Case Document

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CACC000238/1984

IN THE COURT OF APPEAL	1981 No. 238
	(Criminal)

BETWEEN

	THE QUEEN
	and
	DENNIS CHIU TAT-SHING

______________________

Coram: Sir Alan Huggins, Ag. C.J., Silke & Kempster, JJ.A.

Date of Hearing: 2nd, 4th & 5th October, 1984.

Date of Judgment: 19th October, 1984.

___________

JUDGMENT

___________

Kempster, J.A. :

1. In the early hours of July 14th, 1983, police constable CHENG Man-fai was helping to dismantle a road-block in Princess Margaret Road, Kowloon, when he was struck by a Volvo motor-car and carried along in front of it for a considerable distance so as to sustain brain injuries from which he died on 23rd of that month. On May 11th, 1984, Dennis CHIU Tat-shing was found guilty by the unanimous verdict of a jury of the manslaughter of that constable and sentenced by Addison, J. to 4 years imprisonment. Against such conviction and, if need be, sentence leave is sought to appeal.

2. By the end of the trial it had become clear beyond a peradventure, though never formally admitted since he claimed to suffer amnesia in relation to the relevant period, that Chiu had been driving the Volvo motor-car in question, albeit throughout quite unfit so to do as a result of drink, and that Constable Cheng had sustained the injuries which caused his death subsequently to impact. It had also become apparent that the motor-car did not stop; that there was a significant bang as it struck one or more of the warning cones comprising the road-block and that a dent and scratch marks, which had not been there before, were found on its bonnet after the incident as were significant fabric impressions on the radiator grille.

3. Any summing-up in a trial where manslaughter by reckless driving is alleged must make it clear to the jury that before they can convict they must be satisfied as to three issues. The first is that a cause of the death of the person named in the particulars of the indictment was the driving of the accused. Recklessness, negligence or blameworthiness are irrelevant for this prupose. The test is solely one of causation. Such driving need not have been the only or even the major cause of the death. R. v. Hennigan ⁽¹⁾; R. v. Cato ⁽²⁾ at p. 46; R. v. Pagett ⁽³⁾ at p. 288.

4. The second issue is that according to the standards of ordinary careful road users such driving was calculated to create an obvious and really serious risk that someone's death would result. While the intention or state of mind of the accused is not a relevant consideration for this purpose the very nature of the inquiry requires the jury to consider evidence adduced as to the manner in which the accused was driving before and after the fatal injuries were inflicted. If a man is under the influence of alcohol that is a material factor which itself may establish danger and falls to be considered by the jury in this context although not apparent to the officious bystander. R. v. McBride ⁽⁴⁾ at p. 172.

5. The third issue is that the accused either was oblivious of the risks to others involved in the manner of his driving or, having appreciated the risks, elected to take them nonetheless. Subject to consideration of any explanation given by him the jury may infer such a state of mind from conclusions adverse to the accused which they have reached in relation to the second issue. Again self-induced intoxication is not an exculpatory factor. R. v. Lawrence ⁽⁵⁾ at pp. 526/7; R. v. Seymour ⁽⁶⁾ at p. 508. We should add that a judge is not required literally to follow suggested ways of summing-up as if they constituted the text of an ordinance. R. v. KONG Cheuk-kwan ⁽⁷⁾ at p. 35. In general terms the summing-up in this case fully complied with the foregoing requirements.

6. Having suggested that any sober and prudent driver might have crashed into the road-block that night Addison, J. went on. to say:

"

The Crown says other drivers had stopped in time without hitting anyone, why didn't this defendant do exactly the same? Well, as Mr. HILL pointed out to you, it wasn't striking the P.C. that caused his death. The evidence indicates, does it not, that it was the carrying of the body along the road which caused irreversible brain damage and death.

So the question you will ask yourselves is this: having hit the P.C. did the defendant thenceforward drive his vehicle in such a manner as to cause an obvious and serious risk of causing physical injury to that P.C. highly likely to result in his death and that in driving in that manner he did so without having given any thought to the possibility of there being such a risk or having recognized that risk he pressed on regardless?"

7. It was submitted by Mr. Matthew, who appeared on behalf of the applicant, as his first ground of appeal, that this was a direction which had been vitiated by the further words:

"In my opinion, members of the jury, and this is simply my opinion, the whole crux of this case is this: did the defendant know that he struck the P.C., whether the P.C. landed on the bonnet or not? If he did not know he had struck the P.C. would a sober and prudent driver have been aware that he had struck the P.C.? If you are satisfied of that fact, then would a sober and prudent driver have realized that by continuing to drive ahead he was exposing the P.C. to an obvious risk of injury which would very highly probably result in his death? If you conclude that to be the case, members of the jury, then you will convict the defendant of manslaughter. If, on the other hand, you think a sober and a prudent driver would not have been aware of that high risk of death or might not have been aware of it, then you will acquit him.

You should examine all the evidence very carefully to determine whether or not the P.C. did land on the bonnet and for how long and whether you think a sober and careful driver would obviously have been aware of his presence on the bonnet. Also you will consider whether by virtue of the noise made on impact a sober and prudent driver would have known that he hit someone at chat time.

Merely because, if you so find, that the defendant was drunk at the time and might not have seen the man on the bonnet or heard the noise is no defence."

Mr. Matthew contended that the jury should specifically have been directed to confine their attention to what transpired after impact.

8. We are satisfied that the earlier direction of the learned judge was more favourable to the applicant then was required in the circumstances as was his direction that the jury had to be satisfied that the constable's death was "substantially" attributable to the applicant's driving. To have struck the constable was in itself a significant cause of his death. The applicant can be in no better position in law because, the constable having been so knocked down, he himself rather than, say, another motorist subsequently and perhaps unwittingly caused the fatal injuries. It is because the applicant's driving before impact was a cause of the constable's death that Addison, J. cannot legitimately be criticised for leaving its nature for the consideration of the jury who were entitled to convict of manslaughter if satisfied as to the "3 issues" in relation to the accused's driving before or after impact and, a fortiori, if so satisfied in relation to his driving throughout. It matters not that, as appears from the terms in which he sentenced the applicant, the learned judge thought that he had directed the jury in the way Mr. Matthew submits he should have done.

9. The second ground of appeal is to the effect that the learned judge "failed adequately to direct the jury as to the relevancy of drink in respect of the manner of the (applicant's) driving." What Addison, J. said about drink was:

"There is evidence that he had been drinking. If you conclude that his driving was impaired by drink, you will consider what effect that drink had on the way he drove and on his state of mind. You may think that the amount he drank has a considerable bearing on this case and it is an explanation for all that happened. On the other hand, members of the jury, you may think that the alcohol he drank played no part in this incident. That's for you to decide.

Drunkenness is no defence. If the defendant, through his self-induced intoxication, was unaware of the risk which he would have been aware of had he been sober, then his unawareness is immaterial. In short then, the Crown says he was aware of the risk he was taking to the life of the P.C. when he continued to drive ahead after hitting the police constable. Or if he was unaware of that risk, he ought to have been aware of it as a sober and prudent driver. - If you conclude that the defendant's driving was impaired by drink, do not convict him on that ground alone. Drink may or may not have played any part in this case. You must decide this case on the direction which I have already given you. But drunkenness is a matter, however, you are entitled to take into account when determining the question as to whether he was reckless as to the circumstances."

He also reminded the jury of the evidence relevant to the applicant's condition in the early morning of July 14th, 1983. We find no failure adequately to direct the jury in this regard or to follow the guidance given by the House of Lords in DPP v. Majewski ⁽⁸⁾.

10. The third ground of appeal, like the first, stemmed from the commendable concern of the learned trial judge to be fair to the applicant; a concern to which Mr. Matthew paid tribute. In reminding the jury of former P.C. 21656 LUI Fung-yip's evidence he referred to a disquieting feature of this case.

"There was a conspiracy by police officers to manufacture false evidence against the defendant. It's agreed that a number of police officers did put their heads together to say that cone lights were on when they were not. According to P.C. 21656, the conspiracy went no further than that. Mr. HILL contends that the area of the conspiracy wasn't confined to that narrow area but embraced much more and I shall touch on that later on. Police emotions did run high that night.

Ex-P.C. 21656 admitted he was a conspirator. If you find him to be a believable witness, then I should warn you and I now do so, members of the jury, that it is dangerous to act on his evidence in the absence of some confirmatory evidence coming from an independent and reliable source. If, however, being alive to that danger, you are, nevertheless, perfectly satisfied that he has told the complete and unvarnished truth, then you may act on his evidence which is unconfirmed by other independent evidence.

As to his evidence that the P.C. was hit by a Volvo and thrown up by the car, there is independent evidence capable of corroborating his testimony. There's the evidence of CHAN Wai-to, YIP Kwai-sang, CHEUNG Siu-lung, Dr. LAMBOURN by inference and also the evidence of Dr. CLARKE - inferentially.

Whether you find other evidence corroborates the evidence of 21656 as to the P.C. lofting in the air is a matter for your to decide -"

11. It is to be borne in mind both that no formal admission was ever made that the applicant's car hit P.C. Cheng at all and that it was important for the Crown to show that the applicant must have known that he had done so in order to demonstrate that his driving on after impact was reckless. This witness gave evidence as to both matters and it is perhaps unfortunate that, at that stage at least, the learned judge did not specify which witnesses corroborated the impact and which the allegation that the constable was "thrown up by the car"; especially as former P.C. Lui's evidence did not explicitly go that far. As the jury were subsequently reminded what he claimed to have seen was "a figure or a shadow lifted up." This was corroborated by the evidence of Mr. CHAN Wai-to. His evidence, summarised by the learned judge, was:

"that the nearside of the Volvo hit a stationary police officer on his left side between his ribs and thigh, throwing him five to six feet in the air. It seemed to him that the police officer somersaulted about three feet above the bonnet, landing with his chest on the bonnet of the Volvo. He said he saw the body on the bonnet for a second or two -"

To quote the learned judge again:

"Like so many witnesses in this case, members of the jury, his evidence was contradictory, but if you are satisfied that he is not mistaken when he said he saw an object land on the bonnet, and you are perfectly satisfied that it was not some equipment used in the roadblock, then you are entitled to ask yourselves whether in conjunction with the other evidence in this case you are satisfied so as to be sure that that object was in fact the body of PC 969 - but you must be sure that he did in fact witness that incident.

Do you know, members of the jury, of any reason why he should give that evidence unless he did witness it? But that is a matter for you to decide."

Mr. YIP Kwai-sang and Mr. CHEUNG Siu-lung only corroborated former P.C. Lui's evidence in relation to impact. Dr. Lambourn described distortion to and the nature of the dent in and scratch marks on the car bonnet as being consistent with the constable's body having landed on it. Dr. Clarke gave similar evidence and also described weave patterns on the radiator grille conforming with those of the constable's uniform. So far the criticisms of the learned judge's direction in relation to corroboration do not, in our view, disclose a material irregularity. The real matter for concern is the use by the learned judge of the words:

"Whether you find other evidence corroborates the evidence of 21656 as to the P.C. lofting in the air is a matter for you to decide -"

"Once it was decided or discovered that the - judge had not identified the matters capable of corroboration, then in this case at all events the summing-up was defective." per Lord Widgery C.J. in R. v. Reeves ⁽⁹⁾ at p. 333. The summing-up of Addison, J. was defective in the present instance. However, the defect was not material. The only evidence not referred to by the judge as capable of corroborating the "lofting" which the jury could have regarded as having such effect was, if they so found, the applicant's false testimony in the witness box as to his amnesia in relation to the relevant events. A lie about this could only have been deliberate; it related to a material issue and the motive for it must have been a realisation of guilt and a fear of the truth. As such the jury were entitled to regard it as corroboration of the evidence of former P.C. Lui. R. v. Lucas ⁽¹⁰⁾.

12. If we are wrong about this we would invoke section 83 of the Criminal Procedure Ordinance (Cap. 221). As was properly conceded on behalf of the applicant the evidence adduced at trial entitled the jury to find the applicant guilty of manslaughter and no suggestion was made that their verdict was unsafe or unsatisfactory. As Kilner Brown, J. said in R. v. Jenkins ⁽¹¹⁾ at p. 358:

"The proviso will be applied where there is enough other convincing evidence to make the conviction safe and satisfactory."

No miscarriage of justice occurred as a result of the misdirection as to corroboration.

13. The fourth ground of appeal has a bearing on the last. It reads:

"In regard to the issue of the Appellant's amnesia, the Learned Judge failed to direct the jury upon the effect of a conclusion that the Appellant was lying (in accordance with the decision in R. v. Broadhurst (1964) A.C. 441, at 457)."

The relevant part of the Privy Council's advice reads:

"There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

The relevant passages in the summing-up read:

"As I see it, members of the jury, this matter relating to amnesia is relevant simply to his credibility as a witness. If you are satisfied that he has lied on that score, then you are entitled to ask yourselves - 'Why has he lied?' and it would be open for you to conclude, if you thought that proper, that he knew perfectly well what happened throughout that journey.-

But whether you believe he was suffering from amnesia or not, the prosecution still has to prove that he drove recklessly in circumstances that amount to manslaughter. This question of amnesia simply goes, as I see it, to his credibility as a witness. Evidence given as to the defendant's normal drinking pattern after hospital board meetings is irrelevant to this case. We are concerned with his condition as a driver on the 14th of July 1983 and his state of mind at that time."

These directions correspond with the guidance of Lord Devlin and, in any event, such directions are desirable rather than imperative. R. v KEUNG Siu-chi ⁽¹²⁾ at p. 5. Upon the proved facts in the present case the jury were entitled to take the applicant's untruthfulness in relation to amnesia, if they so found, as strengthening the inference of guilt.

14. The fifth ground of appeal was this:

"By directing the jury on the alternative verdict of dangerous driving at the very end of the summing-up and not in the body of the summing-up when dealing with the law and the facts, the Learned Judge caused the jury wrongly to infer that this was not a realistic alternative to be seriously considered."

Mr. Matthew candidly remarked in the course of argument that he would not have laboured this ground had it stood on its own.

15. The effect on the minds of a jury of giving a perfectly proper direction in one part of a long summing-up rather than in another is not really a profitable field for speculation and, since the jury in fact brought in a more serious verdict of manslaughter, essentially of academic concern.

16. We would refuse the application to appeal against conviction.

17. As to sentence Addison, J. was satisfied that the verdict of the jury meant that they had found the applicant to have driven on after impact knowing that he had hit someone and in callous disregard of whether or not the life and limb of such person were thereby threatened. The learned judge had conducted a long trial and was qualified and entitled to approach his difficult and responsible task of sentencing on that basis.

18. Four years imprisonment for a man of 25 and of previous good character is no light punishment. Further, Chiu will have to live with the memory of the events of July 14th, 1983, for the rest of his life. While we hope that, in due course, he will be found to have redeemed his good name we are satisfied that the circumstances already outlined called both for a degree of deterrence and for an expression of society's repugnance at what transpired. The sentence imposed reflected these requirements.

19. We would also dismiss the application for leave to appeal against sentence.

(M. Kempster)

Justice of Appeal

(1) (1971)3 All E.R. 133

(2) (1976) 62 Cr. App. R. 41

(3) (1983)76 Cr. App. R. 279

(4) (1962) 2 Q.B. 167

(5) (1982) A.C. 510

(6) (1983) 2 A.C. 493

(7) Criminal Appeal 1983 No. 455 (unreported)

(8) (1976) 2 W.L.R. 623

(9) (1979) 68 Cr. App. R. 331