HKSAR v. Chan Chi Chiu, Louis

CACC 249/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 249 OF 2012

(ON APPEAL FROM DCCC NO. 1184 OF 2011)

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BETWEEN

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Before: Hon Tang VP in Chambers

Date of Hearing: 10 August 2012

Date of Decision : 10 August 2012

Date of Handing Down Reasons for Decision : 17 August 2012

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REASONS FOR DECISION

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1.On 30 May 2012, the Applicant was convicted after trial of "causing grievous bodily harm by dangerous driving" and was sentenced to imprisonment for 3 years. He applied for bail pending appeal against conviction and sentence.

2.Bail is normally only granted where prima facie the appeal is likely to be successful or where there is a risk that the sentence or a substantial part of it would have been served by the time when the appeal is heard.

The merits of the appeal

3.It is common ground that at the material time the Applicant was driving his vehicle along the slow lane of Sunny Bay Road, a dual carriage way, at a speed of 80 to 90 km/h, in excess of the speed limit of 50 km/h.  He had a line of vision of approximately 145 metres.  He collided with a vehicle driven by PW1 which was turning into Sunny Bay Road from Ada's Car Park.

4.The Applicant did not give evidence. 

5.PW1 could not recall anything about the accident. But PW2, who was a passenger in his car, said PW1's vehicle was moving out of the car park at a "very slow speed".  Similar evidence was given by PW3 and PW5, who were passengers in the Applicant's car.  The learned Deputy Judge said:

"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."

6.He then concluded:

"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."

7.At trial the Applicant called an expert witness, a Mr John Johnston, who sought to justify/explain the failure on the part of the Applicant to slow down.  His evidence was summarised by the learned Deputy Judge at paras 74-75 of his Reasons for Verdict.  The reasons the learned Deputy Judge gave for rejecting Mr Johnston's evidence can be found at paras 76-79 of his Reasons for Verdict.  I will not go into these evidence, save to say, with respect, that the learned Deputy Judge's reasons are cogent.

8.Mr Lawrence Lok, SC (leading Mr Derek Hu), who appeared for the Applicant in this application, submitted that the learned Deputy Judge had, in convicting the Applicant, wrongly relied on the fact that the Applicant had a line of vision of 145 metres.  Mr Lok submitted that the Applicant had a line of vision of 145 metres did not mean the Applicant would have seen that PW1's vehicle at that distance.  He said the agreed evidence was that travelling at 80-90 km/h, it would have been taken approximately 6.5 seconds to travel 145 metres, but according to the estimates of the eye witnesses, PW1's vehicle was first seen by them, 1-3 seconds before the accident.  In other words, the Applicant's car was only seen much less than 145 metres away.

9.With respect, it is notoriously difficult to estimate the duration of what must seem a split second.  What is more important in this case is that all the eye witnesses were clear that PW1's car was inching its way out into Sunny Bay Road. 

10.In the Applicant's cautioned statement, he claimed that PW1 drove quickly into Sunny Bay Road.  That of course was rightly disregarded by the learned Deputy Judge in view of the evidence of the 3 eye witnesses.  However, it is obvious from the Applicant's statement that it was not his case that although PW1 only drove slowly into Sunny Bay Road, by then he was already so close that he could not stop.

11.In all the circumstances, this is not a case where I could say prima facie that the appeal is likely to be successful. 

Time

12.I turn to consider whether there is a risk that the sentence or a substantial part of it would have been served by the time the appeal is heard.  The Applicant was sentenced to imprisonment for 3 years.  This appeal could be heard at the end of January next year.

13.It appears from the evidence that although PW1 had suffered grievous bodily harm and was given sick leave for about 7 months, fortunately it does not appear that he suffers from any or any serious permanent disability.  I am prepared to proceed on the basis that the appeal against sentence might succeed.  But not to an extent that by the time the appeal is heard, the Applicant would have served the reduced term of imprisonment.  I have said earlier that I do not believe the Applicant's appeal is likely to succeed.  But in the context of bail on the time basis I have to say I am not persuaded that the appeal against conviction has any realistic chance of success.  That is why, I would not grant bail on this basis unless there is a risk that the Applicant would have served more than the possible reduced term by the time the appeal is heard.

14.For the above reasons, I have refused bail pending appeal.

Mr Lawrence Lok, SC & Mr Derek Hu instructed by ONC Lawyers for the Applicant

Ms Betty Fu, PP of Department of Justice for the Respondent