HKSAR v. Leung Ching Chung

DCCC 466/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 466 OF 2016

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REASONS FOR VERDICT

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1.The Defendant has pleaded guilty to Count 2 on the indictment of using a motor vehicle failing to comply with safety glass or safety glazing regulation, 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. He had pleaded not guilty to Count 1 on the indictment of causing grievous bodily harm by dangerous driving, contrary to Section 36A of the Road Traffic Ordinance, Cap. 374.

2.The facts in respect of Count 2 were read into the record by the Prosecutor, and Defence Counsel confirmed that these were admitted by the Defendant.  These were also read and explained to the Defendant and admitted by the Defendant.  I was satisfied that the facts admitted by the Defendant supported Count 2, and accordingly I convicted the Defendant of Count 2.  Mitigation and sentence in respect of Count 2 was deferred until the conclusion of the trial on Count 1. This course was agreed to by all the parties.

3.The Defendant indicated at the outset through his Counsel that he was prepared to admit the offence of careless driving in respect of Count 1.  After taking instructions, the Prosecution was not prepared to accept this plea and the trial on Count 1 proceeded.

4.The Defence had indicated that they intended to call a defence expert and the report of their expert was served on the Prosecution. The Defence expert’s conclusion was not accepted by the Prosecution expert. Mr. Beel suggested that the Defence expert be permitted to sit in Court during the testimony of the Prosecution expert.  The Defence also agreed to this course and I granted the application.

5.The Prosecution Opening was read into the record by Mr. Beel and a list of Prosecution witnesses submitted.  Although there were 20 witnesses listed,  Mr. Beel indicated that he would be be calling 8 – for ease of reference, the witnesses are referred to by the numbers by which they were listed in the list of Prosecution witnesses. At the conclusion of the Prosecution case, no submissions were made on behalf of the Defendant.  I found that there was a case to answer on count 1.  Having had his rights explained to him by his Counsel, the Defendant elected not to give evidence but indicated that the Defence intended to call one expert witness. The expertise of the Defence expert witness was not accepted by the Prosecution. After hearing evidence and submissions on the special issue in respect of whether the intended Defence expert was an expert in the area of traffic accident reconstruction and whether his evidence as an expert was admissible, I ruled that he was not an expert in the area of traffic accident reconstruction. The Defence did not adduce further evidence from their ‘expert’. There were no other Defence witnesses.  Closing submissions were made in writing,   after which I adjourned the matter until today for verdict. In the course of preparing my verdict, I noted that in the particulars of Count 1, the name of the road in question was the ‘West Kowloon Highway’.  In his sketch Exhibit P3, PW8 also recorded the name of that stretch of road as the ‘West Kowloon Highway’.  In his opening, Mr. Beel referred to the road as the ‘West Kowloon Expressway’ in paragraph 1 and the ‘Kowloon Expressway’ in paragraphs 6 and 9.   In his closing submissions, in paragraphs 7 and 8, he referred to the ‘Kowloon Corridor’.   PWs1, 2, 3 and 4 in their testimony referred to the ‘West KowFon Corridor’.   There is no doubt that Mr Beel as well as PWs 1, 2, 3 and 4 were all referring to the same stretch of road – the West Kowloon Highway.   Mr. Hon took no issue on this in the course of the trial and in his closing submissions. I was satisfied that these were all references to the West Kowloon Highway.

6.At the outset, I was informed that identity was not in issue – that the Defendant was the driver of the vehicle with registration mark GB 27 at the material time.  Nor was it disputed that the injuries sustained by Sze Kwok-wa and Chin Ka-ka as a result of the accident amounted to grievous bodily harm. In fact, much of the Prosecution case was by way of Admitted Facts under Section 65C of the Criminal Procedure Ordinance, Cap. 221 and the exhibits referred to in the Admitted Facts were produced by agreement.

Admitted Facts (marked as Exhibit P8)

7.On the evening of 21 October, 2015, at approximately 1920 hours, PW1 Mr. Sze Kwok-wa rode his motorcycle with registration mark RX 5016 with his wife PW2, Ms. Chin Ka-ka, as his passenger and they set out from Tsim Sha Tsui to their home in Tuen Mun taking the West Kowloon Highway.

8.PW1 drove past Olympian City towards Tuen Mun on the expressway – the road at that point consisted of 3 lanes. PW1 was travelling along the middle lane.  The speed limit on that stretch of road was 100 km/h. At the time the weather was fine and the road surface was dry.

9.At some time approximately between 1925 and 1930 hours, in the vicinity of lamppost AB 0747B, PW1’s motorcycle was hit from behind by an Audi Quattro with registration mark GB 27 driven by the Defendant.  At the time of the collision, PW1’s motorcycle was travelling at a steady speed of 83-86 km/h.

10.As a consequence of the collision, PW1’s motorcycle was turned on its side resulting in PWs 1 and 2 being thrown from the motorcycle. Both of them lost consciousness.  PW1 regained consciousness at the scene of the collision, but PW2 only regained consciousness at the hospital. 

11.PW8, PC 7779 attended the scene of the collision and drew a sketch of the scene, which was produced and marked as Exhibit P3.  He also took 37 photographs of the scene at 2035 hours. The photo album of these 37 photographs was produced by agreement and marked as Exhibit P4A.

12.At about 0335 hours on 22 October, 2015, PW10, SPC 49380, took 13 photographs of the motorcycle RX 5016 at the Vehicle Detention Pound. The photo album of 13 photographs was produced by agreement and marked Exhibit P4B.  PW10 took 33 photographs of the motor vehicle GB 27 at the Vehicle Detention Pound at 0140 hours on the same day. The photo album of 33 photos were produced by agreement and marked Exhibit P4C.

13.At about 2130 hours on 22 October, 2015, PW9, PC944 took 9 photographs of the motorcycle RX 5016 at the Vehicle Detention Pound depicting the position of the video camera and its components. The photo album of 9 photographs was produced by agreement and marked Exhibit P4D. He also seized the video camera’s SD card which was produced by agreement and marked Exhibit P1. The video images on Exhibit P1 showing the time before and after the collision were burnt onto a DVD without any alteration or interference to the recorded data contained in Exhibit P1. The DVD was produced by agreement and marked Exhibit P2.

14.At about 0853 hours on 23 October, 2015, PW14 Mr. Yeung Chi Cheong, Motor Vehicle Examiner, took 20 photographs of the motorcycle RX 5016 at the Vehicle Detention Pound. The photo album of 20 photographs was produced by agreement and marked Exhibit P4E.

15.At about 0953 hours on 22 October, 2015, PW14 Mr. Yeung took 33 photographs of the motor vehicle GB 27 at the Vehicle Detention Pound depicting the result of the light meter reading taken from the tinted windows of the motor vehicle GB 27. The photo album of 33 photographs was produced by agreement and marked Exhibit P4F.

16.At about 1145 hours on 26 October, 2015, PW9 took 13 photographs of the motorcycle RX 5016 and the motor vehicle GB 27 at the Vehicle Detention Pound depicting the transfer of paint from the motor cycle RX 5016 to the motor vehicle GB 27. The photo album of 13 photographs was produced by agreement and marked Exhibit P4G.

17.At about 1600 hours on 21 September, 2016, PW9 extracted 9 still images from the video recorded on the DVD Exhibit P2. The photo album of 9 photographs was produced by agreement and marked Exhibit P4H.

18.At 0057 hours on 22 October, 2015, at the Princess Margaret Hospital, PW8 arrested and cautioned the Defendant for the offence of dangerous driving causing grievous bodily harm. The Defendant remained silent.

19.PW14, Mr. Yeung, a motor vehicle examiner, found that the motor vehicle GB 27 had tinted windows which reduced the transmission of light. The Transport Department requires that the minimum light transmission for the front windscreen and glass on the side of the driver’s compartment is 70%, whilst for the rear windscreen and side windows behind the driver’s compartment is 44%.  PW14 found that the light transmission of the front windscreen was 63% whilst the side windows of the driver’s compartment were 25% and 27%, and that of the rear windscreen and side windows behind the driver’s compartment ranged from 16% to 18%.

20.Both PW1 and PW2 were admitted to the intensive care unit of the Princess Margaret Hospital. PW1 suffered from proximal humerus fracture and pubic rami fracture whilst PW2 suffered from pelvic fracture. PW1 was discharged from the hospital on 3 November, 2015 while PW2 was discharged on 23 November, 2015, and both had to attend for follow-up treatment. Both have been on sick leave since the collision. PW1’s sick leave has been extended to 7 November, 2016, while PW2’s has been extended to 9 November, 2016.

21.The medical reports of PW1 and PW2 were produced by agreement, PW1’s 2 medical reports were marked Exhibits P5A and P5B respectively, and PW2’s marked Exhibits P6A and P6B respectively.

Evidence

22.PW1, Sze Kwok-wa,  is now aged 33 years – he was aged 32 years at the time of the collision.  He was riding his motorcycle RX 5016 at the material time, and his wife, PW2 Chin Ka-ka was his passenger, and they drove along the West Kowloon Highway towards Tsuen Wan. They were driving to their home in Tuen Mun. The motorcycle at the time was about 2 years old – he had bought it new, and it was working normally.  He described the traffic on the road at the material time as sparse, and the road surface was dry, and there was no obstruction to visual view. His motorcycle was equipped with a video camera which recorded vehicles travelling in front of his vehicle, and it was working properly at the material time.  The DVD Exhibit P2 was played in Court, and PW1 confirmed that the images shown were captured at the material time by the video camera on his motorcycle, and the still photographs of the video images were contained in the photo album marked Exhibit P4H.

23.The DVD Exhibit P2 depicts images from 19:30:32 hours. Olympian City, which was on the left of the screen,  was passed at 19:30:46 hours. A red taxi first appeared on the inner lane at 19:31:00 hours, and a red car on the third lane at 19:31:02 hours and then there are the sounds of a collision and the camera started to shake at 19:31:03 hours.  From the video images, it is clear that the red car was travelling at a much higher speed than the taxi.  The taxi can be seen in photo 2 of the photo album Exhibit P4H, which shows the time ‘2015/10/21 19:31:02’, the red car can be seen in photo 3 in the third lane, which shows the time ‘2015/10/21 19:31:03’ and the taxi is slightly ahead of the red car, and in photo 4, which shows the same time ‘2015/10/21 19:31:03’  the red car is ahead of the taxi. Photos 5 to 9 are still images from 19:31:03 to 19:31:15 hours.

24.PW1 recalled the taxi passing him on the inside lane, and soon after it passed his motor cycle was hit from behind – he had felt a great impact when his motorcycle was hit from behind. He had looked at his rear view mirror and seen a light and then his motorcycle was hit – it lasted for about one second.  Although an image of the red car passing him on his right was captured by the video camera, PW1 said he could not recall that as it was a long time ago – he had lost consciousness as a result of the collision and did not have a clear recollection of the collision.  When he regained consciousness, he was lying in the centre of the road – he did not know where his wife or his motorcycle were.

25.PW1 testified that he had been receiving physiotherapy and occupational therapy since his discharge from hospital and he was still on sick leave.  He used to work as a warehouse attendant, and his work included manual handling of the goods that had to be distributed and moving around cargo in the warehouse that weighed 15 to 20 kilos.

26.PW2 is now aged 37 years. She used to work as a clerk prior to the accident on 21 October, 2015.  She was travelling with PW1 on his motorcycle – she was the passenger and they were going home along the West Kowloon Highway when their motorcycle was hit from behind. The speed of the motorcycle was between 80 to 90 Km/H.  As a result of the collision, she lost consciousness and only regained consciousness in the hospital. She described having difficulty walking and said she had been told by the doctor that her injuries would affect her bearing of children. 

27.PW3 is now aged 62 years. He is a taxi driver, and said he had been driving a taxi for 10 to 20 years. At about 7.25 p.m. on 21 October, 2015, he was driving his taxi along the West Kowloon Corridor with a passenger on board, and they were travelling to Tsing Yi.  The speed of his vehicle was about 100 Km/H, the speed limit on that stretch of road. He was driving along the middle lane, i.e. the second lane from the left.  Ahead of him in the distance, he estimated about 5 lampposts ahead, there was a motorcycle.  Traffic at that time was light.  Two vehicles travelling very fast passed him on his left, i.e. the first lane from the left, and they overtook him and travelled ahead. The first vehicle was a red one, and the vehicle travelling behind the red one was dark in colour. The distance between these two vehicles was about two vehicles’ lengths.  They were travelling very fast when they passed him, and he estimated their speed to be about 160 Km/H.  After they passed him, both vehicles moved into the middle lane and travelled ahead, and then he heard the sound of a collision. After the two vehicles had passed him and moved into the middle lane, he could no longer see the motorcycle.  He could only see the second of the two vehicles that passed him – the dark coloured vehicle. It remained in the middle lane until he heard the sound of the collision.  From the time the two vehicles passed him till he heard the sound of the collision, no other vehicles passed him at high speed.

28.After he heard the sound of the collision, he continued driving, and saw some vehicle debris and a woman lying on the road in the middle lane – he pulled his taxi into the third lane to avoid the woman, and further ahead he saw a male lying on the inner lane and also saw more debris.  He moved ahead and saw a dark coloured vehicle parked on the left hand side of the road and recognized it as the dark coloured vehicle that had passed him earlier at high speed, behind the red coloured vehicle.  He said he recognized it as it had four rings at its rear, the trademark of Audi, and he had seen these when the vehicle had driven past his, and the parked vehicle bore the same four rings.   He pulled up in front of the dark coloured vehicle and the female passenger in his vehicle made a report to the police.  He said he could see clearly – the source of light was the street lights.  PW3 was cross-examined in respect of the colour of the vehicles that passed him.  He agreed he had described the Audi as ‘black’ coloured in his first witness statement, and corrected himself in his second statement and described it as a ‘dark coloured’ vehicle.  He said he recognized GB 27 to be the dark coloured vehicle that had passed his at great speed because of the colour and he had noticed the four rings, a trademark of Audi, on the rear of the vehicle as it passed his, and he saw these four rings on the rear of GB 27.  Under cross-examination, he was shown photo 31 in Exhibit P4A, and photos 3 and 4 in Exhibit P4F which all depicted the rear of GB 27 and the four rings are not seen on the rear of the vehicle.  He said he remembered seeing the four rings in the middle of the vehicle above the rear number plate and below the rear windscreen mirror. In response to a question from the Court, he said that no other cars passed his taxi after the dark coloured vehicle passed his taxi, and after it had passed his taxi, it remained in the middle lane until he heard the collision.

29.PW4, Ms. Lai Ming-ka, was seated in the front passenger seat of a vehicle at the material time that was driving along Lin Cheung Road and joining the West Kowloon Corridor just before 7.30 p.m. After the vehicle drove onto the West Kowloon Corridor, it travelled on the first lane from the left at a speed of about 70 to 80 Km/H.  PW4 heard a very loud engine noise, and soon after saw a red vehicle going past theirs in the right most lane i.e. the third lane from the left, followed by a navy blue Audi, that travelled close behind but the Audi was in the middle lane. These two vehicles were travelling very fast compared to the other vehicles, she estimated there were no more than 4, on the road.   As there was a taxi travelling in the middle lane, the Audi cut into the left lane to overtake the taxi, and then after it had passed the taxi, it cut back into the middle lane.  She was not sure if the red vehicle had changed lanes as her view was from an angle, and it was travelling very fast – she was not sure if it had changed lanes.  When she saw the Audi overtake the taxi, the taxi was about 100 metres ahead of their vehicle.  She could not see the red vehicle as her view was obstructed.  After the Audi overtook the taxi, she could no longer see the two vehicles.  As their vehicle travelled along, she saw a lot of broken glass and an injured male rolling towards their vehicle.  Her husband was driving and they stopped their vehicle in the first left lane, and on seeing the injured male, they pulled onto the hard shoulder and stopped. 

30.When the Audi drove past their vehicle, she saw that it was a hatch back vehicle and navy blue in colour. She did not have a clear view of the registration plate but recalled there were 4 digits/items on the licence plate.  After stopping their vehicle, she alighted and saw the injured male on the 1^st left lane, and the injured female on the rightmost lane. She also saw a motorcycle much ahead. It was already stationary.  She also saw a taxi and the Audi stopped at a distance ahead.

31.The next witness to testify was PC 7779, PW8 on the list of prosecution witnesses submitted.  He drew a sketch of what he saw after his arrival at the scene that evening, Exhibit P3. The injured persons had already left the scene by the time he arrived.  He also took various measurements which he had marked on the sketch.

32.Lam Wai-leung, PW11 on the list of Prosecution witnesses submitted, was employed as a technical officer in the maintenance department of Audi Motors, where he has worked for about 4 years. He has a Higher Diploma in Automobile Engineering.  His company is the sole agent for the retail and maintenance of Audi vehicles.  He said that Audi vehicles had a diagnostic system that could check the systematic problems of the whole vehicle.

33.On 22 October, 2015, he checked the private car with registration mark GB 27, a model RS6 Avant 4 TFSI Quattro Audi private car.  This model also had a diagnostic system that is placed at the right hand side of the driver’s seat. He was trained to retrieve data from the diagnostic system of Audi cars, and he has done so more than 100 times.  On that day, he retrieved the data from the diagnostic system of GB 27, using 2 articles – namely a tool named VAS 5054A and a laptop computer VAS 6150.  Before he used the equipment that day, he checked to ensure that these were working properly so that the data would not be corrupted or interfered with.  If the data could not be transferred from the diagnostic system of the car to the laptop computer, a warning would show up on the equipment – none appeared, He also got the notification after he had retrieved the data that the data had been properly transferred from the diagnostic system of the car to the laptop computer.  After he had retrieved the data, a process that takes about 10 minutes, he took the laptop back to his office and reviewed the data he had retrieved and handed the data he had retrieved to his superior Simon Wong Cheuk-fan, PW12 in the list of Prosecution witnesses submitted, who also gave evidence in these proceedings. PW11 showed PW12 the data he had retrieved on the laptop computer. He had opened the data file and showed it to PW12. He had also copied the data onto a USB and given the USB to PW12, who subsequently returned the USB to him.   PW11 also produced the instruction manual of the equipment he used to retrieve the data, which was produced and marked as Exhibit P9. The picture of the diagnostic laptop appears on the cover of the manual as well as on page 10.  VAS 5054A also appears on the manual, as item 6 on page 11 of the manual. He plugged VAS 5054A into the space in the diagnostic system on the right side of the driver’s seat i.e. the interface port, and this is then connected by Bluetooth to the laptop computer VAS 6150 and the data from the diagnostic system on board the private car, referred to as ODIS i.e. the on board diagnostic information system, is transferred onto the laptop computer. 

34.PW12 Simon Wong Cheuk-fan was the service manager in the maintenance department of Audi. He has a degree – a Masters degree in Automotive Engineering from Leeds University as well as a Bachelors degree in Mechanical Engineering from the University of Science & Technology in Hong Kong. The police had asked their company to retrieve the data from GB 27 so he had sent PW11 to download the data from the diagnostic system on the vehicle onto the laptop. The data kept in the on board diagnostic information system (ODIS) of the car was a computer record of the data relating to the travel of the car and any fault codes.  If a vehicle was involved in a collision, the system recorded data from the time of the collision and any related problems that arose as a result of the collision to the vehicle.  The system continued to record until the vehicle comes to a halt and the ignition switch is switched off.  PW11 showed him the data that he had retrieved on the laptop and gave him a USB containing the data that he copied onto his own laptop, which was operating properly. The data on the USB was the same as that on the laptop and related to the data of the vehicle with registration mark GB 27 recorded on 21 October, 2015 that was retrieved on 22 October, 2015.  The data on the diagnostic on board information system of GB 27 for 21 October, 2015 was downloaded from the vehicle at 1440 hours on 22 October, 2015 to the offboard diagnostic information system on the laptop computer VAS 6150. The report that was downloaded into the laptop computer on 22 October, 2015 was printed out and the printout was produced and marked as Exhibit P10 and consists of 87 pages.  

35.PW12 explained the various safety features in Audi vehicles - what he referred to as the ‘crash shut-off’. This crash shut-off is a function that is triggered by the airbag system of the car. Once the impact sensor detects an impact, it will trigger the airbag control unit to perform several functions – it will deploy the airbag, shut off the fuel supply system, flash the indicators, and it also unlocks the vehicle doors, and the safety belts in the vehicle are tightened on the driver and passengers in the vehicle to prevent them falling forward as a result of the impact.  The speed of the vehicle is recorded in several of the fault codes stored under the engine management control system. The data in the diagnostic report is in simple English with numerical data and the purpose is for mechanics to use when they are repairing the vehicle.  Audi trained mechanics could all read and understand the data, as he himself could as well. 

36.PW12 explained various items on Exhibit P10.   The ‘crash shut off’ was triggered on 21/10/15 at 19:24:55 hours – the fault memory entry was P160900 – mileage of the vehicle when it was triggered was 14806 Km. This appears on page 5 of Exhibit P10. Another fault code on page 6 of Exhibit P10 with fault code number P023A00 ‘Charge Air Cooler Coolant Pump Control’ – the fault is recorded on 21/10/15 at 19:24:56 hours, 1 second after the crash shut off was activated, and the speed of the vehicle at the time was recorded under ‘extended ambient conditions’ and the speed was 133 Km/H.  This represented the speed of the vehicle when this fault occurred at the ‘charge air cooler coolant pump control’.  The fault memory code for the ‘fuel pressure regulator valve bank 2 short circuit’ at the bottom of page 5 with code number P129C00 which was activated on 21/10/15 at 19:24:59 hours, 4 seconds after the crash shut-off, showed a speed of 75Km/H when this fault code was activated.  As the fault codes were being activated and recorded, the speed of the car was decreasing – engine speed was 0 as no fuel was being delivered to the engine, as there had been a crash shut-off.   The speed of the vehicle at the time the crash shut-off fault was activated was not recorded – PW12 did not know why and it was why the data was also sent for analysis to the Regional Office of Audi for technical support in Beijing. But he said it was normal for the speed not to be displayed in such general level diagnostic reports as Exhibit P10 if the crash shut off was triggered.

37.PW13, Chow Sheung-yiu, was the assistant technical manager of certification and main product support of Volkswagen Co. (HK) Ltd. which exclusively imports Audi vehicles into Hong Kong. It has been the sole agent for Audi vehicles since 2013.  He produced the photocopy of the certificate of approval issued by the Transport Department for RS6 Avant 4.0 TFSI Quattro, the same model as the navy blue hatch back Audi private car with registration mark GB 27,  Exhibit P11.  The weight of the vehicle was 2,070 Kg, and this wa the weight with fuel of about 70%.

38.PW16, Dr. Tao Chi-hong, gave evidence on behalf of the Prosecution – he was the expert witness called by the Prosecution. His expertise was not challenged by the Defence, although his calculation of the speed of GB 27 at the material time was not accepted. He was asked to prepare a report in respect of the collision involving the private car with registration mark GB 27 on 21 October, 2015. His report was marked as Exhibit P7.  He estimated that the speed of GB 27 at the time of collision was at least 136 Km/H   ± 14 Km/H. He explained that there was a variable of ±14 Km/H as there might be some uncertainty in the values he used in his calculation such as the co-efficient of friction that he determined on site. The speed of the motorcycle RX 5016 was 83-86 Km/H. He also determined the post impact speed of the motorcycle.  He set out how he reached this conclusion in his report, Exhibit P7.  He had been provided with the sketch Exhibit P3 and used the measurements as set out on the sketch to reach his conclusion. The accuracy of the measurements on the sketch was not challenged by the Defence. He was also provided with a copy of Exhibit P2 and the photos that were taken. He also examined both the motorcycle and the private car and attended the scene of the accident to conduct accident reconstruction on 2 occasions.  His conclusion was contained in paragraph 23 of his report.  He concluded that the private car was braking at the time of impact based on the physical evidence left on the private car. In paragraph 11 of his report, he described the ‘impression mark’ he found on the nearside front bumper of the car (photos 1 and 2 on Appendix II of his report). The position and the general appearance of the impression mark suggested that it could have been made by a part from the motorcycle. He then examined a control motorcycle of the same brand and model as RX 5016 – the results of his examination are contained in paragraphs 13, 14, 15 and 16 of his report – he opined that the impression mark on the nearside front bumper of the private car could have been made by the private car hitting on the missing exhaust unit of the motorcycle resembling the control motorcycle.   He considered the difference in height between the impression mark and the exhaust unit of the control motorcycle and opined that the private car might have been braking when the private car and motorcycle came into contact.  When a motor car is under braking, the front of the vehicle will be lowered, and as the impression was located above the rear end of the exhaust pipe i.e. it was higher on the private car – this indicated that the private car was under braking at the time of impact.  PW16 did not take into account the mass of the vehicle in determining the speed, but said it would not make much difference.  He said he assumed the weight of the private car was 1,865 Kgs when he considered the conservation of linear momentum.  He said that the weight of the private car would dominate as it weighed almost 2 tons.  The motorcycle’s weight was about one-tenth of that of the private car.  He said if one used the weight of the motor car as 2,070 Kgs, after considering the conservation of linear momentum, at the time of the impact the private car would have been travelling at a speed of 141 Km/H ±14 Km/H.  This did not include the weight of the driver and passenger in the private car.  If their weight was also included, the speed of the private car would be a little higher than 141 Km/H.

39.The Defence tendered Lo Kok-keung as its expert witness, and the report he had prepared was produced and marked provisionally as it was referred to in the testimony of PW16.  The Prosecution challenged the expertise of Mr. Lo.  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.

Analysis

40.I have carefully considered all the evidence that has been adduced before me, the documentary exhibits, the video footage, the photographs taken,  as well as the submissions of Counsel. I have borne in mind that the burden of proof remains throughout upon the Prosecution to prove guilt beyond all reasonable doubt.    The Defendant elected not to give evidence. That is his right.  It proves nothing one way or the other.  The Defendant has no duty to prove anything.  The Defendant has a clear record – I have borne this in mind and given myself the requisite directions.

41.Section 36A(10) of the Road Traffic Ordinance, Cap 374, provides:

(10) A person is to be regarded as driving dangerously within the meaning of subsection (1) if -

(a) the way he or she drives falls far below what would be expected of a

competent and careful driver; and
(b) it would be obvious to a competent and careful driver that driving in

that way would be dangerous.

Further under Section 36A(11), a person is also to be regarded as driving dangerously within the meaning of Section 36A(1) if it would be obvious to a competent and careful driver that driving the motor vehicle concerned in its current state would be dangerous. Section 36A(12) provides that for the purposes of subsections (10) and (11), ‘dangerous’ refers to danger either of injury to any person or of serious damage to property. Section 36A(13) provides that for the purposes of subsections (10) and (11), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard must be had to all the circumstances of the case including the nature, condition and use of the road concerned at the material time, the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time and the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused. Section 36A(14) provides that in determining for the purposes of subsection (11) the state of the motor vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.

42.The Defendant had pleaded guilty at the outset to Count 2, in which a tinted film had been attached to the windows of GB 27 that reduced light transmission into the vehicle, and as a result the light transmission rate fell below the minimum requirement for a vehicle to be driven on the road.

43.That the Defendant was the driver of GB 27 at the material time and place was not disputed.  Nor was it disputed that there was a collision at the material time and place – that GB 27 hit the motorcycle RX 5016 from behind when the motorcycle was travelling at a steady speed of 83 to 86 Km/H.   As a result of the collision, PWs 1 and 2 sustained injuries, and it was not in issue that the injuries they sustained amounted to grievous bodily harm.

44.The only issue to be determined is whether at the material time the Defendant’s driving amounted to ‘dangerous driving’ i.e. the Prosecution must prove that the driving acts of the Defendant fell far below what would be expected of a competent and careful driver, and that it would be obvious to a competent and careful driver that the Defendant’s driving manner or acts could be dangerous.  Yeung V-P, in delivering the decision of the Court of Appeal in HKSAR v. Lam Chi Fat [2012] 1 HKLRD 968, said:

“31. Whether a person’s way of driving is dangerous is a matter to be decided objectively, but the elements of the offence of dangerous driving do not include any specific intent to drive dangerously.”

And further:

“33. Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way of driving.”

I have borne in mind that I must consider the Defendant’s manner of driving rather than the consequences of the accident.

45.I found the Prosecution witnesses PWs 1, 2, 3 and 4 to be honest in recounting to the best of their abilities the events that happened that evening. In assessing their evidence, it has to be borne in mind that this accident was unexpected and happened very quickly.  In those circumstances, memories of details may be unreliable.

46.The evidence of PWs 1 and 2 was only to the effect that PW1 was driving the motorcycle RX 5016 in the second lane and PW2 said the speed of the motorcycle was about 80 to 90 Km/H when the motorcycle was hit from behind. PW1 said that the impact was great.  This was not challenged in cross-examination.

47.PW3 was driving his taxi in the middle lane at a speed of about 100 Km/H, the speed limit on that stretch of road, and he saw ahead of him a motorcycle.   Suddenly two vehicles driving very fast overtook his vehicle from the inner left lane – he estimated their speed to be about 160 Km/H.   The first vehicle was a red coloured one and the second a dark coloured one. After the two vehicles overtook his,  they moved into the middle lane ahead of his vehicle.  He could no longer see the motor cycle or the red vehicle.  He could only see the dark coloured one – no other dark coloured vehicles passed his.  It remained ahead of him in his lane and then he heard the sound of a collision.  He identified GB 27 as the dark coloured vehicle that had passed him at speed behind the re     d vehicle because he said he recognized that it was an Audi and he had seen the four rings on the rear of the vehicle, an Audi trademark/logo.  Photographs were shown to him of GB 27, and no rings could be seen on the rear of GB 27.   I am satisfied that PW3 was mistaken when he said he saw four rings on the rear of the vehicle that passed him.  But he never lost sight of the vehicle that 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 sounds of collision and came upon the collision of the dark coloured GB 27 and the motorcycle RX 5016.  He had initially described the vehicle that passed his as black and only in a subsequent witness statement did he describe it as dark coloured.  It was never suggested to him that the dark coloured vehicle that passed his at a high speed was not GB 27. It was night time and his initial description that it was black was subsequently corrected by him.

48.PW4 also testified to seeing two vehicles drive past her vehicle at high speed after she heard a loud engine noise – the first was a red coloured vehicle in the third lane, followed by a navy blue Audi in the middle lane, and she recalled there were 4 digits in the licence plate of the  navy blue Audi hatch back car that passed her vehicle.   As there was a taxi travelling in the middle lane, she saw the Audi overtake the taxi from the inner lane and then move back into the middle lane ahead of the taxi. She could not say about the red vehicle because her view of the red vehicle was obstructed.  Her evidence was not challenged in cross-examination.  In his closing submission, Defence Counsel submitted that PW4 identified the dark coloured vehicle as an Audi by the four rings at the rear, and the photographs of the rear of GB 27 taken after the collision did not show any such rings. However, in his cross-examination of PW4, the photographs were never shown to her - 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.

49.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.

50.PW11 retrieved the data from the on board diagnostic information system (ODIS) of GB 27.  He had received training in doing this.  The data he retrieved was not interfered with or contaminated in any way.  He was satisfied that the equipment he used to retrieve the data was also functioning properly. He showed the data he had retrieved to PW12, and also copied it onto a USB and gave that USB to PW12, who then copied it onto his own laptop, which was also functioning properly.  PW12 also confirmed that the data on the USB was the same as that he saw on the laptop into which PW11 had downloaded the retrieved data and this was the data printed out in Exhibit P10. He read out the speed of the vehicle under various fault codes on exhibit P10.  Although it was submitted that he had not been trained to interpret the data, in fact there was no interpretation – he read out what was in the report.

51.I was satisfied that PW11 had properly retrieved that data from the ODIS of GB 27 and Exhibit P10 was an accurate printout of that data.  The most relevant fault code was on page 6 of Exhibit P10 with fault code number P023A00  ‘Charge Air Cooler Coolant Pump Control’ – the fault is recorded on 21/10/15 at 19:24:56 hours, 1 second after the crash shut off was activated, and the speed of the vehicle at the time was recorded under ‘extended ambient conditions’ and the speed was 133 Km/H. 

52.PW16 was the prosecution expert on road traffic accident reconstruction, and 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.

53.Driving at a speed in excess of the speed limit in itself does not amount to ‘dangerous driving’.  One has to consider the manner of driving.  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.  PW3 said the Audi that passed him was in front of him in the second lane until he heard the sound of the collision.  The video images that were shown clearly show the red car in the third lane and driving at a speed much faster than the taxi in the inner lane. Almost immediately after the red car passed, one can hear the sound of collision and can see from the images recorded that   the camera was shaking.

54.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 -  PW3 was driving in the middle lane and the Audi overtook his vehicle at a high speed from the inner lane before moving back to the middle lane. PW4 was a passenger in a vehicle travelling in the inner left lane, and saw the Audi in the middle lane close behind a red vehicle in the third lane, both of them were driving very fast.  As a taxi was travelling in the middle lane, she saw the Audi cut into the left lane to overtake the taxi and then move back into the middle lane.  

55.Tinted film had been attached to the windows of GB 27 reducing the light transmission into the vehicle.  The Transport Department required the minimum light transmission for the glass windows for the driver’s compartment to be 70%. However, the light transmission here for the windows in the driver’s compartment of GB 27 was 25% and 27%, far below the required 70% for a vehicle to be driven on the road.  The vehicle was being driven at night, and although there was street lighting, the light being transmitted through the glass was less because of the tinted film attached to the glass.  I do bear in mind that this by itself is not evidence of ‘dangerous driving’ per se.

56.But apart from the lowered light transmission because of the tinted film attached to the windows, 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.     

57.I am satisfied that the Prosecution has proven Count 1 against the Defendant beyond all reasonable doubt, and he is convicted as charged in respect of Count 1.