HKSAR v CHAN MAN TAT (陳敏達)

FAMC No. 43 of 2020

[2021] HKCFA 8

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2020 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 344 OF 2018)

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REASONS FOR DETERMINATION

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Mr Justice Stock NPJ :

1.  On 11 March 2021 we dismissed this application for leave to appeal. These are our reasons.

2.  On 24 October 2018, the applicant was convicted by Judge Lo Kit-yee in the District Court[1] of causing death by dangerous driving[2].  He was sentenced to 15 months’ imprisonment and disqualified from driving for five years.

3.  The Court of Appeal granted leave to appeal against conviction[3] but dismissed the appeal[4]. An application to that Court to certify points of law of great and general importance was also dismissed[5].

4.  The charge alleged that on 23 May 2017, the applicant caused the death of a motorcyclist on Route Twisk by dangerous driving.  The accident occurred at a bend in the road, where one lane ran uphill bending left and the opposite lane ran downhill bending right.  The applicant was driving his car uphill and the motorcyclist downhill.  The two lanes were separated by continuous double white lines.

5.  The only issue at trial was: in which lane did the collision occur?  The prosecution asserted that the applicant drove across the double white lines onto the opposite lane and there collided head-on with the motorcycle.  The applicant’s case was that the motorcyclist crossed over into his lane and caused the accident.

6.  The prosecution case relied on physical evidence and expert evidence. The physical evidence was that scratch marks on the road, tyre marks, water marks, oil marks and vehicle fragments were all found on the motorcyclist’s lane.  There were no tyre marks or scratch marks or fragments associated with either vehicle on the applicant’s lane.  The expert evidence was that of a traffic reconstruction expert, Dr Tao, who, by reference to the location of the marks and the debris, concluded that the chances of the collision having occurred in the applicant’s lane were “almost zero”.  There was also produced a sketch plan showing the location and distribution of the marks and fragments.

7.  Although the applicant had told the police when they interviewed him at the scene of the accident that the motorcyclist had crossed into his lane, he did not testify at trial.  However, he sought to adduce as expert evidence the testimony of a Mr Mou. The admissibility of that testimony was challenged and a voir dire was held.  Mr Mou is a registered vehicle mechanic and a chartered engineer and has conducted a number of courses on vehicle damage but had never testified as a traffic accident reconstruction expert.  Whilst the Judge accepted that he was an automobile expert, she did not accept that he was qualified to assist the court in relation to the single issue in the case, which was the location of the collision and, accordingly, she did not admit his evidence.  In the result, the evidence that the applicant caused the accident was overwhelming and he was duly convicted of the offence.

8.  The appeal to the Court of Appeal was advanced on the ground that Mr Mou’s evidence should not have been excluded.  The Court concluded that the Judge had indeed erred but applied the proviso[6] on the basis that even had the evidence been admitted, the result would have been no different.  Mr Lee, for the applicant, contends that the Judge’s error identified by the Court of Appeal was in excluding the evidence, whereas Ms Ng for the respondent argues that the error which the Court of Appeal found was a failure by the Judge to provide sufficient or clear reasons for rejecting the evidence.  Be that as it may, the gravamen of the applicant’s complaint before this Court is that in applying the proviso, the Court of Appeal engaged in an impermissible evaluation of Mr Mou’s proposed testimony; impermissible because the weight which the Court of Appeal attributed to it, criticisms which it made of it and conclusions which it drew were based solely on his report and on questions put in cross-examination of Dr Tao, without Mr Mou having any opportunity to answer the concerns raised by the Court.

9.  It is against this background that the applicant sought certification of and leave to appeal out of time on the following question:

“When there was a material irregularity in the trial arising from an error and/or failure of the trial judge in not admitting and not permitting a defence expert to testify in court, whether it is permissible for the Court of Appeal to evaluate, consider and assess the weight of evidence of the defence expert merely on the expert report and/or cross examination of prosecution expert by defence counsel.”

No point was taken that the application is out of time and, in any event, the reasons for the delay are acceptable.

10.  Leave to appeal was also sought on the footing that the suggested error by the Court of Appeal has occasioned the applicant substantial and grave injustice.

11.  It would seem from the Court of Appeal’s judgment that it took the view that although Mr Mou was indeed not a traffic accident reconstruction expert, he had other expertise to offer, namely, that from his knowledge about vehicle damage and physics, he could explain what the damage to the vehicles in this case and what the resting place of the motorcyclist said about the location of the accident.  It is, with respect, difficult to see what expertise that purported to be if it was not traffic accident reconstruction expertise.

12.  Whether the Court’s judgment was that the Judge ought not to have excluded Mr Mou’s evidence or that she failed to provide adequate reasons for excluding it, we do not share the Court of Appeal’s concern about the Judge’s approach and it is therefore unnecessary to explore the issue now raised by the applicant.  The Judge heard the evidence of Mr Mou on the voir dire and said that “[a]lthough he has … attended the scenes of accidents because of his work, he did not say in court … whether he examined and how he analysed the physical evidence at scene to help him understand, determine and analyse the course of an accident and even to whom the responsibility should go. … Based on Mr Mou’s background, the court does not accept that he has sufficient knowledge and experience to assist the court as a traffic accident reconstruction expert or an expert on this important issue in the case. …”[7]  In our judgment, the reasons provided by the Judge for excluding Mr Mou’s testimony were sufficiently clear and the basis upon which she excluded it was sound.

13.  In the event, the evidence which supported the conclusion that the point of collision was within the motorcyclist’s lane was overwhelming.  The only contrary suggestion adduced in evidence was an exculpatory assertion by the applicant when interviewed by the police but he did not testify and in any event that assertion was conclusively countermanded by the physical and the admissible expert evidence.

14.  Accordingly, the question of law proposed was not engaged and we did not see any arguable ground for the suggestion that there had been a substantial and grave injustice.

Mr Dick Lee, instructed by Alvin Cheng & Rosaline Choy, assigned by the Director of Legal Aid, for the Applicant

Ms Hermina Ng SPP, of the Department of Justice, for the Respondent