HKSAR v. SO WAI KEUNG

CACC 295/2018

[2020] HKCA 346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 295 OF 2018

(ON APPEAL FROM DCCC NO 14 OF 2018)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 27 August 2018, the applicant was convicted after trial by Judge Woodcock in District Court (“the Judge”) of a single charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.  On 5 September 2018, the Judge sentenced the applicant to 4 years’ imprisonment and disqualified him from driving for 5 years. 

2.  On 28 September 2018, the applicant filed a Notice of Application for Leave to Appeal against conviction, and on 29 April 2019, perfected grounds of appeal against conviction were filed by Mr David Boyton, acting on his behalf.  On 16 August 2019, the applicant was refused leave to appeal against conviction by a Single Judge with reasons handed down on 26 August 2019. 

3.  On 23 August 2019, the applicant filed a Notice of Renewal of Application after Refusal by the Single Judge in respect of his application for leave to appeal against conviction.

4.  On 26 August 2019, the applicant filed a Notice of Application for Leave to Appeal against sentence out of time, which was dated 23 August 2019.  In an accompanying affirmation, the applicant requested an extension of time to file the application.  His explanation for not having done so within the prescribed time period was because he was unfamiliar with legal procedures.  He stated he objected to his sentence on the ground it was excessive. 

5.  On 14 October 2019, Messrs Francis Kong & Co, solicitors, confirmed that they were still acting for the applicant but only in relation to his appeal against conviction, not his appeal against sentence out of time. 

6.  On 16 October 2019, Mr Boyton, for the applicant, filed the Applicant’s Written Submission in relation to the appeal against conviction.

7.  By letter dated 11 May 2020, Messrs Francis Kong & Co informed the Court that the applicant no longer intended to engage their services and submitted on behalf of the applicant a Notice to Act in Person dated 8 May 2020. 

8.  At the renewal hearing, the applicant appeared in person.  At the conclusion of the hearing, we refused the applicant’s renewed leave application to appeal against conviction and leave application to appeal against sentence out of time.  We said that we would later hand down our reasons for refusing the applications and this we now do.

Application for an adjournment

9.  At the outset of the hearing, the applicant applied to have the proceedings adjourned.  To this end, he had previously filed a letter with the Court on 8 May 2020, dated 1 May 2020, stating that for personal reasons he was unable to make his applications through his legal representatives on the scheduled hearing date.  He explained because of the current public health crisis, the funds he had earmarked to pay his legal representatives were needed for his family because of their financial situation.  He explained if his case was adjourned for about 9 months it would give him time to raise the necessary funds after his discharge from prison on 14 August 2020, the date by which he would have completed his current sentence. 

10.  Mr Ivan Cheung, for the respondent, opposed the application on the basis that the offence took place almost 3 years ago, on 17 June 2017, and to adjourn the proceedings would delay the case even more, bearing in mind that it was essentially a factual appeal. 

11.  When it was pointed out to the applicant that Mr David Boyton, who had previously represented him, submitted extensive written arguments at the leave hearing and for the renewal hearing, he said he had not been consulted about those arguments and did not want to adopt Mr Boyton’s submissions.  He said he wanted to engage a new lawyer to determine if any new grounds of appeal could be pursued.  He claimed he had not fully followed what had taken place at the leave hearing, nor had he fully understood the judgment given by the Single Judge.  However, it was pointed out to him that the proceedings of the leave hearing and the leave judgment had been translated to him.  When the applicant was asked what were the grounds that he wished to pursue, he said he did not know and wanted to consult a lawyer for this purpose. 

12.  The application for adjournment was accordingly refused. 

The brief facts

13.  At around 21:00 hours on 17 June 2017, PW1 was driving his father’s light goods vehicle (LGV) from Sheung Shui along Tolo Highway towards Kowloon.  He was accompanied by three friends, who were passengers.  PW1 had only been driving for one month, having obtained a probationary driving licence in May 2017.  At the time of the accident, the amber rain storm warning was in force.  It was raining heavily, and the road surface was wet but in good repair.  The street lamps on this section of the highway were illuminated and visibility was described as fair.  The speed limit along the highway where the accident occurred was 100 km/h. It consisted of four lanes, and at the material time, PW1 was travelling in the third lane. 

14.  It was not in dispute that the applicant was driving a purple coloured Maserati in the same direction at the relevant time. The prosecution case was that the applicant was driving a Maserati and travelling behind PW1’s vehicle.  It appears that the fourth lane was not in use at this section of the highway because of road repairs.  The applicant flashed the Maserati’s high beam headlights to get PW1 to move from the third lane into another lane so that he could overtake him.  At the time, PW1 was travelling at about 70 km/h.  PW1 slowed down his vehicle to 40 or 50 km/h and was about to move into the left lane but came to a set of double lines, which prevented him from making this manoeuvre.  According to PW1, the applicant moved into the left lanes, the second and then the first, and passed his vehicle only to be blocked further ahead by a lorry.  PW1 passed the applicant and continued travelling in the third lane, increasing his speed to 70 km/h. Shortly thereafter, the applicant, travelling at around 90 km/h, passed PW1 on his right hand side in the fourth lane, and then suddenly pulled into PW1’s lane, braking abruptly.  This caused PW1 to brake and swerve, losing control of his vehicle.  The LGV crashed into a barrier, crossing into a joining road and overturning.  One of the passengers was pinned under the vehicle and died.

15.  It is apparent from this outline of the brief facts there were two alleged incidents between the vehicles in question.  The first incident was when the applicant tried to overtake the LGV but was unable to do so, getting stuck behind a lorry.  The second incident was when the applicant cut into PW1’s lane and applied his brakes abruptly, causing PW1 to brake and swerve his vehicle.

The original grounds of appeal

16.  In the applicant’s original perfected grounds of appeal, he complained that the Judge failed to evaluate the evidence properly. This ground was constituted by a series of complaints about the nature of the evidence and the Judge’s consideration or evaluation of it. 

17.  First, it was complained that there was a material inconsistency between PW1 and PW2 as to the circumstances of the incident between the LGV and the Maserati.  PW1 stated the Maserati cut into his lane and applied his brakes, whereas PW2 stated that “nothing happened after the Maserati passed them.”  Having carefully analysed the evidence, the Judge resolved this apparent discrepancy by concluding that PW2 was referring to the first incident between the two vehicles, when the applicant was flashing the Maserati’s high beam headlights so he could overtake the LGV.  We had no hesitation in finding that the Judge was right to come to this conclusion having carefully considered the evidence ourselves.

18.  Secondly, it was complained that the Judge failed to follow the evidence of PW1 in relation to the period of flashing of the Maserati’s high beam headlights and as a consequence wrongly disallowed cross-examination of PW1 on this issue.  This was a matter of minor significance and the applicant was not prejudiced in any way in the conduct of the defence case.  When he was asked in cross-examination how many times the applicant flashed his high beam headlights, PW1 said he could not remember and when pressed whether it was more than once, he agreed but added it happened continuously.[1] After clarification by the Judge, the matter was not further pursued by defence counsel.[2]

19.  Thirdly, it was complained that PW1 exaggerated the distance between the two vehicles when the Maserati cut into his lane.  PW1 initially testified that the distance between them was one foot, but later in his evidence clarified that the applicant applied the brakes of the Maserati “at a very close distance”.  In our view, this was not a significant matter and did not render the evidence of PW1 unreliable. 

20.  We bore in mind PW1 was after all a relatively inexperienced driver having only recently obtained his probationary driving licence and the prevailing circumstances of the accident, including the fact that it happened very quickly and under adverse weather conditions.  All these factors may explain the PW1’s initial estimate of the distance, which in any event was suitably clarified when pressed further on the matter.  This was exactly how the Judge evaluated PW1’s evidence on this issue:

“PW1 described a one foot gap - that was how close he felt the Maserati was when it cut into his lane. In that split second and under such torrential rain, to an inexperienced driver it may well have seemed that close or indeed have been that close. He saw the Maserati’s brake lights go on and was afraid to hit it so he braked as well. With wet roads and suddenly braking probably too hard, it is unsurprising he lost control of his vehicle.”[3]

21.  Fourthly, it was complained that the Judge erred in making speculative findings of fact in respect of the applicant’s sudden and hard braking when he was in close proximity to PW1’s vehicle.  The Judge explained that the applicant’s apparent “road rage” was a “tit for tat” situation.  She said she suspected the applicant became infuriated with PW1 for slowing down and not letting him pass, and became further annoyed because he had been blocked by a lorry.  The Judge then went on to conclude that the applicant deliberately drove past PW1 with the intention of cutting in front of him and applying his brakes suddenly.  The Judge’s characterisation of the applicant’s conduct as “road rage” was clearly supported by the evidence and in our view it was open to her to make such a finding.

22.  Fifthly, it was complained that the Judge had made an erroneous statement of the prosecution case in her reasons for verdict, showing that she was confused about the issue of the change of lanes at the trial.  The Judge had at an early stage in her reasons for verdict, when providing a factual background to the prosecution case, wrongly referred to the parties but it was clearly a typographical error because the contents of the paragraph made it clear to whom she was referring.[4]  There was no substance in this point.

23.  We should add that all these points were comprehensively and conclusively dealt with by the Single Judge who found no merit in any of the complaints under this ground of appeal.  We had no hesitation in coming to the same conclusion.

The renewed grounds of appeal

24.  In the applicant’s written submission for the renewal application, dated 16 October 2019, and signed by Mr Boyton, who represented the applicant at trial and at the leave hearing, Mr Boyton claimed that he failed to articulate at the leave hearing the Judge’s failure to evaluate the evidence properly and resolve material inconsistencies between the prosecution witnesses.  It was submitted that the renewal was being made on this basis only.

25.  It was argued that since the prosecution witnesses were found to be credible and not completely unreliable, their conflicting evidence therefore raised a reasonable doubt.  It was contended that the Single Judge only focused on the inconsistency between the evidence of PW1 and PW2, and as to whether this would cast doubt on the credibility and reliability of PW1.  It was submitted that no issue was being taken in relation to the Judge’s findings regarding credibility and reliability, but rather that PW2 in his evidence was referring to the second incident and not the first, which was in serious conflict with PW1’s evidence.

26.  We found no substance in this point.  Both the Judge and the Single Judge addressed the alleged material inconsistencies between the prosecution witnesses.

27.  The Judge found that the sighting of the Maserati by PW2 and PW3 was in relation to the first incident which supported PW1’s first sighting of the Maserati.  She noted PW2 and PW3 did not see the Maserati again, as they were both focused on their mobile telephones.  She found that after the Maserati drove past on the first occasion, PW2 and PW3 had lost interest and no longer paid any attention to the road.[5]  This was a finding open to the Judge to make.

28.  Despite Mr Boyton’s claim that he had not properly articulated the complaint at the leave hearing as being an apparent inconsistency in the prosecution evidence, it was directly dealt with by the Single Judge in his leave judgment.  Having explained that this was not a reasonably arguable ground of appeal, the Single Judge went on to state:

“… The judge was acutely aware of the discrepancy and dealt with it in her Reasons for Verdict. I can detect nothing irrational or unreasonable in her analysis of this discrepancy or her resolution of it. The judge was entitled to choose which pieces of evidence of each witness she would believe and analyse and resolve the discrepancy between PW1 and PW2 in the way that she did.”[6]

29.  Mr Boyton also listed a number of matters which in essence were a repeat of the complaints made about the evidence at the leave hearing.

30.  First, it was complained that there was a discrepancy as to the second incident between PW1 and the two passengers, PW2 and PW3.  This has already been addressed.  There were two incidents between the LGV and the Maserati.  The Judge found, correctly in our view, that PW2 and PW3 were referring to the first incident and not the second.

31.  Secondly, it was complained that PW2 testified that the applicant cut in front of them whilst they were in the second lane from the left and that this was a reference to the second incident.  Whilst PW2 used the term “cut in”, it seems it was expressed generally when he testified.  In any event, a holistic appreciation of his evidence reveals that he was referring to the first incident.  The Judge comprehensively addressed this matter and rightly rejected the defence contention.

32.  Thirdly, it was complained that the Judge failed to deal with the speeds of the respective vehicles at the time of the two incidents, and it was contended that had the Judge done so, she would have concluded that PW2’s evidence was in relation to the second incident.  This complaint is based on PW1’s evidence as to the speeds that he was travelling at the time of the first and second incidents and relies on PW2’s testimony that he and PW1 had a common interest in vehicles.  We failed to see any forensic significance in this point.  It was also observed that PW2 made no mention of any flashing of lights, suggesting he must have been referring to the second incident.  That was not surprising given that his evidence was that he was a passenger looking at his mobile telephone at the material time and only glanced at the Maserati because of the sound of the car exhaust.

33.  Fourthly, it was complained that PW2’s evidence was consistent with someone losing control of their vehicle at high speed, because immediately before the accident he felt the vehicle was “swaying”.  He also said that the vehicle was “skidding” but explained that he did not know what caused the vehicle to skid because he was looking at his mobile telephone at the time.  He merely said that when he looked up, “the vehicle was already crashing towards the road rail and it crashed twice.”[7] 

34.  After a detailed examination of the evidence of the prosecution witnesses, the Judge explained that PW2 and PW3 were not as attentive as PW1 to the road conditions, and from that analysis she was satisfied that she could rely on the evidence of PW1.[8]

The hearing of the applications

35.  At the hearing, we proceeded to consider the applications and invited the applicant to make any further submissions in support of them.

The renewed leave application against conviction

36.  We discussed the main points of the applicant’s complaint against his conviction by examining the criticisms that he has levelled against PW1’s evidence.  As is already apparent, the main thrust of his complaint was that PW1’s evidence was contradicted by the evidence of PW2 and PW3.  

37.  In the discourse that followed, the applicant incorporated two additional criticisms of PW1’s evidence.  First, the applicant claimed that PW1 stated in his witness statement that he said to the passengers at the time that “he could not believe what the other vehicle had done”, and yet the two passengers testified there was no such conversation.  Secondly, the applicant noted that whilst the two passengers testified that they were playing with their mobile telephones and it was the sound of a loud exhaust that made them notice the Maserati, they did not testify they heard the same sound at the time when PW1 said the Maserati cut into his lane and braked suddenly. 

38.  Assuming the applicant’s account as to what was contained in PW1’s witness statement was correct, the comment PW1 allegedly made to the other passengers was not mentioned by him in his oral testimony, nor was it mentioned by PW2 or PW3.  It was simply not a matter that was ventilated at trial, and indeed, PW2 and PW3 did not deny PW1’s alleged comment because they did not give evidence as to what PW1 said at the time, nor were they questioned about it.

39.  Both PW2 and PW3 gave evidence of hearing the sound of a car’s exhaust and noticed it was a Maserati.  The applicant questioned why PW2 and PW3 did not testify to hearing the car’s exhaust at the time of the second incident.  PW2 said he was looking at his mobile telephone and suddenly felt the vehicle swaying or skidding, he looked up and the vehicle was already crashing into the road rail.  He also said it was raining at the time.  He was obviously not paying much attention to the road and was clearly focused on his mobile telephone.[9] PW3 said he heard the sound of a vehicle’s exhaust and noticed the Maserati.  He then resumed playing with his mobile telephone.  It was shortly afterwards that the vehicle crashed.  He did not know what caused the vehicle to crash.  Nothing further was said about the surrounding circumstances of the accident, nor was he questioned about them.[10]

40.  The two matters raised by the applicant were not in issue at trial and there was no substance to his criticisms about PW1’s evidence.

41.  The applicant also complained that he discussed with his lawyers at trial that there were two camcorders installed in the LGV but the matter was not pursued by them.  The existence of the two camcorders was acknowledged by prosecuting counsel at trial, who also explained that they were found not to be operating properly at the material time.[11]  It was also an admitted fact that the LGV had been impounded by police, where it was examined by a motor vehicle examiner.[12]  This complaint had no merit.

42.  We could not find anything in the Judge’s reasoning process to warrant any concern about the applicant’s conviction.

The leave application against sentence out of time

43.  In respect of the applicant’s leave application to appeal his sentence out of time, he had nothing to say except that he filed the application late because he did not know the legal procedures, and that the sentence was excessive.

44.  After reviewing the sentencing principles in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, which adopted the general principles found in R v Cooksley and Ors [2003] 3 All ER 40, and Secretary for Justice v Liu Kwok Chun, CAAR 3/2009, the Judge found that the applicant’s offending fell into the third category of culpability, namely higher culpability where the standard of the offender’s driving is more highly dangerous, for which the sentence would range between 4 and 5 years’ imprisonment.  She said:

“15. In assessing the degree of culpability, this accident did not occur as a result of a momentary error of judgment by the defendant but because of a deliberate, intentional antagonistic move by him on PW1; a payback for what I am sure he perceived as PW1’s previous disrespect. As I have said, it was all about his ego and it was tit-for-tat. I find that in this case there is an aggravating factor of aggressive driving by the defendant when he chased after PW1 and cut into his lane after overtaking him and then braked suddenly when very close to him causing PW1 to brake suddenly and hard. This caused him to lose control of his vehicle completely.”[13]

45.  As there were no mitigating factors, the Judge imposed a sentence of 4 years’ imprisonment.  She also disqualified the applicant from driving for a period of 5 years, and ordered that he must complete a driving improvement course within the last three months of the disqualification period.

46.  In exercising this Court’s discretion to grant leave to appeal out of time, it is necessary to look at the length of the delay, the reasons advanced for the delay and generally the bona fides of the applicant.  To this end, the onus is on the applicant to place before the Court a satisfactory explanation so as to justify the exercise this discretion in his favour.  See R v Wong Kai Kong & Anor [1990] 1 HKC 279.  It has taken the applicant nearly 11 months to file his leave application to appeal against sentence, and his only explanation is that he was not familiar with legal procedures.  He clearly was aware of the legal procedures because he filed a notice of application for leave to appeal against conviction (Form XI) dated 27 September 2018, which also provided for leave to appeal against sentence but it was crossed out by him.  He is also a person with numerous previous criminal convictions spanning 1989 to 2014, and accordingly would be well versed in the legal procedures of the criminal justice system.  We were neither impressed nor convinced by his explanation for the delay in filing his leave application to appeal against sentence.  Leave for an extension of time to file the application was therefore refused.

47.  We had nevertheless examined the merits of the proposed ground of appeal so as to satisfy ourselves that by refusing the application for an extension of time we were not shutting out a substantial and plainly arguable ground of appeal. 

48.  The applicant complained that the sentence was excessive.  The Judge carefully considered the sentencing guidelines for dangerous driving causing death, noting that the applicant’s dangerous and aggressive driving, by cutting in front of PW1’s vehicle and braking suddenly, came within the higher culpability category.  We agreed and were of the view that the applicant could have no cause for complaint in respect of the sentence that was imposed on him for this offence.

Conclusion

49.  We found no merit in either of his applications. We refused to grant him leave in his renewal application for leave to appeal against conviction and dismissed his appeal.  We also refused to grant him an extension of time to apply for leave to appeal against his sentence.  We therefore refused him leave and dismissed his appeal against sentence.