itself flawed in a number of respects.  What needed, at the very least, to be added to the direction, said Mr Bruce, was a warning that the three witnesses had given estimates only, indeed estimates “given in a rapidly unfolding situation at night in the rain”.

88.  We do not agree that the judge was in error in failing to make the qualifications suggested.  The judge had earlier reminded the jury of the evidence of each of the eye witnesses.  The purpose of the passage was to suggest to the jury how evidence earlier referred to, if the jury were to give it any weight, may be combined in order to enable them to draw a particular inference.  There had never been any suggestion that the evidence of the eye witnesses as to speed was anything other than their individual assessments.  As to the fact that the events happened at night and in the rain, these were fundamental background facts before the jury throughout the trial.  A jury does not have to be repeatedly reminded of such matters.  It demeans their collective intelligence and dilutes the impact of directions of importance.

89.  Mr Bruce submitted that the passage was materially flawed because the jury had not been reminded of the evidence of a further eye witness who had estimated the speed of taxi KL9547 to be considerably lower.  That criticism, however, ignores the clear purpose of the passage.  As we have said, its purpose was not to compare and contrast evidence but to suggest to the jury how certain evidence, if they were prepared to give that evidence due weight, may be combined to enable them to draw a particular inference.  The evidence of the eye witness referred to by Mr Bruce was not omitted from the judge’s summing-up.  It was referred to elsewhere.

90.  In his criticism of the first passage, Mr Bruce suggested that the judge in some manner fell into error by juxtaposing the second reconstruction test with the eye witness estimates of speed.  We do not agree.  The accuracy of eye witness testimony may be supported by forensic evidence and vice versa.

91.  In respect of the first passage, Mr Bruce further criticised the judge’s direction that, together with the other indicators of speed, it was open to the jury to take into account the damage to taxi KL9547.  This, said Mr Bruce, was simply not possible because the first clear evidence of the damage to the taxi could only be assessed after it had crashed through the metal railings and encroached into the westbound carriageway and had there been struck by other vehicles.

92.  Considered in context, it is clear that the reference to the physical damage to the taxi was intended to encompass the damage generally and its causes, for example, the knocking down of the iron railings with such force that one or both of the railings, if the jury found it to be so, damaged the nearside windscreen pillar and the nearside door mirror.  In this regard, while of course the jury were to be assisted by the expert evidence, it was for them to consider the evidence in its entirety, that is, to look at the overall picture.  More specifically, when considering the issue of the speed at which the taxi traversed the eastbound carriageway, they were entitled to consider the nature and extent of the damage caused when the vehicle collided with the central concrete barrier and the railings.

93.  Mr Bruce’s criticism of the second passage was succinct.  It was to the effect that the language of the passage is simply not understandable other than by a careful reading.  As such, being incomprehensible, it constituted a misdirection.  We agree that the passage could have been more clearly stated.  But, in our view, bearing in mind its opening use of the expression ‘conversely’, its intent was clear.  It was to direct the jury that, if they were of the view that they could not rely on the body of evidence pointing to the speed of the taxi as being materially higher than 15 kph, if they were of the view that the taxi may have travelled at a lower speed, that is, at or about the speed of 15 kph, that being in accordance with Dr Lim’s findings, then they would be obliged to acquit the applicant of both the first and second charges.  That, in our judgment, was a proper direction and is how the jury would have understood the passage.

The second ground of appeal

94.  This ground expanded on the criticism of the first of the two reconstruction tests conducted by Wong Tai Wai, the forensic scientist called as a prosecution witness.  The first test was the one in which Mr Wong tested the speed at which a vehicle similar to taxi KL9547 would have travelled if propelled by its idling speed only.  The second test was the one in which he tested the speed with the accelerator pedal fully depressed.

95.  Before conducting the first test Mr Wong had not confirmed what the actual idling speed of taxi KL9547 had been.  The judge reminded the jury of this when he said:

“PW15 [Mr Wong] had not ascertained the idling speed of the test vehicle used by him because he regarded it as normal, which he thought to be approximately 800 to 900 rpm.”

96.  The first test was conducted therefore on the assumption that the idling speed of the test vehicle was ‘normal’.

97.  The evidence put before the jury, however, did not identify a ‘normal’ idling speed.

98.  Prosecution evidence confirmed that the actual idling speed of the taxi had been approximately 1,000 rpm.  Mr Ian Skeggs, a defence expert, broadened the span of variation.  He testified that a taxi engine is designed to deliver power at lower engine speeds with peak torque for an engine of the type installed in taxi KL9547 being produced at approximately 2,400 rpm.  He said that the idling speed of new or reasonably new vehicles of the same model as taxi KL9547 would be approximately 500 to 600 rpm.

99.  Mr Skeggs was of the opinion that an idling speed of 1,000 rpm was high but he accepted that it was not uncommon to encounter idling speeds set at this level.

100.  Dr Lim, a defence expert, conducted a test on a vehicle similar to taxi KL9547, setting the idling speed at 750 and 1,000 rpm.  In respect of these tests, the judge reminded the jury that –

“At a setting of 750 rpm, the taxi he used obtained a speed of approximately 6 kilometres per hour after a distance of 30 metres. At an idling speed of 1,000 rpm, it achieved a speed of up to 15 kilometres per hour.”

101.  The two tests conducted by Dr Lim showed that a difference in the idling speed of 250 rpm would make a material difference to the speed at which the taxi moved when propelled only by the engine’s idling speed.

102.  It was Mr Bruce’s submission that this evidence demonstrated that, by failing to ascertain the actual idling speed of taxi KL9547 before conducting his first test, Mr Wong had failed to compare like with like.  In the result, the essential purpose and value of the first test had been lost.  That being the case, said Mr Bruce, evidence of the first test should never have been permitted. It was irrelevant.  Its prejudicial aspect far outweighed whatever minimal probative value it may have had.

103.  As it was, we are informed that there was no objection to the admissibility of the evidence at trial.  Certainly the test had its imperfections, substantial ones.  But, we do not see that the test was so flawed as to be rendered irrelevant.  Imperfect evidence is not by that fact alone rendered inadmissible.  We are therefore satisfied that evidence of the first test was at least admissible.  The issue was the weight to be given to it.

104.  Mr Bruce’s main point, as we understand it, was that the evidence, even if it was accorded some relevance, was more prejudicial than probative.  That being the case, the judge should have taken adequate steps to minimise its prejudicial effect.  He should have directed the jury that, the first test being fundamentally flawed because there was a lack of similarity between the experimental conditions and the actual conditions, the jury should ignore it.  In this regard, Mr Bruce emphasised two matters which he said gave rise to the requirement for an unambiguous direction.  First, once evidence of the test was before the jury, it was likely to mislead or confuse them.  Second, the danger of the jury being misled or confused was heightened by the fact that Mr Wong testified as an expert; as such, the jury were likely to give greater weight to his evidence than would otherwise be the case.

105.  In support of his submission, Mr Bruce referred us to several authorities.  In our view, the approach of appellate courts in circumstances of this kind was well defined in R v Neilan [1992] 1 VR 57, a decision of the Court of Criminal Appeal of Victoria:

“There is no precise test or gauge to determine when the requirement of substantial similarity has been satisfied. This depends largely upon the purpose for which such evidence is to be introduced. Speaking generally, however, the measure of permissible variation of the conditions of the experiment or test from those of the occurrence is measured by whether such variation is liable to confuse and mislead the jury. When the conditions are so dissimilar from those of the occurrence in question as to tend to confuse or mislead the jury, the evidence of an experiment or test should be rejected. The question of similarity is one that lies within the sound discretion of the trial court, to be decided in the light of the surrounding facts and circumstances.”

106.  However, as the court in Neilan recognised, if evidence of an experiment or test is not so dissimilar to the occurrence itself that it is rendered irrelevant, then its weaknesses, even if they are substantial, provided they are made known to the jury, puts them in a position to perceive its fallibility.

107.  This we consider to be the position in the present case.  By the manner of his summing-up, the judge avoided the risk of the jury being misled or confused.  The jury were placed in a position in which they were well aware of the flaw in Mr Wong’s first test.  It was then a matter for them what weight, if any, they were prepared to give to the evidence concerning that test and Mr Wong’s second test.  We say this for the following reasons.

108.  First, this was not a case in which the jury were presented with the evidence of just one expert.  There was conflicting expert evidence as to a range of matters including the speed which taxi KL9547 would have had attained if propelled solely by the idling speed of its engine.  The danger of the jury being misled by the possibly deceptive persuasiveness of a single expert was not present.  The judge was clear in his direction that it was for the jury, considering the evidence as a whole, to determine what expert evidence they were prepared to accept:

“In this case, in some instances, the experts have given conflicting evidence. It is for you to decide whose evidence and whose opinions, if any, you accept. You should remember that this evidence relates only to a part of the case and, whilst it may be of assistance to you in reaching a verdict, you must reach your verdict having considered all the evidence.”

109.  Second, the jury were left in no doubt as to the actual idling speed of taxi KL9547.  Nor were they left in any doubt as to the fact that Mr Wong’s first test was based on an erroneous assumption of what would have been the taxi’s normal idling speed.

110.  Third, the jury were reminded of the evidence of the defence expert, Dr Lim, concerning his tests which included ascertaining the speed at which a vehicle similar to the taxi would have moved when propelled only by an idling speed set at 1,000 rpm.

The third ground of appeal

111.  Under this ground, Mr Bruce submitted that the judge’s directions to the jury were deficient because he failed to provide appropriate guidance to the jury as to how to resolve the conflicts between the expert evidence of prosecution witnesses on the one hand and defence witnesses on the other.

112.  Mr Bruce argued that so much turned on the conflicting evidence of the expert witnesses that the failure by the judge to give adequate assistance to the jury as to how they might resolve such conflicts rendered the jury’s verdicts unsafe and unsatisfactory.

113.  As to how the judge might have assisted the jury, Mr Bruce suggested that he might, for example, have referred the jury to the qualifications and experience of the various witnesses, indicating to the jury the inherent dangers of preferring the evidence of a generalist “giving broad spectrum opinions” over the evidence of a specialist testifying within the parameters of his speciality.

114.  This complaint can be dealt with reasonably succinctly.

115.  We do not agree that the judge failed to give appropriate directions to the jury concerning the conflicting expert testimony.  In this regard, early in his summing-up, and the judge directed the jury in accordance with the following well-settled terms:

“In this case, you have heard the evidence of a number of witnesses who have been called as experts by the prosecution and the defence. Each side accepted the expertise of the witnesses called by the other side so I do not need to go through their qualifications; you heard them.

Expert evidence is permitted in a criminal trial to provide you with scientific information and opinion which is within the witness’s expertise but which is likely to be outside your experience and your knowledge. It is not unusual for evidence of this nature to be called but it is important that you see it in its proper perspective, which is that it is before you as a part of the evidence as a whole to assist you in regard to particular aspects of the evidence.

A witness who was called as an expert is entitled to express an opinion in respect of his findings or the matters which are put to him in the course of the trial. You are entitled and you would no doubt want to have regard to that evidence and to the opinions expressed by the experts when coming to your own conclusions about these aspects of the case. It is important that you bear in mind that if, having given the matter careful consideration, you do not accept evidence of an expert, or any particular part of it, you do not have to act upon it. Indeed, you do not even have to accept the unchallenged evidence of an expert.

In this case, in some instances, the experts have given conflicting evidence.  It is for you to decide whose evidence and whose opinions, if any, you accept.  You should remember that this evidence relates only to a part of the case and whilst it may be of assistance to you in reaching a verdict, you must reach your verdict having considered all the evidence.”

116.  As the judge directed the jury, it was for them to determine which expert evidence they were prepared to accept and the extent to which they were prepared to accept it in the context of all the evidence.

117.  As the judge also made clear, the jury did not have to decide every point raised, be it expert evidence or otherwise, only such matters as would enable them to say whether the charges, or any of them, were proved.

118.  There is no merit in Mr Bruce’s submission that the judge should have suggested to the jury that they may prefer to accept the evidence of a more experienced expert over a less experienced one.  The experience of an expert witness may well be a telling factor.  Equally, experience may be outweighed by other factors relating to the strength of the witness’s evidence.  It is in each case a matter for the jury, looking to all relevant factors particular to the witness, and not to generalisations, to determine what weight, if any, to give to that witness’s testimony.  It is on the same basis that we reject Mr Bruce’s submission that the judge may well have indicated to the jury the inherent dangers of preferring the evidence of an expert giving broad-spectrum opinions over the evidence of a specialist testifying within the parameters of his speciality. As we have said, it is a matter for the jury, looking to all relevant factors particular to a witness’s testimony, to determine what weight, if any, to give to that testimony.

119.  It appeared to be Mr Bruce’s suggestion that, absent specific assistance as to the manner in which they might resolve the conflict in the expert evidence, the jury would somehow be left adrift.  We do not agree that the jury were in any way left adrift.

120.  First, the judge was at pains to summarise the evidence of the various experts, comparing and contrasting that evidence.  This was accomplished in sufficient detail, the jury, in our opinion, not being bogged down by a surfeit of such detail, and, importantly, was accomplished in a fair and balanced manner.

121.  Second, the jury were given the clearest directions as to the burden of proof.  That was their guidance as to how they should determine matters if they were left in doubt as to the veracity and accuracy of the prosecution evidence.  In this regard, the judge said the following:

“The accused has chosen to call witnesses. He is not obliged to call any witnesses. He does not have to prove his innocence. He does not have to prove anything at all. But you must take what his witnesses say into account when considering the issues of fact which you have to decide. It is for you to decide whether you believe the evidence of his witnesses, or whether that evidence may be true.

I have previously told you that if the account put forward by the defence is, or may be, true then the accused must be acquitted.  But even if you entirely reject the account put forward by the defence, that would not relieve the prosecution of its burden of making you sure, by evidence, of the accused’s guilt in respect of each count which you have to decide.”

122.  Included in his submissions, Mr Bruce made reference to the fact that one expert called by the prosecution, Wong Tai Wai, the forensic scientist, was asked to comment on the film of the course taken by the taxi in phase two.  Even if that evidence was admissible, said Mr Bruce, the jury were in just as good a position to determine matters on the basis of viewing the film.  This was recognised by the judge who, early in his directions to the jury, referring specifically to the film and opinions expressed by various witnesses in respect of it, said the following:

“It is up to you to decide for yourselves what you see in that recording and what effect, if any, it has on your deliberations.”

The fourth ground of appeal

123.  This ground was to the effect that, while the judge was correct to divide the events that night into a ‘first phase’ and a ‘second phase’, he fell into error by failing to give explicit instructions to the jury as to the extent to which it was permissible to use evidence integral to the second phase in determining whether the applicant drove the taxi KL9547 in the first phase.

124.  Mr Bruce emphasised that there were a number of considerations integral to a determination of whether the applicant drove the taxi in the second phase which were simply not present and could not have had any relevance to whether he drove the vehicle in the first phase.  That being the case, he said, if the jury were to be permitted to consider evidence of what happened in the second phase in determining whether or not the applicant drove in the first phase, it was first necessary for them to be directed with clarity and precision as to the separate issues in relation to both phases.  This, said Mr Bruce, was not done.

125.  Mr Bruce further submitted that the judge added to the uncertainty when he directed the jury to the following effect:

“One approach to your deliberations as to whether the accused drove KL9547 during the first phase might be to consider how it came to be set in motion and then the manner in which it travelled until the head-on collision. I will now deal with two particular matters which relate to these aspects. These were, first, the issue of noise recorded on the soundtrack of the recording and, secondly, the state of the track rod and offside front tyre in so far as this relates to the controllability of KL9547.” [emphasis added]

126.  Reference to that passage did not assist Mr Bruce.  In that passage, the judge was not directing the jury that certain matters integral to the second phase could be used to determine whether the applicant drove a taxi in the first phase.  The phrase which has been emphasised – “during the first phase” – clearly constituted a slip of the tongue and no more, a fact which the jury would have had no difficulty in recognising.  The judge at that time was directing the jury as to events in the second phase, his directions as to events in the first phase had been completed.  Manifestly, the factors to which he referred in the passage, namely, noises recorded on film and damage to the taxi, were matters which arose solely in the second phase and could only have been of relevance to that phase.  There would have been no danger therefore that the jury may have mistaken what was said in this passage to be a direction that they could use evidence which was relevant solely to the second phase (and could have no bearing on what happened in the first phase) to nevertheless prove that the applicant did drive in the first phase.

127.  As Mr Bruce developed his argument, we understand him to have made the submission that, in the circumstances of the present case, the correct approach would have been to direct the jury that none of the direct evidence relevant to whether the applicant drove the vehicle in the second phase (the evidence of eye witnesses and of the film) could be used to assist them to determine whether the applicant had driven the vehicle in the first phase.

128.  That being the case, argued Mr Bruce, it was not sufficient for the judge to direct the jury that they must consider the case for against the applicant on each count separately. This did not go far enough.  In this regard, the judge directed the jury as follows:

“You must consider the case against and for the accused on each count separately. The evidence concerning each count differs and therefore your verdicts need not be the same.”

129.  As we have said earlier, evidence as to the manslaughter charge fell within the first phase while evidence as to the charge of dangerous driving fell within the second phase.  However, evidence as to the two remaining charges, those of taking a conveyance without authority and driving a motor vehicle with a prohibited level of blood alcohol traversed both phases.

130.  In our view, Mr Bruce’s submission was based on the artificial premise that, for all practical purposes, the events were divided into two separate, independent incidents, so much so that they had to be considered not as part of a cohesive whole but as events divorced entirely from each other.  That, as we have said, is artificial; it distorts the reality.  There may have been a pause – not unusual in any on-going series of events – but that does not detract from the fact that, on any objective analysis, the events were part of a single on-going incident.  The jury were entitled to reach their verdicts in light of that fact.

131.  As with any on-going series of events that make up a single incident, it was open to the jury to determine, in considering each charge, whether what happened early in the incident was relevant to what happened later and vice versa.

132.  We agree with Mr Bruce that there were certain matters of evidence that were manifestly relevant only to what took place in the second phase.  But we do not see that the judge was required to identify each and every such matter and to direct the jury accordingly.  The jury, employing their collective good sense and knowledge of the world, were quite capable of recognising such matters.  It was for them to weigh the evidence.  

The fifth ground of appeal

133.  This final, discrete ground of appeal was to the effect that the jury’s verdicts were unsafe and unsatisfactory because of an unacceptable risk that one of the jurors was unable to speak and understand sufficient English so as to render a true verdict according to law. 

134.  This ground arose out of the empanelment of the seventh juror.  When his name was called, the juror told the judge that his English was “not that good”.  The judge made a brief enquiry about his occupation and standard of education and concluded that the juror would be able to understand the proceedings.  He declined to excuse the juror.  There was no challenge to the juror from either the prosecution or the defence.

135.  Mr Bruce argued that, given that much of the evidence in this case was in English and of a technical nature, if ever there was a case in which the juror should not have been allowed to enter the jury box, this was such a case. He further submitted that no criticism could properly be levelled at defence counsel for not challenging the juror in question.  A defendant is given a finite number of peremptory challenges and has to husband this resource as he sees fit. 

136.  Mr Bruce cited in support of his submission the Privy Council decision in Ras Behari Lal and others v The King-Emperor (1933) 50 TLR 1 where Lord Atkin, giving the judgment of the Board, held that:

“… the effect of the incompetence of a juror is to deny to the accused an essential part of the protection accorded to him by law, and that the result of the trial in the present case was a clear miscarriage of justice.”

137.  The qualifications for a juror to sit on a jury in Hong Kong are set out in section 4 of the Jury Ordinance, Cap. 4 as follows:

“(1) A person who has reached 21 years of age, but not 65 years of age, and is a resident of Hong Kong is, except as provided by this Ordinance, liable to serve as a juror in the proceedings in the court or in an inquest under the Coroners Ordinance (Cap. 504) if (but only if) –

(a) …..

(b) …..; and

(c) the person has a sufficient knowledge of the language in which the proceedings are to be conducted to be able to understand the proceedings.

(2) In a trial before a jury, the court or a coroner may, on the court or the coroner's own motion or on the application of the Registrar or of any interested party, discharge any person summoned to serve as a juror or who is unable to satisfy the court or the coroner that the person’s knowledge of the language in which the proceedings are to be conducted is sufficient to enable the person to understand the proceedings.”

138.  We are not persuaded that the juror in question was unqualified to sit as a juror in this case.  It is not even clear that he was actually applying for exemption; rather that he was wondering aloud if his English would be good enough.  The judge by then would have read the papers and known what the issues in the case were likely to be.  Certainly no issue was raised again by the juror as to his ability to understand the proceedings. 

139.  While contested expert evidence was integral to the trial – as it is in many trials – we do not think that it gave rise to issues that were overly technical or complex.

140.  However, even if there had been an issue as to the juror’s qualification, the Ordinance itself addresses the problem.  S. 6 deals with the position of a person who is summoned as a juror but is not qualified to serve:

“If any person is summoned as a juror who is not qualified or liable to serve as a juror, or is exempt from service, such want of qualification or exemption shall be a good cause of challenge and the person so summoned shall be discharged on such challenge or on his own application, if the court is satisfied of the fact and so directs; but no such want of qualification or exemption, if not submitted to the court before such person is sworn, shall afterwards be accepted as a ground for impeaching any verdict given by the jury on which such person has served.”

141.  It is clear that if a juror is not qualified under s. 4(1)(c), that would provide a good challenge for cause if such challenge were to made.  However, if there is no submission to the court that a juror is not properly qualified before the juror is sworn, no verdict given by the jury on which the juror has served can be impeached on this ground. 

142.  With respect to Mr Bruce’s argument, the defence were not limited to a finite number of peremptory challenges.  Under section 29 of the Ordinance:

“A person arraigned on an indictment for any offence may challenge not more than 5 jurors without cause and any juror or jurors for cause.” (emphasis supplied)

143.  It was open to the defence, as well as the prosecution, to challenge the juror in question for cause if they had wanted to at any time prior to his being sworn.  They decided not to challenge him despite the fact that he had raised the matter of his language capabilities with the judge in open court.  It should be remembered that Lord Atkin went on in Ras Behari Lal and others (at page 2) to cater for such a contingency and the consequences of such a decision by the defence:

“According to ordinary procedure in criminal trials the accused has a right of challenge, either peremptory or for cause; and it may very well be that if knowing the alleged defect he stands by and takes his chance of a verdict he is precluded from thereafter taking the objection. But if the cause of the objection is in fact unknown to him, there appears to be no reason why the Court in a proper case should not give effect to it.” (emphasis supplied)

144.  It will be seen that section 6 of the Jury Ordinance in effect gives legislative expression to Lord Atkin’s caveat.

145.  We are satisfied that there is no merit in the fifth ground of appeal.

Conclusion

146.  For the reasons given, we are satisfied that the verdicts of the jury were neither unsafe nor unsatisfactory.  The application for leave to appeal against conviction is dismissed.