HKSAR v. Li Chau Wing

CACC347/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 347 OF 2005

(ON APPEAL FROM DCCC 1281 OF 2003)

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BETWEEN

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Before : Hon Ma CJHC, Stock JA and McMahon J in Court

Dates of Hearing : 17 and 18 January 2006

Date of Judgment : 20 February 2006

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J U D G M E N T

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Hon McMahon J (giving the judgment of the Court) :

1.The applicant was convicted after a trial before Deputy Judge D.I. Thomas in the District Court of an offence of Dangerous Driving Causing Death, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374 (“the Ordinance”).  In respect of that offence, he was sentenced to 18 months' imprisonment and disqualified from driving for two years.

2.On his own plea he had also been convicted of various offences under the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374(A) in respect of which he was fined.

3.The applicant seeks leave to appeal his conviction for the offence of dangerous driving only.  The respondent in turn applies for a review of the applicant's sentence for that offence by A.R. No. 3 of 2005.

4.At the end of counsel's submissions concerning the appeal against conviction, we reserved judgment in that regard and said we would hear the application concerning sentence in the event the application for leave to appeal concerning conviction was dismissed.  We now give judgment.

The facts

5.The facts of the offence as found by the judge were that at about 6:30 a.m. on 10 July 2003, the applicant was driving an unladen articulated vehicle, comprising a truck and a trailer, in the middle lane of the three lane westbound carriageway of the Tuen Mun highway.  The highway was slightly damp at the time of these events and descended gradually throughout its course.  Travelling on the inside slow lane in close proximity to the applicant's vehicle was a Kowloon Motor Bus Company double-decker bus (“the bus”).  The applicant's vehicle was travelling at or within the 70 kph speed limit which applied on that section of the highway and was in the process of passing the bus.

6.As the two vehicles travelled around a gradual left hand bend, there came into the line of sight of the applicant a number of vehicles which had stopped in the fast lane some distance ahead as the result of a collision between two small vans.  The applicant applied the brakes of his vehicle and lost control of it so that it then moved to the left and collided heavily with the bus.  Both vehicles then swung sharply left into the beginnings of a slip road immediately to the left of the highway's slow lane in which the bus had been travelling and into which the bus, given its route, would have turned.

7.The bus then collided with the safety barrier which ran along the left of the slip road, the applicant's truck stopping just short.  The bus penetrated the barrier and, after a few seconds, fell down the slope on the other side.

8.At the point where the bus fell, the Tuen Mun highway is elevated and the bus fell a considerable distance before coming to rest.  Tragically, twenty-one people died, including the driver.  Another twenty were injured.

9.A large number of witnesses were called by the prosecution at trial.  They fell into three broad groups; police officers who attended the scene immediately after the collision, eye-witnesses who saw the events, or part of the events, leading up to the collision and the collision itself, and expert witnesses.  The applicant did not give evidence but called one expert witness.

10.The judge found that the applicant had applied the brakes of his vehicle so excessively as to amount to dangerous driving.  The essence of the judge's finding as set out in his Reasons for Verdict is as follows :

“132.    Whilst still under heavy braking, the articulated vehicle ceased to be fully under the control of the defendant and turned sharply and suddenly to its nearside, coming into collision with the bus.

…

137      It is clear that a competent and careful driver in the position of the defendant would have recognised that there were a number of adverse conditions that directly impacted upon the way in which he should have driven.  It is clear that the competent and careful driver would have adjusted his speed so that he could slow down and/or stop within the distance that he could see to be clear ahead.  Furthermore he would have driven in a way and at a speed that would have enabled him to slow down and/or stop in a safe manner and under control.

138.     It is clear that the defendant did not drive in the way that was to be expected of a competent and careful driver.  In choosing to drive at or near the maximum permitted speed, the overwhelming evidence, in my judgment, is that defendant took into account none of the adverse factors that were clearly present.

139.     The competent and careful driver would have driven in a way that enabled him to see in good time any actual and potential hazard and to have reacted in a way that allowed him to continue to drive in a safe manner under control.  It is clear, in my judgment, that the defendant did not do so.  I have found as a fact that the defendant did have a sight line that was more than adequate to allow him to have dealt safely and properly with any hazard arising from the earlier collision.  Despite this, he misjudged the actual road conditions and the sate of the lanes, and his reaction was one of panic.  No driver should have reacted in the way that the defendant did.  It is clear that the defendant departed in a significant way from standards to be expected in the circumstances of a competent and careful professional driver of an unladen articulated vehicle.”

11.The legislation governing the offence is contained in section 36 of the Ordinance :

“36.  Causing death by dangerous driving

(1)   A person who causes the death of another person by driving a motor vehicle on a road dangerously commits an offence and is liable —

(a)   on conviction on indictment to a fine at level 5 and imprisonment for 5 years;

(b)   on summary conviction to a fine at level 4 and to imprisonment for 2 years.

…

(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.

(5)   A person is also to be regarded as driving dangerously within the meaning of subsection (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.

(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)   For the purposes of subsections (4) and (5), 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 a 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.

…”

Grounds of appeal

12.The grounds of appeal put forward on behalf of the applicant by Mr Ozorio SC resolved themselves during submissions into three primary grounds which can be summarized under the following headings :

(1) Line of sight :

The applicant says that a prosecution expert witness who gave evidence to the effect that the applicant had at least 103 metres clear line of sight to any hazard ahead of him prior to the time he commenced to brake had given his opinion in this regard under a wrong assumption of fact as to where the stationary vehicles on the highway ahead of the applicant were located.  The applicant says also that the judge failed to take properly into account the possibility of other traffic obstructing the applicant's view of the hazard caused by the stationary vehicles and persons on the road ahead of him.

(2) Reaction time :

The judge found that an appropriate reaction time to attribute to the applicant between sighting any hazard and the application of brakes was 0.9 seconds.  The applicant complains that this finding was in error on the evidence.

(3) Hazards :

The applicant says that the judge was in error in finding that only the outside fast lane of the highway was obstructed by stationary vehicles.

13.Those grounds in essence all amount to allegations that there were important parts of the evidence the judge failed properly to take into account.  Other specific grounds as to the judge omitting to take into account the lack of training available to drivers of articulated vehicles; wrongly finding that the applicant was aware of the dangers associated with the driving characteristics of articulated vehicles and wrongly finding that the applicant had been driving at too great a speed were not argued or relied upon to the same extent as the primary grounds but formed an ancillary to them and will be dealt with later in this judgment.

14.We should say at the beginning of this judgment that, as will be seen on the evidence accepted by the judge, we have no doubt that the applicant was guilty of careless driving.  What concerned us was whether his deficient driving went further and was dangerous in that it fell far below the standard which would be expected of a competent and careful driver as required by section 36(4)(a) and was obviously dangerous in the terms of section 36(4)(b) of the Ordinance.

15.There are three particular comments preliminary to our analysis that we would wish to make :

(1) It was at trial suggested by the prosecution that the dangerous driving was constituted by a deliberate act of cutting in by the applicant in order to gain belated access to the slip road.  The evidence did not support such a scenario and the findings of the judge were that the accident was caused by the applicant's heavy braking as a reaction to the presence of stationary vehicles on the highway.  It is important to recognise that the sole factual premise for the finding of dangerous driving is the fact, manner and place of the applicant's braking.

(2) It was common ground that prior to the accident in question, there had indeed been another accident ahead of where the applicant braked and that any vehicle coming around the bend at or shortly before the applicant's vehicle did, would also have been faced with vehicles stationary in the fast lane.

(3) The consequences of this accident were tragic, aggravated by the numbers who lost their lives.  As the judge recognised, the fact that the consequence was tragic does not of itself characterise the cause.  If the accident was caused by the applicant's lack of care, the consequences of that lack of care do not to turn an act of careless driving into one of dangerous driving.

16.The judge's reasons for verdict dealt with the evidence and issues in considerable detail.  Mr Ozorio in his submissions before us acknowledged the difficulties he faced in challenging the judge's findings of fact.  But the applicant's assertion is that individually, or cumulatively, the grounds upon which he relied justify this court interfering with the verdict of the judge and setting it aside.  In a nutshell, Mr Ozorio asserts that the judge's failure to consider properly certain aspects of the evidence render the conviction unsafe.

17.We will deal with each of the grounds in turn.

(1)     Line of sight

18.Both sides had called expert witnesses during the trial.  One of the two prosecution witnesses expert in the dynamics of vehicles involved in road traffic collisions was Dr Kwok Fu Chiu.  The defence at trial had called their own expert, Professor George Mackay.

19.Dr Kwok was employed in the Forensic Science Division of the government laboratory in Hong Kong.  He had attended the scene at 9:10 a.m. on the day of the collision and examined the two vehicles involved.  Over the following days he conducted various tests and reconstructions of the events leading up to the collision.  One of those reconstructions involved a recreation of the applicant's line of sight as he traveled, with the bus on the left of his vehicle, around a left hand curve towards the point of the collision.  Dr Kwok had placed a stationary car (the test vehicle) under a highway sign gantry that stretched across the width of the westbound carriageway at the commencement of the slip road lane.  The test vehicle was intended to represent the position of the stationary vehicles.  That gantry subsequently formed the reference point for many of the measurements given in evidence.

20.According to Dr Kwok, as the applicant's vehicle travelled in the middle lane outside the bus in the slow lane and proceeded through the left hand curve, the applicant would have had a view of the test vehicle under the gantry when it was at least 103 metres away.  That distance, according to Dr Kwok, would have allowed the applicant's vehicle to stop under moderate braking before it reached the test vehicle.

21.Dr Kwok said in evidence he had positioned the test vehicle in the middle lane of the highway under the gantry for the purposes of this test, because he was at the time uncertain of the results of police investigations which in fact placed the site of the stationary vehicles some considerable distance further on in the fast lane.

22.The complaint of the applicant is that this reconstruction by Dr Kwok was fundamentally flawed because the test vehicle had been placed much closer to the commencement of the left hand bend the applicant's vehicle and the bus were negotiating prior to the collision than the actual stationary vehicles had been, and the test car was placed also in the middle lane, rather than the outside or fast lane, which the judge eventually found to be the only lane with stationary traffic in it at the time of the collision.

23.Mr Ozorio argues that by not properly taking into account these flaws in Dr Kwok's reconstruction the judge was misled in his finding of fact that the applicant had ample distance to bring his vehicle to a halt before reaching the location of the stationary vehicles on the day of the collision.

24.With respect, this argument does not avail the applicant at all.  If the test vehicle had been placed some 60 metres or so further west of the gantry sign where the evidence suggested the stationary vehicles had been on the day of the collision, then, as Mr Zervos SC has submitted on behalf of the respondent, that would not have reduced Dr Kwok's measurement of the available braking distance.  The left hand curve continues after the gantry and beyond to where the stationary vehicles were in fact located.

25.Nevertheless Mr Ozorio argued that as there was no accurate reconstruction based upon the correct position of the stationary vehicles it was wrong for the judge to rely on Dr Kwok's evidence as to the line of sight distance available to the applicant.

26.However Mr Zervos' submission remains logically unanswerable in our view, as the highway does if anything straighten somewhat after the commencement of the left hand bend.  By placing the test vehicle closer to the commencement of the left hand bend than the evidence eventually established the actual stationary vehicles were in fact located, Dr Kwok's reconstruction, if anything, favoured the applicant's case as to the necessity of braking hard to avoid that obstruction.  It certainly did not prejudice the applicant.

27.Similar reasoning applies to the positioning by Dr Kwok of the test vehicle in the middle lane rather than in the fast lane where the judge eventually found the stationary vehicles to be located.  As a driver proceeded around the left hand bend and his line of sight advanced, he would firstly see vehicles in the fast lane ahead of him and only subsequently would see any vehicles in the middle lane.  As the reconstruction by Dr Kwok placed a vehicle only in the middle lane, the reaction time that reconstruction allowed the driver proceeding through the left hand bend would have been less than if the vehicle had been placed correctly in the fast lane.  Again, this acted in favour of the applicant.

28.In any event, the judge was under no misapprehension as to the evidence before him relating to the actual location of the stationary vehicles differing from the assumptions made by Dr Kwok in the conduct of his line of sight test.  The judge was perfectly aware that Dr Kwok's figures were based on the test vehicle being located at the gantry some 60 metres or more before the actual location of the stationary vehicles at the time of the collision.  The judge made no error of fact in this regard.

29.But there was in this reconstruction evidence a significant assumption.  The figure attributed by Dr Kwok to the applicant of at least 103 metres line of sight to the stationary vehicles assumed an unobstructed line of sight.

30.There was evidence before the judge, which he accepted, that a short distance ahead of the applicant's vehicle and in the same lane was travelling another articulated vehicle which was carrying a container.  This vehicle passed the bus prior to the collision between the bus and the applicant's vehicle.

31.Somewhere ahead of the other articulated vehicle was a 3.3 ton lorry.  The applicant's counsel at trial argued that these two large vehicles, and particularly the laden articulated vehicle, were obvious obstructions to any clear line of sight to the stationary vehicles from the applicant's perspective.

32.In our view, there is some merit in this argument.  As the applicant's vehicle travelled around the more or less continuous left hand bend and approached the stationary vehicles on the road ahead of him he had the double decker bus to his left, ahead of him was the laden articulated vehicle and somewhere further ahead was a 3.3 ton lorry.  In those circumstances it seems to us to be somewhat speculative to attribute to the applicant any minimum line of sight to the stationary vehicles further ahead on the highway.

33.As Dr Kwok said in his evidence (at p. 528 of the appeal bundle) :

“Q. Right.  Now, the measurement that you took, even to that point under the gantry, is dependent, isn't it, upon clear visibility and no other vehicles or cars in the way?

A. Yes.”

34.In his reasons for verdict, the judge said :

“110. Mr. Macrae, however, points out that it cannot be assumed that that was the minimum sight line on the day of the incident.  He points out that there were other vehicles in the New Territories-bound carriageway.  He gives as an example the 3.3 tonne goods vehicle that PW18 reported seeing in lane 1 and passing stationary vans in the other two lanes.  Mr. Macrae also reminds me that PW12 [a coach driver travelling behind the applicant] accepted that his view of the two white private cars [the stationary vehicles] was obstructed by the bus and the articulated vehicle of the defendant.  However, it is worth pointing out that, when the collision occurred between the bus and the articulated vehicle, the coach driven by PW12 had not yet reached the point where the right hand bend came the left hand bend.  In that way, the evidence of PW12 is consistent with that of Doctor Kwok.  Doctor Kwok points out that the maximum sight line to the gantry is 393 metres.  If there are other vehicles that obstruct the view, however, Doctor Kwok pointed out that the sight line could reduce to zero.  It would then improve to 103 metres once a vehicle had reached the point at which the left hand bend begins to form.

111. In any event, it is clear that the articulated vehicle was in the process of overtaking the bus and the sight line should therefore have, if anything, improved.

112. I find as a fact, therefore, that, even if there was any vehicle other than the bus that presented an obstruction to the view of the defendant heading down the gradient, it did not constitute a significant obstruction to the view ahead.”

35.With respect to that finding, we do not think that, on the evidence before the judge, it completely disposes of the possibility that the applicant saw the stationary vehicles ahead of him at a distance of less than 103 metres as a result of his view being obstructed by the large vehicles ahead of him.

36.It is also worth noting that the evidence of witnesses accepted as reliable by the judge suggests that when the applicant's vehicle came to rest after its collision with the bus it was, although positioned in the slip road, either parallel or nearly parallel to the vehicle of PW11 who had pulled up two vehicle spaces behind the stationary goods van in the fast lane.

37.According to the evidence of Dr Kwok, the applicant's vehicle finally came to a halt some 62 metres west of the gantry.  That evidence was common ground.  According to the evidence of other civilian witnesses also accepted as reliable by the judge the hazard formed by the stationary vehicles was 60 metres or more west of the gantry.

38.That quite simply means that even with the use of emergency braking, the applicant's vehicle nevertheless stopped at or not that far short of the approximate distance from the gantry where witnesses located the stationary vehicles.

39.In our view this gives some force to the argument that the applicant actually saw the stationary vehicles when they were closer than the 103 metres available with an unobstructed line of sight.

40.Again, there was evidence that the applicant applied the brakes of his vehicle at or just before it reached the gantry.  Allowing for some period of reaction time that, according to the evidence, meant he may have seen those vehicles only shortly before he arrived at the gantry.

41.This evidence as a whole suggests to us that there was some force to Mr Ozorio's submission that the possibility of an obstruction to the applicant's line of sight to the stationary vehicles had caused him to brake late and that this possibility was not given sufficient weight by the judge.

(2)     Reaction time

42.The complaint of Mr Ozorio in this regard was that the judge also wrongly accepted Dr Kwok's conclusion that there was sufficient braking distance available to the applicant when he came in view of the vehicles stationary on the highway ahead of him because that opinion was wrongly based, albeit partly, on a reaction time attributed by Dr Kwok to the applicant of only 0.9 seconds.  That time represented the “thinking time” of the applicant from the moment he saw the stationary vehicles on the highway ahead of him to the moment he applied his vehicle's brakes.

43.This, says Mr Ozorio, was contrary to other evidence presented to the court at trial which suggested the average reaction time to be attributed to a driver, such as the applicant, was as much as 2 to 3 seconds (from the evidence of PW19, a Senior Examiner of the Hong Kong Transport Department), and other materials before the judge which suggested the commonly accepted time was 1.5 seconds.

44.Mr Ozorio urges upon us that on the basis of all of the evidence before the judge, he should have accepted the time of 1.5 seconds.  That would have allowed for a stopping distance under moderate braking of about 106 metres at the applicant's vehicle's speed of at or just under 70 kph.

45.That would mean, even on the assumption made by Dr Kwok of a line of sight of 103 metres to the point at the gantry where he had positioned the stationary car, that under moderate braking the applicant's vehicle would have failed to have stopped in time.  Mr Ozorio, by this reasoning, argues that the applicant in those circumstances had justification in braking more heavily.

46.The reaction time figure of 0.9 seconds upon which Dr Kwok's stopping distance figures were based stemmed from more recent views expressed inter alia in a paper published by Professor Muttart of the Society of Automobile Engineers.  Prior to that the more commonly accepted reaction time figure attributed to male drivers in daytime was 1.5 seconds.  The reaction time for a particular driver varied as did the reaction time of drivers exposed to traffic situations of increasing complexity.  The judge apparently accepted Dr Kwok's evidence in this regard as he accepted Dr Kwok's measurements which were based on that reaction time of 0.9 seconds.

47.The normal reaction time (or thinking distance) attributed to drivers in the Hong Kong Road Users Code, produced before the judge and relied upon by him in his reasons for verdict, is also 0.9 seconds.  The judge was entitled to rely upon a reaction time of 0.9 seconds in our view, given the evidence before him, but we note that reaction times differ with the circumstances of the individual driver and must be an approximation.

(3)     The hazards

48.The particular complaint by Mr Ozorio is that the judge found that there was no stationary vehicle in the middle lane of the westbound carriageway ahead of the applicant's vehicle but only a stationary van and vehicles behind it in the outside or fast lane.

49.The judge considered the evidence relevant to this aspect of the case carefully.  He reviewed the evidence of PW11, the driver of the private car which had come to a halt two cars behind the stationary van in the outside lane; she had not noticed any stationary vehicle in the middle lane.  He considered also the evidence of a coach driver, PW12, who had been travelling in the slow lane some distance behind the bus and the applicant's vehicle who had seen stationary vehicles only in the fast lane; PW14, who was a passenger in a bus travelling in the eastbound carriageway, had been sure only of seeing vehicles stationary in the fast lane, though he was not sure whether one of those vehicles might have partly been in the slow lane; PW16, a trail walker on a hill above the highway, who had seen the two vans collide and had noticed one stationary, partly in the middle lane and partly in the fast lane, before it straightened up into the middle lane and shortly thereafter drove off before the collision between the applicant's vehicle and the bus; PW17, another walker on the same trail, who had seen two vans collide, one of which came to a halt in the middle lane and the other in the fast lane had said both vans had driven off before the collision between the applicant's vehicle and the bus occurred; PW18, who had been driving his private car in the opposite eastbound carriageway, described passing two vans involved in a collision in the fast lane of the westbound carriageway, one of which was stationary across the middle and fast lanes, the other being in the fast lane.

50.Having considered the evidence of these and other witnesses, the judge arrived at his findings as follows :

“94.  For the reasons that I have set out above, I accept the evidence given to me by PW11 and by PW16.  As I have indicated the evidence is cogent and consistent, I find the following as facts, therefore.  There had been an earlier collision between two vans.  One of the vans stopped in lane 3 and the other was at an angle across lane 2 and into lane 3.  The van that was at an angle then straightened and moved up to draw abreast of the van in lane 3.  Shortly afterwards, the van in the middle lane drove off towards Tuen Mun.  The van in lane 3 remained stationary and a private car drew up behind it.  The driver switched on his hazard lights.  The car that PW11 was driving then drew up behind the first private car.  Before her car stopped, PW11 switched on her hazard lights.  The articulated vehicle driven by the defendant, which was overtaking the bus and which was in lane 2, then moved to the nearside or left hand side under braking.  The articulated vehicle and the bus were then in collision.”

51.In the course of arriving at his findings, the judge had considered the statements of the applicant made to the police at the scene concerning what the applicant had seen to cause him to apply heavy braking.  The judge had allowed that evidence to be adduced at the request of the defence, but only on the basis of it being evidence of the applicant's immediate reaction upon his first being questioned by the police.

52.In dealing with the applicant's statements the judge said this :

“92. I have already drawn attention to the limitations attaching to the conversations that the defendant had with various police officers.  However, he accepts that he did have those conversations.  In one conversation he said that he saw a van stationary in the middle lane.  In another he said that he saw a private car in lane 3 with its hazard lights on.  In a third conversation he said that he saw a white van in the fast lane and a grey van in the middle lane, with the drivers inside their respective vehicles talking to each other.  Finally, the defendant told another officer that he had found a vehicle broken down in the middle lane.

93. Because of the lack of structure of these conversations and the fact that they were not formally adopted by the defendant I am not able to rely greatly upon these conversations.  It is not clear whether the defendant was intending to give four different versions of the incident or whether, because of stress and anxiety, he was giving different details of the same incident.  The only conclusion that I can draw from these conversation, therefore, is that the defendant was acknowledging that there were other vehicles on the same carriageway ahead of him.”

53.Mr Ozorio argues that the judge, in arriving at his conclusion that the middle lane was clear at the time the applicant applied his vehicle's brakes, had overlooked an obvious common thread in that which the applicant had said in his statements; that is, that he had seen there was a van in the middle lane.  Mr Ozorio says that it could have been no mere coincidence that the applicant said he saw a van stationary in the middle lane when a number of other witnesses had also seen a van stationary, either wholly or partly, in that middle lane, and that the judge had given the applicant's statements insufficient weight in this regard when concluding that at the time the applicant came to apply his vehicle's brakes the van in the middle lane had driven off.

54.Mr Ozorio's argument has some attraction.  It is difficult to see how the applicant could have fabricated evidence of two vans being stationary in the middle and fast lanes of the westbound carriageway when he was first spoken to by police only a few minutes after the collision involving his vehicle and the bus.  Those vans had left before the police arrived (as had the other stationary vehicles apparently) and what the applicant said to the police at the scene about a collision between two vans was only substantiated by later police investigations.

55.Whilst we appreciate that the evidence of the applicant's statements to the police regarding the collision between the two vans formed only part of the evidence on this subject matter before the judge, it seems to us, as Mr Ozorio argued, that the applicant's statements were persuasive evidence that he had in fact seen a van either in or partly in the middle lane causing him to apply his own vehicle's brakes.

56.The obvious importance of this is that if the applicant was correct in his statements to the police to the effect he had seen a vehicle stationary in the middle lane ahead of him, then his decision to brake heavily had greater justification.

57.The three grounds we have dealt with were, as we say, the primary grounds relied upon by the applicant before us.  The balance of the grounds of appeal, it is fair to say, were not given the same force in the oral submissions made by Mr Ozorio and they can be dealt with relatively shortly.

(4)     Speed

58.A further complaint of the applicant is that the judge found the applicant was driving his vehicle too fast when the only evidence at trial was that the applicant's vehicle was travelling within the speed limit.  The judge said in this regard :

“130.   There is no suggestion the defendant was driving his vehicle at speed that exceeded the speed limit.  However, it is clear that the question of an appropriate speed in any case is one dependent upon the conditions.  In other words, it is important that the speed is appropriate relative to the conditions prevailing at the time and not that it is appropriate in absolute terms.  …

…

137.    It is clear that a competent and careful driver in the position of the defendant would have recognized that there were a number of adverse conditions that directly impacted upon the way in which he should have driven.  It is clear that the competent and careful driver would have adjusted his speed so that he could slow down and/or stop within the distance that he could see to be clear ahead.  Furthermore he would have driven in a way and at a speed that would have enable him to slow down and/or stop in a safe manner and under control.”

59.It is plain that the judge was simply stating that the applicant was driving too fast in the circumstances.  The absolute speed limit of the highway at that point was irrelevant to that finding, as was the judge's earlier statement made in describing the nature of the highway that it was physically capable of allowing traffic to travel safely at a much higher speed than the designated limited of 70 kph.  No criticism of the judge's comments in this regard can realistically be made.

60.But we note that this finding of the judge was only a step on the way to his ultimate finding of dangerous driving.  It was one factor of the number of factors he considered amounted to proof of the applicant having driven dangerously.

(5)     Training and knowledge

61.The applicant complains also that the judge erred in not placing weight upon the fact that articulated vehicle drivers in Hong Kong are not tested in emergency braking and, apparently, do not receive formal instruction on the phenomenon of an articulated vehicle going out of control as a result of heavy braking.  But the question as to whether or not driving is dangerous under the provisions of section 36(4) of the Ordinance is objectively determined by the nature of the driving itself : see R. v. Collins (Lezlie) (1997) RTR 439 CA.

62.The contents of any licensing test undertaken by or educational information provided to a driver would, usually, in the course of considering the provisions of that subsection, carry little weight.  A driver could not in the normal course rely upon his personal driving inadequacies to excuse driving which was otherwise dangerous.

63.Further the judge was entitled in our view to conclude that the standard of a competent and careful driver would require that driver to take into account the general characteristics of the type of vehicle being driven.

(6)     Res ipsa loquitur

64.The penultimate ground advanced by the applicant is that the judge, in arriving at his findings, applied in effect the civil doctrine of res ipsa loquitur.  With respect, that is simply not so.  The judge was plainly aware of the principles of law which applied to his resolution of the issues before him.  He analysed the evidence closely and his conclusions were drawn from that evidence.

CONCLUSION

65.We have above, in dealing with the grounds of appeal, highlighted certain matters which have caused us some concern.

66.There in our view was inherent uncertainty in the evidence before the judge as to the distance the applicant had available to him to see the hazards on the highway ahead of him.  That uncertainty was caused by the presence of other large vehicles in varying degrees of proximity to the applicant's vehicle, including the bus with which he eventually collided.  There is also force to the argument that the applicant may have correctly perceived that there was a stationary van in the middle lane ahead of him, and that the judge in finding that the middle lane was clear ahead of the applicant's vehicle had given insufficient weight to the timing and contents of the applicant's statements to the police to that effect.

67.But in addition to those matters, there is one further aspect of the evidence, which was apparently common ground and accepted by the judge, which caused us concern.  That was the result of various tests performed by Dr Kwok on the behaviour under braking of the applicant's vehicle.

68.Those tests were concluded at night on the Tuen Mun highway in a controlled environment in both wet and dry conditions and demonstrated that the applicant's articulated vehicle, unladen as on the day of its collision with the bus, lost its directional stability under heavy braking.  That stability was lost at relatively low speeds of between 42-48 kph.  The loss of stability resulted in the vehicle moving to its left under braking or, on fewer occasions, to its right.

69.There was no evidence before the judge, as we understand the prosecution case, as to whether the applicant was or ought to have been aware of this propensity of his vehicle, or as to whether this was a characteristic peculiar to the applicant's vehicle, although as Dr Kwok brought the tests to a premature halt for fear of the safety of the police driver, it seems likely it was.

70.The loss of stability may have been, once initiated, worsened by the fact that a brake shoe was missing from one of the outside rear axles of the trailer.  There was again no evidence as to whether the applicant knew this.  It was accepted that the fact that the brake shoe was missing would not have been easily seen by the applicant.

71.The fact that the applicant's vehicle had a propensity to lose directional control under heavy braking seems to us to be significant evidence which warranted keen consideration as to providing a reason for the applicant's vehicle moving into the lane of the bus under braking and colliding with it independent of the nature of the applicant's driving.

72.In this regard, the judge said only this :

“… I also noted that in the reconstruction/skid tests conducted subsequently by Doctor Kwok on the same road, the articulated vehicle in question displayed signs of instability under full braking, particularly on a wet surface.  On the last test the tractor moved to its left under full braking and the tractor and trailer were not fully in line, even though the driver, Police Sergeat 16614 Lam Chung Tak, PW20, gave evidence that he had not steered to either side and had tried to keep the vehicle straight.  Indeed, it appears that the tests on a wet surface were brought to a premature conclusion because Doctor Kwok felt that there was danger in continuing.”

He did not otherwise incorporate the characteristics of the applicant's vehicle under heavy braking into his reasoning.

73.It seems to us that proper weight was not given to the propensity of the applicant's vehicle to veer off course under heavy braking.  Articulated vehicles are inherently unstable vehicles.  As Dr Kwok said in evidence :

“Q. Then you go on to explain, “For safety reason, the skid tests were performed on a straight stretch on the second lane after the accident spot.”  And I think we can see from the night-time video, which we'll play shortly, that those skid tests were conducted just past the -- or perhaps you can tell us, just past the location of the final resting position of the tractor trailer …

A. Yes.

Q. … is that right?

A. Yes.  The reason why I do it in the straight stretch is that I know that even a tractor with all the brake shoe on and there is still a chance that the tractor trailer will jack-knife on a bend, especially on a wet road surface and on a road with a down gradient, and it's because this -- the tractor trailer has a notorious behaviour on such road condition.”

74.The applicant's vehicle had more than the inherent characteristics of its type.  It lacked a brake shoe on an axle on its trailer, a fact which one must assume for present purposes was not known to the applicant.  It was common ground that it lost directional control on a straight road under heavy braking at relatively low speeds.  We are of the view that greater weight should have been given to this perhaps unknown characteristic as a contributing factor to the applicant's loss of control of his vehicle.  In other words, that the characteristics of the particular vehicle itself rather than the nature of the applicant's driving alone, may have contributed to the loss of control and the collision with the bus.

75.Nevertheless, it is plain the applicant may have been in a situation where he sighted stationary vehicles ahead of him at such close range as to warrant emergency braking so as to avoid a collision.  If so, it must follow that he was in that situation either because he was travelling too fast in the conditions given the view he had of the road ahead, or because he was simply paying insufficient attention.

76.That in our view was a standard of driving which fell below what would be expected of a competent and careful driver given the nature and condition of the road (a descending left hand bend with a damp surface), and amounted to careless driving.  By getting himself into a position where he had to apply emergency braking, the applicant had quite plainly driven without due care and attention to the circumstances existing on the highway at that time.

77.However, for the purpose of the charge of dangerous driving causing death, the key question before the judge was whether, as we say, the applicant's standard of driving fell far below that standard and whether it would be obvious to a competent and careful driver that driving in that way would be dangerous.  In this context, it is crucial to recognise that the case was not one of deliberately cutting across the path of the bus to gain access to the slip road.  Rather, it was a case resting entirely on a collision with a bus on a stretch of highway on which, unusually, a number of vehicles were stopped around a bend after another accident.  In deciding against the applicant that nonetheless the driving was dangerous rather than careless, we agree with Mr Ozorio, for the reasons we have indicated, that there were aspects of the evidence to which the judge gave insufficient weight.  Those matters as we have said related to the possibility of the applicant having a line of sight to the stationary vehicles ahead of him of significantly less than the 103 metres attributed to him by Dr Kwok; of his having seen a stationary van ahead in the same middle lane of the highway his vehicle was travelling in, and of the characteristic of his vehicle to lose directional stability under heavy braking.  If that evidence had been given proper weight the judge may well have been led to conclude that the application by the applicant of emergency braking to avoid the stationary vehicles on the highway ahead of his vehicle, could not necessarily be said to reflect a standard of driving far below that of a competent and careful driver, or be said to be obviously dangerous.  Accordingly the applicant's conviction for dangerous driving causing death is unsafe.

78.For these reasons, we give leave to the applicant to appeal his conviction, treat the hearing as the appeal, allow the appeal and set aside the conviction.  Pursuant to section 36(10) of the Ordinance we substitute a conviction for careless driving, contrary to section 38(1) of the Ordinance.

79.In arriving at this decision, we are conscious of the fact that we are disturbing the findings of a very experienced judge.  However, for the reasons articulated above, we were ultimately persuaded that the appeal had to be allowed.

Mr Kevin P. Zervos, SC, SADPP and Mrs Teresa Kam, GC of Department of Justice, for HKSAR

Mr Michael Ozorio, SC and Mr Raymond Fong, instructed by Messrs Philip K.H. Wong, Kennedy Y.H. Wong & Co., for the Applicant