HKSAR v. EBERT ROBERT JAMES

CACC 353/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 353OF 2016

(ON APPEAL FROM DCCC NO. 990 OF 2015)

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J U D G M E N T

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1.  The applicant seeks leave to appeal his conviction on 24 October 2016 after trial by District Court Judge Woodcock of a charge of dangerous driving causing death on 9 June 2015, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374.

2.  With the consent of the parties, albeit that the respondent opposes the ground of leave to appeal, the Court is invited to deal with the application on the papers.

3.  At about 7:48 a.m. on 9 June 2015 the applicant was the driver of a motor car, a black Ferrari 458 Spider, which was driven down a straight 200 metre unnamed road, which led to the car park of the Waterfront, Kowloon Station, 1 Austin Road.  That area was in the immediate vicinity of his place of work, to which he had driven from the Peak on Hong Kong island.  The road was subject to a 30 km/h speed limit.  The vehicle was driven into a right angle bend, where its front nearside wheel collided with the curb at the far side of the bend after which it was driven across the entrance to the waterfront car park where it hit a security guard causing him injuries from which he died that day.

4.  In her reasons for verdict, the judge described the prosecution case:[1]

“ 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.

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.”

5.  Of the defence case, the judge said:[2]

“ 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.

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.

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.”

6.  Of the issue in the case, the judge said:[3]

“ 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.”

7.  At the outset of that part of her reasons for verdict in which the judge stipulated her findings, the judge adverted to the ambit of the evidence adduced at trial, in large part expert evidence:[4]

“ 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 had been made about, for and against the prosecution and the defendant.”

8.  In her findings, the judge rejected the evidence of some of the expert witnesses called on behalf of the applicant.  Of Dr Lim, an expert in accident investigation and reconstruction, she said “I do not find his evidence reliable and his opinions well supported.”[5]  Of Mr Burns, a Ferrari diagnostic specialist and expert, she said “I place no weight on the evidence of Mr Burns”.[6]  In the result, she rejected their evidence that “…the braking system was faulty.” [7]

9.  On the other hand, she accepted the evidence of Mr Miller, a forensic CCTV imagery analysis called on behalf of the defence, that lights depicted in CCTV footage were “distinctive and bright enough to be the brake lights” of the Ferrari.[8]

10.  The judge said that she found the evidence of Mr Ng Nap Keung, a motor vehicle examiner, “credible” and that of Mr Casolari, a technical engineer of Ferrari Spa. “credible and reliable” and his reasoning and explanations “clear and convincing.”  In the result, she said of their evidence “I accept their opinions there was no evidence there was a fault on the brakes just before the accident.” [9]

11.  Having determined that there was “no evidence of mechanical failure as proved by the prosecution witnesses beyond reasonable doubt” the judge went on to consider and reject the applicant’s testimony.[10]  Earlier, the judge had noted of the applicant:[11]

“ 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.”

12.  In approaching the applicant’s evidence, the judge said:[12]

“ 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.”

13.  Then, the judge said:[13]

“ 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.”

14.  The judge went on to find:[14]

“ 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.

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.”

15.  Of the applicant’s approach to and steering into the right‑angled corner, the judge said:[15]

“ 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.”

16.  In finding the charge proved, the judge said:[16]

“ 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.”

17.  Earlier, the judge had accepted the evidence of the only eyewitness to the accident, Lee Hon Keung, whom she described as PW1.  He was the driver of a Maserati motorcar that was in the process of exiting the car park exit/entrance into which the applicant’s Ferrari crashed and came to rest.  As he was in the process of exiting the car park he heard the “very, very loud” sound of what turned out to be the exhaust noise of the applicant’s car.  Of his evidence, the judge said:[17]

“ 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.”

18.  In her findings, the judge addressed the submission made by the defence that PW1’s evidence was not credible.  In doing so, she said:[18]

“ 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.”

Grounds of Appeal

19.  By ground 1 Mr Westbrook SC submitted that the judge’s misunderstanding of or failure to give adequate consideration to evidence adduced at the trial had fundamentally affected her assessment of the applicant’s testimony, in particular his credibility.  Reference was made to no less than nine separate heads of evidence.  In her assessment of the evidence, the judge failed to have regard to the inherent improbabilities.  Having found that the Ferrari had decelerated by 20 kilometres per hour before impact, with the curb, and having regard to the fact that no skid marks or ABS marks were found prior to the point of impact, “this necessarily meant that the applicant had braked well ahead of the bend, but then deliberately decreased pressure on the brake pedal” as the car was heading for a crash.  The deceleration of the Ferrari was consistent with the application of brakes by the applicant, “followed by a failure in the Ferrari’s brake booster system”.

20.  Then, it was contended that the judge erred in finding that the brake tests conducted by Mr Matthew Burns were not reliable.  He testified that there was an issue with the Ferrari’s brake booster system.  It was submitted that the judge failed to give sufficient weight to the fact that only static tests were performed on the Ferrari, because of damage it had sustained.  Whilst they could indicate that the brakes were functioning to some extent, brake efficiency could not be measured.  Also, it was submitted that the judge was wrong to say that the defence did not rely on the homologation requirement and in making her finding that the applicant’s testimony had been tailored “to explain why the undeniable homologation safety requirement would not have factored here even when the brake booster failed.”

21.  Next, it was contended that the judge had misunderstood the evidence of the path taken by the Ferrari as it tried to negotiate the corner before the accident, in consequence of which the judge had drawn inferences adverse to the applicant as to how he had steered the motorcar which were “entirely unwarranted”.  Finally, it was submitted that in cross-examination the applicant had been unfairly pressed into giving open in evidence as to his expectations of the capabilities of the Ferrari as it approached and went into the right angle bend to negotiate that bend.

22.  By ground 2, it was submitted that the judge had “fundamentally misunderstood the nature what she referred to as the “homologation requirement”… relating to the expected stopping distance of the Ferrari relative to brake pedal pressure in the event of a brake booster failure.”  The judge found wrongly that it was the defence case that the “homologation safeguard” was not applicable.  On the contrary, it was the defence case that the reduction of speed in the Ferrari of some 20 kilometres per hour in the immediate approach to the 90 degree bend was consistent with the operation of the “homologation safeguard” as demonstrated by the test conducted by Ferrari, establishing stopping distance relative to brake pedal pressure in case of brake booster failure.

23.  By ground 3, it was submitted that in rejecting the evidence of Mr Matthew Burns as not reliable, the judge had failed to consider his evidence that there was a drop in brake pressure readings when the engine was turned off compared with when the engine was running.  That confirmed the probability that there was an issue with the Ferrari’s brake booster system and that it was unable to retain vacuum in the normal way.

24.  By ground 4, it was submitted that the judge had erred in relying on the evidence of PW1 and in using reliance on his evidence to draw inferences adverse to the applicant.  It was contended that the CCTV footage “proved beyond any doubt that PW1 is a thoroughly unreliable witness”.

The respondent’s submissions

25.  In detailed written submissions, Mr David Chan addressed the applicant’s ground of appeal and submitted that “the applicant’s application for leave to appeal against conviction has no merits and should be dismissed.”

A consideration of the submissions

Ground 4

26.  As noted earlier, having said that she had watched the CCTV footage “numerous times” and examined the still photographs taken from that footage the judge said that photographs taken from Camera 4 “show the vehicle on a path driving across the corner instead of one steering around the corner” and that a photograph taken from Camera 3 showed the headlights of the applicant’s vehicle, at the point of impact with the curb, “pointing into the car park entrance”.  Of those observations, the judge said “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 P 17, the sketch, the path of the vehicle becomes clear.”  Of those findings, the judge said:[19]

“ That path supports PW1’s evidence and although it happened very quickly I believe what he saw and describes is accurate.”

27.  Earlier, the judge had said of PW1’s evidence that the Ferrari “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.” [20]

28.  Subsequently, the judge concluded that the accident was caused by the applicant’s “speed into the corner and not braking sufficiently”, so that “he lost control as he tried to take the corner and hit the curb hard.”  Of those conclusions, the judge said “I find PW1’s description of the defendant misjudging the corner credible.” [21]

29.  Having viewed the CCTV footage and the still photographs to which the judge adverted of the path of the Ferrari in its approach to the right angle bend it is not readily apparent that it describes the path of the Ferrari, at least in the detail to which PW1 condescended, in particular that it was “steered left to avoid hitting the corner” [22] and “then had to swerve right to try and avoid the curb.” [23]  On the other hand, the CCTV footage is consistent with the judge’s subsequent acceptance of the effect of PW1’s evidence that the applicant had misjudged the corner in that the CCTV footage shows the Ferrari hardly turning at all in the right angle bend.

30.  In those circumstances, it seems to me that it is reasonably arguable that the judge had placed too great a reliance on the evidence of PW1 on the basis that it was supported by the CCTV footage.

Ground 2

31.  In her summary of the defence case, under the rubric ‘Findings’ in her reasons for verdict, the judge said:[24]

“ 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 of 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 brake 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.” [Italics added.]

32.  There was no dispute that the applicant’s Ferrari was equipped with a CCM brake discs system, with an ABS anti-lock brake together with a brake booster vacuum system.[25]

33.  Earlier in her reasons for verdict, the judge had cited Mr Casolari’s expert report in respect of what she said was a “safeguard in the brake system that is operative even if the brake booster vacuum fails.” [26]  Mr Casolari said:[27]

“The vehicle braking system is operative even in case of failure of the brake booster vacuum. This is a legal safety requirement based on homologation regulation ECE R 13 H also valid in Hong Kong; according to the said homologation regulation a minimum stopping distance must be granted.

During the homologation type - approval process the brake system of the 458 Ferrari model has been tested to evaluate the behaviour of the vehicle in case of failure. The said homologation test is aimed at measuring the stopping distance.

  In particular, in case of failure of the brake booster vacuum, the homologation requirement prescribes that the vehicle must come to a full stop within 168m - from a speed of 100 km/h by applying a force on the brake pedal of 500 N.”

34.  Mr Casolari went on to note that actual test results showed a “stopping distance for the vehicle of 128, 86m with 460N of brake force” with a full vehicle load.

35.  It was the nub of the defence case that, unknown to the applicant at the time, the brake booster vacuum system on his Ferrari had failed, or intermittently failed, as he braked in order to approach and take the right angle bend.  That case was articulated in the written closing submissions of the defence:[28]

“ In the event of a BB failure, the driver would not receive any warning from the dashboard as to what was wrong; he would feel a hardening of the brakes but there is nothing to inform the driver that he would need to lift his foot off the brake pedal (counter‑intuitively, it is submitted) and then “kick” or “slam” the pedal at an incredibly high degree of force (i.e. 100 kg or above) in order to get a meaningful deceleration (i.e. -0.68 g or above). In these circumstances, the driver would not be reacting to a surprise hazard on the road that would lead him to suddenly “kick” or “slam” on the brakes - the driver’s foot would already be on the brake pedal for him to feel the “hardening” of the brake pedal and he would then be reacting to apparently compromised brakes. The car would slow down as the driver press (sic) hard on the brakes, but nowhere near the driver’s expectation of the rate at which the car should have slowed down. It is submitted that it would be intuitive for a driver to progressively press harder on the brakes in attempting to slow the car down in these circumstances. However, the progressive application of harder pressure on the brake pedal, as the Defendant did in the present case, simply would not work as that would not supply a sufficient amount of brake pedal force to slow the Ferrari in any meaningful way.” [Italics added.]

36.  As the judge noted, it was the applicant’s evidence that:[29]

“ 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 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.”

37.  In her summary of the defence case, immediately before the judge said that it was the defence case that the “homologation safeguard did not apply or arise” the judge said of the defence case that, in reliance on the applicant’s evidence, that of the experts and the CCTV, “he braked just before the position B intending to slow for the corner.”  Then, the judge said:[30]

“ 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 in 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.” [Italics added.]

Conclusion

38.  Having regard to the clear manner in which the defence case was presented, it seems to me that it is reasonably arguable that the judge fell into error in stating that the “homologation safeguard”, as she described it, did not arise, apply or was applicable to the defence case.

Ground 3

39.  There is no dispute that Mr Burns inspected and tested the applicant’s Ferrari on 7 August 2015.  The judge noted that in a visual inspection of the brake system Mr Burns said that he noted “a crack in the nearside front brake caliper and it (sic) leaking.”  In that context, the judge went on to say:[31]

“ There are no photographs from DW 2 of what he saw or what he did. He said that he relied on the prosecution’s 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 DW 4, Dr Lim”.

In his report, Mr Burns had said “the left front brake caliper showed signs of impact damage, was cracked, and was leaking brake fluid.” [32]

40.  The judge went on to note that Mr Burns had performed two brake tests on the applicant’s Ferrari but that before doing so “he had to clamp off a brake hose because of the correct caliper and leak.  He had to do this to ensure the brake system could be pressurised without any fluid pressure loss at the damaged brake caliper.  This would distort the test results.” [33]

41.  Of the results of the two tests, the judge noted:[34]

“ The first test on the defendant’s vehicle, with the engine running showed a maximum pressure of 66 bar (see annex 2 of D 5) 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 (the) 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.”

42.  Of the conclusions that Mr Burns drew from those tests, the judge said:[35]

“ Section Q concludes from DW 2’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 on 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 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.”

43.  The judge went on to note that in cross-examination it had been suggested to, but denied by, Mr Burns that his tests were compromised, in that there was a chance that air had been introduced into the brake fluid circuit after the accident, first when Mr Ng depleted the brake fluid reservoir by accident when testing the vehicle and secondly, when the Ferrari was towed in its damaged condition at an angle to the Peak.[36]  If that had happened “…then it would cause a problem to pressure created when brake depressed”.

44.  Earlier, the judge had noted that in his report Mr Casolari “deals with DW 2, Mr Burns report and why he does not accept his findings; discrediting his testing methodology.” [37]

45.  In her findings, the judge said:[38]

“ I also placed no weight on the evidence of Mr Burns, DW 2. 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. DW 2 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 DW 2 later finds. DW 2’s testing methodology was discredited by Mr Casolari. He said Mr Burns tested the 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.

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 close 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 right reliable as does the defence itself when it concedes the tests are inconclusive.

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 tests of that unreliable.  There was 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.”

46.  Of Mr Ng’s evidence the judge said:[39]

“ I believe PW 21’s test on the brake booster or vacuum assisted unit the day after the accident demonstrated it was functioning… 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.”

47.  In his report, Mr Casolari said of the methodology of Mr Burns’ tests of the Ferrari’s brakes:[40]

“ The outcome of this test cannot be considered as significant and/or valid for the following main reasons:

a. As stated in section 12, an external device (“automotive line clamping pliers”) has been used to modify a broken car park, i.e. the brake hose;

b. as shown in the “Photo Album 7”, page 9, pictures 15 and 16, the reservoir shows the brake fluid around the lower limit. (See Annex 1).

c. The brake pressure test has been conducted without correctly preparing the brake circuit following the appropriate procedure which envisages the following: adding brake fluid and restoring the correct level in the brake reservoir. Furthermore the brake circuit has not been bled in the prescribed way which foresees to eliminate air presence in the pipes.

d. The presence of air inside the circuit is well known as causing a brake pressure reduction, as the air can be compressed into a closed circuit.”

Mr Casolari went on to say of the ABS pressure sensor, from which the readings were taken, “I cannot exclude that the air entered into the brake circuit caused a wrong reading in the pressure sensor.” [41]

48.  Of the fact that the reading that Mr Burns had obtained in the first test of the braking system, with the engine running, was 66 bar, as opposed to 110 bar obtained from the test car, Mr Casolari said in his report:[42]

“ The possible causes for a reduced pressure read in the altered brake line could be the presence of some air in the altered brake line as above explained; or the brake booster is not in the complete vacuum condition.

The brake booster provides a force increase that is proportional to the vacuum value. Higher is the vacuum, higher is the boost factor.

Such maximum vacuum value is obtained when the engine decelerates after an acceleration at high revs resulting in maximum vacuum inside the intake manifold.

From the description of the test preparation and execution, I understand that such operation has not been performed.

I understand that the pressure value has been read even if the brake booster had not been completely charged with maximum vacuum value.”

49.  Of the reading of 24 bar obtained in the second test, with the engine off, Mr Casolari said:[43]

“ Also in this case, there can be two different causes for the reduced pressure value: the presence of some air in the altered brake line or the reduced vacuum to the brake booster.

When the engine is off, the vacuum can’t be provided any more to the brake booster and any further brake application reduce the amount of vacuum up to the complete elimination.

I have no information about how many brakes application have been done after turning the engine off before the pressure value in the altered brake line has been read.

Regarding the brake pressure reduction experienced during the test, I think that Mr Burns based his consideration on the fact that he should have been able to keep a constant pressure on the brake pedal for the entire duration of the test execution. Indeed, due to the absence of a force measurement tool installed on the brake pedal, it is not possible to confirm that the same brake pressure is constantly kept on the brake pedal for the entire duration of the test execution.

Even though the test was not correctly conducted due to the above considerations, it has detected a difference of pressure value read in the altered brake line in condition of engine ON and in condition of engine OFF.

The result of the test confirms that the brake booster circuit was functioning.”

50.  In cross-examination, Mr Casolari’s attention was drawn to the two different readings of brake pressure that Mr Burns had obtained in his test of the Ferrari’s brakes, namely first when the engine was running, 66 bar, and secondly when the engine was off, 24 bar.  In that context, the following exchange ensued with Mr Derek Chan, counsel for the applicant:[44]

“ Q. Now, this drop in the pressure reading when the engine was turned on and the engine was turned off, does that cause you some concern?

A. (Interpreted evidence continues) No.

Q. Why not?

A. Because as I said earlier, I don’t know when the reading was made.

Q. Right.

A. Whether there was vacuum that was lost before.

...

Q. Because one possible reason is that the vacuum pipeline is not able to hold onto the vacuum, and I am not suggesting it’s the only reason, I am suggesting it’s one possible reason.

A. No.

Q. Why do you say that?

A. Because we are talking about a pressurised line and if there was a leakage, the brake booster would not function. We are not taking into consideration this possibility because simply by turning on the engine, the brake booster cleans itself with the vacuum, and this is confirmed from the tests that also Mr Ng has performed.

Q. All right, now...

MR DEREK CHAN: I’m sorry, your Honour.

A. Has there been a leakage in the vacuum piping, we will not see a difference between engine on and engine off vacuum.

Q. What you say is we will get no vacuum, that’s what you say.

A.     That’s correct.”

51.  As noted earlier, the judge determined that Mr Burns “testing methodology was discredited by Mr Casolari” and that, given that Mr Ng, who had examined the vehicle the day after the accident, had found no leak in the brake fluid system, the judge said that there was a possibility that the vehicle had been damaged in transportation, so that “any subsequent test will be compromised.”  Clearly, the judge was alive to the point made in ground 3 (i) in respect of the difference in the pressure measured by Mr Burns in the brake system when the engine was on as opposed to when the engine was off.  The same point had been made in the written submissions of the defence.[45]  Nevertheless, the judge determined of Mr Burns that “his results cannot be reliable.”  Then, the judge specifically rejected Mr Burns’ opinion that there had been a failure in the brake booster “I find his test of that unreliable.”

Conclusion

52.  With respect, I am not satisfied that the arguments advanced under ground 3 are reasonably arguable.  Similarly, I am not satisfied that the arguments advanced under ground 1 (v), which address the same issue, are reasonably arguable.

Ground 1

Ground 1 (vii)

53.  By ground 1 (vii), complaint is made that, in determining the credibility of the applicant, the judge failed to give sufficient weight to the fact that only static tests were performed on the Ferrari’s braking system.  The static tests were performed by Mr Ng.  The judge quoted the results of those tests at some length.[46]  In the report, Mr Ng said that the vacuum-assisted unit, otherwise described as the brake booster, was “confirmed to be a normal operation.”  He said that he measured the brake efficiency as being 71 percent.

54.  That the judge was alive to the limitations of the static test as evidenced by her reference to cross-examination of Mr Ng, of which she said of his evidence:[47]

“ PW 21 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 (sic) the test to calculate the percentage of the braking efficiency. He was asked in this case by the police officer after he had done the test to calculate it hence his supplemental statement P 29. He denied it was a scientifically unsound test.”

55.  Furthermore, the judge noted that Mr Burns had criticised the fact that Mr Ng had performed a static test only and expressed the opinion that the test “did not provide conclusive evidence the brake system as functioning prior to, during and after the accident.” [48] In his report, Mr Burns had said that the test “does not provide conclusive evidence as to the functionality of the brake system prior to, during, or after the accident.” [49]

56.  Also, the judge noted that Dr Wong “challenges and discredits that 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…” [50]

57.  In accepting the evidence of Mr Ng, the judge adverted specifically to the limitations of his static test:[51]

“ 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 brake efficiency, I believe he found the brakes were functioning or rather there was no mechanical fault.”

Conclusion

58.  I am satisfied that ground 1 (vii) is not reasonably arguable.

Ground 1 (ix)

59.  By ground 1 (ix) complaint is made that the applicant was pressed in cross-examination to express his opinion as to the capability of the Ferrari negotiating the right angle corner at the speed at which it approached that corner.  Further, that the judge erred in determining that his evidence on that subject was “telling”.

60.  As Mr David Chan pointed out in his written submissions for the respondent, the applicant addressed that issue in evidence-in-chief in response to the general invitation of his counsel to describe “what occurred as he drove down the carriageway.”[52]  Having said that although he depressed the brake pedal the car did not decelerate and that, as he came “quite close to the corner” he was “absolutely terrified”, the applicant said:[53]

“ As I turned the wheel to the right, the car did not appear to behave in the way that I would’ve expected that particular car to behave, and it began to slide to its left-hand side.”

61.  In cross-examination, the applicant was reminded of that testimony and asked “What did you expect the car to behave as you turned the wheel?”  In response, the applicant said:[54]

“ A. I guess I didn’t expect the car to go into yaw.

….

I guess I thought the car would go around the corner.  But as I said to you, I had never done it, I’d never tested it, it was just my expectation based upon its paper performance figures…”

62.  Subsequently, the applicant said:[55]

“ A. On the day, it just didn’t feel that the car should slide. It felt that it was a speed at which a car of that accomplishment should have been able to navigate the corner.”

Finally, the applicant said:[56]

“ A. It did not… perform as I expected. My perception of that vehicle at the speed I believed it was at, it felt like it could negotiate that corner. It’s just a feeling. I’ve never tried it, so you’re right, it is merely my opinion.”

63.  It is to be noted that there was no objection to the cross‑examination on behalf of the applicant by Mr Plowman SC.  Moreover, there was no re-examination.

64.  In her reasons for verdict, having determined that the Ferrari was in “good working condition”, the judge adverted to that evidence of the applicant:[57]

“ 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 corner even at that speed.” [Italics added.]

65.  The context in which the judge made that finding was her earlier determination:[58]

“ 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 this 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 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.”

66.  The applicant having raised the subject of his expectation of how the Ferrari would handle in the right angle corner, counsel for the prosecution was entitled to explore the issue in cross-examination.  He did so with a series of neutral and non-leading questions, in answer to which the applicant qualified his answers saying that they were not based on his personal practical experience.  In my judgement it is not reasonably arguable that it was impermissible to adduce that evidence.

67.  Given the undisputed evidence that the applicant had deliberately driven the Ferrari at about three times the speed limit down the 200 metres straight and the judge’s finding that he had done so in race mode in order to better experience the roar of the engine exhausts, together with her finding of the applicant that “he did slow down but not enough” and that he had simply “lost control at speed”, it is not reasonably arguable that it was impermissible for the judge to advert to the applicant’s testimony as to his expectations of the capabilities of the vehicle in rounding the right angle bend.

Conclusion

68.  I am satisfied that ground 1 (ix) is not reasonably arguable.

Overall conclusion

69.  For the reasons that I have given, I grant the application for leave to appeal against conviction, but refuse leave in respect of grounds 1 (v), (vii) and (ix) and ground 3.

70.  Pursuant to rule 42 of the Criminal Appeal Rules, Cap. 221A, the applicant may renew his application for leave to appeal in respect of the grounds on which leave has been refused, but he is reminded that if he does so, and the full Court is of the view that the renewal is without justification, it may order that some of the time that the applicant has spent in custody from the filing of his notice is not reckoned as part of the term of imprisonment to which he is subject.