HKSAR v. Sin Kit Sang

HCMA1225/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1225 OF 2005

(On Appeal From KCCC 438 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 6 June 2006

Date of Judgment : 29 June 2006

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J U D G M E N T

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1.The defendant was convicted after trial of one charge of Dangerous Driving Causing Death, contrary to s. 36(1) of the Road Traffic Ordinance, Cap. 374 and was sentenced into 4 months imprisonment.  He now appeals against both conviction and sentence.

Facts of the case

2.The defendant was the driver of a private car which collided with a taxi at small hours on the day in question.  The taxi, originally travelling on Wylie Road towards Mongkok direction, stopped and picked up a passenger near Queen Elizabeth Hospital, was negotiating a U-turn when it collided with the appellant’s vehicle also travelling towards Mongkok direction.  The impact was between the right front of the appellant’s vehicle and the right side of the taxi, causing the taxi to spin around clockwise 1 or 2 rounds.  The passenger, not wearing a seat belt at the time, was caused to be thrown against the right interior of the taxi and then out of the taxi on to the road.  He was fatally injured and died subsequently.

3.It is not disputed that Wylie Road was, and is, a straight stretch of road, with trees lining the road, and sparsely lined by residential apartments.

4.The learned magistrate found that the appellant was driving at a speed of at least 80 km/h which was well over the 50 km/h speed limit prior to the accident, and also failed to keep a proper look out.  He concluded that the appellant’s driving in terms of speed and manner fell far below what would be expected of a competent and careful driver, and it was obvious to such a driver that to drive in such a manner would be dangerous.

Grounds of appeal

5.The grounds of appeal advanced by Mr Marash SC. could be summarize as follows :

(1) the magistrate erred in finding that the appellant failed to keep a proper look out when (a) the prosecution did not advance their case on that basis; and (b) no sufficient evidence to support such a finding;

(2) the magistrate failed to rule on the admissibility of the expert’s evidence as to speed of the appellant’s vehicle and relying on such evidence when s. 22A of the Evidence Ordinance had not been complied with;

(3) wrong reliance on the Road User’s Code by the magistrate;

(4) wrong findings of fact in concluding that the taxi driver did not make a sudden and unannounced U-turn.

Respondent’s reply

(1) Counsel for the respondent submitted that the prosecution never rested its case solely on the excessive speed of the appellant’s vehicle.  Speed was only one factor in assessing the appellant’s manner of driving.  It was further submitted that there was more than enough factual basis for the magistrate to draw the inference that the appellant had failed to keep a proper lookout.

(2) It was further submitted senior counsel only submitted on admissibility of expert evidence for the first time during a no case submission, and that the points raised at best related to the question of weight rather than admissibility.  Miss Sin submitted that the learned magistrate made it plain that he did not rely on the expert evidence.

(3) It was submitted that the Road User Code had been accepted as reference in trial of traffic cases.  There is no need to formally admit such into evidence.

(4) Lastly, counsel for the respondent submitted that the magistrate was entitled to accept part whilst rejecting part of PW1’s evidence and to make findings of fact as he did.

My judgment

6.According to s. 36 of the Road Traffic Ordinance :

“36. Causing death by dangerous driving

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

(a) the way be 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.

…

(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 at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c) the circumstance (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstance (including the physical condition of the accused shown to have been within the knowledge of the accused. …”

7.I shall firstly deal with the basis for the prosecution case.  No where in the transcript nor appeal bundle could I see any word from the prosecution that speed was the only basis they rested their case, apart from repeated assertion by senior counsel at half way that “this is not a case of dangerous driving based on anything other speed”.  This is not a case where the prosecution was put to election.  In fact, in the appellant’s own cautioned statement, he only saw the taxi for the first time prior to the collision was when it was already positioned in front of him transversely on 2 lanes in Wylie Road.  He was not sure how far away it was (see exhibit P-5A, at Answer 6, at p.6).  The location where the accident was well into Wylie Road.  The stretch of road was straight and level where line of sight was direct.  With that answer it is simply beyond one’s imagination how senior counsel would understand the prosecution case to be one rested solely on speed.

8.Whilst it was senior counsel’s submission that the magistrate erred on placing weight on that part of the appellant’s cautioned statement in total neglect of the fact that it was just after a tragic accident and the appellant had already indicated at the end of the statement that he was very frightened, the appellant had elected not to give evidence at the trial.  There is no evidence before the magistrate as to why having said that, in a later statement he changed to say that he was very close to the taxi when it the taxi suddenly pulled out from the bus stop.  This first cautioned statement was a mixed statement, on considering the whole of the evidence, the magistrate is perfectly entitled to place weight on that incriminating part.  It was accepted that the speed of the taxi was only 7 to 8 km/h whilst negotiating a U-turn.  What the appellant said in his first cautioned statement that he only saw the taxi when it was already traversing 2 lanes is clear and ample evidence that the appellant failed to keep a proper lookout.  Thus counsel’s understanding that this was a case based entirely on speed was built on wrong premises and indeed unrealistic.  There is nothing in this ground.

9.I now move on to the second ground, namely, that the magistrate :

(a) failed to rule on admissibility of the expert evidence as to speed;

(b) erred in relying on such evidence due to :

(i) unverifiable parameters as basis;

(ii) calculation done by computer but no computer printout to the effect and thus not verifiable;

(iii) non-compliance with s. 22A of the Evidence Ordinance and thus no evidence that the computer and radar gun used in the test were functioning properly.

10.The magistrate was fully aware of the defence submission that the expert report conclusion as to the speed was not admissible and the basis for that submission.

11.At the trial, no admissibility issue was ever raised before, during or immediately after the expert’s evidence.  Mr Marash submitted that he only raised that during the submission of no case because he did not know what Mr Kwok would say in evidence.  I went through the transcript and found that it was indeed Mr Marash who told the court that Mr Kwok’s report could form his evidence-in-chief although he did not accept it as correct.  It is clear that even then Mr Marash was conversant with the contents of Mr Kwok’s report well before Mr Kwok gave evidence.  Yet, he simply let Mr Kwok produce the report and carry on with his evidence and then proceeded to cross examine him in detail.  I do not wish to make any conjectures as to why no timely objection was ever made, suffice it to say that the explanation given was far from satisfactory and totally unconvincing.

12.Cases cited by Mr Marash on appeal concerned mainly with admissibility of cautioned statements.  Even so, according to Ho Yiu Fai v. R [1970] HKLR 415, a judge should ensure that “a ruling on the admissibility is made at or before the close of the case of the prosecution”.  There was never any mention of admissibility issue before the Prosecution closed its case.  It was raised for the very first time after the close of the prosecution case during the no case submission.

13.The so-called objection took no more than the form of a bare submission.  It was not in the form of an application for a ruling.  Had that been a proper application, the prosecution would no doubt have been called on to reply.  In the circumstances, the magistrate can hardly be criticized for not giving a ruling on this issue.

14.Having said that, I referred myself to the English case of Golizadeh [1995] Crim LR 232.  In that case, an expert was allowed to give his opinion that a certain substance was opium on the basis of a printout of a machine used by him to analyze its chemical constituents, the printout itself not having been produced in evidence.  On appeal, it was contended that the opinion evidence that the substance was opiuim should have be excluded because it was based on hearsay material from the computer and there was failure to comply with the requirement of s. 69 of the P.A.C.E.  The Court of Appeal held that where an expert based his opinion on facts derived from the use of a computer, there is no obligation to produce the printout.

15.The Court of Appeal said that the expert opinion based partly on printout data was not hearsay :

“In every case in which an expert gave evidence as such, almost inevitable he would rely upon primary facts provided either by a machine or derived from the evidence of other witnesses who had made primary findings of fact or, as experts themselves, made earlier expert conclusions and opinions on finds of facts presented to them…The evidence was not hearsay, it was essentially expert opinion given by J on data properly considered by him as an expert.”

16.The Court of Appeal expressed the view that s. 69 “was concerned with statements contained in a document produced by a computer, and whose object was to ensure that the computer was operating properly and that the documents produced by it could safely be relied upon.  No application was made by counsel for the production of the printouts from the machine.  No such printouts were exhibited in evidence at trial, did not appear to have been used by the experts to refresh their memories and had merely been used by them in reaching their findings as to the chemical constituents of the substance that, in J’s opinion, was opium.  Therefore the submission that there was a failure to comply with the requirements of s. 69 failed”.

17.The data in the computer and the radar gun used by Mr Kwok were data properly considered by him as an expert, and there had been no application for the calculation to be printed out.  No printout was ever exhibited.  The submission of a failure to comply with s. 22A of the Evidence Ordinance fails.

18.The complaint that the accuracy of that calculation without the printout cannot be verified is clearly a matter of weight.  In the case of R v. Ngai Man, HCMA 1373/1989, details of methodology and calculations in arriving at the expert’s conclusion as to speed were lacking.  Such, however, were set out in full both in Mr Kwok’s report and its Appendix.

19.The magistrate was well aware of the limits of the expert’s opinion, that the expert relied on information taken from the an internet website in relation to the weight of the appellant’s vehicle, the figure of which was not verified against the manufacturer of the appellant’s vehicle.  magistrate also did not lose sight of the fact that the expert only used parameter for similar vehicles in uitilizing a computer programme to determine the impact speed of the appellant’s vehicle.

20.The magistrate said this in his Statement of Findings :

“I find that I do not have to rely on the expert report’s conclusion to make my finding on whether the Defendant’s driving was dangerous.  The speed that the Defendant was driving was relevant but only to a certain extent, it was his manner of driving taken in the whole that I have to consider.  Speed is one factor, but even if I had placed full weight on the report, I would still have to err on the side of caution and grant the Defendant the benefit of the doubt of the 15% tolerance, which would bring the speed of the Defendant’s vehicle to about 85kmh, which is more or less in line with what the Road User’s Code suggests.”

21.This leads me to Ground 3.  Mr Marash submitted that the oral reasons of the magistrate stated that he did not have to rely on the expert report’s conclusion alone to make my finding on whether the defendant’s driving was dangerous.  In his Statement of Findings, however, the word “alone” was omitted.  It is submitted that the magistrate, on realizing these “insurmountable difficulties in relying on the evidence of Mr Kwok sought to get round this by using the Road Users Code to bolster the inadmissible evidence of Mr Kwok”.  Mr Marash submitted that this was indicative of the fact that “the Magistrate was desperate to resort to this other tactic to convict the appellant”.

22.I do not agree.  The magistrate correctly stated that his concern was the overall manner of driving of the appellant, speed was just one of the factors and there was no need for him to reply on the expert report to make specific finding on the appellant’s exact speed prior to the collision for the purpose of determining whether the appellant’s manner of driving was dangerous.  The Road User Code was used to confirm rather than bolster the evidence of Mr Kwok on speed, which for reasons above stated, was not inadmissible.

23.Did the magistrate erred in referring to the Road User’s Code on his own volition?  In R v. Ngai Man, HCMA 1373/1989, Hooper J expressed the view that “stopping distances set out in the Road Users Code are legitimate matters for examination by a Magistrate hearing a case of this sort”, as the advice contained in the Code relating to stopping distances fall within s. 109(5) of the Road Traffic Ordinance, which provides that :

“A failure on the part of any person to observe any provisions of the Road Users Code … shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings whether civil or criminal and including proceedings for an offence under this ordinance be relied upon by any party to the proceeding as tending to establish or negative any liability which is in question in those proceedings.”

24.In R v. Tsui Hung Wing [1990] 2 HKLR 603, Hooper J held that if the Code is to be relied upon as a standard against which a driver’s conduct is being tested, then it may be relied upon without being put in evidence.  If, therefore, as in the case of R v. Ngai Man, supra, there is substantial discrepancy between the evidence of an expert and what is contained in the Road User’s code, it is a matter for the court to consider the weight to be attached to the evidence of the expert.  It is clear from the Statement of Findings that the Code was used as assistance and confirmation of the expert’s evidence. There was no discrepancy between the Code and the expert’s evidence.

25.In HKSAR v. Ma Kung Kin, HCMA 147/2003, counsel for the appellant submitted that the magistrate erred in referring to the Code without having invited submissions from the defence.  Deputy Judge Longley said :

“The provisions of the Code to which the Magistrate referred contained matters which are self-evident and common sense.  There was no need in such circumstances for a court to invite submissions from the defence on them.”

26.There is nothing in this ground and this ground fails.

27.The last ground of appeal is that the magistrate erred in his findings of facts, in particular, that the taxi driver did not make a sudden, unannounced U-turn despite the PW2’s evidence to the contrary, and the self-contradictory versions of events given by PW1 himself.  It is also submitted that the magistrate never sought to resolve the inconsistencies in his Statement of Findings, never demonstrated that he had considered the salient points.  Finally, it was submitted that had the findings been otherwise, then the last thing that the appellant would expect at that time of the day and that stretch of road, was a U-turn taxi with the For Hire light still on.  To expect the appellant to be able to stop to prevent a collision would be elevating the standard of driving to a counsel of perfection.

28.In the Lam Kam Ming and Anor v. R, CACC 607/1989, O’Connor J said :

“The reasons for verdict should, in manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated.  Significant inconsistencies and conflicts should be dealt with in such manner as to indicate how those matters were resolved.  There is no simple formula for what ought to be in a judgment as it must be related to the circumstances of the particular case.  The Magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at and furthermore will enable an appellate court to perform its duty.”

29.In paragraph 27 of the Statement of Findings, the magistrate set out the reason why he rejected and believed part of PW1’s evidence.  He was entitled to make findings that he did, and I saw nothing perverse in such findings.  He also stated that had he been wrong in the finding that PW1 did put on his indicator, such was not significant in deciding whether the appellant was driving in a dangerous manner since by the appellant’s own admission in his cautioned statement coupled with the excessive speed in that particular stretch of road the appellant was plainly driving dangerously (Statement of Findings, paragraph 36).

30.The fact that PW2, the other taxi driver, only noticed the appellant’s vehicle for the first time after the collision when it was slowly “gliding” forward on his right and to the opposite side of the road” is nothing inconsistent with that findings of the magistrate.

31.Having made the findings as he did, in particular, that PW1 did not suddenly pull out as suggested by senior counsel, it is difficult to see how this case could be said to be on all fours with R v. Li Tit Man [1991] 1 HKLR 368.  It is said there that the last thing a driver would expect was a car which had stopped facing him head-on at 11 p.m. on the Eastern Corridor near to a bend.  Bearing in mind that location in the present case was near to a hospital area, to expect a competent and careful driver to be able to stop and not collide with a vehicle which had already been half way negotiating a U-turn is not elevating reasonable foresight into a counsel of perfection.

32.The magistrate is entitled and indeed required by law to take into account the nature, condition, and use of the road at the material time as well as “the circumstances of which the accused could be expected to be aware” : s. 36(7) of the Road Traffic Ordinance, Cap. 374.  The criticism of the magistrate taking in account of the matters as he did as illustrated in paragraphs 29 and 30 of his Statement of Findings is ill-founded.

Appeal against sentence

33.The sole ground is that the sentence of 4 months’ imprisonment was manifestly excessive and/or wrong in principle in the circumstance of the present case.

34.The appellant’s senior counsel submitted one of the basis on which the magistrate convicted the appellant was failure to keep a proper lookout, this was momentary inattention and therefore the magistrate erred in finding that the way the appellant had driven was a selfish disregard for others as in the second category in R v. Boswell and Ors [1984] 3 AER 353.

35.It is further submitted that the magistrate erred in placing no or insufficient weight on mitigating factors advanced and in placing too much weight on the fact that a death resulted from the said collision.

36.Senior counsel relied on the case of R v. Chu Tai, HCMA 960/1989 wherein Bewley J held that “the consequences of an accident may sometimes have little relevance to the penalty that should be imposed.  Sometimes a period of momentary inattention can have tragic results, while a piece of extremely bad or wicked driving can fortunately result in an offender escaping any accident”.

37.It was further the appellant in HKSAR v. Park Myung-hwa, HCMA 156/2004 deliberately drove through a red light.  This factor of selfish disregard of others was totally absent in the circumstances of the present case.

38.Counsel for the respondent relied on the case of HKSAR v. Li Chau Wing, CACC 347/2005, and submitted that the Court of Appeal, whilst allowing the appeal and convicted the appellant of Careless Driving instead, took into account the number of tragic deaths and held that an immediate custodial sentence of 5 months to be appropriate.  It was submitted that the loss of life is not a factor to be ignored in sentencing.

39.I have referred myself to the cases of Secretary for Justice v. Ko Wai Kit [2001] 3 HKLRD 751, and HKSAR v. Mok King Yin [2002] 2 HKLRD 76.  Both cases concerned dangerous driving causing death with the aggravating feature of drinks and drugs.  In both cases the court hearing the appeal expressed a possible inadequacy in the maximum term of sentence prescribed under the ordinance.  In the latter case, Deputy Judge Wong said that :

“Sentences imposed for the offence of dangerous driving causing death have hitherto been at a very low level as most previous decisions in Hong Kong suggest.  This is a lamentable state of affairs.  Motor cars can be as lethal a weapon as guns or knives, if they are not properly used.  Anyone who drives dangerously and kills, must expect to pay a high price… The loss of a human life, from whatever angle one looks at it, is a very serious consequence indeed.”

40.I echo such.  I am of the view that the dicta in R v. Chu Tai, supra, does not accord with the recent sentencing principles as expounded in the recent cases of dangerous driving cases and should not be followed.

41.The appellant had an appalling traffic record.  He had been disqualified once in 1996, but did not seem to have learnt his lesson.  The magistrate was right to find the manner of driving of the appellant, not merely a momentary inattention, but blatantly irresponsible and posed as a potential danger to the public, which has to be dealt with by an immediate custodial sentence.  Taking into account the absence of aggravating features and the present case not the worst of its kind, the sentence of 4 months’ imprisonment passed by the magistrate is neither wrong in principle nor manifestly excessive.  Had I been the trial magistrate, I would have passed a more severe sentence.

42.The appeal against sentence also fails.  I affirm the sentence passed by the magistrate and dismiss this appeal.

Miss Mary Sin, SADPP of Department of Justice, for HKSAR

Mr Daniel Marash, SC leading Mr Kenneth C.L. Chan, instructed by Messrs Hau, Lau, Li and Yeung for the Appellant