HKSAR v. LEUNG CHING CHUNG

CACC 347/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 347 OF 2016

(ON APPEAL FROM DCCC NO. 466 OF 2016)

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REASONS FOR DECISION

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1.  The applicant sought bail pending the hearing of his applications for leave to appeal against his conviction after trial by Deputy District Court Judge Chainrai on 26 October 2016 of an offence of causing grievous bodily harm by dangerous driving, on 21 October 2015, contrary to section 36A of the Road Traffic Ordinance, Cap. 374 (Charge 1) and against the sentence of 2 years’ imprisonment, imposed on him in consequence of that conviction.

2.  At the outset of his trial, the applicant pleaded guilty to a charge of using a motor vehicle but failing to comply with safety glass or safety glazing regulations, contrary to regulations 28(2) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374 (Charge 2).  The applicant was sentenced to one month’s imprisonment in respect of that offence, which was ordered to be served concurrently with the sentence imposed in respect of Charge 1.  At the hearing I refused the application and now give brief reasons for that decision.

3.  In support of his application, on 13 December 2016 the applicant filed with the Court an affirmation to which was exhibited, inter alia, an undated and unsigned document in the names of Mr Selwyn Yu SC and Mr Ryan Law as counsel instructed by Messrs Ho & Associates, entitled ‘Draft Grounds of Appeal of the Defendant’.  The applicant stated in his affirmation that his application for the grant of bail was made on the basis that “...the appeal would be successful” and that there was a risk that “...the entire or a substantial part of the sentence would have been served by the time the appeal was heard.”  On 4 and 9 January 2017, written submissions in support of the application, signed by both counsel, were filed with the Court.

4.  In a letter to the Court received on 6 January 2017, Messrs Ho & Associates inform the Court that they had instructions to act only in the application for bail pending appeal, but not otherwise.  In those circumstances, they asserted that they were unable to file Perfected Grounds of Appeal.

5.  At the initiative of and at the direction of Master Tam, dated 20 December 2016, transcripts of the evidence of witnesses relevant to the grounds raised in the draft grounds of appeal together with transcript of relevant submissions were prepared and provided to the parties on 6 January 2017.

The trial

6.  It was an admitted fact at the trial of the applicant that between 19:25 and 19:30 hours on 21 October 2015 on the West Kowloon Expressway, beyond Olympian City in the direction of Tuen Mun, an Audi Quattro motorcar, with the registration number GB 27, driven by the applicant collided with the rear of a motorcycle driven by Mr Sze Kwok Wa (PW1) on which his wife Ms Chin Ka Ka (PW2) was a passenger on the pillion.  Both Mr Sze and his wife were thrown from the motorcycle, rendered unconscious, and injured.  As a result, they were each treated in hospital.  The speed limit was 100 km/h.  Mr Sze was travelling in the middle of the three lanes “at a steady speed of 83‑86 km/h.” The weather was fine and the road surface dry.

7.  Mr Sze sustained a proximal humerus fracture and a pubic rami fracture.  For her part, Ms Chin suffered a pelvic fracture.  They were released from hospital on 3 and 23 November 2015 respectively.  In November 2016, both of them were still on sick leave.  Doctors informed Ms Chin that her childbearing capability had been affected by her injuries.

Eyewitnesses

8.  Mr Wong Kwok Wah, a taxi driver and Ms Lai Ming Ka, who was a passenger in a private motorcar driven by her husband, were both travelling along West Kowloon Highway in a westerly direction at the time of the collision between the applicant’s motorcar and the motorcycle.  Mr Wong said that he was driving his taxi in the middle lane at about 100 km/h, whereas Ms Lai said that her vehicle was driven by her husband in the nearside, left lane at around 70 to 80 km/h.  Mr Wong said that the motorcycle was in the same lane some distance ahead of his taxi.  Traffic was light.  Both of them testified of having seen and heard two motorcars overtake their respective vehicles at a speed which they described as “very fast”.

9.  Mr Wong said that the two vehicles overtook his vehicle in the nearside left lane. He estimated their speed to be around 150 to 160 km/h.  The leading overtaking vehicle was red in colour and the other a dark coloured motorcar.  No other vehicles had overtaken him at high speed.  Having overtaken his vehicle they both pulled in to the middle lane in which he continued to travel and, as a result, he was unable to see the motorcycle anymore.  He was able to see the dark coloured vehicle only.  Then, he heard the sound of a collision.  He saw a man lying in the middle lane and a woman lying in the nearside lane.  He stopped his vehicle in front of a dark coloured vehicle parked on the left-hand side of the highway.  He recognised it by the four rings logo of an Audi motorcar as being the dark coloured motorcar which had overtaken his taxi earlier.  He said that he had seen the four rings logo displayed on the rear of the vehicle as it had overtaken him.  However, he agreed in cross‑examination that photographs taken of the applicant’s vehicle after the collision showed no display of the four ring logo on the rear of the Audi motorcar.

10.  Ms Lai said that she had heard a very loud and engine noise and had seen a red motorcar in the third and right lane, followed closely by a dark, navy blue Audi motorcar in the middle lane overtaking the vehicle in which she was travelling.  The other two vehicles were travelling “very fast” in relation to other vehicles on the road.  The Audi motorcar was a hatchback and she noticed that the number plate comprised four items only.  Then, the Audi motorcar cut into the nearside, left lane and overtook a taxi which was in the middle lane.  Having done so, it cuts back into the middle lane.  Thereafter, she lost sight of the two vehicles.

11.  Ms Lai said that her vehicle then came across a man rolling in the road.  As a result, her husband drove their vehicle to a stop on the hard shoulder.  She noticed a taxi and a dark coloured Audi motorcar in the distance.  She did not approach close enough to see its number plate.  However, it was the same model Audi, namely a hatchback, that had overtaken her earlier.  In cross‑examination, she agreed with the suggestion that she recognised that motorcar as an Audi because of its “four silver (circles?) logo.”

Audi technical evidence

12.  Mr Lam Wai Leung and Mr Simon Wong Cheuk Fan, a Technical officer and the Service Manager of the Maintenance Department of Audi Motors in Hong Kong, testified in respect of the retrieval of data from the computer in the applicant’s motorcar. The ‘crash shut off’ was triggered on 21 October 2015 at 19:24:55 hours.  One second later, at 19:24:56 hours, the ‘Fault Memory Entry’ diagnosed ‘Charge Air Cooler Coolant Pump Control Circuit’ and stipulated the vehicle speed to be 133 km/h.

Expert evidence

13.  Dr Tao Chi Hang, a chemist in the Forensics Science Division of the Government Laboratory in Hong Kong, gave evidence as an expert witness in traffic accident reconstruction.  His report, dated 18 January 2016, was adduced into evidence at trial.  He had completed the Forensic Accident Investigation Reconstruction course organised by the Government Laboratory and the Hong Kong Police Force and provided training to officers of the Hong Kong Police Force in relation to traffic accident reconstruction and had given evidence as an expert witness in the courts of Hong Kong on a number of occasions.  His expertise was not challenged.

14.  Dr Tao said that he examined the video recording taken from the video camera mounted on the front of the motorcycle, both vehicles and attended the West Kowloon Highway to take measurements.  He calculated the coefficient of friction of the road surface.  It was his opinion that the speed of the motorcar at the point of collision with the motorcycle was 136 km/h, + or -14 km/h.

The defence case

15.  The applicant did not avail himself of the right to give evidence, but he did seek to call Mr Lo as an expert witness.  A written report of Mr Lo was put before the court as a provisional exhibit in the prosecution case.  The prosecution expert witness, Dr Tao, testified of his opinions as to the validity of the methodology and opinions expressed in Dr Lo’s report.  In a voir dire, Dr Lo gave oral evidence in the defence case in respect of the issue of his expertise.  At the conclusion of that evidence, the judge determined that she was not satisfied that Mr Lo was an expert in the field of road traffic accident reconstruction and declined to accept him as an expert witness in the area.[1]

The issues

16.  The only issue at trial was whether or not the applicant’s driving amounted to dangerous driving.

Reasons for verdict

Ruling: Mr Lo    

17.  In her Reasons for Verdict, the judge expanded on the brief reasons that she had provided at the conclusion of Mr Lo’s evidence [2] in rejecting the application that he be permitted to give evidence as an expert witness in road traffic reconstruction:[3]

“ Mr. Lo testified that he was a retired chartered engineer. He had taught at the Hong Kong Polytechnic University but had retired in 2015. He was asked if he had received any special training in traffic accident reconstruction – this was the area in which the defence wished him to testify as an expert. Mr. Lo said he had learned about dynamics when he was studying in school, and such knowledge could be applied to traffic accidents, but he had not received any formal training in traffic accident reconstruction. He had completed a higher diploma in mechanical engineering at the Hong Kong Technical College and relied on the dynamics he had learned there. He had also been invited to give a seminar 2 years ago in road accident traffic reconstruction for the Institute of Mechanical Engineers (HK) Branch and another one to the Institute of Road Transport Engineers and the Engineering Faculty of the Hong Kong Polytechnic University and seminars to the Hong Kong Federation of Youth Group and the Hong Kong New General Cultural Association – but in response to a question from the Court, he confirmed that although he had given seminars, he had not received any training or attended any courses on road traffic accident reconstruction. He said he had given evidence as an expert in Hong Kong courts – initially he said he had given evidence 3 times in the Court of First Instance. When he was cross-examined on this, he said he had not actually given evidence but he had prepared reports. He also said that when he had given evidence in the District Court on traffic accident reconstruction, his evidence on occasions was not accepted. It was suggested to him that he was a person with some knowledge of engineering but no formal accredited training in road traffic accident reconstruction – he agreed he had received no formal training but said he could read books – he had the library facilities at the Hong Kong Polytechnic University. I was not satisfied that Mr. Lo was an expert in the field of road traffic accident reconstruction and did not accept him to be an expert witness in that area.”

The evidence of the eyewitnesses

18.  The judge determined the two victims of the collision, Mr Sze Kwok Wa and Ms Chin Ka Ka, and the two eyewitnesses to events leading up to and after the collision, Mr Wong Kwok Wah and Ms Lai Ming Ka, to be :[4]

“ ...honest in recounting to the best of their abilities the events that happened that evening.”

She went on to state that she took into account, in assessing their evidence, that :

“ this accident was unexpected and happen very quickly. In those circumstances, memories of details may be unreliable.”

19.  Of Mr Wong’s evidence that he had seen the four circle Audi logo on the rear of the dark coloured vehicle which had overtaken him, the judge said :[5]

“ I am satisfied that the PW3 was mistaken when he saw four rings on the rear of the vehicle that passed him. But he never lost sight of the vehicle was travelling in front of his in the middle lane - there were no other dark coloured vehicles that passed his - and then he heard the sound of collision and came upon the collision of the dark coloured GB 27 and the motorcycle RX 5016.”

The judge went on to note, it was never suggested to him that the dark coloured vehicle that passed him at a high speed was not GB 27.

20.  Of the evidence of Ms Lai, the judge noted that “...(it) was not challenged in cross examination.”  On the other hand, she noted that in the closing submissions of counsel for the applicant it had been submitted that Ms Lai had identified the navy blue Audi “...by the four rings at the rear” of the motor vehicle.  In rejecting that submission, the judge noted that Ms Lai had not been shown the photographs of the rear of the applicant’s motorcar.  Of her evidence, the judge said :[6]

“ she was asked how she recognized it as an Audi and she replied by the brand. She was next asked ‘was it because of the 4 ring logo’ and she replied ‘yes’. She was not asked any further questions about where the logo was.”

The photographs of the applicant’s car evidence the fact that the four silver ring Audi logo was displaying prominently on the front grille of the motorcar.  On the other hand, Ms Lai testified that the vehicle in which she was a passenger had been brought to a stop on the hard shoulder of the West Kowloon Highway at some distance behind where the navy blue Audi car was parked.  She gave no evidence of events subsequent to that occurrence.

21.  In the result, the judge determined of the evidence of Mr Wong and Ms Lai:[7]

“ I was satisfied beyond all reasonable doubt that the Audi that PWs 3 and 4 saw passing their vehicles as they described in their evidence was GB 27 driven by the Defendant.”

22.  The judge accepted the evidence of the Audi employees’, in particular of their retrieval of data from the computer in the applicant’s motorcar.  She noted that data provided the speed of the vehicle one second after the crash shut-off was activated, namely:[8]

“ ...the speed of the vehicle at the time was recorded under ‘extended ambient conditions’ and the speed was 133 km/h.”

23.  Similarly, the judge said that she accepted the evidence of Dr Tao as to the speed of the applicant’s motorcar at the time of impact in the collision, namely that :[9]

“ ...he estimated the speed of GB 27 at the time of impact was 136 Km/H ± 14 Km/H and the vehicle was under braking. If the weight of the vehicle was taken into account, the speed of GB 27 at the moment of impact would be 141 Km/H ±14 Km/H. I accept his evidence in respect of the speed of GB 27 at the time of impact with RX 5016 and that GB 27 was under braking.”

24.  Of the manner of the applicant’s driving, the judge said :[10]

“ It was the evidence of PWs 3 and 4 that they had seen the Audi follow closely behind the red car, and they had seen the Audi changing lanes at high speed.”

25.  Of the video recording taken from the camera in front of this Mr Sze’ motorcycle, the judge said that it showed the red car in the third lane

“ ... driving at speed much faster than a taxi in the inner lane. Almost immediately after the red car passed, one can hear the sound of collision...” [11]

26.  In the result, the judge determined :[12]

“ I was satisfied beyond all reasonable doubt that the Defendant was driving GB 27 at the material time and place. GB 27 was the second car following the red car seen by PWs 3 and 4, who witnessed the manner in which the Audi was changing lanes.”

27.  Finally, in convicting the applicant of Charge 1, the judge determined of the applicant’s driving that :[13]

“ ...driving in the manner that he did, changing lanes at as he did, and driving at an excessive speed in the circumstances as he did falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

Reasons for sentence

28.  In sentencing the applicant, the judge said :[14]

“ In my view, the defendant’s culpability lies with his excessive speed and the manner of his driving and changing lanes. Had he not been driving at excessive speed in the circumstances, he would not have collided with the rear of PW1’s motorcycle which was ahead of him. Travelling at a speed well in excess of the speed limit shows a disregard for the safety of other road users. It is not a momentary lapse of judgement or loss of concentration. However, the facts before me are not the worst of its kind. I am satisfied that in all the circumstances this places the driving at the higher end of the intermediate culpability.”

29.  In the result, the judge sentenced the applicant to 2 years’ imprisonment for Charge 1.

Grounds of appeal against conviction

30.  By ground 1 of the grounds of appeal against conviction, Mr Yu submitted that the judge had erred in ruling that Mr Lo Kok Keung, a witness advanced on behalf of the defence at trial, was not an expert in the field of road traffic accident reconstruction and in determining not to accept him as an expert witness in that area.

31.  First, it was contended that the judge had failed to consider or consider sufficiently whether Mr Lo had acquired his study or experience sufficient knowledge of the subject to render his opinion of value in resolving issues before the court.  Also, it was contended that the judge had failed to consider the relevance of his evidence and his methodology in arriving at his opinion before making her ruling.

32.  Secondly, it was submitted that, in reaching her determination to reject Mr Lo as an expert witness, the judge had erred in relying on the fact that Mr Lo :

(i)   had not received formal training in traffic accident reconstruction;

(ii)   having given evidence as an expert in the Court of First Instance, but merely prepared reports as an expert on three occasions;

(iii)   had given evidence as an expert in the District Court on traffic accident reconstruction, but as evidence of occasions was not accepted;

(iv)   was a person with some knowledge of engineering but no formal accredited training in road traffic accident reconstruction.

33.  Thirdly, it was submitted that the judge had failed to consider or consider sufficiently evidence relevant to an assessment of Mr Lo’s expertise, namely: that he was a retired chartered engineer and had taught at the Hong Kong Polytechnic University before his retirement in 2015; that he held a higher diploma in mechanical engineering at the Hong Kong Technical College and had received education on dynamics, which was relevant to traffic accident reconstruction; that he had given seminars in road accident traffic reconstruction for the Institute of Mechanical Engineers (HK) Branch, the Institute of Road Transport Engineers and the Engineering Faculty of the Hong Kong Polytechnic University and other organizations; but his reports as an expert were accepted on three occasions in the Court of First Instance; also, he had been accepted by the District Court as an expert and had given evidence as such in the District Court on traffic accidents reconstructions.

34.  Fourthly, it was submitted that the judge had erred in allowing Dr Tao, a witness permitted to give evidence as an expert or the prosecution to comment in his evidence on Mr Lo’s report.  Further, that the judge had erred in failing to direct herself not to rely on Dr Tao’s evidence in that respect following her subsequent ruling refusing to accept Mr Lo as an expert witness for the defence.

35.  Fifthly, it was submitted that in ruling that Mr Lo was not an expert in the area in which it was proposed that he testified the judge erred in not finding that determination was relevant only to the weight of his evidence not its admissibility.

36.  Finally, it was submitted that, having regard to the methodology of Mr Lo’s evidence in respect of the speed of the applicant’s vehicle at the time of the collision, the judge had erred in failing to give consideration to receiving evidence from him as an expert other than in the field of road traffic accident reconstruction.

37.  By ground 2 it was submitted that the judge had erred in failing to analyse properly the evidence of two eyewitnesses, of the circumstances leading to the collision, namely Mr Wong Kwok Wah and Ms Lai Ming Ka.

Grounds of appeal against sentence

38.  In the draft grounds of appeal against sentence, it was submitted that in sentencing the applicant to 2 years’ imprisonment, the judge had failed to give sufficient weight to the “circumstances of the case” and to the applicant’s personal circumstances.  Further, it was contended that in determining that the applicant’s culpability lay at the higher end of the intermediate level of culpability, the judge had erred.  Rather, she should have stipulated the lower end of that level of culpability.  Finally, it was submitted that the appropriate sentence that should have been imposed on the applicant lay in the range of 15 to 21 months’ imprisonment.

A consideration of the submissions

Conviction

Defence expert evidence

39.  At the outset of his objections to the admissibility of Mr Lo’s evidence as an expert witness in traffic accident reconstruction, Mr Beel said that he did so in light of the fact that Mr Lo’s written report indicated that he was not a person who was accredited in traffic accident reconstruction and, moreover, had not even attended such a course.  There was no dispute that was the case.

40.  I accept Mr Yu’s submission that the absence of accreditation, qualification or the attendance at traffic accident reconstruction courses was not, per se, a barrier to the application that Mr Lo be permitted to give expert evidence.  Nevertheless, those circumstances gave focus to evidence required to be adduced to address the issue before the judge, namely whether or not there was persuasive evidence, in the absence of formal qualification, Mr Lo had gained the requisite knowledge and experience to be permitted to give an opinion on evidence on the subject.

41.  Notwithstanding the fact that the defence was alerted to the nature of the challenge to the expertise of Mr Lo, the evidence adduced from him was at best perfunctory and at worst merely declaratory.  No detail whatsoever was provided to the judge of the cases in which it was asserted that his reports had been received by the Court of First Instance.  The judge received no information as to whether the cases were criminal or civil cases or the nature of the analysis or opinions expressed, let alone whether or not issue had been taken as to admissibility of that evidence and, if so, how the court resolved the matter.  Similarly, no detail was provided of the circumstances in which Mr Lo had given evidence in the District Court or as to the circumstances in which his evidence had not been accepted.  Furthermore, Mr Lo provided no information at all as to the reading material he said that he had recourse to in informing himself privately, in the absence of attending any courses, to establish a foundation on which it could be accepted that he had the relevant knowledge and experience to be permitted to give expert evidence, from his analysis of primary facts and resulting calculation, as to the speed of the vehicles involved in a collision.

42.  In those circumstances, in my judgment real difficulties lie in the way of the applicant’s challenge to the judge’s ruling in respect of Mr Lo.  In any event, whatever the merits might be of that challenge, it is to be noted that no grounds of appeal have been advanced in respect of the evidence adduced from the Audi technicians, namely that one second after the collision the applicant’s motorcar was travelling at 133 km/h.  That unchallenged evidence resonated with the evidence adduced from Dr Tao.  In those circumstances, in my judgment it cannot be said that there is a real prospect of success of that ground of appeal.

Discrepancies in the eyewitness’s testimony

43.  It is clear from the judge’s Reasons for Verdict that not only was she aware of the submissions made on behalf of the applicant as to alleged discrepancies in the evidence of the two eyewitnesses but also, she addressed those concerns.  Not surprisingly, she found that Mr Wong was mistaken that he had seen the Audi logo displayed on the rear of the dark coloured Audi motorcar that had overtaken his taxi.  There is no dispute that there was no such logo displayed on the rear of that vehicle.  Nevertheless, noting that the accident happened very quickly in unexpected circumstances, she accepted his evidence that the dark coloured Audi motorcar that he described as having overtaken his taxi in the left lane, after which it cut back into the middle lane in which lane the motorcycle was travelling, was the applicant’s motorcar.

44.  In context, it is to be noted that there was no challenge to the evidence of the two eyewitnesses that, having seen and heard two motorcars overtaking their respective vehicles at high speed shortly before they came upon the consequences of the collision with the motorcycle, no other vehicles had overtaken them in like manner.  Both of the witnesses described the two motorcars as being respectively a red motorcar, followed by a dark coloured Audi motorcar.  Importantly, the judge accepted that Mr Wong had not lost sight of the dark coloured Audi travelling in the middle lane in front of his taxi before he heard sounds of a collision.

45.  On any view, in all the circumstances, Ms Lai gave quite detailed evidence of the Audi motorcar which had overtaken her vehicle: its number plate had four characters and it was a navy blue hatchback Audi motorcar.  The judge was entitled to note that, in contrast to Mr Wong, Ms Lai was not taken to the photographs of the applicant’s vehicle when the issue was raised with her as to the presence of the Audi logo of four silver circles on the rear of the applicant’s vehicle.  That was the context in which Ms Lai had assented to the suggestion in cross‑examination that she testified that the vehicle was a navy blue Audi hatchback because of the presence of that logo on the vehicle.

46.  Of obvious relevance to that evidence, was the undisputed evidence that the applicant’s blue hatchback was the vehicle which collided with the motorcycle.  Furthermore, it had been stopped and parked on the hard shoulder ahead of the place at which the motorcycle and its passengers came to rest.

Conclusion

47.  For the reasons I have given, I am not satisfied that there is a real prospect of the applicant succeeding in the two arguments advanced in relation to his conviction.

Sentence

48.  In the course of his oral submissions, Mr Selwyn Yu indicated that he did not seek to give undue emphasis to the ground of appeal against sentence in relation to the application for bail pending appeal.  That was entirely sensible, given his concession that the appropriate sentence that the applicant’s conviction in respect of Charge 1 merited a sentence in the range of 15 to 21 months’ imprisonment.  The validity of concerns expressed in the applicant’s affirmation, that he might have served a substantial part of that sentence before the hearing of his application for leave to appeal, are to be viewed against the expedition with which those representing the applicant have sought to progress his application.  Already, more than two months have elapsed since he was sentenced.   It ill-behoves an applicant to pray-in-aid of his application for bail pending appeal the assertion that he may have served a substantial part of his sentence, if he does not seek to progress his application appropriately.

49.  As the Court reminded those representing the applicant the fixing of a hearing date for the application for leave to appeal is contingent upon the applicant’s representatives applying to the Court for the provision of such transcript as is relevant to the grounds of appeal and inclusion in the Appeal Bundle of other relevant documentation, followed by the filing of Perfected Grounds of Appeal. No such applications have been made to the Court as yet.  Such material that has been included in the Appeal Bundle thus far has been included at the proactive initiative of the Criminal Appeals Registry, responding to the draft grounds of appeal only.

Conclusion

50.  For the reasons that I have set out, I was not satisfied that the applicant had satisfied the exceptional circumstances in which it is appropriate to grant him bail pending the hearing of his applications for leave to appeal.  Accordingly, I refused the application.