HKSAR v. Tong Kin Wai

DCCC 949/2018

[2023] HKDC 343

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 949 OF 2018

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REASONS FOR VERDICT

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1.The defendant pleaded not guilty to one count of causing death by dangerous driving, contrary to section 36 of the Road Traffic Ordinance, Cap 374.

BACKGROUND

2.It is the prosecution case that at the material time the defendant was speeding (exceeded 48[1] km/hr)  and he over steered his vehicle, as a result of such, defendant’s private car spin and crossed the double white lines and collided with a motorcycle which was travelling along the opposite direction.  The driver of the motorcycle died as a result of the collision.

3.The prosecution relied on evidence of expert witness to say that defendant was driving at an excessive speed i.e. 131 km/hr in a speed limit of 70 km/hr and defendant also oversteered.

4.The defence challenged the accuracy of the calculated speed found by the prosecution expert.  Defence expert was called.

5.Expert evidence is, therefore, the main consideration in this case. 

6.Video record of interview (VRI)  was conducted with the defendant in the presence of his legal representative.  Defence submitted that the content of VRI were credible and supported by evidence.

PROSECUTION CASE

7.The prosecution called 9 prosecution witnesses including one expert.

Admitted facts[2]

8.The accident occurred near a Lookout, near lamppost N6964A at Tai Po Road-Sha Tin Heights, Sha Tin, New Territories, in Hong Kong (“the Location”). It was a three-lane-two-way carriageway, one lane going gently downhill towards Shatin (the northbound lane)  and 2 lanes going uphill towards Kowloon (the southbound lanes).  Lanes of opposite directions were separated by continuous double white lines.  It was sunny.  The road was dry and the traffic flow was smooth.  The speed limit of the location was 70 km/h.

9.On 3 April 2018 at around 1535 hours, the defendant was driving a private car bearing registration number PC3160 (“the Private Car”)  on the Shatin-northbound lane.  The male motorcyclist, aged 53 (‘the Deceased”)  was driving a motorcycle with registration number RS1488 (‘the Motorcycle”)  on the 2^nd southbound lane (counted from the left)  towards the Location.  There was a collision between the Private Car and the Motorcycle at the location.

10.At 1545 hours on the same day, PW4 PC15747 attended the scene and found the Private Car was slanted and stopped in the middle of the 1^st and 2^nd lane of southbound lanes, Tai Po Road (Shatin Heights)  with its front pointing towards Shatin.  The Motorcycle rested at the pedestrian pavement of southbound lanes with its front pointing towards Kowloon.  Both vehicles were seriously damaged.  One traffic sign of “All vehicles prohibited except permitted vehicles” was also damaged. 

11.At 2303 hours on the same day, SGT 53216 arrested the defendant for the offence of “Dangerous Driving Causing Death” at the Hospital. 

12.From 1115 hours to 1217 hours on 4 May 2018, the defendant voluntarily attended a video of interview (“VRI”)  with police officers in the presence of his legal representative.  The recorded VRI and transcript were produced as Exhibit P16, P16A-B. 

13.The documentary evidence included: -

(a)  Three sets of photo albums, one sketch and scale plan -

(i)  At 1618 hours, PW6 PC18765 took 44 photos (Exhibit P2 (1-44))  and drew a sketch (Exhibit P5)  at scene and a scale plan (Exhibit P6)  based on Exhibit P5 at office to reflect the accident scene.

(ii)  At 1828 hours, PW7 PC3391 attended the Location for case investigation. He took 21 photos (Exhibit P3(1-21))  reflecting the position of the Private Car and Motorcycle and the accident location.

(iii)  At 1930 hours, PW8 SPC47779 attended the Location and took 70 photos (Exhibit P4(1-70)).

(b)  Motor Vehicle Examination (MVE)  Report for the Private Car (Exhibit P11)  and MVE Report for the Motorcycle (Exhibit P12)  showed that both vehicles do not have any mechanical defect before the collision.

(c)  Medical reports of both the Deceased (Exhibit P8)  and the defendant (Exhibit P10).

(d)  Autopsy report (Exhibit P9)  of the Deceased - Dr TSANG Chak-chi of Forensic Pathology Service of Department of Health conducted autopsy on the Deceased. He confirmed the cause of death appeared to be “Multiple Injuries”.

(e)  Scientific Evidence Officer and Forensic Scientist reports (Exhibit P13 & P14)  – Items were collected from the Private Car and the Motorcycle. Examination found that there was highly likely a contact having occurred between the Private Car and the Motorcycle.

(f)  Expert reports of the prosecution (Exhibit P15)  and defence (Exhibit D1).

14.The make of the Private Car was Honda.  Its model was Accord 24T.  The year of manufacture was 2003 in Japan. 

accident footage

15.At 1630 hours on the same day, PW5 PC18284 seized a rear car camcorder with a SD card (“the dashcam” and “the SD Card”, Exhibit P7B and 7C)  from the Private Car.  At 1720 hours, PW5 handed over the dashcam and the SD Card to PW6 PC 18765.  At 1920 hours, PW6 handed over them to PW7 PC3391.  PW7 then sealed them into two Tamper Evident Property Envelopes separately.  From the SD Card, PW7 prepared a DVD disc [Exhibit P7] containing rear dashcam footage (“accident footage”)  of the Private Car with the Government computer for further investigation.  A total of 7 image frames (Exhibit P7A (1-7))  were extracted from Exhibit P7.

16.The date of the accident footage showed “2015-11-20”, which did not match with the actual date.  Also, the time clock in the footage did not match with the accident time which was about an hour faster than the actual time.

17.The accident footage was taken from the dashcam mounted on the rear of defendant’s vehicle.  Therefore, the moment of collision in the accident was not captured. 

pedestrian crossing and safety island

18.There was a pedestrian crossing around 46 metres away from the point of collision.  On the pedestrian crossing, there were safety islands (“the safety island”)  with bollards.  The safety island was 1.2 metres wide. 

EVIDENCE

PW1 Ms WONG Sze Man

19.At around 1530 hours on 4 April 2018, PW1 parked her car at the meter car park situated beside the southbound lane near a lookout at Tai Po Road. She sat on her driver seat, lowered down the car window and pressed her phone.

20.She heard a big sound coming from the southbound lane 10 metres away. When she looked up she saw the Motorcycle flew up to the sky and then fell down. She immediately called the police.  She went to see the Deceased.  She found the Deceased seriously injured, one of his legs was already broken, his breathing was very rough for several times and then stopped.  She also saw defendant went up to the Location.

PW2 Mr Yeung Chan Lam

21.At around 1530 hours, PW2 was driving southbound towards the direction of the Location.  There were no vehicle coming along on both sides of the road.  He heard a very loud sound and suddenly a lot of smoke coming up at the front.  PW2 then slowed down and found the Private Car rushing down which gave him the feeling that the driver has lost control of it.  

22.PW2 alighted from the car and found the Deceased was seriously injured, the limbs were twisted.  PW2 saw defendant holding a phone and talking.  The defendant was very frightened and kept saying “It’s doomed.  It’s doomed.  It’s doomed.”  There were lots of fragments on the ground.

PW3 Mr Ng Ka Fu Ambulanceman

23.At about 1520 hours, PW3 was conveying a girl to the Caritas Medical Centre.  When the ambulance passed the Location, PW3 alighted and went up to see the Deceased who was found resting on the pedestrian pavement.  PW3 found the right body of the Deceased seriously injured and the Deceased was not breathing.  PW3 took off the helmet of the Deceased and conducted cardiopulmonary resuscitation on him.  The Deceased was not conscious.

PW4 PC 15747

24.At 1545 hours, PW4 attended the scene.  PW4 found the Private Car was slanted between the 1^st and 2^nd lane of the southbound road (Exhibit P2(28)). PW4 also found the Motorcycle rested on the pedestrian pavement of the southbound road (Exhibit P2(1)).

25.The traffic signpost near to where the Motorcycle was rested was damaged and slanted (Exhibit P4(19)). 

PW5 PC 18284

26.At 1618 hours, PW5 attended the scene and seized the dashcam with SD Card from the Private Car.  The dashcam was installed at the rear of the Private Car. 

PW6 PC 18675

27.At 1618 hours, PW6 attended the scene.  He took photos (Exhibit P2), drew sketch (Exhibit P5)  and scale plan (Exhibit P6).  The scale plan was marked with measurement he took from the Location.

28.He agreed that the double white lines immediately attached to the safety island at the north were printed more to the right side, therefore the northbound lane was widen after vehicle passed the safety island (Exhibit P4(6)).  The distance between the (north)  safety island and Fixed Point 3 (“FP3” in scale sketch P6)), i.e. near the collision point, was roughly 46 metres.

PW7 PC 3391

29.At 1828 hours, PW7 attended the scene and took photographs (Exhibit P3).

30.PW7 read the SD card (Exhibit P7C)  with a government desktop computer in Sheung Shui police station.  PW7 used the Microsoft program with Windows to copy the accident footage file from the SD card to an optical disc (Exhibit P7).  PW7 testified that he had clicked the file[3] of the SD card and watched the accident footage.  The computer ran smoothly when copying was made.  He also extracted 7 images from the accident footage (Exhibit P7A).

31.There was some music or sound when the accident footage was played in court.  One could hear the sound of door opening and footsteps of defendant when he was seen alighted from the Private Car.

PW8 SPC 47779

32.At 1930 hours, PW8 attended the scene and took photographs (Exhibit P4).

PW9 Dr Cheng Yuk Ki

33.Dr Cheng has been employed by the Government as chemist since 1997.  Dr Cheng is now a forensic scientist in the Forensics Science Division of the Government Laboratory in Hong Kong.  He had given evidence as an expert witness in the courts of Hong Kong on a number of occasions.  His report, dated 25 June 2018, was adduced into evidence at trial (Exhibit P15).  His expertise[4] was not challenged.  I accept he is a qualified forensic expert.  He gave evidence on traffic accident reconstruction.

34.On 3 April 2018 at 1830 hours, Dr Cheng attended the Location to conduct forensic investigation with a view to reconstructing the accident.  He concluded the examination of the scene at 2030 hours.  

35.At the Location, yaw marks were found 20 metres away from the gouge mark, i.e. the collision point.  Yaw mark was an indication that vehicle spin on the carriageway as the tyre rub on the road surface leaving the mark.  Two impact dents were also found on the southbound iron railing near to where the Private Car stopped.  Dr Cheng opined that the two dents were sign of impacts caused by the nearside front bumper and nearside rear tyre of the Private Car.  

36.Numerous broken vehicle fragments were scattered inside the rest garden, and the furthest one might be over 10 metres away from the southbound lanes.  

37.On 18 April 2018, Dr Cheng went to the Vehicle Examination Centre to examine both the Private Car and the Motorcycle and took pictures of damage to both vehicles.

laboratory examination

38.Dr Cheng then conducted laboratory examination on the tyres of the Private Car and the Motorcycle, and the accident footage.  The purposes of his examinations were to determine: (1)  the cause of the deflation of the tyres/wheels units of the Private Car and Motorcycle, (2)  the frame rate of the dashcam of the Private Car and (3)  the speed of the Private Car prior to the accident from the accident footage. 

tyre

39.Dr Cheng found that the front tyre of the Motorcycle was deflated due to the impact between the Motorcycle and the Private Car.  The rear tyre of the Motorcycle was inflated.  As for the Private Car, except the nearside front tyre, all other tyres were deflated.  The cause of the deflation was due to impact with some hard objects.  Dr Cheng found the offside front tyre and the offside rear tyre of the Private Car were deflated due to the impact between the Private Car and the Motorcycle.  The nearside rear tyre deflated was due to the impact on the iron railing on the southbound lane.

frame rate

40.Dr Cheng examined the accident footage to determine the frame rate.  By using the time stamp (shown on the bottom left corner of the screen when footage was played)  to count the number of frames, it was found that the frame rate was 27 to 31 frame per second.  In addition, each second was found to have 9-12 duplicate frames.  The frame rate recorded in the metadata of the video file was 30 frame per second.

41.He used the dashcam to record a control footage showing a calibrated timer.  Based on the calibrated timer, he counted the number of frame per second and found that the frame rate of the control footage was 28 to 31 frame per second.  He also found 9 to 12 duplicate frames in each second.  

42.The number of frame rate of the accident footage and control footage was not exactly match; this was due to the reason that the control footage was used with calibrated timer but the other not.  However, Dr Cheng found the number of duplicate frames and all other format were all the same.  Dr Cheng considered the accident footage could be used for analysis.  To the benefit of the defendant, Dr Cheng adopted the frame rate of 28 frame per second (fps).  Dr Cheng further added he had made verification with the calibrated timer to make sure his decision to take this number of frames was correct.  

43.To determine the speed, 4 lampposts were used as reference for distance measurements.  On 19 June 2018, he went to the accident scene to measure the distance between the aforesaid lampposts.  The result of measurements and the calculated average speeds were as follows: -

Lampost No.	Frame No.	Time stamp	Time[5] from previous position, s	Distance from the previous position, m	Average speed, km/h
N6954	6639	16:32:44	-	-	-
N6957	6688	16:32:46	1.75	74.2	152 ± 15
N6959	6734	16:32:47	1.64	59.7	131 ± 13
N6961	6776	16:32:49	1.59	59.5	143 ± 14

(Speed limit: 70km/hr)

44.Dr Cheng found that the collision time was at timestamp 16:32:52 of the footage, about 6 to 3 seconds before the collision, the defendant over speeded by at least 48km/hr[6].

45.Dr Cheng did not calculate the speed after lamppost N6961, as he could not find a fixture from the footage to do the calculation.  Dr Cheng explained that he had to make sure his calculation is correct, he would select some fixtures that appeared to have the same size and distance away from the carriageway for reference.  He also added he would not calculate the speed when vehicle was lost of control.  

46.Dr Cheng examined the accident footage frame by frame.  Events of significance[7] were extracted from the accident footage.  After the Private Car passed the lamppost N6961, Dr Cheng found that the Private Car suddenly swerved to the left and right, and then spinning anticlockwise and clockwise before collision happened (Exhibit P15 para 5.11 & 6.2). 

Video Recorded Interview

47.Upon arrest, a video recorded interview (VRI)  was conducted with the defendant between 1115 hours and 1217 hours on 4 May 2018.  The defendant attended the VRI in the presence of his legal representative.  

48.The defendant, under caution, said he is a police constable.  At the material time, he was on sick leave because he was injured whilst he was on duty.  Nevertheless, on the day in question, he was physically well and the injury had almost recovered. 

49.He was familiar with the subject road and knew the speed limit is 70km/hr[8]. He was sure he was driving within the speed limit[9] but when it was about 100 metres before the accident location, he probably was driving a bit fast at 70 – 80km/hr as the road was clear[10].

50.Defendant then notice a black car in front around 100 metres before the accident location.  The black car slowed down and moved to the left, defendant thought the black car intended to drive into the “Shell” patrol station. Therefore, he kept to the right when he drove pass the pedestrian crossing[11].  He also had to avoid the sunken gully on the left when he passed the pedestrian crossing[12].  He felt the offside of his tyre bumped into the kerb of the pedestrian crossing safety island.  The offside tyre burst.  He turned the steer but he lost control of the vehicle.  He then heard a “boom” sound and collision happened.  He ran to the motorcyclist who sustained serious injuries.  Defendant also had blood all over his face[13].

Case to Answer

51.At the close of the Prosecution case, there was no half-time submission by the defence.  I ruled that there was a case to answer in respect of the charge against the defendant.

Defence Case

52.The defendant elected not to give evidence but called one defence expert, Mr Mark Littler.  

Mr Mark Littler

53.Mr Littler is now a Director and Senior Collision Investigation Consultant at Littler Winstanley Consultant in England.  He was a police officer with Greater Manchester Police for 25 years, he spent 16 years in the Road Traffic Department of which 10 years were spent as a specialist Forensic Collision Investigator.  After that he joined the Road Traffic Accident Investigation team at Keith Borer Consultants in 2011.  During the course of his past working experience, he received training and had experience in analysis of CCTV and dashcam evidence.  His report dated 1^st November 2019 with Appendix were produced as Exhibit D1, D1A-B.  The expertise[14] of Mr Littler was not challenged.  Mr Littler gave evidence in court as a road traffic reconstruction expert.

54.Mr Littler testified that there are dangers in accepting dashcam evidence as a means of calculating speed.  There are guidelines from the Home Office of the United Kingdom (Exhibit D1B)  to follow on the retrieval of video evidence to eliminate improper recovery of evidence.  Mr Littler commented that there was no evidence from PW7 to indicate the precise manner in which the dashcam footage was copied.  Without knowing exactly what PW7 had done with the SD card and how he copied it, the data could be lost.

55.There was also irregularity found in the accident footage.  There were 9 to 12 duplicate frames or “skip frames” found in each second.  It is not right for Dr Cheng to count in the duplicate frames that do not occupy time in his calculation.  Mr Littler said the frames that do not occupy time should be discarded.  

56.Mr Littler confirmed that the calculation of Dr Cheng was mathematically correct but the manner of which he calculated was unsafe.  If the calculation included the duplicate frames, the frame rate would be incorrect and the result of the speed would be incorrect as well.

57.The Private Car was 15 years old.  Mr Littler had searched the Honda website to see the performance testing of the Private Car to ascertain whether the Private Car would be capable of accelerating at the rate Dr Cheng found. However, he could not found the information from Honda website.  Therefore, Mr Littler then gathered information from other automobile websites (Exhibit D1C)  which provided performance test results from different sources.  He interrogated the data and found that the Private Car would not be able to accelerate at the rate required to increase its speed from 131 km/hr to 143 km/hr in the time indicated by Dr Cheng’s figure.  

58.Mr Littler said he had not visited the scene. 

59.Mr Littler agreed that judging from the photograph (Exhibit P4 (7))  showing two black marks (Patch A – B)  on the pedestrian crossing safety island, he opined that the one near the tip of the curve (Patch B)  was an old mark and the one near the corner (Patch A)  appeared to be a recent mark.  He opined that when the angle of the vehicle slightly turned to the right, the mark of Patch A could be created. 

60.Mr Littler agreed he had received the accident footage and control footage served by the prosecution.  He had also examined both footages.  He agreed that the time stamp on the accident footage did not represent the actual capture time.  He agreed it would not affect the frame rate of the accident footage.  

ANALYSIS

61.I remind myself that the burden is on the prosecution to prove the case beyond reasonable doubt.  The defendant has no burden to prove.  

62.The defendant elected not to give evidence.  This is his right and no adverse inference would be drawn against him.  

63.The reply given by the defendant in VRI contained both incriminating parts as well as explanations and they are mixed statements.  I direct myself in accordance with the principles set out in R v Sharp when considering the content.

64.The defendant has a clear record.  I give myself the good character direction in relation to both propensity and credibility.

65.The doctrine of res ipsa loquitur does not apply.

THE LAW

66.Pursuant to section 36(4)  of the Road Traffic Ordinance Cap 374:

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

(a)  the way he 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.

67.Section 36(6)  - (7)  of the Ordinance provides:

(6)  For the purposes of subsections (4)  and (5), dangerous refers to danger either of injury to any person or of serious damage to property.

(7)  In determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including—

(a)  the nature, condition and use of the road concerned at the material time;

(b)  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

(c)  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.

68.The test is an objective one.  In HKSAR v Lam Chi Fat CACC 89/2011, the court cited Attorney General’s Reference No. 4 of 2000:

“33. 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.”

FINDINGS

69.I have carefully considered all the evidence, exhibits, the accident footage and the submissions made by both parties.  

70.Except for the evidence of the expert and PW7, the defence did not challenge the evidence of other prosecution witnesses.  None of the witnesses had eye-witnessed how the accident happened.  The witnesses had tried the very best of their abilities to recount the events that happened.  I consider prosecution witnesses PW1 – 6 and PW8 to be honest and reliable.  

71.It is no dispute that the Private Car collided with the Motorcycle causing the death of the Deceased.  As such, causation is not an issue.  

72.It is also agreed the gouge mark[15] reflect the point of impact.  The gouge mark was found near the middle of the 2^nd southbound lane by the entrance of the rest garden.  Therefore, collision happened on the lane which the Motorcycle was traveling.  

73.The force of the impact was substantial.  According to PW1, she saw the Motorcycle was airborne after she heard a bang sound and looked up.  PW2 heard a loud sound and then saw a lot of smoke in front when he was driving on the southbound lane towards the accident location.  PW3 found the Deceased unconscious at the scene and the right body seriously injured.  Numerous broken vehicle fragments were scattered inside the rest garden and the furthest one over 10 meters away from southbound lanes.  The head of the Deceased with its helmet hit on the top edge of driver door of the Private Car and the Deceased further flew to right rear of the Private Car and the helmet further hit the top edge near the hatch door.   The body of the Deceased also hit the B column of the Private Car.  Suspected human tissues and remains were found in the B column and the floor panel of the Private Car[16]. The damage of both the Private Car and the Motorcycle was significant (Photos P2-P3).  

74.The prosecution relied on the expert evidence of Dr Cheng to say about 6 to 3 seconds before the collision, defendant was driving at an excessive speed i.e. 131km/hr in a limit of 70km/hr and defendant oversteered when it was 2 seconds before the collision. 

75.The defence challenged the accuracy of the calculated speed found by Dr Cheng. 

76.In the VRI, the defendant averred that he was driving within the speed limit, only some time before the accident, he was probably a bit fast at 70-80km/hr[17].

77.The speed of the Private Car is the issue to be decided.

Speed

78.Dr Cheng found the lowest speed which defendant was driving around the accident moment was 131 km/hr.  The speed that Dr Cheng found was the result of his examination of the accident footage.  

79.The defence submitted that:

(a)  There is no evidence from PW7 PC 3391 to indicate the precise manner in which the data/dashcam footage was copied.

(b)  Dr Cheng did not demonstrate in court how or what device/programme he had used to count the frame. Also, the prosecution did not produce or play the control footage in court. The defence submitted, the prosecution has to adduce the details of the matter which the expert evidence was based, without them, the judge or jury would be unable to examine the way the expert purported to have undergone and to decide whether the opinion should be accepted[18].

(c)  Dr Cheng did not discard the 9-12 duplicated frame that do not occupy time when he calculated the frame rate. This was inconsistent with the way he wrote in his article relating to dashcam footage.

(d)  Defendant’s vehicle, being a 15 years old Honda Accord, could not be capable of accelerating at the rate as alleged by Dr Cheng.

(e)  There is no evidence on the speed of the defendant some 105 metres before the collision point as Dr Cheng made no calculation after lamppost N6961. The defence relied on the Road User Code[19] to say that a vehicle traveling at 80 km/hr can be stopped totally in 60 metres.

80.The defence submitted that the evidence of Mr Littler was clear.  Though Mr Littler agreed that the calculation of Dr Cheng was mathematically correct, the defence submitted, the calculation was based on wrongful frame rate and the control footage counting the frames by unknown programs was not produced.  Therefore, the calculated speed would be wrong.

(a)  copy of footage

81.There is no dispute that the SD card (Exhibit P7C)  contained the footage of the accident.  PW7 made copy of the footage into the optical disc (Exhibit P7).  He had clicked in the file and watched it.  He had also watched the footage played in court and confirmed it was the one that he copied.  The government computer ran smoothly when PW7 made the copy.  His evidence is clear and direct.  I accept his evidence.  

82.There is no evidence to show that the file was in any way modified.  It is also noted that the file name of the footage which PW7 copied was the same as the one that Dr Cheng examined.  I find that the accident footage contained in the optical disc was an exact copy from the SD card of the dashcam and had not been altered or contaminated. 

(b)  control footage

83.In order to verify the frame rate of the accident footage for speed determination, a controlled footage showing calibrated timers was made by the dashcam under laboratory conditions.  

84.Dr Cheng illustrated how the frame rate of the control footage was counted by using Exhibit P15B.  There were two timers shown in Exhibit P15B. He explained that an iPad digital timer (on the left of Exhibit P15B)  was used to show the time.  The iPad digital timer has been calibrated.  On the right, there was a monitor screen which has also been calibrated.  Dr Cheng described that the pattern of counting was like counting rows of blocks.  There were 60 blocks.  They were arranged in 10 rows with 6 blocks on each row.  The counting would start from the first left top block and then run from left to right and top to bottom for one second.  Frame by frame analysis of the controlled footage accurately revealed the frame rate of the control footage was higher than 28 fps.  Dr Cheng therefore adopted 28 fps to the benefit of the defendant.

85.Mr Littler also agreed Exhibit P15C show the result of the examination made from the control footage performed by Dr Cheng.  

86.The frame rate in the control footage did not exactly match with the rate in accident footage.  Dr Cheng explained it was due to the fact that the calibrated timer was used for the control footage but the other did not.  Nevertheless, Dr Cheng opined that the accident footage could be used for analysis as he confirmed the number of duplicate frames and all other formats were the same.  Therefore, Dr Cheng opined that the accident footage could be used for speed analysis. 

87.The defence submitted the device or programme used to count the frame rate of the control footage was not known.  It has to be noted that the device or programme used were performed under the laboratory condition.  Dr Cheng testified that he had performed the work for over 10 years in Government Laboratory.  It would be hard to find the government laboratory would adopt inaccurate device or programme.

88.The prosecution submitted that the authorities cited by the defence concerned different area of expertise eg tyre marks.  I bear in mind the principles laid down in the authorities.

89.Dr Cheng explained entirely how he counted the frame rate of the control footage and illustrated the process clearly.  The fact that the control footage was not produced in court did not render the quality of the expert evidence to be insufficient.  Most importantly, the matters which Dr Cheng based upon to make his findings have been adduced into evidence.  

(c)  duplicate frames

90.Defence challenged Dr Cheng that he did not discard the 9-12 duplicated frames that do not occupy time in his calculation of frame rate.  Mr Littler criticized Dr Cheng to include frames that do not occupy time in his calculation.

91.Dr Cheng found that there are 9-12 duplicate frames, he was well aware of that.  Dr Cheng explained he was not sure which duplicate frame occupy time or do not occupy time.  So the way he did the calculation was to include all the duplicate frames.  Dr Cheng had done a lot of in-house experiment.  In this case, Dr Cheng had considered the presence of duplicate frames.  So he enlarged the uncertainty to 10 per cent, instead of the usual 5 per cent, to ensure he would not over-estimate the accident speed.

92.As a matter of fact, Mr Littler had examined both the accident footage and control footage served by the prosecution, he found there were 9 to 12 duplicate frames, but all of which occupied time.  In Mr Littler’s report (Exhibit D1)  para 36: -

“36…There were also 9 to 12 duplicate frames, within individual seconds, all of which occupied time. There was no consistency in the number of duplicate frames. I can confirm that the metadata of the file was 30 fps.”

93.Mr Littler had counted the frames on the accident footage between the lampposts measured by Dr Cheng and agreed with the numbers of frames Dr Cheng has used.  

94.At trial, Defence put forth a published article written by Dr Cheng found from website and quoted from the article: “If duplicate frames were found not to occupy a timeslot, they must be discarded”.  Defence challenged Dr Cheng that, in the present case, he did not discard the duplicate frame which do not occupy time in the manner described in the article. 

95.Dr Cheng explained the situation in that case was different from the present one.  It was because the camera used in the article was different from the dashcam defendant used in this present case.  In the present case, Dr Cheng could not discard the duplicate frames as he did not know which occupy time and which do not occupy time, so he included all.  He used a larger uncertainty to cover the unknown to ensure the speed was not overestimated. 

96.Dr Cheng, when challenged, instantly pointed out that different case has different consideration.  The type of camera used was one of the considerations.  He explained why he had to add in the frames that occupy and do not occupy time and how he resolved the matter in his calculation.  Indeed, different case must have different consideration.  The type of camera used was critical.  Dr Cheng had considered the special feature of the case.  I accept his explanation.  

97.I therefore accept that by adding in all the duplicate frames that occupy time and do not occupy time, it would not have material prejudice to the result found by Dr Cheng.

(d)  acceleration rate

98.Mr Little opined that the Private Car would not be capable of accelerating a rate sufficient to match with the speed calculated by Dr Cheng. Mr Littler relied on the performance testing results found from website to make the opinion.

99.Dr Cheng told court that reliable source on performance data should be obtained from the manufacturer, not from internet.  In any event, the manufacturer would usually provide acceleration data from rest to 100 km/hr.  It has also to be noted that the performance testing result which Mr Littler searched, were not found from the official website of the Private Car manufacturer, i.e. Honda.  Also the performance testing results which Mr Littler found from website contained results from different sources.  The figures were not specifically tested from the model of the Private Car with the same manufacture year and of the same condition/specification in this case.  Moreover, it has to be noted that the performance test had to be done in standard condition and those tests were usually undertaken in new vehicles with trained test drivers in ideal conditions, such as a level road surface.  

100.In the present case, it is admitted that the road in question was a gently downhill road[20]. The rate of acceleration would be higher on a downhill road than on a level road surface.  In VRI, the defendant also found the road has up and downslopes[21].  

101.I do not find the performance testing results which Mr Littler found apply suitably to the Private Car.  

(e)  no calculation of speed some 105 metres before the collision point

102.Dr Cheng only calculated defendant’s speed when he found it is appropriate for him to do so.  He calculated the speed only when he could find a fixture for reference.  He even personally went to the scene to take the measurement.  He relied on fixture and measurable distance to do the assessment as he wanted to make sure his calculation was correct.  This was what he emphasized.  He did not calculate the speed by relying on unsafe and uncertain materials and data.  He, therefore, did not calculate the speed after lamppost N6961 as he could not find any fixture after lamppost N6961.  The findings made by Dr Cheng are relied on reliable material but not bare references.  

103.The distance between the lamppost N6961 (last point of speed calculation)  and the point of collision was about 105 metres.  The defence relied on Road User Code to say that that a vehicle traveling at 80 km/hr can be stopped totally in 60 metres.

104.The stopping distance according to the Road User Code is for all kind of vehicles.  Vehicle’s braking performance is also a matter that have to be considered.  Also, it was found that after lamppost N6961, the Private Car had swerved to the left and right suddenly.  After that, the Private Car spin and crossed the double white lines before collision happened.  Therefore, the information defence relied upon in the Road User Code did not assist the defendant’s case.

105.Mr Littler conceded that the calculation made by Dr Cheng was mathematically correct.  Mr Littler’s overall evidence only challenged the way that Dr Cheng calculated the speed.  As such, there were no evidence from Mr Littler on defendant’s speed.  

106.Dr Cheng adopted the lowest frame rate, i.e. 28 frame per second.  By adopting 28 frames per second, a lower number of frames, the calculated speed would only be lower.  It was done in favour of the defendant.  Dr Cheng had given the calculated speed a +- 10% allowance to take care of any uncertainty.  The whole calculation Dr Cheng made, was in the most favourable setting for the defendant.  Dr Cheng’s evidence was clear and his calculation was well based.  I do not find the way that Dr Cheng calculated the speed of the defendant is unsafe. 

107.Having considered all the circumstances, I do not find the challenges put forward by the defence undermine the reliability and accuracy of Dr Cheng’s evidence and calculation.  I accept Dr Cheng’s evidence as a whole and I accept his findings on the speed of the defendant. 

108.Dr Cheng found the range of speed that defendant was driving around the accident moment was between 131 – 152 km/hr.  Even taking the lowest finding of the speed calculated, i.e. 131 km/hr, Defendant had exceeded 48km/hr[22] when the prescribed speed limit was 70 km/hr.  

Defendant’s VRI

109.The defence submitted that the explanation given by defendant in his VRI was credible and supported by evidence.

110.In the VRI, the defendant averred he was driving within the speed limit[23].  He was then a bit fast, probably at 70 - 80km/hr, as the road was clear.  But when it was about 100 metres before the location of the accident, he said the speed must be 70 km/hr or lower[24].

111.Having accepted Dr Cheng’s evidence in relation to the speed he found in this case, I reject defendant’s averment that he was driving within speed limit at the material time.

112.In the VRI, defendant said he notice a black car in front which he was following slowed down and moved to the left, which defendant thought, the black car intended to enter into the “Shell” petrol station.  Defendant then tried to move to the right and the Private Car’s right tyre hit the safety island kerb and he lost control of the vehicle.  

113.In considering whether the Private Car’s right tyre had hit the safety island kerb causing him losing control of the vehicle, I have carefully considered the explanation of defendant in the VRI, the exhibits including the photos, sketch, the accident footage and the evidence of the experts.

114.Regarding this matter, it was raised by the defence that there were two black patches (patch A and B, see Exhibit P4B)  on the safety island (north)  (see photo Exhibit P4(7)).  Mr Littler agreed that Patch B was an old and weathered mark as compared with Patch A, judging from the photograph alone.  Mr Littler opined that Patch A could be created if vehicle slightly turned to the right.  

115.Dr Cheng, however, ruled out the possibility that the Private Car’s right tyre had hit the kerb of the safety island.  Dr Cheng explained when the vehicle was coming along the traffic direction, the corner of the safety island would protect any impact from happening on Patch A and B.  The vehicle would have already hit the safety island on the corner thereby no chance to hit Patch A and B.  It would be even difficult to hit Patch B as it was farther away from the corner of the safety island. 

116.I have carefully considered the evidence made by both experts.  Mr Littler had not gone to the Location after the accident nor had he ever visited the scene.  Mr Littler made his remarks by judging from the photographs alone. I do not see him giving a direct answer or providing any tenable reason to reach his conclusion.  On the contrary, Dr Cheng had arrived the scene within two hours after the incident and his duty was to conduct detailed forensic investigation.  Dr Cheng also took measurement of the pedestrian crossing.  Upon arrival, Dr Cheng had walked along the stretch of the road.  No marks of significance were found on the carriageway and the kerb near the traffic island of the pedestrian crossing (see Dr Cheng’s report para 2.4).  Dr Cheng testified that he confirmed that he did check the kerb of the safety island when he visited the scene but nothing significance was found.  I have also heard the reason given by Dr Cheng on how he came to the conclusion.  

117.The accident footage also refuted this averment made by defendant.  Having examined the footage, it is noted that in Dr Cheng’s report at para 6.2 (Exhibit 15), Dr Cheng found defendant was swerving to the right when defendant was passing the pedestrian crossing.  Only when the Private Car had passed the pedestrian crossing, the Private Car spin and then bounce.  He found the nearside rear tyre might hit the kerb, resulting in Private Car bouncing towards the southbound lanes and spinning anti-clockwise.  

118.As such, I believe Dr Cheng’s finding and accept his conclusion to rule out the possibility that the Private Car’s right tyre had ever hit the kerb of the safety island which caused the tyre deflated and resulted in losing control of the vehicle.  

119.Though I have ruled out the possibility that the Private Car had hit the safety island, I accept that there was a black car which defendant mentioned in the VRI.  

120.In Dr Cheng’s report, at timestamp 16:32:54 with frame no. 6918, there was a dark saloon car travelling along the northbound lane (Exhibit P15 page 19).  It is not sure whether this dark saloon car was the same black car which defendant was following as said in the VRI.  But having viewed the footage, which showed the rear view of the Private Car, it is noted that there was no vehicle traveling behind defendant some time before the collision.  As such, the dark saloon car appeared in frame no. 6918 may likely be the black car in front of defendant as he indicated.

121.Nevertheless, even I accept that the black car existed, it did not assist defendant’s case.  The defendant said the black car in front slowed down, and defendant thought, the black car intended to enter the “Shell” petrol station on the left of the road.  Defendant then tried to move to the right when he was passing the pedestrian crossing.  In view of the condition at the material time, however, it would be inappropriate, for defendant to swerve to the right when he was approaching or passing the safety island, as the safety island narrowed the road.  (Photo P4 (6)).  In the VRI, the defendant was aware that the safety islands made the road narrower[25] and he also had to avoid the sunken gully[26] on the left.  He could do so after passing the safety island when the lane become widen[27].

122.According to Dr Cheng’s evidence and report, he found that defendant in fact made two sudden significant maneuvers before the vehicle spin.  Defendant first suddenly swerved to the left and then to the right[28].  Dr Cheng opined that the two maneuvers were sudden, and the swerving to the left and then the right were not balanced, that reflected the situation which defendant made attempts to correct his steer and yet he failed and oversteered.  He did not steer the vehicle properly.  In fact, moment before the accident, there saw no sign of defendant ever attempt to reduce or maintain his speed appropriately to comply with the speed limit in the first place.  I reject defendant said he moved to right the way he described in the VRI.

123.The only reason why The Private Car spin and then crossed the double white lines, which Defendant described as “he lost control of the car”, was because he was driving his vehicle at a high speed and he did not steer his vehicle properly when he was approaching and passing the pedestrian crossing safety island.  His vehicle then spin anticlockwise and clockwise and eventually crossed the double white lines causing the collision with the Motorcycle. 

124.Although I find defendant’s explanation in his VRI incredible, it does not mean he is guilty of the charge.  I remind myself that the burden is on the prosecution to prove the case beyond reasonable doubt. 

125.I accept Dr Cheng’s evidence.  Defendant was speeding and he failed to maneuver his vehicle properly and oversteered.  

Dangerous driving

126.Speeding by itself is not sufficient for dangerous driving.   The court has to look at the circumstances of the case.  Also, the court must base its consideration on the way of driving rather than the consequences of the accident.

127.The defendant was familiar with the subject road.  The subject road was a 3-lane 2-way carriageway which the two bounds of traffic was divided by double white lines.  The northbound lane which defendant was traveling at the material time was a single lane so he should be well aware that any over steering to the right would traverse the double white lines affecting the traffic of the opposite lane.  He should be well aware that he has to properly keep his vehicle wholly in the northbound single lane when he was traveling towards Shatin direction.

128.It was a normal weekday on the day in question.  Motorcars and pedestrian could have been expected in any moment. 

129.The defendant had traveled the subject road often, he should be well aware that the northbound lane is undulating with up and downslopes and winding with some left and right bends.  The lane also has several pedestrian crossings with safety islands.  Nevertheless, it could be seen from the accident footage that the defendant made no adjustment of his speed to cope with those road conditions.  The relevant parts showing the manner of driving in the accident footage are: (1)  16:32:40, driving up and downslope, (2)  16:32:42, crossing a pedestrian crossing and (3)  16:32:44, entering a bend.  These could be seen not long before the accident happened (16:32:52). 

130.What was worst, as Dr Cheng found, which I accept, is defendant sped excessively.  Defendant was well aware that the speed limit of the subject road is 70 km/hr.  He drove at a speed of 131 km/hr.  He exceeded almost 48 km/hr in a limit of 70 km/hr.  In fact, the range of speed that defendant was driving around the accident moment was between 131 – 152 km/hr.  The defendant blatantly ignored the speed limit. 

131.Whilst driving at a high speed, defendant also failed to steer properly when he was approaching the pedestrian crossing traffic islands which was attaching to the double white lines.  He oversteered.  The Private Car spin and crossed the double white lines and collided with the Deceased.   The force of the impact was so strong that the Deceased hit on the defendant’s vehicle more than once and was thrown through the air before resting on the pavement[29]. Both vehicles were seriously damaged.   

132.I find that at the material time, defendant was excessive speeding.  He also failed to properly maneuver the Private Car while he was driving at a high speed.  He oversteered and the Private Car spin and crossed the double white lines and unfortunately collided with the Motorcycle on the opposite lane causing the death of the Deceased.

133.In HKSAR v Lam Chi Fat CACC 89/2011:

“33. Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way of driving. Evidence that supports the charge of dangerous driving may include:

(1)  Excessive speeding, particularly when it is raining and the road is slippery.

(2)  Non-compliance with traffic signs, such as driving through a police road block; “jumping a red light”, failure to stop in front of a “zebra crossing” to give way to pedestrians; ignoring pedestrian stud crossing and driving past at high speed; driving into a “No entry” section of road, speeding at double white line, etc….”

(3)  Ignoring road safety regulations, such as intentionally driving a vehicle that is not maintained in good condition; driving a goods vehicle that is greatly overloaded; going against traffic directions and driving a heavy goods vehicle down a very steep slope illegal car racing, etc.

(4)  Disregarding the danger and going on driving, while knowing full well that one’s physical condition is not good and hence not suitable to drive, such as being under the influence of alcohol or drugs or being generally ill.”

134.Having considered all the circumstances, I find that defendant’s driving fell far below that would be expected of a competent and careful driver, and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.

CONCLUSION

135.For the reasons above, I find the prosecution has proved the case beyond reasonable doubt.  I convict the defendant of the charge.