THE QUEEN v. NGAI MAN

bjbj HCMA001373/1989 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) MAGISTRACY CRIMINAL APPEAL NO. 1373 OF 1989 ---------------- BETWEEN THE QUEEN Respondent and NGAI Man Appellant -------------- Coram : Hon. Hooper J. in Court Date of hearing : 23th January, 1990 Date of delivery of Ruling : 14th February 1990 ------------ RULING ------------ On the 20th of September 1989, the appellant was convicted of Reckless Driving Causing Death, contrary to Section 36(1) of the Road Traffic Ordinance, Cap.374, the Laws of Hong Kong. On the 4th October, he was sentenced to four months imprisonment and disqualified for all classes of vehicles for a period of 18 months. The appellant appeals against both conviction and sentence. The Learned Magistrate in his Statement of Findings summarises the prosecution case and the defence case and gives his findings and the reasons therefor as follows:- The Prosecution Case: This case involved a traffic accident between two private cars which occurred at the intersection of Fairview Park Boulevard and Orchid Road East. The former road is the main access road to Fairview Park and the latter meets it at a T intersection. The defendant s vehicle was travelling along Fairview Park Boulevard towards Fairview Park. The other vehicle was driving in the opposite direction from Fairview Park but intended to make a right hand turn into Orchid Road East. Much of the prosecution case was not contested and was admitted by consent by way of paragraphs 1 and 4 of the agreed facts marked exhibit Pl. These are referred to for further description of the incident. Additionally the prosecution called PW1, a Police Officer, who came to the scene following a report of accident and who took photographs, prepared a sketch and did other investigation work. PW2, the driver of the other vehicle, also gave evidence of the manner in which he approached the intersection and made his right turn. He said that because of a restriction in his vision caused by shrubs and other items in the central divider of the road he was unable to see the defendant s vehicle until he was straddling the defendant s outside lane. Because of the speed of the defendant s vehicle he could not avoid a collision. The final witness for the Crown, PW5, was a Forensic Scientist from the Government Laboratory. He examined available data to calculate the speed of the defendant s vehicle prior to braking and concluded it was 90 k.p.h. The speed restriction in the area was 50 k.p.h. The Defence Case: The defendant elected not to give evidence or call witnesses. His principal submission was that his driving, in the proved circumstances, did not amount to reckless driving. Findings: At the conclusion of the trial I found that the charge had been proved beyond reasonable doubt and that the defendant was convicted accordingly. Reasons for Finding: 1. The defence conceded that the death of Elis Fisher resulted from the accident so that causation of death by the accident in question was not in issue. 2. As to causing death by reckless driving I accepted and applied the test put forward by Lord Parker C.J. in R. v. Hennigan [1971] 3 All E. R. 133 C.A., that so long as the reckless driving is a cause of death of a person that is all that is required. 3. The principal issue for determination was whether the defendant s driving in the circumstances was reckless. 4. As to the test for recklessness I accepted that laid down by Lord Diplock in R. v. Lawrence [1981] 1 All E.R. 974. I further followed Lord Diplock when he said : It is for [the Court] to decide whether the risk created by the way in which the vehicle was being driven was both obvious and serious and in deciding this [the Court] may apply the standard of the ordinary prudent motorist ... If satisfied that an obvious and serious risk was created by the manner of the defendant s driving [the Court] is entitled to infer that he was in one or other of the states of mind required to constitute the offence ... 5. I accepted the evidence of PW2, the driver of the other vehicle, as to his manner of driving at the junction. I found his driving to be consistent with the driving of a prudent motorist. 6. I found that the skid marks observed and recorded by PW1 (the two longer marks but not the shorter one) were the defendant s skid marks. 7. I accepted the principal conclusion of PW3 that the defendant was travelling at approximately 90 k.p.h. immediately prior to the accident. I found that the speed limit was 50 k.p.h. on that stretch of road. There was no evidence before me (the defendant elected not to give evidence) as to why the defendant was travelling in the outer of the two lanes. I found that there was an obstruction of the vision of each driver from seeing the other s vehicle caused by shrubs on the central divider. 8. I found that the defendant s driving at approximately 90 k.p.h. was reckless in the circumstances placed before the Court. He would or should have seen the junction ahead and should have given attention to the possibility of vehicles using that junction as did PW2 on this occasion. He would or should have been aware of the restriction in his own vision. The accident occurred on a busy stretch of road that forms the access road to a large housing estate. 9. I was therefore satisfied that the test of recklessness enunciated in R. v. Lawrence was satisfied in this case and convicted the defendant accordingly. It would appear from the above that the Magistrate placed his conclusion of recklessness on the finding that the appellant s speed was aproximately 90 k.p.h. at the relevant time. In his perfected grounds of appeal against conviction the appellant recognises this fact in ground 1 which states: 1. The conviction of the appellant was based upon the Learned Magistrate s acceptance of the opinion evidence of the expert witness P.W.3 that just prior to the accident the appellant s vehicle was travelling at a speed of approximately 90 k.p.h. The appellant attacks the opinion of PW3 in grounds 2, 3 and 4 which I hereinafter set out:- 2. The evidence of P.W.3 was not worthy of credence, alternatively of no weight in that:- (A) The co-efficient of friction was established by the witness by test skidding a Police Vehicle. This method requires extremely accurate readings and observation of 2 main elements (i) The speed of the test vehicle and (ii) The length of the skid marks left by the Police Vehicle on the test skids. Thereafter a mathematical formula is applied to obtain the co-efficient of friction or drag factor . (a) There was no evidence of either (i) or (ii) . (b) There was no evidence as to how the speed of the test vehicle was determined and whether its speedometer (assuming that to be the method) was accurate and had been checked as accurate. (c) There was no evidence as to whether the witness was the driver of the test vehicle, or whether he made his calculations on the hearsay statements of the actual driver. (d) There was no evidence as to how many test skids were conducted and which results were used in the calculation. (e) There was no evidence that a 10% allowance was made in the concluded speed in the appellant s favour. (f) There was no evidence as to why skid mark of 30.2 meters (see Record p.10) or (30.2 x 3.2808) 98.42 feet should indicate a speed of only (approximately) 43 m.p.h. (or approximately) 70k.p.h. according to the table of thinking and braking distances contained in the Highway Code, but result in a much higher speed in the opinion of P.W.3. P.W.3 stated in evidence that he estimated an additional 10 k.p.h. should be added to the speed of the appellant s vehicle to take account of the slowing effect of the collision impact, as evidenced by the impact damage. The witness s knowledge of impact damage was based on hearsay and was therefore inadmissible (see Record p.21 lines 2 to 4) Insofar as the same was not based upon hearsay but upon some scientific formula, the formula was not in evidence before the Court, and no other description of the accuracy of the formula or the proved factors required to activate the formula was in evidence (see Record p.26 lines 1 to 15). Accordingly the estimated added 10 k.p.h. was of no weight. 3. Assuming the evidence of P.W.3 to be admissible, that evidence was of no weight, in that the same did not furnish the necessary scientific criteria for the learned Magistrate to form his own judgment and amounted to a bare assertion or alternatively was flawed. 4. The Learned magistrate misdirected himself accordingly in attaching the weight he did to the evidence of P.W.3. Most of these grounds speak for themselves. P.W.3 had testified that he had to determine the co-efficient of friction between the tyres and the road surface and found it to be 0.83. He said he carried out tests at the scene using a police saloon car. Although he testified that in his experience the co-efficient of friction between two saloon cars may produce minor differences, from his studies and the tests of other laboratories variation is + or - 5%. So the result obtained from the police saloon car is still applicable to the appellant s vehicle in this case. He testified:- From the skid marks of DX2593 (the appellant) and determined co-efficient from my tests, the speed of DX2593 was about 80 k.p.h. just before it skidded. However taking into consideration the impact damage with DW9968 there will be a considerable speed loss. Taking that into account the speed of DX2593 would be about 90 k. p. h." Nowhere does the witness in his evidence show how he was able to determine the co-efficient of friction to be 0.83. It seems that in reaching his conclusions, he would have to calculate this figure on the basis of some formula of which the speed of the test vehicle and the length of the skid marks left by the test vehicle would form some part. It is clear from the record that there was no evidence of either of these factors as stated in ground 2 (A) (a). Furthermore it is clear that there was no evidence as to how the speed of the test vehicle was determined and whether its speedometer, assuming that was the matter which was accurate and had been checked as accurate in accordance with ground 2 (A) (b). Neither was there any evidence along the lines specified in grounds 2(A) (c) & (d). Ground 2 (A) (e) is based on an article entitled Skidmarks For Beginners, a brief introduction to accident recontruction by Neil Jopson, LL.B., Solicitor in Justice of the Peace of December 4, 1976 140 JP page 665 which itself was not evidence before the court. Ground 2 (A) (f) is based on the table of thinking and braking distances contained in the Road Users Code. Although Mr Coghlan for the Crown has criticised Mr Hampton for relying upon matters which he says were not in evidence, it is my view that the stopping distances set out in the Road Users Code are legitimate matters for examination by a magistrate hearing a case of this sort. It is provided by Section 109(5) Road Traffic ordinance 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 proceedings as tending to establish or negative any liability which is in question in those proceedings In my view, the advice contained in the provisions of the Road Users Code relating to the stopping distances fall within the meaning of the above provision. There appears to be no satisfactory explanation for the discrepancy between the Code and the figure put forward by P.W.3. So far as ground 2(B) is concerned P.W.3 testified:- I didn t see the vehicles concerned. I did have the examiner s report. I have studied statements of drivers of each vehicle. In fact the examiner s report was not placed in evidence. This being the case, there is some force in the appellant s ground or contention that the witnesses knowledge of impact damage was based partly on hearsay and was therefore inadmissible. Ground 3 is based upon the judgment of the Court of Appeal in R. v. Chan Kam-tak and Another [1988] 2 HKLR 11, where it was held:- 1. The function of an expert was first to give his opinion upon an issue in the case based on an inference which he drew from perceived facts as a result of his knowledge and experience; second, to give evidence of facts which his training has equipped him to perceive which would not be observed by a layman; and third, to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of his conclusions, so as to enable the judge or jury to form their own judgment by the application of these criteria to the facts proved in evidence. 2. The evidence of the expert amounted to a bare assertion. The jury were entitled to know where the characteristics referred to by the expert appeared and to have them specifically pointed out to them. This could not be done in the absence of an enlarged photograph. These remarks were made in respect of a case involving fingerprint evidence, but the proposition is of general acceptance. That judgment was followed by the Court of Appeal in R. v. Tam Wing-hung [1988] 2 HKLR CA 44. Mr Hampton relies on both these cases. Mr Coghlan sought to persuade me that the expert s evidence was not based upon hearsay and that the absence of details of his methodology and calculations in arriving at his conclusions is not fatal to his evidence but merely goes to weight. Having examined the record carefully, I have reached the firm conclusion that Mr Hampton s criticisms are justified in that much of P.W.3 s evidence was based upon matters which were not in evidence. Furthermore, his failure to put before the court the details of his methodology and the formulae which he used to reach his conclusions meant that his evidence was not of great assistance to the Crown in proving the speed of the appellant s vehicle. Since the speed of the vehicle was the main basis for the Magistrate s conclusion that the appellant drove recklessly at the time and day in question, I am satisfied that the conviction is unsafe and unsatisfactory. For these reasons, I allow the appeal and set aside the conviction, and remit this matter to the Magistrates Court for re-hearing de novo before another Magistrate. (N.B. Hooper) Judge of the High Court Representation: Mr G. Hampton (T.C. Lau & Co.) for Appellant Mr C. 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