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Hksar v Li Chau Wing

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date20 February 2006
Subject MatterCriminal Appeal
Judgement NumberCACC347/2005
CourtCourt of Appeal (Hong Kong)
CACC000347/2005 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

　 HKSAR Respondent
　 and 　
　 LI CHAU WING (李秋榮) Applicant

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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...

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