HKSAR v. EBERT ROBERT JAMES

DCCC 990/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 990 OF 2015

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REASONS FOR VERDICT

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1.  The defendant is charged with dangerous driving causing death.  On 9 June 2015 he was driving his vehicle, a Ferrari 458 Spider, TA 4600, in the early morning when he lost control of it around a right hand bend and entered the “Waterfront” car park entrance on Austin Road, Kowloon, hitting a security guard on duty.  The guard died later that same day in hospital from the injuries sustained in this accident.

Background and Issue

2.  The prosecution says the defendant approached this corner at a high speed and failed to negotiate it safely or properly.  His vehicle hit the curb and ploughed into a car park entrance narrowly missing another vehicle, hitting objects, water barriers, a wall and the deceased.  The speed limit on the stretch of road approaching the corner is 30 km/hr and there is evidence the defendant was at one point travelling at a speed of 97 km/hr, plus or minus 10 km/hr.  This is calculated from CCTV footage.  The impact with the curb was recorded to be at a speed of 70 km/hr.  In fact, the average speed of the vehicle at a point about 95 m to 80 m from the curb, the average speed at about 20 m from the curb and the actual speed on impact with the curb was calculated.

3.  The prosecution case is that their experts did not find the brakes failed nor were faulty at the time of the accident.  The defendant drove the vehicle from the Peak on Hong Kong Island through the Western tunnel to the accident location with no sign of braking problems until he speeds on the straight road before the corner where it’s claimed at that point his brakes fail.  There is a suggestion they work again after the impact with the curb but by then he had lost control of the vehicle.  A prosecution expert opines this transient failure is not possible.

4.  The defence case is the defendant did drive over the speed limit on this straight stretch of road but for only a very short distance before he applied the brakes in anticipation of the approaching corner.  He applied the brakes over 60 meters before the corner and about 80 m before the curb.  However his brakes failed; there was a “catastrophic failure of the brakes”.  If his brakes were working properly he would have had plenty of time and distance to slow right down to drive around the bend at about 25 km/hr.  That was his intention.  However, he could not stop his vehicle nor slow it down enough to safely negotiate the corner.  It hit the curb with its near side front wheel despite the defendant trying to steer to the right around the corner.  There is no allegation the steering system suffered a mechanical defect like the brakes.

5.  This impact with the curb deployed the passenger seat airbag and locked that nearside front wheel.  The vehicle then travelled on a straight line because of the locked wheel and drove into the car park.  The defendant was very familiar with this stretch of road and corner as it was just before he entered his workplace car park in the ICC building.  His own car park entrance was after that of the “Waterfront” car park.

6.  Defence experts say the brakes did fail intermittently at the material time before the corner.  It is opined by DW1, Mr. Millar he did brake at a point midway on the unnamed road and CCTV footage captures an image of his brake lights to prove it.  Mr. Burns, DW2 tested the brakes and concluded they were faulty but could not say what specifically was at fault.  DW4, Dr Lim was of the view there was an intermittent failure of the brakes as the defendant approached the corner; meaning they failed then worked again.

7.  The issue in this case is whether or not the vehicle was in a good working order with brakes that functioned efficiently.  Was there a mechanical defect?  The defence submits if the brakes were faulty without any prior warning to the defendant and failed the defendant whilst he was driving then he did not drive dangerously.  He intended and tried to slow down with plenty of distance to do it safely.  However, the prosecution submits that if they were not faulty at that moment then he lost control of a speeding vehicle and caused this accident driving dangerously.  The prosecution says the fact the defendant was speeding just prior to the accident is relevant and a factor to consider together with others to determine if his driving manner was dangerous.  Much reliance was placed on expert opinion during the course of this trial.

CHRONOLOGY

8.  In this case, with the number of experts called, a chronology of events is useful:-

(1) 3 December 2012 - Ferrari 458 Spider was produced.

(2) December 2012 - purchased by 1^st owner PW26 from Auto Italia HK Ltd.

(3) November 2014 - sold to the defendant by PW26 through Auto Italia HK Ltd.

(4) 4 March 2015 - its last full service by Auto Italia, having always been serviced by this agent.

(5) 9 June 2015 - date of accident.

(6) 10 June 2015 - vehicle inspected by experts PW21 and PW19 at the Police Pound. PW19 also inspected the scene of the accident. PW19’s report is dated 31 August 2015.

(7) 12 June 2015 - date of 1^st and 2^nd extraction of data from the vehicle by Auto Italia technicians at the request of the police at the Police Pound.

(8) 15 June 2015 - a further vehicle inspection by PW21 and more photographs taken of the vehicle. PW21’s reports are dated the 5 January 2016, 24 December 2015 and 19 July 2016; P27, P28 and P29 respectively.

(9) 18 June 2015 - date of the 3^rd extraction of data at the garage of Auto Italia; the vehicle was towed there for this purpose.

(10) 19 June 2015 - inspection at the Police Pound by expert, DW4.

(11) 20 July 2015 - vehicle released to the defendant, towed to his home and stored in his garage. DW4 witnessed the towing process.

(12) 5 August 2015 - vehicle inspected by expert DW2. DW2 also inspects the scene of the accident.

(13) 6 August 2015 - vehicle inspected again by DW2 and DW4.

(14) 7 August 2015 - vehicle inspected again by DW2. His report is dated 22June 2016.

(15) 23 September 2015 - vehicle inspected again by DW4. His first report is dated 6 July 2016.

THE PROSECUTION CASE

The accident

9.  In the early morning of the 9 June the defendant left home on Mount Kellett Road on the Peak driving the vehicle to his office in the ICC building, Kowloon.  At around 7:48 am the defendant arrived at 1 Austin Road and drove along an unnamed road under the “Waterfront” housing complex and Kowloon Station leading first to the “Waterfront” car park and then ICC car park after that.  This unnamed road was tunnel like and one way; consisting of 2 lanes with a speed limit of 30 km/hr.  It had no pavements and was not open to pedestrians.  The photo albums P6 and P10 best depicts that road, the approach to the 90 degree right bend with the “Waterfront” car park entrance immediately after that bend on the nearside.  The road was well lit, dry, in good repair with little traffic.

10.  PW1, the only witness to the accident, heard the engine of the Ferrari, saw it approach the corner.  He says TA 4600 was steered left to avoid hitting the corner but was unable to then swerve right to make it around the corner.  CCTV footage from the Waterfront car park captures the path of the vehicle as seen by PW1.  The vehicle then hit the curb and drove straight into the car park entrance passing just in front of PW1’s vehicle.  The Ferrari hit all objects in its path including the ticket barrier, the water filled barriers, the wall and the security guard.

11.  After the accident, the deceased was attended to by the ambulance services.  The defendant was breathalised with negative results and then arrested.  He made a statement under caution (P1) that same morning and said he had stopped at traffic lights outside the complex and unnamed road.  He also said there were a few cars on the unnamed road but it was not busy.  His brakes then failed him as he approached the corner just before the “Waterfront” car park.  He tried to negotiate the right hand bend but the car slid off the road into the car park entrance.

12.  The vehicle was towed away to the police pound after the accident. There is no dispute the vehicle was badly damaged, in particular, the nearside front wheel, tyre and front suspension lower arm ball joint.  The nearside front wheel brake disc was broken into several pieces.  The steering wheel, nearside passenger and nearside door airbags all deployed.  The photo albums P8 and P11 depict the damage done as a result of the accident.

13.  I will go into more details of the expert’s evidence but suffice to say here at this stage, Mr. Ng Nap Keung, PW21, a prosecution expert, did several tests on the vehicle and inspected it.  He concluded the brakes were working normally at the time of the accident and the damage to the nearside front wheel brake disc was done by the housing of the nearside front suspension lower arm joint when the nearside front wheel hit the curb and as a result of that impact.

14.  Another prosecution expert, Dr Wong Koon Hung, PW19, examined the vehicle, the offside front tyre in detail, the CCTV footage available and the scene; including the skid marks, yaw marks and the damage done to items in the car park.  He calculated the defendant drove the vehicle on the straight of the unnamed road between 2 measured points at a speed of 97 km/hr, plus or minus 10 km/hr.  He calculated the defendant drove at a speed of 76 km/hr, plus or minus 8 km/hr just before he hit the curb.  He concluded that impact broke components of the nearside front wheel and jammed that wheel.  It could not rotate after the impact.  This meant the vehicle travelled in a straight line as it ploughed into the entrance of the “Waterfront” car park.  The offside front wheel was punctured en route as it clipped a concrete divider curb.  The skid mark made by an offside tyre after the impact with the curb shows the ABS braking system was working.

15.  The 3^rd prosecution expert, Mr. Giorgio Ratto, PW24, was from the Italian manufacturer of the airbag ECU (electronic control unit).  The data extracted from this airbag ECU showed the vehicle speed at the time of the first impact with the curb and deployment of the passenger side airbag was recorded at 70 km/hr.  The second impact was at a speed of 41 km/hr when the steering wheel airbag and other passenger airbag deployed.  The 3^rd impact recorded was at a speed of 32 km/hr.

16.  Mr. Martino Casolari, PW28, in his report P33 explains why no weight can be placed on the tests and opinions of Mr. Burns, a defence expert, DW2.  He opines the braking system was working properly but if it was not, the vehicle still had the mechanical capability to brake enough before the car park to slow down and avoid the deceased.

PROSECUTION WITNESSES

17.  PW1, Mr. Lee Hon Keung was on the material day working as a driver for a family living in the Waterfront, above Kowloon Station.  The maserati he drove was parked in the car park there.  That morning at about 7:40 am he drove his vehicle with his employer’s 2 young daughters in the back seat to the exit of the Waterfront car park.  He stopped at the barrier.  The deceased was stood to his left and they exchanged greetings.  He corrected himself in cross examination and agreed he had not yet opened the barrier to leave the car park when he heard to his right the roar of a very powerful engine.  His windows were open and the noise was “very very loud” and came from vehicle exhaust pipes.  So loud he decided not to leave the car park but wait to see what came around the right hand corner just to the right of the exit of his car park. PW28, Mr. Casolari, from Ferrari best describes what PW1 heard; I quote “the heavy engine sound is related to the opening of the exhaust by-pass valves which open under acceleration at around 3,000 rpm which demonstrate that the vehicle was under high engine revs thus under acceleration condition”.

18.  PW1 then saw the black Ferrari to his right coming very fast. At the corner it just missed the concrete pillar corner on its right side (described during the trial as the apex of a concrete pillar), had to move to the left to avoid it and then had to swerve right to try and avoid the curb.  What he describes is a vehicle misjudging the corner.  The vehicle then hit the curb and flew into the car park just in front of PW1’s vehicle and hit the railing, other objects, split open water barriers and ran into the deceased.  The number plate on PW1’s vehicle was broken by debris flying.  He got out because the mobile signal was bad in that entrance and he had to move to a position to get mobile reception to call the police.  He had no contact with the defendant.  He saw the defendant get out, look at the front of his vehicle and was on his mobile phone thereafter.

19.  PW1 marked on a sketch of the unnamed road, corner and car park entrance with a circle, “O” where he said the car nearly hit the corner wall, P17.  He also marked the photograph 12 in P10, exhibited as P10 (12)(A) to indicate the same corner the defendant nearly hit and had to move left to avoid.  The photograph was taken from the directly opposite view PW1 had whilst sitting in his vehicle.

20.  PW2, Mr. Au Pak To Patrick, was on his way home to the Waterfront after a school run when he saw the aftermath of the accident.  It had clearly just happened.  He stopped his vehicle and the defendant told him his car had no brakes.  He told PW2 this twice.  The defendant asked him to call the police. At that moment the defendant was talking on his mobile phone.  PW2 saw the deceased lying on the ground.  After a few minutes an ambulance arrived.

21.  PW26, the 3^rd witness called gave evidence of when he bought this brand new Ferrari into Hong Kong in January 2013 and sold it through the Ferrari agent, Auto Italia in November 2014 to the defendant. He had had an option fitted that amplifies the noise made by the exhausts and visually enhanced them.  He had had no trouble with the vehicle nor experienced any brake problems.  He had always had it serviced at the agents’ garage, the service records were produced at P31.  He said it was a very powerful car that he treated with care, like a prized possession.  He said the vehicle was sharp and responsive.

DATA EXTRACTION FROM TA 4600

22.  All Ferrari 458 Spiders are equipped with a body computer which controls various electronic control units (“ECU”) in the vehicle.  The data stored in ECUs can be extracted with diagnostic tools by technicians using a tool called Deis, this being the official Ferrari authorised tool.  It is like a small computer plugged into the vehicle.

1^st data extraction on 12 June 2015

23.  The defendant’s vehicle was towed from the car park to the Ho Man Tin Vehicle Pound on 9 June 2016.  According to PW11, Sergeant Lo Tai Wai, at or around 3:10 pm on 12 June 2015, at the request of the police, Michael Hope (After Sales Manager of Auto Italia Limited), PW17, Ho Kwok Wai (Technical Maintenance Manager) and PW29, Brian Eng (After Sales Manager of Auto Italia) went to the police pound to extract data from the vehicle. 

24.  PW17, under instructions from Mr. Hope, extracted some data from TA 4600 with a “DEIS” tester (“DEIS Tester”) by connecting a cable to the vehicle and the parties returned to the office of Auto Italia afterwards.  The extraction was done in the presence of PW11, Senior Police Inspector Ho Chun Hin, Police Constable 944 and PW21 Ng Nap Keung (Motor Vehicle Examiner).  It transpired they were unsuccessful in the extraction in that attempt.

2^nd extraction on 12 June 2015

25.  At about 5 pm on the same day, Michael Hope instructed PW17 and PW18 Chan Yiu Man (a Maintenance Foreman) to go back to police pound again to collect the data again.  PW17 and PW18 performed another data extraction from TA 4600 at around 6:05 pm.  This time the extraction connection was made by PW18.  The extraction was done again in the presence of PW11, Senior Police Inspector Ho Chun Hin and PW21.  PW11 was told by Michael Hope that they could not provide that data to the police immediately.

26.  On 7 July 2015, the police received the data collected on 12 June 2015 from Auto Italia Limited.  The data was referred as “Level One Data” (Exhibit P35) in the present trial and the term was adopted for the purpose of distinguishing the types of data extracted on different occasions.

Extraction on 18 June 2015

27.  On 18 June 2015, TA 4600 was towed from the police pound to the Auto Italia’s garage in Shatin to extract data again.  Michael Hope, PW18, and PW27 James Graham (Technical Manager of Ferrari Greater China Office) met the police officers at that garage at around 3 pm on that day.

28.  Mr. Graham gave evidence that he received a request from Michael Hope on the 12 June 2015 to ask him to come to Hong Kong to assist with the data extraction of TA 4600 to reveal speeds and other errors that might be present. Only certain senior employees of Ferrari were authorized to conduct a remote session between a vehicle and the headquarters server in Milan.  Mr. Graham was one of them and would be given a password to unlock the data.  It meant TA 4600 had to be towed to the garage to carry out this security conscious procedure.

29.  During this procedure, the DEIS tool was connected to TA 4600.  Mr. Graham then made a phone call to PW28, Martino Casolari, a Ferrari Technical Engineer, who was in the Headquarters of Ferrari in Milan, Italy.  After entering a password code into the DEIS tester, Mr. Casolari took over the tester and remotely controlled the extraction of the data, including the locked crash records.  Only the data stored in the airbag ECU was collected during this extraction.

30.  According to Mr. Graham, the data extracted on this occasion could not be provided to the police on the same day as the extraction process was conducted by Mr. Casolari remotely in Italy.  The data extracted on 18 June 2015 was eventually sent to the police in February 2016 in PDF format.  The data was referred as “Level Two Data” (Exhibit P32) in the present trial.

31.  The crash records extracted on this occasion (pages 17-34 of Exhibit P32) were sent to PW24 for data analysis. 

PW24 MR GIORGIO RATTO

32.  PW24, Mr. Ratto, was an expert witness from Italy and from TRW Automotive Italia S.p.A.  This company supplies security systems for cars globally such as the seat belt and airbag systems.  In 1982, PW24 developed the airbag system for Fiats and Ferraris which includes the airbag electronic control unit; the ECU.  This memorises and stores data from the airbag units. His company is the only supplier Ferrari uses.  On 18 June 2015 he was given ECU data, a reading from its memory, extracted from the defendant’s vehicle. He was sent this data by email in a PDF file by PW28, Mr. Casolari.  He was asked to read the data and determine the speed of the vehicle when the vehicle crashed and the airbags deployed.

33.  PW24 described reading Level 1 data, a read out of the ECU memory, which recorded data of 3 crashes.  He then looked at Level 2 data to find out more and determine the speeds of the 3 crashes.  He analysed the Level 2 data, the ECU crash memory and compiled a report, P30.  From the data he read it said when the 1^st crash occurred and the passenger side airbag “fired”, meaning deployed, the vehicle was travelling at a speed of 70 km/hr.  The first time the vehicle hit anything we know was when the nearside front wheel hit the curb.  The moment the airbag unit is activated it records and stores a lot of data from the instruments of the vehicle, such as the speed of TA 4600.  When the 2^nd impact or crash occurred and the 2^nd and 3^rd airbags fired, the vehicle was travelling at 41 km/hr.  When the 3^rd crash occurred the vehicle was travelling at 32 km/hr.  Pages 3, 4 and 5 of his report refer to each of the 3 crashes respectively.  Each page is the crash record from the ECU data.

34.  Mr. Ratto can see from the data that the ECU unit was connected to the speedometer and working properly at the time of the accident.  He described in detail the reading of each crash.  Photograph 10 of P8 show the airbags after they deployed.  The report also showed that the warning lamp of the airbag ECU was off before the crash, which means that the airbag ECU was working properly and no error was stored in the airbag ECU before the first crash.

35.  Although he received this data by email PW24 described himself normally using the Ferrari official diagnostic tool, the “Deis” to extract data.  He knew there were other tools available but had not heard of the Galileo tester used by DW2, Mr. Burns. As far as he knew other unauthorized tools could extract Level 1 data but certainly not Level 2 data, the more secure data.

36.  In cross-examination PW24’s analysis of the data and the speeds he found recorded were not challenged.

PW21 MR NG NAP KEUNG

37.  PW21, Mr. Ng was an expert, a Motor Vehicle Examiner from the Transport Department.  He prepared 3 statements, P27 to P29, adopted under S65B of the Criminal Procedure Ordinance, Cap 221 and read into the record.  He inspected the damaged vehicle on 10 June 2015 after it had been towed to the police pound.  In his first statement, P27, paragraph 4 he lists the physical damage seen.  Photograph albums, P8 and P11 show the damage he describes.  In particular, he describes the damage to the nearside front wheel from the impact with the curb at high speed.  The tyre rim shows evidence of that impact, photos 4 and 5 of P11 and photo 6 of P8.  The front suspension lower arm ball joint is broken and can be seen in photos 11 and 12 of P8.  The ball joint has driven through and broken the brake disc, photo 12 of P8. It would mean the defendant would have found it virtually impossible to steer.  Photo 3 of P11 of the offside front wheel shows what the ball joint should look like undamaged.

38.  In this examination on 10 June, he checked the mechanical unit of the braking system visually.  He found the engine and braking system normal apart from the nearside front wheel broken brake disc.  That wheel’s brake pads and caliper were working and intact.  He found the brake fluid level normal in the reservoir and no leakage of brake fluid evident.  P27B is his contemporaneous record, a test sheet he used to keep a record of his examination.  He also took photographs that day, P8, photos 1 to 10.  The rest of the photos of P8 he took on 15 June and the photos of P11 he took on 22 June.

39.  On that same occasion he conducted some tests on the braking system and describes the tests in P28 and P29, specifically in P29 at Answers 2 and 3. Answer 2 deals with the test on the vacuum assisted unit of the braking system which he found working normally without any sign of a leak of vacuum.  This test and result was not substantially challenged.  Answer 3 deals with his test on the hydraulic unit of the braking system which involves basic physics, referred to as “the bodyweight test”; he also found this unit working normally.  I quote from his statement:-

“Q2	When you examined the brake system of the private car TA 4600, would you please state how the vacuum-assisted unit was tested?
A2	First of all, after I had started the engine for 1 or 2 minutes, I switched it off. I applied the brake pedal repeatedly. Since the vacuum was depleted each time I applied the brake pedal, which raised higher than before until all the vacuum in the vacuum-assisted unit was completely depleted. Then I held the brake pedal firmly, and at this time, I felt the brake pedal being hard and against the sole of my foot. Following that, I started the engine. Since the running engine generated vacuum, the brake pedal felt soften and descended. Under such circumstance, I switched off the engine after applying the brake pedal firmly for several seconds. About one minute later, my foot remained at the same position without any change. Then I moved away my foot and waited several minutes before applying the brake pedal again. I could still find the vacuum-assisted feel and so it did not have a leak. The vacuum-assisted unit was confirmed to be in normal operation.
Q3	When you finished examination of the brake force on each wheel of the private car TA 4600, what were your findings on the brake force?
A3	In testing the brake force, I applied my own body weight, 62 kg, and a one-metre long metal rod on each of the wheels and deduced that: 62 kg x 9.8m/s² x 1 m = 607 Nm; however because of the lever principle and the radius of the wheel brake discs: with (each) front brake disc being 0.199 m and (each) rear brake disc being 0.18 m; the brake force on the front wheels FF was 1m/0.199 m = 5.025 times of the force that I applied on the wheels to offset the force of 607 Nm applied on each wheel. So the actual brake force on each front wheel was 311 kg, and the brake force on each rear wheel was 344 kg. The total brake force on the whole car was 1301 kg. According to the information of the manufacturer, the weight of the car was 1,835 kg, so the brake efficiency was 71% under this situation.

Section 19 of Chapter 374A, Laws of the Hong Kong, only requires that the brake efficiency should not be less than 50%. Hence it complied with the legal requirements …… The test of the above brake efficiency was conducted without the aid of the vacuum-assisted and automobile electronic-assisted brake system such as ABS. Therefore, when the car was in motion, its brake efficiency and control were definitely higher and better than the time when it was examined by me.”

40.  PW21 agreed in cross-examination a brake roller tester which is a dynamic testing tool as opposed to his static test would more accurately test the brake efficiency of a vehicle but he took the view TA 4600 was too damaged; it could be damaged further if moved and subject to a dynamic test.  He agrees the static test he did cannot be as precise and they mainly use it to determine if the braking system was working or not.  They normally don’t us the test to calculate the percentage of the braking efficiency.  He was asked in this case by the police after he had done the test to calculate it hence his supplemental statement P29.  He denied it was a scientifically unsound test.

41.  As I have said above, PW21 found the brake fluid level normal.  However, 5 days later, on 15 June 2015, Mr. Ng made a mistake that led to the brake fluid level in the reservoir decreasing.  On that day he went to take more photographs.  He also got in the driver’s seat and stepped on the brake pedal to try it but forgot the near side front brake disc was removed leaving a gap between the 2 brake pads.  His action caused the pistons to push out and create a space leading extra brake fluid to leak into it.  Photos 15 and 16 of P8 were taken of the brake fluid reservoir after he stepped on the pedal.  In fact, Mr. Casolari, PW28 could see what Mr. Ng had done from a photograph because the nearside front brake calipers show the brake pads were in contact with each other.  This means the brake pedal had been depressed after the removal of that brake disc.  As a result, the brake fluid level had been reduced to about the minimum level required.

42.  PW21 referred to photographs of the vehicles Manettino device on the steering wheel, Photos 4 and 5 of P9.  The adjustable device was set to race mode when examined.  The other modes included sport or wet mode.  I have heard that in race mode the suspension is stiffer and harder.  It also means when accelerating the exhaust by-pass valve opens earlier and the sound or roar is louder earlier.

PW19 DR WONG KOON HUNG

43.  Dr Wong’s expert report was admitted pursuant to S65 (B) of the Criminal Procedure Ordinance, Cap 221.  It was read into the record.  His expertise in accident reconstruction was not challenged.  His qualifications are listed in his report P21.  He made extensive case notes and took many photographs; those are bound and exhibited as P23.  He visited the scene of the accident and examined the vehicle in the police pound on 10 June.

TYRE MARKS

44.  He saw, measured and photographed a yaw mark, the subsequent skid mark and the damage at the accident scene.  The yaw mark was about 2 m long leading from the nearside of the left lane towards the curb just before the car park entrance, see photographs 9 and 10 of P6.  The yaw mark indicated that TA 4600 was going sideways and beginning to lose control at that time.  It indicates forward and sideways movement at the same time.  It is not related to braking.  It means the vehicle was not going along the drivers intended path.  This one also indicated the vehicle was not significantly accelerating or decelerating.

45.  There were tyre scuff marks on the curb at the intersection and a large portion of concrete had been freshly dislodged from the curb with some concrete debris scattered on the roadside, photograph 11 of P6.  After hitting the curb, there is visible a skid mark of around 9.1 m; see the photographs 7, 8, 11 and 12 of P6.  The skid mark was made when the nearside tyre locked against the wheel and rubbed on the road surface. 

46.  Dr Wong found evidence of contact between TA 4600 and the roadside/car park objects from the origin of the skid mark on the curb to the accident wall it hit, forming a straight line of about 20 m, see pages 18-20 of P23.  After examining the vehicle and noting the damage to it, he had the offside front wheel delivered to his laboratory.  He concluded after examining it that it deflated when it hit another curb inside the car park and that the deflation of the tyre was not a contributory factor in the accident.

47.  On the opposite side of the aforesaid nearside skid mark, an offside skid mark bearing the characteristics of yaw marks and anti-lock braking system (“ABS”) scuff marks was also found, they can co-exist, see pages 18-20 of P23. He said this shows the ABS activated and worked by preventing the wheel locking completely.

SPEED OF TA 4600 PRIOR TO THE ACCIDENT

48.  Dr Wong was supplied with CCTV footage of the Ferrari driving along the unnamed road and approaching the car park entrance of the “Waterfront”.  By using the CCTV footage of Kowloon Airport Express Station (P3) and the car park (P4), and other relevant prosecution material, he calculated the speed of the defendant’s vehicle at or in between certain points.  He also did a reconstruction using a vehicle of the same make and model at the scene.  He explains his testing methods and measurements in his report specifically at paragraphs 9 to 22.

49.  4 positions of TA 4600 shown in the CCTV footages were arbitrarily assigned “Positions A, B, C and D”, the approximate locations of A, B, C and D are marked on the sketch exhibit P17A.  Dr Wong by conducting measurements for various times, confirmed that the shortest distance between A and B was 13.56 m. Between C and D it was 20.29 m.  The distance between B and C was also measured and found to be around 62 m.  Appendix 1 of his report shows position A and B with red arrows.  Appendix 2 of his report shows position C and D with red arrows. D was just before the curb hit and damaged.

50.  Dr Wong’s methodology meant a calibration of the time and verifying the frame rates of the CCTV footages.  He was certain that the frame rates of both CCTV footages were stable and reproducible, which allowed him to determine the speed of TA 4600 at the accident locus. 

51.  By making reference to the verified frame rates of all the footage, Dr Wong concluded that TA 4600 was travelling at about 97±10 km/hr between A to B.  TA 4600 was travelling about 76±8 km/hr between C and D; certainly just before D and the curb.  He also calculated that TA 4600 took half a second to travel the 13.56 m between A and B and 0.96 seconds to travel the 20.29 m between C and D.

52.  In evidence he said there was deceleration between positions B and C. This means there was some braking effort that took place, it could be due to light braking occurring.

53.  Dr Wong’s measurements and determined speeds were not challenged by the defence or defence expert witnesses.  His methodology and reconstruction was not challenged.

PW28 MR MARTINO CASOLARI

54.  Mr. Casolari was a Technical Engineer from Ferrari S.p.A. currently responsible for the Ferrari Help Desk Technical Assistance.  His help desk division co-ordinates the entire network worldwide.  There are some other help desks worldwide but all under the direct control of the headquarters.  He has worked at Ferrari for 13 years.  He has experience in training technical staff as well as personally developing and overseeing diagnostic protocols and tools for Ferraris and Maseratis.  He himself is a “flying doctor” who personally would fly at a moment’s notice to any customer experiencing a peculiar technical problem with their vehicle or were valued customers. 

55.  He supplemented his report with a further statement of his professional qualifications when it became an issue, P33A.  For more than 10 years, the ABS brake system in the Ferrari has been supplied by Bosch and PW28 was a trained Bosch automotive technician.  When he arrived in Hong Kong he visited the scene of the accident but did not examine the vehicle itself.

56.  Part A of his report deals with DW2, Mr. Burns report and why he does not accept his findings; discrediting his testing methodology.  Part B deals with DW4, Dr Lim’s report and why he does not accept his finding; stating that it is not possible for the vehicle to experience a transient failure of the brakes before the curb only to have the vehicle able to activate the ABS anti-lock brake function after the curb.  Part C of his report includes other information he finds relevant in concluding there was no failure of the brake booster vacuum.

57.  In Part C he describes the components of the braking system.  He describes the brake efficiency and performance of the vehicle when in race mode.  In Paragraph 35 he describes a safeguard in the brake system that is operative even if the brake booster vacuum fails.  I quote “this is a legal safety requirement based on the homologation regulation ECE R13H also valid in Hong Kong; according to the said homologation regulation a minimum stopping distance must be granted”.  In his view the fatal accident could have been avoided even if there was a brake booster vacuum failure if the defendant had applied the brakes with medium force.

58.  In Part C he also describes how to calculate a vehicle deceleration between 2 points as well as a stopping distance once a deceleration rate is known.  He then applies that formula and calculates the deceleration rate of the defendant’s vehicle between positions B and C using Dr Wong’s speed findings.  He then compares the deceleration of TA 4600 to the homologation data.  He concludes according to those calculations the defendant did not apply panic braking (hard braking), I quote “They do not correspond to a situation of panic stop braking.”  He opines if the defendant did brake as hard as he could as described by him and started to brake at position B then the stopping distance would have been around 57.86 m even if there was a brake booster vacuum failure.  He would have stopped before he reached position C, long before the inside of the car park entrance.  Hence, his conclusion there was no failure of the brake booster system.  In any event, that rate of deceleration of about 20km/hr by TA 4600 could not be from engine braking (when one ceases to accelerate but not brake); it would not slow the vehicle down that much in that distance.

59.  In addition, he finds there is evidence the ABS brake function was activated from the offside skid mark found after the impact with the curb and entering the car park; this confirms the braking system was functioning properly at all material times.

60.  In his evidence, he was asked to look at the CCTV footage of the rear of TA 4600 on the CCTV evidence of TA 4600 passing along the unnamed road, P3.  In P3 the CCTV camera of “KOW CAR PARK ENT EXIT” at 7:47:51 am captures 3 frames of the vehicle; there are 6 frames in 1 second, 6 fps.  The 3^rd frame shows the rear of TA 4600.  He was asked whether the vehicle in this frame had its rear light cluster illuminated, indicating the defendant braked the vehicle.  He was of the view the intensity of the rear lights of that frame was not the typical intensity of brake lights activated.  He also said having visited the site that the red lights across the boot in that frame could be a reflection of overhead fluorescent lights.

THE DEFENCE CASE

61.  The defendant elected to give evidence and called 3 expert witnesses.

THE DEFENDANT

62.  The defendant was born in London, United Kingdom where his elderly parents still reside.  He has a daughter from his first marriage studying at university in the UK.  His immediate family is all financially reliant on him. He has lived in Hong Kong for the past 5 years with his present wife and has worked for the same investment bank for 20 years having been in this industry for over 30 years.  He has previously worked in London, New York, Japan and now Hong Kong.  He recently resigned as the Head of Asian equities.  

63.  He is a man with a clear record in Hong Kong and the UK.  He obtained his driving licence in 1984, 32 years ago.  He has never had a speeding ticket nor had an accident.  Over the years, he has owned many high performance sports cars.  Those include Porsche, Aston Martin, BMW, Audi, Volkswagen, Toyota and Ferrari.  He has experience in driving powerful vehicles.  This Ferrari has 7 forward gears and he normally drives it in 2^nd or 3^rd gear around Hong Kong.  He can change gears manually in manual mode or it will change automatically.

64.  On the day of the accident he was driving to work in the ICC building on Kowloon side in his Ferrari.  He left his home on the Peak at about 7:20 am and described his journey route down the Peak and through the Western Tunnel. There was light traffic that morning.  He turned into the straight unnamed road under the “Waterfront” housing complex which leads to the ICC car park.  He is very familiar with that stretch of road and knows it is about 200 m long, has a speed limit of 30 km/hr and that no pedestrians are allowed to walk along that road.

65.  When he turned into it he could see the road ahead was empty and there were no cars behind him.  He then partially opened the throttle of the vehicle and accelerated to about the middle of that road and took his foot off the accelerator and put it on the brake; intending to slow down to take the corner at 25 to 30 km/hr.  He accelerated to hear the sound of the car engine amplified in the tunnel like road.  I quote “I blipped the throttle for 2 seconds max to hear the sound in an enclosed space”.  He did not do it to feel the speed.  He was most likely in second gear.  He’d only done this before when the road was empty and he thought it was completely safe.  On this occasion he made sure the road was empty in front and behind him before he accelerated.

66.  When he braked he knew something was wrong immediately.  The pedal felt very hard.  The vehicle did not slow down as expected.  He then pressed the brake pedal again with much more significant force but did not take his foot off.  He thought he’d stop so did not panic stop.  The pedal did not depress nor did the vehicle slow down.  He then pressed as hard as he could; so hard his back slid up his seat.  He looked up to see the wall coming straight at him.  He tried to negotiate the bend and steered right.  The car did not behave as he’d expected and it began to slide to the left.  He has no recollection of what happened next.  However, he could recall clearly he did not take his foot off the brake and then reapply pressure.  He braked in one continuous action until he was pressing as hard as he could by point C.

67.  The defendant got out of the vehicle and saw the deceased in front of the vehicle on the ground.  He tried to find his mobile phone without success. He asked a man nearby, PW1 to call the police.  He told the deceased that help was coming and reversed his vehicle to make sure there was enough room for the ambulance men.  He then found his phone and tried to call his wife.  He saw PW2 approach and he asked him to call emergency services too.  He told PW2 he had no brakes.  Help then arrived for the deceased, the defendant was breathalysed by the police and then taken to the police station where he gave a statement.

68.  The defendant appreciated he was speeding on the unnamed road but it was only for a duration of 1 to 2 seconds before he braked in anticipation of the corner.  He had plenty of time and distance to slow down.  If his brakes were working properly he had enough distance to stop the car twice over.  He blamed the accident on the catastrophic failure of the vehicle.  He described his understandable torment and anguish over the death of the deceased since the accident.

69.  In cross-examination he reiterated that he accelerated to enjoy the sound of the amplified engine noise not to experience the speed.  He had no idea what speed he reached as he did not look at his speedometer.  He denied several times he knew what speed he had reached.  He only partially opened the throttle.  He decided to do it because it was safe at the time to do it; there were no cars on that stretch of road and no pedestrians.  He agreed he was way over the speed limit but not dangerously so in this scenario.  He could not map the path of the car after he realised he had no brakes.  He cannot recall what lane he was in at the corner.  It all happened very fast in an emergency situation.

70.  He denied he was driving dangerously when he was speeding but not know what speed he had reached.  He was asked about his speed on route to work but could not recall those details.  He denied knowing his manettino was in race mode.  He did not believe he drove it in race mode at all before the accident that morning.  Even though he was the only person to drive this vehicle he could not recall switching into race mode as he entered the unnamed road and believe it was in sport mode when this accident occurred.  When pressed he would not deny he had switched it to race mode, he would only repeat he did not recall doing that.

71.  He did not notice or feel the vehicle decelerate as calculated because it was not significant considering the speed it was travelling.  Despite what Mr. Casolari said to the contrary, the defendant thought it was due to some extent to the engine braking, not the braking system.

72.  The defendant gave evidence that the car did not behave as he expected it would or it should have even at the speed it was travelling when he negotiated the corner.  The prosecution suggested that the vehicle’s steering ability meant it handled better than previous models and when in race mode the driver did not need to steer so much.  The defendant said he did not know that the steering rack speed changed when in race mode.  He said the steering did not respond.  The car turned abit but when in yaw it did not respond.  He also said according to what he knew and had read this car should have been able to negotiate the corner at the speed it was going even if at a speed of 70 km/hr. However, he had never tested this.  He was surprised the car slid.  He agreed it would also depend on the drivers’ ability but only to some extent.

73.  As far as he could recall and from the CCTV he said the car was yawing left long before the visible yaw mark, before the curb and outside the car park entrance.  He said this several times.  He disagrees it appears on CCTV and according to PW1 that he lost control of the vehicle at the corner.  He disagrees he did not try and correct the vehicle because he had lost control. He denied it when put to him that he did not brake into the corner in a panic because he wanted to take the corner at speed but lost control.

74.  He did agree when viewing P4, CCTV of “camera 3” that TA 4600 did appear to be close to the apex of the concrete pillar.  He agreed the front of his vehicle, the nose pointed past the apex.  However, in contradiction, when he drew a sketch of the path of his vehicle from the position C to D on P17B he depicted the vehicle some distance from the apex concrete pillar and yawing as the vehicle turned to the right, much earlier than the yaw mark left on the ground.

75.  He disagreed when put to him that he did not brake as he described and his brakes did not fail.  He did not feel the ABS working despite what the experts say.  It was suggested to him that even if the brake booster failed and according to the homologation test results Mr. Casolari explained (paragraph 40.3 of P33) the vehicle could have stopped before the accident occurred if he had applied his full force on the brake.  He did not disagree but could only say he tried his best but the car failed him.  When suggested to him a second time he did disagree.  He added that he didn’t know if it was the brake booster that failed, but knew something failed in the system.

DW1 MR NEIL MILLAR

76.  The first defence expert witness, Mr. Neil Millar (DW1) was amongst other qualifications obtained, an experienced Forensic CCTV Imagery and Facial Mapping Analyst from the United Kingdom. His report, D4, was an opinion based on the CCTV evidence of TA 4600 passing along the unnamed road, P3. I repeat, at 7:47:51am 3 frames of the vehicle are captured; there are 6 frames in 1 second, 6 fps.  The 3^rd frame shows the rear of TA 4600.  The question for him was whether the vehicle in this frame had its rear light cluster illuminated, indicating the defendant braked the vehicle.

77.  In his analysis and opinion at page 5 of D4 he reproduces the 3^rd frame as figure 1 and opines the footage shows the rear lights to be subject to “motion blur”, “this effect is as a result of the vehicle travelling at a speed in which the recording camera is unable to focus correctly at the point of capture, thus producing a blurred image.”  It is also clear in photograph 6 of P12, a still from the CCTV.  He describes the rear of the vehicle appears to be elongated to the left because of the motion blur; distorting the rear lights.  The vehicle has a strip of LED lights imbedded into the boot lid across the back above and between the 2 round lights that illuminate when the brake is activated.

78.  He also reproduces another image from a camera at the car park entrance as figure 2 which shows the light configuration of the rear of TA 4600.  This image shows the vehicle after it hit the curb and entered the car park braking.

79.  Mr. Millar also examines the CCTV footage captured during the reconstruction by PW19, Dr Wong and the police using a white Ferrari of a similar model.  He reproduces 2 stills from that and shows the light illumination at the rear when the brakes are activated and when they are not, page 6 of his report D4.  He compares the rear of the white vehicle to the 3^rd frame of P3, the defendant’s vehicle and finds there is strong support for the conclusion his brakes were activated in that frame and at that moment on the unnamed road. 

80.  In his report he said there is a possibility “that the area of the rear higher level brake light could be subject to reflection across the rear of the boot lid from artificial overhead or localized lights.”  However, after he arrived in Hong Kong to give evidence and visited the unnamed tunnel like road he was of the view the overhead fluorescent tube lights were not so strong and would not have reflected off the rear of TA 4600.  He agrees in cross examination he did not test the light intensity at the location nor use a vehicle to reenact the brightness and do a comparison.  Despite that he maintained his conclusion.

DW2 MR MATTHEW BURNS

81.  The second defence expert witness came from the United States.  He gave evidence as a Ferrari Diagnostic Specialist Expert.  His report D5 is dated 22 June 2016, nearly a year after his examination.  Section A of D5 sets out his qualifications and Ferrari experience since 2000.  He also produced 2 certificates, exhibits D2 and D3, showing attendance at 2 Ferrari training courses over 4 consecutive days in 2010 when he worked at an official Ferrari dealer in Miami, “The Collection”.  He worked there for 9 years from 2003 as the Service Manager and Technical Foreman.  That dealer sold many other brands, not just Ferraris.

82.  He inspected TA 4600 between 5 and 7 August 2015 at the defendant’s home.  He used a diagnostic tool called “Galileo” instead of the Deis.  Section D of D5 explains how he downloaded data from TA 4600 using this tool and what that data showed.  He is the authorized sales representative and technical trainer for this system used to diagnose and repair Ferraris.  Section K is an overview of automotive electronic control unit (ECU) data.

83.  Section B of his report is what the defendant told him.  He describes his journey to work and what happened just before the accident.  Section C and E refers to his visual inspection of the vehicle, its bodywork and wheels. Section F refers to his visual inspection of the suspension and brake system of the vehicle.  He sees a crack in the nearside front brake caliper and it leaking.  There are no photographs from DW2 of what he saw or what he did.  He said he relied on the prosecutions photographs but there is no evidence of a leak or crack in any of them.  No prosecution witness saw and no photographs show a crack or a leak including DW4, Dr Lim.  Section G refers to his visual inspection of the tyres and Section H his visual inspection of the airbags. Section J is his accident site inspection.

84.  Section I explains the brake pressure test he performed on the vehicle and the results.  To conduct his test he had to clamp off a brake hose because of the cracked caliper and leak.  He had to do this to ensure the brake system could be pressurized without any fluid or pressure loss at the damaged brake caliper.  This would distort the test results.  He’d perform this static test by stepping as hard as he could on the brake pedal and at the same time connecting his Galileo tool to the ABS brake system ECU to read the parameter value from the pressure sensor that is built into the ABS system.  This sensor measures the actual hydraulic force generated at the ABS module when the brake pedal is depressed.  He’d repeat this test twice; once with the engine running and once with it off.

85.  He had pressure readings from a similar model kept in his warehouse in the US.  In both tests the pressure read by the ABS pressure sensor was 110 bar and that pressure was maintained as long as the pressure on brake pedal remained the same; annex 4  and 5 of D5 was the Galileo print out for this pressure.  The first test on the defendant’s vehicle, with the engine running showed a maximum pressure of 66 bar (see annex 2 of D5) which dropped even when the pressure was maintained on the brake pedal.  What it dropped to and at what speed was not recorded.  The second test done immediately after first with the engine off showed a maximum pressure of 24 bar (see annex 3 of D5) and that pressure decreased too.  Again there was no record of what it dropped to and at what speed.  It transpired he did both tests on TA 4600 several times not just once as suggested in his report.  There is no record of the other tests.

86.  Section L gives an overview of automotive EDR data.  These are devices called Event Data Recorders, (EDR) and often referred to as black boxes.  He says they are often built into the airbag ECU and contain pre-crash data and other data.  Section M gives an overview of the braking system for this model of Ferrari.  The high performance system means this model will come to a complete stop when travelling at 100 km/hr in 32.8 m.

87.  Sections N to U are his conclusions; in N he concludes from the defendant’s description the brake system was not functioning properly just before the corner.  The defendant’s description of how the brakes felt indicated the ABS system was not working either.  I quote “This was likely caused by a failure in the braking system that kept the system from developing the pressure needed to stop the wheels from rotating which is what signals the ABS braking system to activate”.  Ultimately he did not give an opinion of what part of the system or what exactly was faulty or failed.

88.  Section O sets out his opinion that the data he downloaded was inconclusive whether or not the braking system failed.  He goes further and opines some errors stored in ECU’s in data extracted by the prosecution witnesses were deleted by the time he extracted data again with a Galileo tool.  He says the errors must have been manually deleted and he believes probably unintentionally but nonetheless deleted by someone. 

89.  Section P concludes the evidence of Mr. Ratto was not reliable because the Level 2 data extracted from the airbag ECU was incomplete.  Mr. Ratto’s report P30 did not prove the vehicle braking system was working properly. (There is no suggestion from the prosecution it did prove the system was faulty.  Despite this conclusion, Mr. Ratto’s evidence was not challenge by the defence.)

90.  Section Q concludes from DW2’s brake pressure test that the system was not performing as it should; there was reduced brake system pressure.  He says this problem will affect the ability of the braking system to slow the vehicle.  He offers 6 possible reasons there was reduced brake pressure and the braking system failed or malfunctioned.  He goes on to say these faults could be intermittent in nature; coming and going. In evidence it was put to him Mr. Casolari said that that was not possible but he only conceded in so much as he said it was a rare occurrence.  He could not determine or pinpoint what the fault was as that would have required more extensive testing on the vehicle.

91.  Section R concludes the tire mark after the curb laid by the nearside front wheel was not evidence of braking but of that wheel being locked by the impact with the curb.  This was not challenged or disputed by the prosecution. Section S concludes the CCTV footage P3 of the vehicle on the unnamed road at about position B shows the vehicle’s rear brake lights were illuminated in one frame meaning they were activated by the defendant.  He says the distance between B and D being 82.29 m meant if the brakes were working properly there was twice the necessary distance to stop the vehicle if travelling at 97 km/hr plus or minus 10 km/hr between positions A and B.

92.  Section T discredited PW21, Mr. Ng’s statements and conclusions.  His static test done was criticized.  In his expert opinion the test did not provide conclusive evidence the brake system as functioning prior to, during and after the accident.

93.  Section U finally concluded that DW2 found the braking system failed the defendant and he was unable to stop or slow down the vehicle, ultimately causing this accident.

94.  In cross-examination it was agreed by DW2 that Ferrari did not recognize him as a Technician.  Mr. Casolari described DW2’s roles at dealers in the US that were authorized to sell Ferraris as well as other expensive vehicles as managerial roles.  He said DW2 didn’t physically repair cars; he ensured the repairs and servicing was executed properly and in a timely fashion. 

95.  According to the database in Ferrari’s headquarters in Milan he could see a record of DW2 completing an on line introductory course as far as the 458 model was concerned but he had never attended a classroom courses.  There is no record that DW2 attended the 2 courses of certificates D2 and D3.  The courses took place and some staff of “The Collection” dealership did attend but DW2 was not a named participant.  DW2 was adamant he attended but agreed in cross-examination that he was not recognized as a technician according to Ferraris standard and definition.  He looked after many other brands of vehicles not just Ferraris in his career at automobile dealerships.

96.  The prosecution pointed out problems with the data extracted by the Galileo tool as identified by Mr. Casolari.  Some he could not deny nor explain.  It was suggested to him that the tool was not an official diagnostic tool for Ferraris; data it extracted was inaccurate, incorrect and unhelpful and it was not as efficient as the Deis tool.  He did not agree.

97.  He did not agree with Mr. Casolari’s criticism that he should have either replaced the damaged caliper or at least bled the air from the braking system before the test.  It was suggested in particular as the brake fluid level in the reservoir had been reduced by accident by PW21 and the vehicle had been towed at an angle (not on a flatbed truck) up the peak.  As a result of this, there was a chance the outlet in the brake fluid reservoir was exposed to air. If there was air present in the brake fluid circuit then it would cause a problem to pressure created when brake pedal depressed.  Air in the circuit would compromise any test result.  He did not agree his testing was compromised.

DW4 DR LIM CHAW HYON, ERIC

98.  Dr Lim, was the third defence expert witness.  His reports are at D6 dated 6 July 2016 and then D7 dated 23 August 2016 which was submitted during the course of the trial.  His qualifications are set out in appendix 1 of D6. He has an engineering background and is qualified to reconstruct as well as investigate accidents.  He is a Hong Kong resident and has given evidence in many court cases in Hong Kong, both civil and criminal.

99.  D6 covers the inspection by Dr Lim on 19 June at the police pound.  He was there when TA 4600 was towed from there up the Peak to the defendant’s home garage on 20 July.  He would have preferred a flatbed truck take it there to minimize any further damage to it but all they could do was tow it at an angle.  He did not see any further damage to TA 4600 induced by the towing.  He also examined it on 6 August and 23 September.  He reviews all the damage to the body work and tyres that he saw.  He describes the accident from all the material supplied by the police, the prosecution and what the defendant told him.  He visited the scene and looked at all the physical signs of damage and tyre marks on the road.  These include the 2.3 m yaw mark before the curb and the 9.1 m skid mark after the curb from the locked nearside tyre.  He also described the shorter tyre mark parallel to the 9.1 m mark as 3 m long and “likely a skid mark laid by a wheel on the off side of the Ferrari with its ABS (anti lock braking system) functioning”.

100.  He reviews PW19, Dr Wong’s calculations of the defendant’s speed on the unnamed road and just before the curb.  He says his own analysis of the speed whilst approaching the accident scene was more or less in line with Dr Wong’s calculations.  He says it is a possibility engine braking was responsible for the deceleration from 97 km/hr to 76 km/hr.

101.  He concludes based on the damage to the wheels and his observations of the tyre mark patterns left on the road the vehicle did not experience any significant braking effort when it went into the yawing motion.  I quote Para 5.2, “This means that either the driver was not applying his brakes while the Ferrari underwent the yawing motion or that the brakes were not functioning even after the driver applied his brakes.”

102.  He finds there is evidence the defendant did attempt to brake over 60 m from the sharp right turn because the CCTV captures the illumination of his rear brake lights.  Therefore, he believes the reduction in speed according to Dr Wong’s calculations “was most probably due to engine braking” which he said could produce a drag force up to 0.1 or even higher if the driver engaged a low gear.  The defendant said he did not change gears.

103.  He believes there was an attempt to brake and yet no immediate significant braking occurred meaning there was a transient failure of the brakes. He does not know why the ECU data did not show a failure.  He did not do any tests on TA 4600 himself.  He says transient because he finds the braking effort made by the defendant “apparently also came into action at that moment (the moment after he hit the curb and the nearside front wheel locked) such that a tyre skid mark with possible ABS in action was found laid at the scene, which resulted in the formation of some intermittent burnt marks on those wheels with ABS functioning.”  So the braking system failed as it approached the corner but was working again after it hit the curb; it may have regained the braking capacity to some extent.

104.  In cross-examination, for the first time he put forward a bouncing car theory to explain the ABS marks.  He gave evidence that he has read of transient failures occurring at high speed in racing vehicles on the race track but not had any personal knowledge of such a fault or this model of Ferrari.

105.  His supplemental report addresses evidence that arose during the prosecution case and was compiled very late in the day without warning.  He addresses Mr. Ng’s evidence relating to brake force and how that force should be measured and calculated.  He challenges and discredits the static test conducted by Mr. Ng, his methodology and his brake efficiency calculations.  He opines the proper and reliable test to determine the brake force of a vehicle is to carry out a dynamic test on a brake roller tester or skid tests on open straight roads. The latter being impossible with the extent of damage to TA 4600.  He is however of the view the brake roller tester would have been safe and possible here to measure the efficiency of the offside front wheel and rear wheels despite the damage to the nearside front wheel.  The brake efficiency can be calculated with readings from 3 wheels.

106.  In cross-examination he agreed that if the vehicle had no brake booster and was travelling within the speed limit at 30 km/hr before hitting the curb then the water barriers, poles, control box and gate barrier the vehicle would have been slowed down.  He said it would have come to a complete stop before it hit the wall.  He said at such a speed the vehicle would unlikely to have become airborne.

107.  The homologation test result as set out by Mr. Casolari was put to him.  That is even if the brake booster was not working and the driver braked hard at about position B the brake force would still be -0.6 g and TA 4600 would have stopped before the curb and the accident.  He agreed that would have been the case if the driver anticipated a danger and slammed hard on the brake but that is different to the defendant who gently applied the brake hoping to slow down the vehicle but when realizing there was no reduction in speed attempted to press harder on the brake without releasing the brake and slamming on it again to achieve a force under a panic situation.

108.  There was much cross-examination about the ABS skid mark.  Dr Lim agreed there must have been hard braking to make those marks but then later said that was a possibility and then only if the wheel was on the ground.  There was then a theory from Dr Lim that the ABS skid mark of an offside wheel was not as a result from the ABS working properly with hard braking but because the vehicle had bounced and the wheels had left the ground at times.  In such a scenario the ABS will activate with light brake force.  This theory meant there was a possibility the ABS was not working properly despite what he said in his report D6 at Para 4.5c. 

109.  The prosecution was questioning whether the defendant had steered the vehicle to the right at the time of the accident.  Dr Lim agreed the skid mark did not indicate the wheels were steered right and if not steered right the electronic braking distribution system will let the vehicle go forward in a straight line.  He also said the off side front wheel bounced after the vehicle hit the curb and is why the vehicle did not go right as steered but in a straight line.  Yet he also said from what he observed it is likely the vehicle was steered right before and after hitting the curb but not a large steering angle.  He did concede there was no evidence the wheels were bouncing but said it was a possibility.

110.  It was a possibility because the skid mark did not show a regular and constant pattern.  All experts agreed if the ABS was working properly with the tyre touching the road surface there would be a regular and constant pattern in the skid marks.  Page 20 of P23 shows a clear picture of the skid mark pattern.  Dr Lim says he based his opinion on the fact the dots of the most left side of the skid was not in a regular pattern nor were the spacing between marks.

111.  It was put to him that the rim of the wheel hit the curb and that the nearside front wheel before, during and after hitting the curb did not leave the road surface.  Dr Lim agreed. It was then suggested that in such a case there was nothing to suggest the offside front wheel would leave the road surface debunking his bouncing wheel theory but Dr Lim insisted there was such a possibility.  He then said the wheel was lifted slightly but the tyre remained on the ground.  He did measure the height of the curb and rim but made no record of it or mention of it in his reports.  He made no mention in his reports of this vigorous bouncing theory to explain the ABS skid mark he agreed was important because he thought there was no need.  He said he concentrated on the vehicle approaching the scene and before it hit the curb; not after.  He was concerned with whether there was any brake function before the corner not after it so his report is not as full as it should be.

112.  It was also put to Dr Lim the vehicle dynamic sensors in each wheel would immediately respond by varying the control current of each shock absorber and keep the wheels on the ground.  He did not agree.

113.  The prosecution put to Dr Lim several verdicts from various levels of court in Hong Kong where he had given expert evidence for defendants.  In all those 6 verdicts, P38 (1 to 6) the courts rejected Dr Lim’s evidence; with findings and observations ranging from the disparaging to it being dishonest.

114.  I will add here that the prosecution applied to recall PW19, Dr Wong, because this expert and the prosecution were taken by surprise during Dr Lim’s evidence.  This bouncing theory and the irregular pattern of the ABS skid mark were first mentioned then.  There was no objection from the defence.  In essence, PW19 said he was sure that the skid mark of the offside after the curb was an ABS skid mark.  He examined it and took the photo of page 20, P23.  In his view the dots and spaces between the dots were regular.  The weight put on the tyre was uniform.  He says the width of a skid mark will vary if left by a bouncing tyre.  He did not see any variations to indicate this so does not agree there was bouncing in this case and rejected Dr Lim’s theory

THE LAW

115.  A person drives dangerously in terms of section 36(4) of the Road Traffic Ordinance (RTO) 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.

116.  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.

117.  Section 36 sets out a wholly objective test see Lam Chi Fat CACC 89/2011 paragraph 31. The court in Lam quoted Lord Woolf CJ in AG’s Reference (No 4 of 2000) (R v GC) RTR 415 at p 425.  Whether the driver intends to drive dangerously is not relevant to any assessment as to whether the driving was dangerous.  I quote Para 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. Lord Woolf CJ, in AG’s Reference (No 4 of 2000) (R v GC) [2001] RTR415 at p 425, 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 [sic] 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.”

118.  The defence raised a mechanical failure defence; alleging the danger was created by a sudden and total loss of control which was in no way due to any fault on the part of the driver.  Once this defence is raised the onus is on the prosecution to prove this was not the cause of or present at the time of the accident.  The defendant does not have the burden of establishing the defence.  There was or is no reversal of onus on the defendant.  The defence quoted these principles from the authority R v Spurge 1961 2 QB 205 (page 212) and not challenged by the prosecution.  If this defence leaves any doubt in the mind of the court or a jury then the defendant should be acquitted.  It is for the prosecution to prove their case beyond all reasonable doubt.

119.  Both the prosecution and defence agree that speeding per se is not sufficient to establish dangerous driving.  The fact that the defendant was over 3 times the legal limit driving along the unnamed road is not dangerous driving in itself.  The defence submitted an authority, DPP v Milton 2006 RTR 21.  There is no need to repeat the facts except to highlight there was no accident and the manner of driving in question was only the fact the defendant excessively exceeded speed limits set.  Hallett LJ was quoted as finding, “In my judgment, having borne in mind the observations of other courts in other jurisdictions which were helpful although not binding, speed alone is not sufficient to found a conviction of dangerous driving.  It has to be a question of speed in the context of all circumstances.  It is not for this court to attempt to lay down hard and fast rules that driving at X-times any particular speed limit is so excessive as to amount to dangerous driving per se. that would be an impossible and inappropriate task.” at Para 57.

MY FINDINGS

120.  An enormous number of technical issues and calculations were covered by the witnesses during the course of the trial.  It is simply not practical in the course of reasons for my verdict to attempt to cover every aspect of their evidence covered by every witness; to deal with and discuss every argument or submission made or comment passed by counsel for both sides.  However, 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, for and against the prosecution and the defendant.  That I do not mention a particular piece of evidence or facet does not mean that I have not considered it or factored it into my decision making.

121.  As I have said above, the prosecution has a duty to prove beyond reasonable doubt the defendant drove dangerously and caused a death.  The defendant has no duty to prove anything.  The defendant has a clear record, and I have warned myself accordingly.  His credibility is in issue here, and I will take into account the defendant’s good character when considering his credibility as a witness.  I will also consider the propensity and the likelihood of this man committing this offence.  I have directed myself in accordance with the decision of Tang Siu Man v HKSAR 2 [1997] 1 HKCFAR 107.

122.  The prosecution and the defence reduced final submissions into writing and they are exhibited as MFI-1 and MFI-2 respectively.  Both the prosecution and the defence submitted at length in respect of the mechanical tests carried out by PW21 and DW2 as well as the opinions of PW19, PW28 and DW4.  Counsel expanded on these submissions orally.  It is not necessary or practical for me to refer to every submission and I again stress here that I have factored in all submissions in my decision making process even if I do not repeat it.

123.  The prosecution submits the defendant drove at a high speed on the unnamed road all because he accelerated to hear the roar of his engine admitting he did this without looking at the speedometer.  He must have switched the manettino to race mode.  He assumed because pedestrians were not allowed on that road there would be none but CCTV saw people on it and near it later that same morning.  Even if he had braked at B it may have been lightly to reduce the speed by about 20 km/hr.  The CCTV only captures the brake lights if they were on for 1/25^th of a second.

124.  They submit the evidence of 3 prosecution experts show the braking system was functioning that morning.  Therefore the evidence points to the defendant trying to negotiate the corner at high speed and losing control.  He himself thought his vehicle should have negotiated the corner successfully at high speed.  The defence experts either were not credible or did not conclusively conclude the brakes failed the defendant.

125.  There were many calculations done; particularly asked of Mr. Casolari (see P33B to J).  In fact to heavily rely on these in a case like this can be somewhat artificial.  The prosecution asked him to assume the brake booster was faulty and to calculate the speed at position D according to the homologation results in certain circumstances such as if the brake booster was empty, the defendant started braking at position B and the force was a moderate force of 490N on the brake pedal.  He calculates the speed at D should have been 29.13km/hr.  The prosecution says that means the defendant’s evidence of braking as hard as he could is inconsistent with the results of the homologation tests.  He did not start applying force from B and applied more pressure into the corner.  If he had and even if the brake booster was faulty he would still have slowed down enough to avoid this accident. These calculations are based on the premise that the defendant’s evidence is credible and he was braking as hard as he could.

126.  In particular the defence asked Mr. Casolari to calculate the speed and deceleration rates of TA 4600 by applying different presumptions, see P33E to H.  These implied there was a uniform deceleration rate between points. However, Mr. Casolari went on to prove the results are not helpful and would be different if that rate was not uniform by further calculations, P33I to J. Essentially, the speeds were estimates and calculated over a distance or between 2 points.  They cannot be evidence of an accurate speed at a specific point.  They are averages and do not take into account many other variables and factors.  To try and specify such figures as a deceleration rate under numerous scenarios is as I have said somewhat artificial.  What was agreed by experts from both parties is that if the defendant had been travelling at the legal speed limit and even if the brake booster had failed him the vehicle would still have come to a standstill long before hitting the wall of the car park and the deceased.  The prosecution says the speed is a factor to consider in the context of all the circumstances of the defendant driving manner.

127.  The defence agree if the court does not find that there was a mechanical fault then the manner of driving must have been dangerous.  The defence submits the mechanical examinations of the vehicle by experts from both side were inconclusive and the court should not put weight on this evidence.  However, it submits the evidence of brake lights at position B, the deceleration rates and other objective circumstantial evidence when coupled with the defendant’s credible oral evidence are sufficient to raise a reasonable doubt.

128.  The defence concentrates on the evidence in sequence and sections; from entering the tunnel-like unnamed road and why the defendant “partially opened the throttle and accelerated”.  Then his oral, the expert and CCTV evidence he braked just before the position B intending to slow for the corner.  The vehicle did decelerate.  This evidence of braking is relevant to what happened between B and C then C and D.  The defence stress if the brakes were functioning then the defendant had plenty of time to slow down and space to stop if necessary before the corner.  The failure to slow down significantly can only be because there was a mechanical error.  Otherwise it does not make sense.  If he intended to take the corner at speed why brake at position B?  It is more probable and likely he was increasing his brake pressure between B and D and there was no proper deceleration because the brake booster was faulty.

129.  The defence say the homologation safeguard did not apply or arise here because between B and C or C and D the defendant’s evidence was there was a progressively harder pressure applied to the brake as opposed to lifting the foot off and then slam it back down on the brake.  It was submitted that that is what is required to get brake pedal pressure and a deceleration in the event of a failure of the brake booster.  There is no dispute the brakes still function even if the brake booster fails but only if the force on the brake pedal by a kick or slam achieves a deceleration rate that is meaningful.  It was submitted this did not happen here and so the deceleration rate did not increase; the homologation safeguard was not applicable.

130.  It is submitted by the defence that PW1’s evidence was not credible and his description of the path of TA 4600 around the corner was not reliable and that the CCTV cameras of P4, the Waterfront car park, do not assist his evidence.  The footage does not show the Ferrari losing control around the corner.  It is submitted that if I find otherwise the fact the defendant had no control supports his evidence that the brakes failed him and he was dealing with an emergency situation.

131.  I have reviewed the evidence myself and have watched the relevant CCTV footage numerous times.  There are stills taken from the CCTV; particularly photographs 1, 2, 3 of P13.  The headlights of TA 4600 and the direction they are pointed can be clearly seen in cameras 3 and 4 of the 4 cameras captured in those stills.  One can also make out the inside corner, the apex of the concrete pillar in camera 4 stills.  Camera 4 of photographs 2 and 3 show the vehicle on a path driving across the corner instead of one steering around the corner.  Camera 3 in photograph 3 shows the headlights at position D or the curb pointing into the car park entrance.  If there had been obvious steering to the right the collision would have been more side-on with the curb.  When one compares the path of the headlights to P17 the sketch, the path of the vehicle becomes clear.  That path supports PW1’s evidence and although it happened very quickly I believe what he saw and describes is accurate.

132.  I have taken into account the skid marks, what I am told they indicate and applied it to the path of TA 4600 according to the CCTV and PW1’s evidence.  Bearing in mind the definition of a yaw mark is an indication of forward and sideways movement at the same time.  It means the vehicle was not going along the drivers intended path.  The yaw mark here was only about 2 m long and just before the position D and the damaged curb.  (Photographs 6 and 9 of P6 capture the yaw mark position as do photos on pages 7 to 10 of P23.) That point of collision with the curb is after the corner, almost on the straight.  In my view the short yaw mark and the CCTV footage show there was little attempt to steer around the corner.  It appears the defendant did not go into yaw until almost after the corner.  He should have been turning earlier.

133.  The defendant did say the steering did not respond as it should but there is no suggestion there was a fault with the steering system.  He said in evidence and drew on P17B that his vehicle went into yaw into the corner as opposed to after the corner.  Yet the yaw mark is just 2 m from the curb, it should have been longer if the vehicle had been steered right and was not going in the defendant’s intended path around the corner.  Therefore, I find the evidence suggests otherwise.  It suggests if there was no mechanical fault, he was not steering properly and not in complete control of his vehicle.

The expert evidence

134.  The defence submitted that the expert evidence is only relevant to part of my consideration.  In any event, the defence submits the Brake Booster was faulty based on expert opinion and the defendant’s experience of the brakes as he approached the corner.  At the same time they say the tests conducted by the experts from both sides by PW21 and DW2 were inconclusive either way.  They say if I find the defendant’s evidence credible and take into account the objective circumstantial evidence then a doubt should exist.

135.  After considering the expert evidence of Dr Lim, DW4, I do not find his evidence reliable and his opinions well supported.  He did no tests himself.  He based his opinions on what he was told by the defendant and the marks he saw at the scene.  However, he somewhat backtracked from his opinion in his first report that there was an intermittent failure of the brakes.  That opinion was not backed with any evidence or credible explanation other than a bold statement that that problem is well publicized.

136.  He went into great detail in oral evidence of his bouncing theory and how the ABS Mark was possibly laid after the curb.  He did not mention this theory in his report as a possibility and his reasons why were spurious.  Without doubting his qualification and expertise, much of his conclusion was without substance.  Possibly because he had nothing substantive to work with other than what the defendant told him happened.

137.  Dr Lim, in reality, is saying because there is no evidence of significant braking on the road by way of marks then there was a problem with the brakes.  He says the braking was not functioning and the reduction in speed calculated was probably from engine braking without any further evidence of that likelihood being true.  These conclusions are not substantiated.

138.  I also place no weight on the evidence of Mr. Burns, DW2.  He tested the vehicle after it had been towed up the peak from Ho Man Tin.  He says the caliper had a crack and a leak.  Mr. Ng saw no evidence of a leak on 3 separate occasions prior to that.  There is no evidence from photos taken of a leak.  DW2 then had to adapt the braking system to test it because of this leak.  When Mr. Ng tested the vacuum assisted unit there was no evidence there was a leak of pressure that DW2 later finds. DW2’s testing methodology was discredited by Mr. Casolari.  He said Mr. Burns tested a vehicle damaged in the accident and may have been further damaged during transportation.  This possibility cannot be ignored which means any subsequent test will be compromised.

139.  Moreover it was towed at an angle up a steep hill with the brake fluid levels at a minimum.  The angle of the vehicle and movement of the fluid could have allowed air to get into the system through the outlet pipe being exposed to air.  Mr. Burns did not add brake fluid and bleed the system of air before he did his test.  The presence of air inside the circuit is well known as causing a brake pressure reduction because air can be compressed into a closed circuit.  His results cannot be reliable. Even if considered credible the result in fact showed the brake booster was functioning because the pressure read was higher with the engine on as opposed to off.  I believe the test cannot be reliable as does the defence itself when it concedes the tests are inconclusive.

140.  Mr. Burns could not pinpoint the fault except to say he concludes there was a problem based on his test results.  He gives 6 possibilities in Para 4 of section Q of D5.  The first 4, (a) to (d), relate to the brake booster and I find his test of that unreliable.  There is no evidence from him the ABS was malfunctioning.  As for the last possibility, air in the brake fluid circuit, there was no evidence of that being the case before the accident but there is a strong chance air did get in the circuit after it and before his test.

141.  There was a suggestion by him that was not pushed hard that someone deleted data when the Deis tool extracted it. Mr. Burns believed there were irregularities when he compared his data he extracted to Level 1 and 2 data, P32 and P35.  He suggested there had been deletions but believed they were done unintentionally.  That is an odd assumption to make.  I do not believe the Galileo tool DW2 used was as reliable as the authorised tool for the reasons explained and mistakes highlighted by Mr. Casolari. In any event I believed the evidence that the ECU systems are designed so that for any Level 1 data deletions made there would be a record of it.  There were no records of any deletions and that allegation was a bare assertion at best. I believe the evidence Level 2 data, crash record data, cannot be deleted.

142.  DW1, Mr. Millar’s evidence related to one issue only.  Did the CCTV footage at 07:47:51 am capture the defendant braking on the unnamed road at about position B.  In his opinion at that moment the rear brake lights of TA 4600 were activated. That is evidence of less than a second in time; no time at all. His area of expertise is very specific and the only one of 6 experts with the qualifications as well as the expertise to read and interpret CCTV footage and imagery.

143.  We know TA 4600 did slow down by some 20 km/hr between about B and D.  I accept the evidence from Mr. Casolari engine braking would not be that significant in that short a distance and the defendant said he did not change to a lower gear.  I am sure the deceleration was due to light braking by the defendant.  I believe Mr. Millar’s evidence was credible as far as that still from the CCTV footage is concerned. I accept his opinion the rear lights were distinctive and bright enough to be brake lights.  He may not have tested the intensity of the ceiling lights to rule out reflection but in his experience he was satisfied having visited that tunnel like road they were not so strong as to have reflected across the rear boot lid so the rear lights appearing to be brake lights.  I accepted his evidence as the most qualified person to read the CCTV footage.

144.  Despite the fact I reject DW2 and DW4’s evidence the braking system was faulty, it is the prosecution who must prove there was no mechanical failure.  I find PW21’s challenged evidence credible.  I also believe Mr. Casolari’s evidence was credible and reliable.  It was not exaggerated nor was it without basis.  His reasoning and explanations were clear and convincing.  I do not believe he was protecting the brand and covering up for Ferrari.  I accept their opinions there was no evidence there was a fault in the brakes just before the accident.

145.  I believe PW21’s test on the brake booster or vacuum assisted unit the day after the accident demonstrated it was functioning.  The defence put to him and he agreed that if a brake booster was not functioning then the brake pedal would feel hard.  However, when PW21’s tested the brake he could feel the brake booster working.  I accept his evidence that it was working as was the hydraulic system.  As Mr. Casolari said, the test was simple but practical and verified the brake booster was working.  Similarly, his static test may have been simple and not very accurate but he wasn’t testing for specific percentages or mathematical figures but testing the brakes were functioning.  I don’t need to know the percentage of brake efficiency, I believe he found the brakes were functioning or rather there was no mechanical fault.

146.  Even though the prosecution challenges DW2’s test results and the defencedo not rely on them, I accept Mr. Casolari’s opinion that even according to those test results he discredits; the pressure reading differences when the engine was on and when it was off show the brake booster functioning.  The 66 bars of pressure recorded would have been sufficient to stop the vehicle before the wall and the deceased.  Moreover, the hydraulic system has 2 independent circuits in 1 system.  If one fails the other still works.  DW2 said he did not test both circuits.

147.  I am sure the ABS was working as determined by the skid mark after the curb. Mr. Casolari, Dr Wong and even Dr Lim’s report identify it as an ABS skid mark.  I accept their evidence and Dr Wong’s evidence in rebuttal that it was a constant and regular pattern laid by the tyre indicating the ABS functioning.  I do not believe there was the very rare situation where there was intermittent braking failure before but not after the curb was hit.  There was no evidence to suggest this.  The only evidence there was any brake failure came from the defendant not any expert witnesses.

148.  In any event, I am sure even if there was a mechanical issue the car would still have slowed down more than it did if the defendant had braked hard.  If there was a failure, according to the homologation requirement the vehicle’s braking system is designed to operate and will it slow down.  According to Mr. Casolari’s many calculations he was asked to make, the upshot is the speed of TA 4600 should have been significantly less than the 70 km/hr as recorded at position D; basically it could have stopped by or about position D and certainly not hit the wall or the deceased.

149.  According to Mr. Casolari, the defendant did not brake even moderately between B and C.  The defendant stressed several times he did not release the brake pedal from B, he only applied more and more pressure.  I find that hard to believe he could recall this fact so clearly.  The defence submits this would be the normal and natural reaction of a driver in an emergency situation.  This submission is made without basis.  They submit, in this situation, the homologation requirement did not come into play because it would need the driver to slam on the brakes which the defendant says he did not do.  I suspect that piece of evidence was tailor made to explain why the undeniable homologation safety requirement would not have factored here even when the brake booster failed.

150.  I have found there is no evidence of mechanical failure as proved by the prosecution witnesses beyond reasonable doubt; I find no lurking doubt. In that case, as there was no problem with the brakes the homologation requirement would not come into play.

151.  I agree it is unlikely under normal circumstances on the way to work the defendant would drive towards the corner and deliberately not slow down.  However, I take into account what he was doing as he approached the corner.  On this particular morning, I am sure he did put the manettino into race mode when he usually drove TA 4600 in sports mode.  He did that because I am sure he wanted to open the throttle and accelerate to a high speed.  He did this to hear the magnification of the roar of the engine in a tunnel like road.  The race mode means the noise gets louder quicker than usual.  He says he did not look at the speedometer which I find hard to believe.  I find it hard to believe those thrills don’t go hand in hand.  I found from the CCTV, PW1’s evidence and the marks on the road as the defendant approached the corner he hardly steered around it.  This I am sure was not due to brake failure or the steering not behaving as it should.  He did slow down but not enough.  I find there is no other explanation other than the defendant lost control at speed.

152.  The defence submission that the only plausible explanation for approaching the corner at speed was brake failure does not stand up.  It is illogical and if true would mean there should be fewer accidents on the roads.  Accidents can and do happen when drivers are distracted even momentarily. This can apply to experienced drivers. They can misjudge distances, misjudge speeds, misjudge the vehicles’ capabilities, the road ahead or lose control even inexplicably. It is the responsibility of every driver to ensure these errors don’t happen.  This corner was covered in about one second in time; no time at all.  That is why it is important to consider his extraordinary driving manner as he approached the sharp corner.  It is very relevant and I am sure the reason why he lost control or became distracted.

153.  I have to find he drove dangerously according to the definition of the offence.  To support this charge, the prosecution must identify what driving acts of the defendant constitute dangerous driving.  They must also adduce sufficient evidence to establish that those driving acts fall far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that the defendant’s driving in that way would be dangerous.

154.  The defendant’s first reaction to PW2 at the scene and the police later that morning was that his brakes failed.  I have taken that into account but that reaction is not supported by the evidence I found credible. In fact the evidence from the defendant that there was a total failure of the braking system to explain how he lost control I find is not supported by the evidence I found credible.  I find the car was in good working condition when the defendant left home that morning.  He braked and stopped on several occasions on his way to work without problem.  I do not believe the problem manifested when he opened the throttle before the corner. I reject his evidence.

155.  His evidence he intended to slow down to take the corner at about 25 km/hr flies in the face of my findings.  If he had intended to and braked enough the vehicle would have slowed to that speed.  The fact it didn’t I find discredits his evidence.  Tellingly, he himself thought the vehicle was capable and should have rounded the corner even at that speed.

156.  I turn to the defendant’s driving manner and use of the road; As I have said, I am sure he changed the manettino to race mode which he rarely did because he was going to speed on that stretch of road and it would affect and enhance the sound made.  On the defendant’s own admission and the irrefutable CCTV footage the defendant drove intentionally at excessive speed down the tunnel like road for a thrill.  I find he did slow down according to the calculations done by PW19 as he approached the corner but not enough.  I find he did not steer properly around the corner or reduce his speed enough. It was slower but still too fast and he lost control driving across the corner.  All those actions must collectively and irresistibly constitute dangerous driving according to the objective careful and prudent driver.  There can be no other finding.

157.  I am not finding his speeding per se is dangerous driving but it is part and parcel of his driving manner into the corner which must fall far below what would be expected.  I quote Hallett LJ again in DPP v Milton 2006 RTR 21, “It has to be a question of speed in the context of all circumstances.”

158.  Despite his clear record and unblemished traffic record I am sure the defendant did drive dangerously that morning.  I find there was no mechanical fault of TA 4600 that led to this accident.  The defendant did not experience brake problems and approach the corner in a panic situation.  It was an accident caused by the defendant’s speed into the corner and not braking sufficiently.  He lost control as he tried to take the corner and hit the curb hard.  I find PW1’s description of the defendant misjudging the corner credible. This collision caused his vehicle to drive into the Waterfront car park and most unfortunately knock down the deceased.  Accordingly, the prosecution has proved beyond reasonable doubt the defendant drove dangerously and caused a death.  He is convicted as charged.