Hksar v Sheung Kun Hoo Daniel

CAC C 56/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 56 OF 2010

(ON APPEAL FROM DCCC NO. 568 OF 2009)

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the reasons for judgment of the Court):

Introduction

1. At about 3 am on 7 November 2008, the applicant was driving his motor vehicle in Wong Nai Chung Road, Happy Valley in the southerly direction in which all traffic on that stretch of that road travels. He was driving along the middle of the three lanes on that road when he struck a pedestrian who was walking on the road against the flow of traffic. As a result of the collision, the pedestrian named Kurt Leswing, a 21-year-old American university student, was killed. The police arrived and the applicant was breathalysed. The result of subsequent analysis showed that the proportion of alcohol in the applicant’s breath exceeded the prescribed limit threefold.

2. The applicant was prosecuted in the District Court. He faced three charges:

(1) causing death by dangerous driving, contrary to s. 36(1) of the Road Traffic Ordinance Cap. 374; namely, that on 7 November 2008 at Wong Nai Chung Road (South Bound) opposite to St Paul’s Primary Catholic School, he caused Mr Leswing’s death by driving his motor vehicle registration number NE 9082 on the road dangerously;

(2) using a defective vehicle on that day at that place contrary to regulation 28(2) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations in that both side door glasses and rear windscreen were adhered with tinted film which caused decrease of light transmission; and

(3) driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit of 22 micrograms of alcohol in 100 millilitres of breath, namely, 66 micrograms of alcohol in 100 millilitres of breath contrary to section 39A(1) of the Ordinance.

3. He pleaded guilty to the second and third charges but not guilty to the first.

4. On 1 February 2010, Judge Geiser found him guilty of the first charge, namely, causing death by dangerous driving and on 18 February 2010 he passed sentences as follows:

(1) in relation to Charge 1, he sentenced the applicant to 3½ years’ imprisonment and ordered him to be disqualified from holding or obtaining a driving licence (for all class of vehicles) for a period of three years;

(2) in relation to Charge 2, he imposed a fine of $1,000; and

(3) in relation to Charge 3, he imposed a fine of $4,000 and disqualified the applicant from holding or obtaining a driving licence (for all classes of vehicle) for 12 months and ordered that period of disqualification to run concurrently to the disqualification in respect of Charge 1.

5. The applicant sought leave to appeal against conviction and sentence in relation to Charge 1.

6. On 3 September 2010, we dismissed both applications and said that we would provide our reasons later. This we now do.

The case in essence

7. The prosecution case was that at the material time, the deceased, himself the worse for drink, was walking on Wong Nai Chung Road itself about 160 metres from the junction of Sports Road in the direction of Leighton Road trying to hail taxis or, perhaps, other traffic. Traffic was light and the road dry. A witness, Mr Siu, who was walking along the pavement on the east side of the road (the side opposite the racecourse and sports fields) in the same direction as the deceased, saw the deceased and saw such vehicles as were driving southbound along the road slow down and change course so as to avoid him. In particular, he saw a taxi travelling along the middle of the three lanes slow down and move into the left-hand lane but also saw the path and manner of driving of the applicant’s vehicle shortly thereafter.

8. His evidence was that the applicant drove out of Sports Road onto Wong Nai Chung Road at “very high speed”, did not take evasive action, and crashed into the deceased who was thrown into the air and landed by a tree or bush on the racetrack side of Wong Nai Chung Road. His evidence was also that after the accident, he spoke to the applicant, noticed the smell of alcohol on his breath and that the applicant repeatedly sought to delay the calling of the police.

9. The prosecution case was that the applicant’s driving was self-evidently dangerous in that he was driving at high speed; and, by reason of his alcohol intake, was manifestly not fit to drive; and that a combination of these factors caused the accident which led to the death of Mr Leswing.

10. The judge accepted the testimony of Mr Siu in its material aspects.

11. The applicant himself did not testify but relied upon an interview or interviews he had provided to the police after the event, in which he had alleged that the deceased had suddenly run out onto the roadway or dashed into his path from one lane into the middle lane. The judge rejected this version of events. He held that the applicant had been driving at high speed and that due to his intoxication he was in any event in no position to drive and that a combination of those factors “made his driving utterly dangerous at the material time.”

The evidence

12. The grounds of appeal constitute a detailed attack on the judge’s assessment of the evidence, particularly that of Mr Siu, and it is also suggested that the evidence was such that it was not open to the judge to be sure of the applicant’s guilt.

13. It is therefore necessary to refer to the evidence of Mr Siu in some detail and to summarise the other evidence.

(1) Mr Siu

14. Mr Siu has been a taxi driver for about 13 years. On 7 November 2008, he had finished his night shift at about 2:30 am, parked his vehicle in Happy Valley and, at around 2:50 am, found himself walking along the pavement of Wong Nai Chung Road towards Leighton Road. He was stopped by the police for an identity check and then walked on. At about 3 am, when he was just past the Amigo Restaurant, he heard someone shouting out and saw an expatriate, whom we now know to have been Mr Leswing, walking along the road itself also in the direction of Leighton Road. It appeared to him that Mr Leswing was trying to flag down a vehicle. Mr Siu said that “there were very few vehicles travelling on the road”. The man was shouting and extending his arm to stop the vehicles.

15. Mr Siu came to the junction with Broadwood Road and he saw the man move into the middle lane of Wong Nai Chung Road. He saw six or seven vehicles travel along that road and each slow down to avoid the man. The drivers of the vehicles also sounded their horns. It is apparent from Mr Siu’s evidence that he was making more progress towards the direction of Leighton Road than was Mr Leswing and so found himself ahead of him. When Mr Siu reached the safety island at the junction of Broadwood Road and Wong Nai Chung Road, he observed a vacant taxi travelling down the middle lane. The man in the road was shouting. Mr Siu stopped and turned his head to look and saw the taxi slow down, avoid the pedestrian and turn into the left lane, in other words the lane closest to Mr Siu.

16. Mr Siu said that the street lamps were on and there were also lights coming from the Amigo Restaurant signboards. There was, he said, “no problem about the lighting.”

17. In his examination-in-chief, he said that at the time that the taxi changed from the middle lane to the left lane, there were no other vehicles in the road but that after he had seen the taxi avoid the man in the road, he saw the applicant’s vehicle turn right from Sports Road into Wong Nai Chung Road and take the middle lane. He described the manner in which that vehicle made the turn from Sports Road into Wong Nai Chung Road as “very fast… it was travelling in a very high speed.” He was asked to give an estimate as to the speed and he said that it was roughly 80 to 90 km per hour; and he, Mr Siu, wondered if anything would happen to the man in the road. He therefore turned round and looked towards the Happy Valley direction, towards the man in the road, by which stage the taxi was on the left lane, having passed the man. He then saw the applicant’s vehicle “actually ramming into the pedestrian in a high-speed” in the middle lane. The man was tossed up in the air and was thrown to the side of the road. He said that before the applicant’s vehicle hit the man, there was no swerving of the applicant’s vehicle; it just ran straight into the pedestrian. He gave an estimate, by reference to features in the courtroom, as to how high the man was thrown, an estimate of at least 6 feet, considerably less than his verbal estimate before that demonstration of 20 to 40 metres. He said also that before the vehicle crashed into the man he did not see any brake light on the applicant’s vehicle. It was only after the crash that the brake lights came on.

18. After the collision, the applicant alighted and ran along the road as if searching for something. Mr Siu walked back and called out to the applicant. The applicant ran towards him and the two of them spoke and Mr Siu could smell alcohol from the applicant. The applicant admitted that he had been the driver of the vehicle. Mr Siu told him that he, the applicant, had crashed into a pedestrian and that the pedestrian was lying on the side of the road, at which the applicant ran towards the direction of the deceased, who was lying on the...