THE QUEEN v. CHUNG MAN LUNG

1987, No. 913

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HEADNOTE

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Reckless driving – overloading – test in Lawrence.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 913 OF 1987

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J U D G M E N T

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1. The appellant was convicted of reckless driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374.

2. The appellant was driving a goods vehicle westbound in Queen's Road West, at 10-15 mph, when he was intercepted by a traffic police constable, who noticed the vehicle wobbling and suspected it was overweight.

3. The police constable escorted the appellant while he drove the vehicle slowly back to Central, to a weighbridge situated at the China Ferry Pier. Here the vehicle was weighed - with difficulty, since it took five attempts before the appellant succeeded in mounting the weighbridge - and its gross weight was found to be 12.9 metric tonnes. The permitted gross weight of the vehicle and goods was 5.5 tonnes.

4. The-vehicle was then driven, under escort, by a police driver to a vehicle compound in Java Road, North Point. Here it was subsequently examined by a Motor Vehicle Examiner, whose evidence was as follows :

“I carried out examination on CX 8072. Conducted road test on vehicle testing performance and effect of overloading on vehicle.

Found foot brake not effective. Brake efficiency recorded on test 23%. Legal minimum requirement is 50%.

Parking brake record figure of 9%. Legal minimum requirement for this type of vehicle 16%.

Found rear axel shock absorbers insecure. The lower mounting of shock absorber came loose inside bracket.

After the load removed, I retested foot brake and parking brake. Foot brake up to 76%, able to lock the wheels.

Parking brake up to 29%, again in the wheels were locking.

I concluded reduction in braking efficiency entirely due to excessive loads placed on it. When I tested it, I did it as the vehicle was impounded. Not replace load. I tested it first with the original bags of rice there.

I drove the vehicle myself in testing

I drove the vehicle with original load inside the confines of the compound. Found steering very heavy foot/parking brake performance very poor, overall performance in acceleration, deceleration and stability poor.

Reason poor performance overloading. Heavy steering excessive weight on front axel increasing distance of time from road surface so additional load placed on steering transmitted throughout steering mechanism.

Unladen condition, when driven, I considered it normal.

Substab1lity of vehicle caused by excessive load on the vehicle pushing the suspension down to its maximum point of travel, rendering suspension virtually useless. In this condition the vehicle would certainly overturn on to its side considerably sooner than if it was loaded normally.

Under normal conditions when a vehicle is cornering the suspension on opposite side of vehicle to which vehicle is cornering, the suspension able to absorb the extra load placed on it, caused by centrifugal force.

I tried to brake sharply in laden condition and unladen. In its laden condition when I tried to brake sharply it started to decelerate. I conducted an emergency type braking test on laden condition brake efficiency recorded 23% wheels did not lock and no shid marks were produced.

After applying brakes as stated vehicle eventually stopped, I can't recall how long. It travelled much further than a vehicle with acceptable would have.

The vehicle could not be able to be stopped suddenly, it could if 1 or 2 km.p.h. When it travel at 5 or 10 m.p.h. I don't know.

There is a heat buildup in vehicle in drum of brake if vehicle is overloaded and travelling. In this condition of overloading the heat buildup reduces foot brake to virtually nothing."

5. The appellant did not give evidence.

6. The main ground of appeal is that the magistrate was wrong in law in finding that the appellant created an obvious and serious risk of causing physical injury to some other person who might happen to be using the road. A secondary ground was that the appellant did not have the necessary mens rea, that is to say that he drove in that manner without having given any thought to the possibility of there being any such risk or; having recognised that there was such risk involved, had none the less gone on to take it.

7. This is the test in R. v. Lawrence[1], at page 982, per Lord Diplock.

8. Mr. Chung, for the appellant, makes two points. In the first place, he submits, the fact that the vehicle was driven, with its load, from Western to Central and later to North Point, gives rise to the inference that the risk was not obvious, at least to the police officers, who are trained in such matters.

9. The answer to that is that there is a world of difference between driving carefully under police escort and driving under normal circumstances. The risk is thereby greatly reduced, although I agree it is not eliminated entirely. Moreover, even if the police did recognise the risk as obvious, they had no alternative but to take it. It was not practicable to leave the vehicle parked in Queen's Road West or to remove the load.

10. Mr. Chung also submitted that the evidence did not show that the risk was obvious to the appellant. The evidence showed that his vehicle was grossly overweight and was wobbling as it was driven in a busy street near a crowded market. The Motor Vehicle Examiner's evidence provided ample evidence from which the magistrate was entitled to conclude, in the absence of evidence from the appellant himself, not only that there was an obvious and serious risk of causing injury, but that the appellant – being aware of the state of the brakes and the suspension -either was aware of the risk and decided to take it, or gave no thought at all to the possibility of risk.

11. In either event the appellant was guilty of reckless driving. This appeal is dismissed.