HKSAR v. Chan Chi Chiu, Louis

DCCC 1184/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1184 OF 2011

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Reasons for Verdict

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The charge

1.The defendant was charged and pleaded not guilty to a charge of causing grievous bodily harm by dangerous driving laid under S 36A(1) of the Road Traffic Ordinance, Cap 374 (“RTO”).  Upon plea taking, the defence counsel has indicated that the defendant intended to plead guilty to the offence of careless driving.

2.English provisions under S 2A of the Road Traffic Act 1988 bears similarity with S 36A of the RTO in defining dangerous driving except the latter provides more circumstances for consideration.

Definition of dangerous driving

3.S 36A(10), (11), (12), (13) and (14) of the Road Traffic Ordinance Cap 374 provide the following definition of dangerous driving:

“(10) a person is to be regarded as driving dangerously within the meaning of subsection (1) if –

(a) the way he or she 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.

(11) 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.

(12) For the purposes of subsections (10) and (11), “dangerous” refers to danger either of injury to any person or of serious damage to property.

(13) For the purposes of subsections (10) and (11), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard must 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.

(14) In determining for the purposes of subsection (11) the state of the motor vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.”

For the purpose of the present case, only S 36A(10), (12) and (13) of the RTO are applicable.

4.S 36A sets out a wholly objective test.  Mens rea plays no part in the offence.  In Loukes [1966] 1 Cr App R 444 at 450, it was held:

“Proof of guilt depends on an objective standard of driving, namely, what would have been obvious to a competent and careful driver. The accused driver’s state of mind is relevant only if and to the extent that it attributes additional knowledge to the notional competent and careful driver….. It should be noted too that the threshold of proof is high. It must be shown that the defect was obvious to a ‘competent and careful driver’.”

In Blackstone’s Criminal Practice 2012 (“Blackstone 2012”) at C3.10 it was said:

“The standard of driving must fall ‘far below’ that expected of a ‘competent and careful’ driver and it must be obvious to a ‘competent and careful’ driver that the manner of driving is dangerous. The prosecution must demonstrate both elements before s 2A(1) is satisfied …..

The introduction of the concept of a careful driver as an objective observer places the question of what constitutes dangerous driving within the province of the tribunal of fact. Speed alone is not sufficient to found a conviction for dangerous driving (DPP v Milton [2006] RTR 264). Driving at excessive speeds may constitute the offence depending on the context and all the circumstances (eg Trippick v Orr 1995 SLT 272 and McQueen v Buchanan 1997 SLT 765). In such cases, as it is a matter of fact and degree for the tribunal to determine, it is important to make or elicit specific findings on these issues.”

Issues

5.The prosecution in this case has to prove:

(i) that the defendant drove dangerously; and

(ii) that the defendant caused grievous bodily harm to PW1 and PW5 by so driving[1].

Causal link to grievous bodily harm

6.The principal of Causal Link to Fatality was mentioned[2] in the Blackstone 2012 with the same principle applied to grievous bodily harm resulted from the accused’s dangerous driving:

“Causal Link to Fatality  The prosecution need to establish that death resulted from the accused’s dangerous driving. It should be noted that danger to the person is not qualified by any adjective and therefore, as long as it is not de minimis, any danger to any person, even though slight, if obvious to the ‘competent and careful’ driver, would suffice. In Hennigan [1971] 3 All ER 133, a case of causing death by reckless driving under the RTA 1960, the recklessness consisted mainly of the speed at which the defendant was driving; the driver of the other car, which contained the two persons who were killed, may well have been substantially to blame for the accident. The court held that there was nothing in the legislation which required the manner of the accused’s driving to be a substantial or major cause of the accident, as long as it was a cause and something more than de minimis’. Similarly, it was said in Skelton [1995] Crim LR 635 that no particular degree of contribution to the death, beyond a negligible one, is required. An acceptable direction to the jury is that they do not have to be sure that the defendant’s driving was the principal, or a substantial, cause of the death, as long as [they] are sure that it was a cause and that there was something more than a slight or a trifling link’ (Kimsey [1996] Crim LR 35).”

7.The prosecution called 8 witnesses. The defendant chose not to testify but called an expert witness to give evidence. This court will take into consideration the defendant’s clear record.

8.Voluntariness and accuracy of the defendant’s statements to the police at the accident scene and subsequently on 16.5.2011 at the police headquarters (Exh P-1) were unchallenged.

Defendant’s statement made at the accident scene

9.PW7 (SPC 47694) was the first policeman who arrived at the accident scene.  The defendant told him that “he was travelling along the slow lane at around 80 km/h, but when he reached the entrance/exit of the Car Park, PW1’s car suddenly drove out from the Car Park and they crashed.”

Cautioned statement (Exh P-1)

10.The defendant maintained a similar version in a subsequent interview under caution on 16.5.2011.

11.At the interview, the defendant claimed that “On the material day, he drove his colleagues from the office of the Disneyland Road Corporation on Lantau Island intending to go to the Sunny Bay MTR station.  Prior to that, he had driven 3 to 4 times on this section of the road but was not aware of the speed limit of the road nor the existence of the access of the Car Park. 

12.At the material time, he was travelling on the slow lane at a speed around 80 to 90 km/h.  When PW1’s car first came to his sight, it was about 4 to 5 private car length in distance with his.  It was coming out from the Car Park on the left.  He then braked and turned to the right to avoid PW1’s car, but it kept moving forward.  Then the 2 cars collided at the location on the fast lane.”

Laws on mixed statement

13.Both statements given by the defendant were in the form of a mixed statement.  The defendant chose not to testify at the trial.  Bruce & McCoy Criminal Evidence in Hong Kong at V405-406:

“Where a statement by the accused appears to contain both inculpatory and exculpatory material and the accused does not give evidence, both the inculpatory and the exculpatory material is admissible evidence to be considered by the jury to determine where the truth lies.[3]”

“The tribunal of fact may assign different weight to different parts of the statement. The court may, by way of comment, tell the jury that they are entitled to consider that the exculpatory material is of little weight in comparison to that which is inculpatory because the exculpatory part has not been made on oath and has not been tested by cross-examination whereas the inculpatory part is a statement against interest. The court is required to instruct the jury to specifically consider each part of the statement and determine what, if any, weight to attach each part and it would be wrong to direct a jury that they may simply ignore the exculpatory parts of a statement. The court must explain to the jury that the weight that the jury attributes to the exculpatory part is a matter for their decision. The jury should never be told that the exculpatory part of such a statement is not evidence of the truth of its content.”

14.This Court finds that the two statements were voluntarily made by the defendant. It is accepted that even by the defendant’s own account, he was “travelling along the slow lane at around and not less than 80 km/h at the material time” (as recapitulated in paragraphs 9 and 12 herein), which was clearly in excess of the speed limit thereat (ie 50 km/h).

Prosecution case

15.Part of the prosecution case was dealt with by way of admitted facts under S 65C of the Criminal Procedure Ordinance Cap 221 – Exh P16 and P16A.

16.The defendant drove his yellow Honda from the Disney World construction site along the Sunny Bay Road (Southbound) towards the Sunny Bay MTR station[4].

17.Sunny Bay Road is a dual carriageway with two lanes in either direction (northbound and southbound) located in Lantau and close to the Sunny Bay MTR station.  This stretch of road has a speed limit of 50 km/h which is prominently displayed by traffic signs and also by road markings.

18.Along this dual carriageway there is a junction where vehicles can enter from or exit to both carriageways[5].  This junction is known as Ada’s Car Park (“Car Park”)[6]. The accident locus was outside the Car Park which was situated at a straight stretch of road after leaving a left curve and heading towards Sunny Bay MTR station.

19.At 1238 hours, where the defendant’s car was approaching outside the access of the Car Park in the slow lane, it collided with a Mercedez Benz (“MB”) which was coming out from the Car Park and was driven by PW1.

20.Inside the defendant’s car there were 4 other passengers including PW3, PW4 and PW5, whereas PW1 carried 3 other passengers including PW2 in his MB.  The impact of the collision between the vehicles resulted in all the nine passengers being injured and taken to Princess Margaret Hospital for medical attention and/or treatment.  Among them, PW1 & PW5 suffered grievous bodily harm.

21.At the time of the accident the weather was fine.  The traffic at the place of the accident was light.  The surface of the road was dry and the driving conditions were good.

22.After the accident both vehicles were checked by the government vehicle examiner to be free from any mechanical defect.  The damage to the 2 vehicles after the accident was extensive. 

23.The speed of the defendant’s vehicle approximately at 80 km/h to 90 km/h was revealed by the defendant himself and was confirmed by PW5, who had 8 to 10 years of driving experience.  PW3 (with more than 20 years of driving experience) and PW5 stated that the defendant never reduced his speed on leaving the left curve nor did he apply the brakes before the collision.  PW2 who had been a driver in India for 22 years, estimated the defendant’s speed to be about 100 km/h.  PW3 who was also a passenger in the defendant’s car stated that the defendant was travelling “very fast” and as a result it only took 1 second for the defendant’s vehicle to ram into the MB.  PW2, PW3 and PW5 described the MB as moving out of the Car Park at a “very slow speed”.

PW1’s evidence

24.PW1 was the driver of the MB and had been driving for almost 20 years.  He suffered severe multiple injuries on his pelvis, legs, skull, shoulders, spine, ribs and urinary tract and underwent 3 surgeries as a result of the accident.  Details of the injuries were reflected in his medical reports Exh P-6, P-7, P-8 and P-9.

25.He lived in Discovery Bay and had parked his car at the Car Park on numerous occasions.  Whenever he drove out of the Car Park, he would normally turn left and then towards the roundabout.  He could not recall anything about the incident but would imagine doing the same thing he normally did on the day in question.

PW2’s evidence

26.PW2 was sitting beside PW1 in the front passenger seat with his son and father sitting behind.

27.When the MB got out of the parking space, it came slowly towards the exit and inching out of the Car Park extremely slow towards the carriageway.  Before they were out of the dotted line at the exit, there were a lot of obstructions.  No one explored on the issue of what these obstructions were.

28.Having a natural instinct as a driver in India for 22 years, PW2 looked towards his right, and noticed that PW1 was already looking towards his right.  When the car was at least half its body outside the dotted line of the exit from the Car Park, PW2 suddenly saw a flash of yellow vehicle from the right approaching extremely fast and hit the MB.  PW2 estimated the speed of the defendant’s car to be about 100 km/h.  All these happened within two to three seconds.

29.At the point of contact PW2 lost consciousness and suffered head injury.

PW3’s evidence

30.PW3 was the defendant’s colleague and a passenger sitting right next to the defendant in the front.  He had been driving in Hong Kong for over 20 years.

31.PW3 was familiar with the road in question and knew that the speed limit was 50 km/h.  There was a bend turning left and down slope towards the accident scene.  But the defendant was driving very fast. 

32.PW3 was not paying attention to the road condition.  After the defendant’s car had made a left turn, PW3 then noticed that at a distance of 8 to 10 private car’s length, a MB which was travelling very slowly had just reached the dividing line between the slow and fast lanes of the carriageway.

33.The defendant was still driving very fast on the slow lane.  He did not reduce speed nor apply brakes.  The defendant swerved right to avoid it but in one second, collision occurred. 

PW4’s evidence

34.PW4 was the defendant’s colleague.  He was sitting in the defendant’s car on the right behind the defendant.

35.PW4 was asleep.  When he heard someone said “we are about to collide”, PW4 then looked and saw the MB at the front only several metres away, then the collision happened.  PW4 suffered minor injuries as a result.

PW5’s evidence

36.PW5 was the defendant’s colleague and travelling on the defendant’s car.  He was sitting in the middle at the back seat.

37.He had driven along the same stretch of the road several times and was familiar with it.

38.When arriving near the accident scene, the defendant’s car was travelling on the inner lane at a speed around 80 to 90 km/h.

39.When the car was turning the left bend and travelling down the slope, PW5 turned his head and saw the MB moving very slowly out from the exit of the Car Park to the middle of the road. 

40.The defendant’s car did not reduce its speed but moved to the fast lane.  When the defendant’s car was about 5 to 7 private vehicles length away from it, PW5 closed his eyes in fear.  The defendant still did not brake the car.  Very shortly the collision occurred.

41.PW5 stated that at the bend, one could see the Car Park, but when turning down the bend one has to pay more attention, because there were trees and bushes obstructing the view.

42.PW5 suffered severe injuries on his hips and had a surgery as a result.  Until now he is still having problem with walking. Details of PW5’s injuries were reflected in his medical reports Exh P-10, P-11 and P-12.

Medical reports and grievous bodily harm

43.Dr Leung Ka Hei (PW6), a medical doctor was called to explain the medical terms and phrases in the medical reports of both PW1 and PW5.  He opined that the injuries suffered by them as a result of the traffic accident in question to be severe.

44.The defence does not dispute the fact that these bodily injuries were to be regarded as grievous and that they were inflicted and caused by the collision.  This court finds that the injuries suffered by PW1 and PW5 amounted to grievous bodily harm.

PW7’s evidence

45.PW7 SPC 47694 was the first police officer arrived at the scene.  All nine passengers travelling in the two cars suffered injuries as a result of the accident.

46.PW7 spoke with the defendant at scene as to how the accident happened. 

47.PW7 looked at the layout and the situation at the scene and the position of tyre mark.  PW7 noticed there were very light tyre marks at the scene, but was not sure if they were left by the defendant’s car.

48.PW7 disagreed with the defence’s suggestion that the view of the Car Park exit could have been obstructed by its concave shape and by the trees and anti-crash railing on the nearside of the road.

Expert witnesses

49.Dr Dao Kwok Leung (PW8) was an expert witness called by the prosecution.  The defendant called Mr John Johnston as an expert witness to give evidence.  No issue was taken on the expertise of the 2 expert witnesses.  This court is satisfied with their expertise and accepts them to testify as an expert.  However, the opinion of the expert witness as to whether or not the defendant was driving dangerously was inadmissible, as it is a matter in law and one for the court to determine.

50.Dr Dao visited the accident scene on 15.9.2011 at 10:30 am.  He conducted tests relating to line of vision and car skidding.  As there were no tyre marks which could associate with the defendant’s car prior to the collision found on the road of the accident locus, no accident speed information pertaining to the defendant’s car could therefore be determined.  Dr Dao opined that the defendant might not have applied hard braking before the impact.

51.Dr Dao tendered his 3 respective reports made on 19.9.2011 (P-13), 18.10.2011 (P-14) and 11/4/2012 (P-15 edited).

52.Mr Johnston did not visit the accident scene. He tendered his 2 respective reports made on 26.3.2012 (D-2 edited) and 13.4.2012 (D-3 edited).

53.Both Dr Dao and Mr Johnston held different views on certain issues but eventually and mainly narrowed them down to the following two:

(1) Whether the skidmark of defendant’s car could be left on the road if the defendant had applied the brake before the collision; and

(2) Whether the perception and response time (“PRT”) before evasive action to be taken by a driver should be 1.8 seconds or 0.9 second.

This court would nevertheless find that neither issue was significant nor material for reasons stated in this verdict.

54.Both experts agreed that the braking distance for a good car (ie with good brakes and tyres) would be:-

(a) 34.9 m for car travelling at 80 km/h; and

(b) 13.7 m for car travelling at 50 km/h.

55.It was also agreed if the PRT[7] of 1.8 seconds is used for calculation, the stopping distance for defendant’s car would be:

(a) 75 metres if travelling at 80 km/h; and

(b) 38.7 metres if travelling at 50 km/h.

56.If the PRT of 0.9 second is used for calculation, then the stopping distance for defendant’s car would be:

(a) 54.9 metres if travelling at 80 km/h; and

(b) 26.2 metres if travelling at 50 km/h.

Line of vision

57.Dr Dao conducted tests and assessed the “Line of Vision” of the accident stretch to be approximately 145 m, ie the distance from where the defendant could have been able to first see PW1’s car when driving on the Sunny Bay Road[8]. In other words, if the drivers of the two vehicles had paid attention to the road conditions, they could have perceived each other at a distance of 145 m[9]. 

Stopping distance

58.Dr Dao said that stopping distance is the distance travelled during reaction and braking.  In order to calculate the stopping distance of the defendant’s car, skid tests were necessary and in fact carried out by him.  The deceleration coefficient of friction between vehicle tyres and the ground was then established in the tests. 

59.Dr Dao said “After a driver had noticed a danger, there was a reaction distance which he would have travelled before applying hard braking.” 

60.Dr Dao adopted the reaction time of 0.9 second elicited from the HK Road Users Code, May 2000 edition (“HKRUC”)[10], which according to Mr Johnston was very similar to that of the British Highway Code.  Nevertheless, Mr Johnston applied the highest end of the range of 0.8 to 1.8 seconds to be the reaction time according to an American Research by Olsen.

61.The braking distance for vehicle travelling at 80 km/h (ie 22.2 m per second) would undisputedly be 34.9 m.  If 0.9 second was adopted to be the reaction time, then the reaction distance would be 19.98 m. Hence the stopping distance would be 54.9 m.  If 1.8 seconds was adopted to be the reaction time, then the reaction distance would be 39.96 m.  Hence, the stopping distance would be about 75 m.

62.The braking distance for vehicle travelling at 50 km/h (ie 13.9 m per second) would undisputedly be 13.7 m.  If 0.9 second reaction time is applied, then its reaction distance would be 12.5 m and its stopping distance 26.2 m.  If 1.8 seconds reaction time is applied, then its reaction distance would be 25 m and its stopping distance 38.7 m.

63.Even if 1.8 seconds was adopted as the reaction time, and 80 km/h to be the defendant’s speed at the material time, the stopping distance was still significantly less than the line of vision of 145 m. In other words, there was ample time for the defendant to have stopped in time to avoid the accident had he noticed the MB 145 m away.

2 skid tests done

64.Both experts disagreed on the issue of whether skid mark would be left on the road if the defendant had applied brakes before the collision.  It was undisputed that the defendant’s car was equipped with the anti-lock braking system (“ABS”).  Dr Dao gave a detailed explanation as to:

(i) how a vehicle reacted after emergency brake was exerted and the consequences followed by locked wheel; and

(ii) how and when the ABS system starts to work and the consequences of its activation.

65.Emergency/heavy braking tests were carried out by Dr Dao with a vehicle travelling at 80 km/h and 50 km/h.  Dark skid marks with black powder on them were consequently left on the road.  Dr Dao explained further that when a car braked suddenly, before the ABS system is activated, the wheel of the car would be locked.  As the tyre continues to skid forward, its whole surface will touch and abrade on the ground, such friction between the tyre and the ground would cause the rubber tyre to melt.  As a result, the whole track width of the tyre would appear and the melted rubber will stick on the road surface.

COURT’S OBSERVATIONS AND ANALYSIS OF EVIDENCE AND ITS FINDINGS

No tyre mark preceding the collision point

66.Dr Dao asserted that if a driver did not apply emergency braking, nor press the brake hard enough to cause the locking of wheel, then there will not be a tyre mark and the stopping distance will obviously be lengthened. 

67.There seemed to be a faint line preceding the post collision mark made by the defendant’s car in Exh P-3 (21) and (22).  But when one looks at other photographs taken on the day of accident with closer view of the same location, such line did not seem to have appeared in Exh-3(9), (10), (18), (19) and Exh D-1(4), (5), (8), (12), (13), (15), (67) and (72).

68.This Court has doubt as to the existence of the ‘faint mark’ and if it actually existed, its connection with the defendant’s car.

69.This court believes and accepts that if a driver under such sudden and emergency circumstances had exerted the brake, he would have stepped onto it as hard as possible and a continuous tyre mark would consequently, and according to Dr Dao, be left on the road under locked wheel situation and before the ABS is activated.  If such course of action had been taken by the defendant, tyre mark of this nature would have clearly appeared in all photographs taken by the prosecution and the defence of the immediate place preceding the proposed collision point.

70.There were 2 colleagues of the defendant (PW3 and PW5) travelling in his car who testified and confirmed that there was no reduction in speed nor braking before collision.  They were truthful witnesses.  This Court accepts their evidence that the defendant had not exerted any braking nor reducing its speed before collision.

Very low speed of the MB

71.There was no estimation of the speed of the MB car but was described to be “inching out”, “moving out very slowly” from the Car Park exit onto the carriageway by several prosecution witnesses.  At the collision point, the MB was purportedly straddling the centre dividing line between the slow and the fast lanes.  This court does not accept that the MB was driven out suddenly from the Car Park as alleged by the defendant in his statement at scene.  It is accepted that the MB was driven out from the Car Park at a very slow speed as confirmed by the prosecution witnesses.

72.This court believes that when the defendant was 145 m away, the MB car had already appeared at the exit/entrance of the Car Park and its appearance must have been within the vision of, and noticeable to any driver who kept a proper lookout at that distance coming towards the Car Park access. 

Apparent and inherent hazards on the road

73.Apart from the Car Park’s junctions which allowed cars to enter into and exit from both carriageways, there were other significant and inherent features along the road which also amounted to hazards, eg the road proceeds down slope with a right angle bending towards left and a speed restriction of 50 km/h was prescribed on the road which was not designed for high speed.  These hazards would be evident not only to a reasonably prudent and competent driver, but the defendant himself.

Junctions

74.Mr Johnston when giving his personal view seemed to justify the defendant’s conduct and response prior to the collision.  He opined that the MB at the Car Park junction should have moved onto the main road, otherwise, there should have been no hazard presented to the defendant, who was then not expected to stop or slow down under these circumstances. 

75.Mr Johnston further said: “The slow moving vehicle inching out from the Car Park would extend the PRT of the defendant as he might have to make further decision about what the intention of that car was, therefore the PRT would realistically begin when the front of the other vehicle moves beyond the junction line onto the carriageway.”

76.This court disagrees with Mr Johnston’s observation, especially that on the cross junction in our case.  Traffic may be moving in different directions.  Vehicles at the junction would present as an apparent hazard to any prudent driver.  A car stopping at the Car Park exit or moving along the passage leading from the Car Park would obviously be waiting or wanting to drive out to the carriageway.  The fact that the defendant was travelling on the main road would not lessen nor exonerate his duty to be alert and to take great precaution when approaching junctions.  There are possibilities that the driver at the exit may not have noticed the approaching car or may not have easily anticipated the highly and exceptionally excessive speed of the approaching car. 

77.Once a driver on the main road had actually seen a slow moving vehicle inching out at the passage and intending to come out from the junction, he should have immediately slowed down or even sounded the car horn and if necessary, to change lane.  It is impractical and unwise to guess what the other driver’s intention was and very dangerous not to take any precaution until the front of the other vehicle moves beyond the dotted line onto the carriageway.  In which case, the distance for effective evasive action to be taken would be critically shortened.

78.Mr Johnston has also in some aspects seemingly gave his opinion in isolation without referring to other objective and existing circumstances of the case, eg the defendant’s speed, the physical and geographical conditions of the road, the speed limit on the road and the passengers present in the defendant’s car.

79.This court, with respect, finds it difficult to follow Mr Johnston’s observations and comments.  The evidence of Dr Dao who had attended the accident scene and conducted several tests thereat was accepted by this court to be truthful and reliable.

Speed limit

80.Whilst speed alone is not a basis for convicting dangerous driving, one must obey the speed limits for the road.  Although a speed limit is the maximum speed allowed, it does not necessarily mean that it is safe to drive at that speed.  One must always take into account of all the conditions prevailing at the time.[11]

90° bend in the road

81.Just before reaching the accident scene in our case, there was a left bend in the road of 530 m in length at a 90° angle.  A prudent driver would have reduced its speed if necessary to below 50 km/h.  However, evidence indicated that the defendant was still travelling at an excessive speed of about 80 km/h when negotiating such bend.

Down slope

82.The level of foreseeable danger along this road had been elevated greatly by the fact that the stretch of road proceeded to run down slope.  With these dangerous conditions of the road, not only did the defendant refuse to take precaution, he also failed to administer any measure to alleviate the dangers existed but instead aggravated the dangers greatly by his driving manner.

83.Moreover, the defendant was carrying 4 other persons who were his colleagues in his car.

84.This is not a case where a driver failed to appreciate the risk of his action which might cause danger to his own passengers and other road users.  This is a case, where the defendant being a driver, had obviously appreciated the risk but deliberately went on to take it.

85.It is therefore a case that the defendant’s speed and overall manner of driving at the material time were sufficient to establish that the defendant was guilty of dangerous driving.

Obstructed view?

86.Whether part of the defence case was that the defendant’s view may have been obstructed by the plants and anti-crash fences along the nearside of the road, remains unclear.  If it is so relied upon, the defendant bears even a greater duty and care under such circumstances.

87.Similarly, for drivers who were not familiar with the road conditions, they should maintain a careful and proper lookout and pay more attention to the road and traffic conditions at all material times.

Defence authorities

88.The cases which the defence relied on in his submission has no features of speeding or driving excessively over the legal limit.  It is incorrect to say the facts of this case are similar to that of HKSAR v Lau Chi Fat CACC 89/2011, as the driver in that case was driving at a speed of 40 to 50 km/h and within the speed limit.  There was no affinity between the 2 cases.

Conclusion

89.This is by no means a momentary lapse of attention nor judgment error on the defendant’s part but a blatant and selfish disregard for the defendant’s own passengers and other road user’s safety.

90.The defendant had ample time and opportunity to see or notice PW1’s vehicle.  If the defendant was paying enough attention to and keeping a proper lookout of the road conditions at the material time and drove in a competent and careful manner, he could not have failed to notice the MB pulling out of the Car Park.  Had the defendant not been travelling so fast or had he taken all necessary precautions, he would have avoided the accident.

91.Consequently, the issue as to whether the defendant had commenced taking evasive action like swerving or braking immediately before the collision became immaterial under the circumstances. Likewise, the issue as to which reaction time this court would adopt has become insignificant and superfluous.

92.In the light of all the prevailing circumstances of the case, the defendant was driving his vehicle in such a manner and at such speed as to create an obvious and serious risk of causing physical injury to his own passengers and other persons who happened to be using the road.

93.The prosecution has established its case beyond all reasonable doubt that the manner of the defendant’s driving: (i) had fallen far below that expected of a competent and careful driver; (ii) was obvious to a competent and careful driver to be dangerous; and (iii) had caused grievous bodily harm to PW1 and PW5.

94.The defendant is convicted as charged.

Please refer to CACC249/2012 for the relevant appeal(s) to the Court of Appeal.