Hon Chu JA giving the Reasons for Judgment of the Court:
上訴法庭法官朱芬齡頒發上訴法庭判案理由書：

The applicant was convicted after trial in the District Court of one count of causing death by dangerous driving. On 5 August 2013, Judge Frankie Yiu (the trial judge) sentenced him to 15 months’ imprisonment, and ordered that he be disqualified from driving for a period of 18 months and that he must attend and complete a driving improvement course within 3 months prior to the end of the disqualification period at his own expense. The applicant also pleaded guilty to one count of using a vehicle with a defective warning instrument and one count of using a vehicle with stop lamps maintained other than in a clean and efficient condition and was fined $1,000 for each offence.
申請人在區域法院經審訊後，被裁定一項危險駕駛引致他人死亡罪，罪名成立。2013年8月5日，區域法院法官姚勳智(「原審法官」) 判處申請人15個月監禁，停牌18個月，及在停牌令屆滿前3個月內須自費參與及完成駕駛改進課程。申請人另外承認一項使用警報儀器欠妥的車輛罪及一項使用停車燈並非保持清潔及有效運作的車輛罪，各被判處罰款1,000元。

The applicant applied for leave to appeal against conviction and sentence in relation to the offence of causing death by dangerous driving. On 3 December 2013, he abandoned the application in respect of sentence. At the end of the hearing, we dismissed the application for leave to appeal against conviction. We now give our reasons.
申請人就危險駕駛引致他人死亡罪的定罪及判刑申請上訴許可。申請人在2013年12月3日放棄有關判刑的申請。本庭經聆訊後，拒絕定罪的上訴許可申請，現就有關理由給予說明。

The Facts
案情

At around 3 pm on 31 July 2012, the applicant was driving a 5.5 tonnes goods vehicle turning right into Hai Tan Street from the left first lane of Pei Ho Street, Shamshuipo, Kowloon. On approaching the pedestrian crossing, the offside front wing mirror of the goods vehicle hit the right side of the back of a male’s head. The offside rear wheels of the goods vehicle rolled over the male’s right leg. As a result, he sustained severe head injury, a fractured right hip and laceration on the right lower leg and foot. He was certified dead at 1854 hours on the same day. The deceased was aged 86 and 165 cm tall.
2012年7月31日約3 時，申請人駕駛一輛5.5噸貨車，從九龍深水埗北河街左一線右轉進入海壇街。在接近行人過路處，貨車的右前倒後鏡撞倒一名男子的右後腦，貨車的右後輪並輾過他的右腳，引致他頭部嚴重受傷，右臀骨折，右小腿和右足部裂傷，最終在同日下午6:54時證實死亡。死者年齡86歲，身高165厘米。

Both Pei Ho Street and Hai Tan Street were dual carriageways. The left first lane of Pei Ho Street was a go-straight-only lane and no right turn was allowed, whereas in the left second lane, traffic was allowed to either go straight or turn right. The applicant raised no dispute that by turning right into Hai Tan Street from Pei Ho Street, he was in breach of the traffic signs. At the time of the accident, the weather was fine. The road surface was in good condition.
北河街和海壇街都是兩線分隔車道。北河街左一線只准許車輛向前駛，不准許右轉；而左二線則准許車輛向前駛或右轉。申請人不爭議當時是在違反交通標誌的情況下，從北河街右轉進入海壇街。意外發生時，天氣良好，路面狀況良好。

Police officers attended the scene for investigation and discovered that the offside front of the vehicle was slightly dented and the offside front wing mirror bent inward. There was no brake mark on the road.
警員到場調查時，發現申請人的貨車的右邊車頭輕微凹陷，及右前倒後鏡向入摺，而路面沒有剎車的痕跡。

The applicant told the police officer who first arrived at the scene that he had made a right turn into Hai Tan Street from Pei Ho Street. While he was manoeuvring the bend, he heard a collision sound. He immediately stopped the vehicle, got off to have a look and found that the deceased was lying on the ground. Subsequently, when he related the course of the accident to another police officer, he said he was driving along the left first lane of Pei Ho Street and stopped in front of the traffic lights stop line. The lights turned green and he drove the goods vehicle turning right into Hai Tan Street. The offside front wing mirror struck the right side of the back of the deceased’s head in the course of negotiating the bend. He did not see where the deceased came from. The applicant claimed that the left second lane of Pei Ho Street was full of parked vehicles. Nevertheless, the police officer who arrived at the scene approximately 10 minutes after the accident did not see the same.
申請人對首先到場的警員表示他從北河街右轉進入海壇街，在轉灣期間聽到碰撞聲，他立刻停車，下車觀察時發現死者躺在地上。他稍後向另一名警員講述肇事經過時表示，他沿北河街左一線行駛，在交通燈停車線停下等候，在交通燈轉為綠燈時，他駕駛貨車右轉進入海壇街，在轉彎期間，貨車的右前倒後鏡撞到死者右後腦位置，但他看不見死者是從哪裡出來的。申請人也稱北河街左二線泊滿車輛。但在意外後約10分鐘到場的警員沒有看到這個情況。

The prosecution called Dr. CHENG Yuk-ki as their expert witness. By conducting on-the-spot observation and tests to find out the time needed for various goods vehicles of the same class to negotiate the right turn from the left first lane of Pei Ho Street into the point of impact, Dr. CHENG made a series of calculations. He drew the inference that the accident could have been avoided if the applicant had managed to catch sight of the deceased 1.5 seconds prior to the impact and apply emergency braking at least 3.9 metres before the point of impact.
控方傳召的專家證人鄭郁祺博士，透過在意外現場的觀察，及測計多部同類型的貨車從北河街左一線右轉至發生碰撞的位置所需的時間，作出一系列的計算，並推論假若申請人能夠在碰撞前1.5秒察覺到死者，以及在與碰撞點距離最少3.9米處緊急煞車，則意外便可避免。

Dr. CHENG also testified that: (i) the stop line of Pei Ho Street was 14 metres away from the point of impact. When a vehicle was at the stop line of Pei Ho Street, the driver’s vision of the pedestrian crossing at Hai Tan Street was slightly blocked on the right side by the offside wing mirror, although it was still clear; and (ii) when the vehicle turned right from Pei Ho Street and was 7 metres away from the point of impact, the driver’s vision was unobstructed both in front and to the right.
鄭博士的證供亦指出：(i)北河街停車線與發生碰撞處相距14米。當車輛在北河街停車線的位置時，司機觀望海壇街行人過路處的視線，在右邊會有少部分被右倒後鏡阻擋，但仍是清晰的；及(ii)當車輛從北河街右轉至距離碰撞處7米的位置時，司機的前方和右方視線是毫無阻擋的。

The Trial Judge’s Verdict
原審法官的判決

In respect of Dr. CHENG’s inference mentioned in paragraph 7 above, the trial judge was of the view that there could be errors and uncertainties in the calculations. He therefore held that Dr. CHENG’s inference and calculations were of limited assistance and they should not be relied upon to draw inference on the applicant’s way and manner of driving. Having said that, the trial judge was of the view that the photos showing the offside frontal view looking out from the goods vehicle which were provided by Dr. CHENG in his expert report [Exhibit P14], were of considerable value to the case. The trial judge found that when the goods vehicle stopped at the stop line of the traffic lights at Pei Ho Street, as shown in the photos in Appendix II to the report, the offside wing mirror of the goods vehicle only blocked a small part of one’s vision to the right. Furthermore, when the goods vehicle turned right into Hai Tan Street, the driver’s view was unobstructed both in front and to the right.
原審法官認為鄭博士上文第7段述及的推論，所涉及的計算有可能產生誤差及難以被肯定，他因此認為鄭博士的推論和計算作用不大，不應引用作為推論申請人的駕駛情況和態度。但原審法官認為，鄭博士的專家報告（證物P14）所提供有關貨車右前方觀望的相片則對案件甚具價值。原審法官裁斷，從報告附件II的相片可見，當貨車停在北河街交通燈停車線時，貨車的右倒後鏡只是阻擋了右邊小部分的視線，而當貨車右轉進入海壇街時，前方和右邊的視線是完全不受阻擋。

The trial judge also found that, in the circumstances where the applicant’s view was totally unobstructed, given the fact that he had completely failed to notice the deceased’s presence and did not know where the deceased came from, and was only aware of the deceased at the time of impact, the only inference to be drawn was that he had failed to keep a proper lookout to the road conditions ahead when turning right.
原審法官也裁斷，申請人在視線毫無阻擋的情況，完全不察覺死者，亦不知道他從哪裡而來，要到碰撞時才察覺死者，唯一的推論是他在右轉時根本沒有清楚觀察前方的路面情況。

The trial judge further pointed out that the applicant increased the danger of driving by breaching the traffic regulations to turn right into Hai Tan Street from the left first lane of Pei Ho Street. It would be difficult for other road users to foresee and assess the situation of the approaching goods vehicle since the position of the vehicle, the angle of conducting the turn, the route in which the vehicle travelled and the speed would all differ from a vehicle turning right from the left second lane. Under such circumstances, it was manifestly dangerous for the applicant to turn right against the regulations. By turning right without keeping a proper lookout of the road conditions ahead, the applicant was driving in a manner which fell far below what would be expected of a competent and careful driver.
原審法官進一步指出，申請人違反交通規則從北河街左一線右轉進入海壇街，增加了駕駛的危險性，因為車輛的位置，拐彎的角度，行車的軌跡及車速，都與從左二線右轉的車輛的情況不同，使其他道路使用者難以預計和判斷貨車駛至的情況。在此情況下，申請人違規右轉顯然是危險的，而申請人在此情況下右轉，卻沒有清楚觀察前方路面的情況，這是遠遜於合格和謹慎駕駛者會被期望達到的水平。

The trial judge remarked that since the applicant opted to turn right against the regulations from the left first lane and his view to the right was slightly blocked when he stopped at the stop line, he should have taken extra care and caution when he started to negotiate the right turn, coupled with an appropriate speed when necessary. He should have endeavoured to keep a proper lookout of the road conditions ahead before continuing to manoeuvre his vehicle into Hai Tan Street.
原審法官並指出，既然申請人選擇從左一線違規右轉，而在停車線前時，右方視線小部分被阻擋，則他在開始右轉時，就更要小心謹慎，並在有需要時以適當的車速配合，務求可以清楚看到前方路面情況，方繼續轉彎進入海壇街。

Grounds of Appeal
上訴理由

The applicant advanced two grounds of appeal:
申請人提出兩項上訴理由：

There was no sufficient evidence to support the trial judge’s findings; and
原審法官的裁決基礎沒有得到充份的證據支持；及

The trial judge erred in finding that the evidence in this case had met the threshold requirement of dangerous driving as defined by law.
原審法官錯誤地認為案中的證據足以達至法律界定危險駕駛的門檻。

Discussion
討論

For the first ground of appeal, Mr. Li, who appeared for the applicant, argued that there was no evidence to prove that the applicant must have been able to see the deceased before the collision, or that if he had been able to see the deceased, he must have been capable of making a timely reaction so as to avoid the accident. Mr. Li highlighted that there was no evidence in this case to show where the deceased came from or how he went out onto the road, nor was there evidence to indicate the speed at which the applicant was driving. In respect of Dr CHENG’s evidence that the accident could have been avoided had the applicant seen the deceased 1.5 seconds before the collision, Mr. Li submitted that it was a matter of split second, and the time in which the applicant could see the deceased would have been even shorter if the latter had run out. Further, the deceased did not cross the road at the pedestrian crossing. In those circumstances, it was wrong for the trial judge to convict the applicant of dangerous driving on the basis of his failure to keep a proper lookout of the road conditions ahead when he turned right and his failure to notice where the deceased came from when his view to the right was completely unobstructed.
就首項上訴理由而言，代表申請人的李大律師指沒有證據顯示申請人在發生碰撞前，必然可以看見死者，或即使他能看見死者，他必然來得及反應從而應可避免意外的發生。李大律師強調案中沒有證供顯示死者是從哪裡或是怎樣走出馬路，亦沒有證據顯示申請人的車速是甚麼。針對鄭博士指如果申請人在碰撞前1.5秒可看到死者，意外是可以避免的證供，李大律師指這是非常短促的時間，而如果死者跑出來的話，那麼申請人可以察覺到他的時間就更短。再者，死者並非在行人過路處橫過馬路。在此情況下，原審法官基於申請人右轉時沒有清楚觀察前方路面情況，及在右邊視線完全不受阻擋的情況下仍看不見死者從何處出來，裁定申請人危險駕駛，這是錯誤的決定。

In our view, as clearly shown in photos 1 and 2 in Appendix II to Dr CHENG’s expert report, the applicant would have been able to see clearly the situation in front, i.e. the junction of Hai Tan Street when he stopped his goods vehicle at the traffic lights stop line of Pei Ho Street, even though his view to the right was slightly blocked by the right wing mirror. When the goods vehicle was negotiating the right turn into Hai Tan Street, the applicant’s view would have been unobstructed both in front and to the right. As the trial judge pointed out, given the fact that the applicant completely failed to notice the deceased’s presence and did not know where the deceased came from, and he was only aware of the deceased after the impact, the only irresistible inference to be drawn was he failed to keep a proper lookout of the road conditions. Although there was no direct evidence to indicate the position of the deceased before the impact, the route he took or the speed at which the applicant’s vehicle was travelling, upon considering the circumstances of the clear and unobstructed view that one would have had both in front and to the right, and the impossibility of the deceased, an elderly person of 86, running at a high speed or sprinting onto the road so abruptly that he would suddenly appear in front of the goods vehicle when the applicant could not reasonably have seen him, resulting in him being struck on the back of his head by the right front wing mirror of the vehicle and falling onto the ground, it can be demonstrated that the applicant should have been able to see the deceased had he kept a proper lookout of the road conditions.
本庭認為，鄭博士的專家報告附件II的相片1及2清楚顯示，當申請人的貨車在北河街交通燈停車線時，他右邊的視線有小部分被右倒後鏡阻擋，但仍可清楚看見前方海壇街路口的情況，而當貨車右轉進入海壇街時，申請人前方和右邊的視線是毫無阻擋的。一如原審法官指出，申請人在這情況下完全沒有看見死者，不知道他從何處出來，要到碰撞後才察覺他，唯一不可抗拒的推論是申請人沒有小心清楚觀察路面情況。雖然案中沒有直接證據顯示死者在被撞倒前的位置和採用的路徑，及申請人貨車的速度，但在前方和右邊視線清楚無阻的情況下，再加上死者是一名86歲長者，不可能在路上高速奔跑或忽然快速跑出馬路，以致在申請人無法合理看見的情況下，突然出現在貨車前方，使其右後腦被貨車的右前倒後鏡撞擊，並跌倒在地上，因此倘若申請人曾小心清楚觀察路面情況，他應可看見死者。

Regarding the inference drawn by Dr CHENG that the accident could have been avoided, the trial judge did not adopt it as the basis of his findings. The applicant, therefore, cannot rely on it as a ground of appeal. Besides, Dr CHENG’s testimony was: the accident could have been avoided if the applicant had seen the deceased 1.5 seconds before the collision, which should have afforded him sufficient time to react and stop the vehicle. Dr CHENG did not suggest that the applicant could only have been able to see the deceased 1.5 seconds before the collision. Mr. Li’s argument, namely, that 1.5 seconds was the most fleeting of moments, that even if the applicant had been able to see the deceased, he might not necessarily have managed to make a timely response to brake and stop the vehicle to avoid the collision considering both the vehicle and the deceased were in motion, must fail.
就鄭博士有關意外是可以避免這部份的推論，原審法官並沒有採納作為判案的基礎。申請人因此不可引用作為上訴理由的基礎。再者，鄭博士的證供是指：只要申請人在碰撞前1.5秒看見死者，他應有足夠時間作出反應，煞停貨車，從而避免意外的發生。鄭博士並不是說申請人只是在碰撞前1.5秒時才可以看見死者。李大律師有關1.5秒是極短促的時間，貨車和死者當時均在移動中，申請人不一定可以適時作出反應，因此即使申請人能看見死者，亦未必可及時煞停貨車，避免碰撞等陳詞，不能成立。

In our judgment, there was sufficient evidence before the trial judge to enable him to draw the inference that the applicant had failed to keep a proper lookout of the road conditions at the time of turning right into Hai Tan Street from the left first lane of Pei Ho Street. The trial judge did not err when he adopted this as an essential consideration to find that the applicant was driving dangerously.
本庭認為，原審法官有足夠證據推論申請人從北河街左一線右轉進入海壇街時沒有小心觀察路面情況。原審法官以此作為裁斷申請人危險駕駛的重要考慮沒有犯上錯誤。

It is plainly irrelevant whether the deceased crossed the road at the pedestrian crossing or whether he was in breach of traffic light signals when doing so. The thrust of this case is whether the applicant’s manner and way of driving fell far below what would be expected of a competent and careful driver. As Ms Wong, for the respondent, put it, a cautious and careful driver should pay particular attention to pedestrians and traffic condition when reaching a traffic lights controlled pedestrian crossing. He should also be aware of the possibility that pedestrians might cross the road without complying with the regulations.
至於死者是否在行人過路線橫過馬路，或是否違反燈號橫過馬路，這實在無關宏旨。本案的重點在於申請人的駕駛態度和方法是否遠遜於一名合格和謹慎的駕駛者所被預期的水平。如代表答辯人的黃大律師指出，一名小心謹慎的駕駛者在駛至由交通燈管制的行人過路線時，應特別小心注意途人和交通狀況，亦要預期有行人可能不依規則橫過馬路。

Mr Li mentioned in his submission that the trial judge had failed to take into account that the left second lane of Pei Ho Street had been full of parked vehicles, so that the applicant was left with no alternative but to turn right from the left first lane. In our view, it matters not whether the applicant was deliberate or left with no alternative but to turn right against the regulations from the left first lane. The fundamental concern of this court is the applicant’s way and manner of driving during the course when he turned right into Hai Tan Street. As rightly pointed out by the trial judge, the issue was whether, given that the applicant turned right against the regulations from the left first lane, his driving manner and speed were appropriate to ensure that he drove past the junction into Hai Tan Street in safe circumstances.
李大律師的陳詞也指，原審法官沒有考慮申請人是因為北河街左二線泊滿車輛，在迫不得已的情況下從左一線右轉。本庭認為申請人是蓄意或是在沒有選擇下違反交通規則從左一線右轉並不重要，法庭關注的重點在於申請人右轉進入海壇街的過程中，他採取的駕駛方式和態度。誠如原審法官指出，問題在於申請人既然違規從左一線右轉，他有否以合適的駕駛方式和速度作出配合，確保在安全的情況下駛過路口進入海壇街。

The first ground of appeal raised by the applicant fails.
申請人的第一項上訴理由不能成立。

Regarding the second ground of appeal, Section 36(4) of the Road Traffic Ordinance, Cap 374 of the Laws of Hong Kong provides that:
至於第二項上訴理由，《道路交通條例》（香港法例第374章）第36(4)條規定：

“(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if-the way he drives falls far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous.”
「(4) 如某人駕駛汽車的方式，遠遜於一個合格而謹慎的駕駛人會被期望達到的水平；及對一個合格而謹慎的駕駛人而言，該人以該方式駕駛汽車會屬危險，會是顯然易見的，該人須視為屬第(1)款所指的危險駕駛。」

We agree that in dangerous driving cases, there is a high threshold to surmount: R v Conteh [2004] RTR 1,5; HKSAR v Lam Chi Fat [2012] 1 HKLRD 961 Para 28 to 30; and HKSAR v Lam Ho Yin (unreported) CACC10/2010, Paras 20 and 21.
本庭同意危險駕駛的舉證門檻是高的：R v Conteh [2004] RTR 1, 5；香港特別行政區訴林志發[2012] 1 HKLRD 961第28至30段；及香港特別行政區訴林灝言（未經彙編）CACC 10/2010第20及21段。

Mr Li submitted that the applicant made no denial that his manner of driving was unsatisfactory, but it was nothing more than a momentary lapse of attention, which had not reached the very high threshold as defined by law in respect of dangerous driving. Mr Li averred that prior to the occurrence of the accident, both the vehicle and the deceased were in motion. Furthermore, based on Dr CHENG’s inference and calculations, 1.5 seconds was but a fleeting moment. The applicant just pulled out from the stop line and the speed of the vehicle was very slow. Under those circumstances, although the applicant did not notice the deceased or was unaware of the danger so as to make an appropriate response, or although he failed to pay attention to the road conditions on the right side, such conduct did not amount to dangerous driving.
李大律師指申請人不否認其駕駛模式欠妥善，但僅屬於瞬間不專注，而非達至法律界定危險駕駛的極高門檻。李大律師強調意外發生前，貨車和死者都是在移動中，而以鄭博士的推論和計算作考慮，1.5秒是很少的時間，而且申請人的貨車當時剛離開停車線，車速很慢。在這些情況下，申請人沒有察覺死者，或意識到有危險，並作出適當的反應，又或是沒有專注右邊的路面情況，都不達致危險駕駛的情況。

We do not agree with those submissions. It is incumbent upon a competent and careful driver to be wary and observant of the road conditions and pedestrian traffic at all times. A competent and careful driver would consider it a risky move to turn right into Hai Tan Street from the left first lane of Pei Ho Street, because the other road users might not normally expect vehicles to turn right against the regulations from the left first lane, and it would be hard for them to foresee the driving angle, the route and the speed of the approaching vehicle. It would be obvious to a competent and careful driver that driving in that way, namely turning right into Hai Tan Street from the left first lane of Pei Ho Street without keeping a proper lookout, would be dangerous.
本庭不同意這些陳詞。一名合格和謹慎的駕駛者應時刻保持警惕，小心觀察路面情況和注意路上的行人。一名合格和謹慎的駕駛者會認為從北河街左一線右轉進入海壇街是有風險的做法，原因是其他道路使用者一般不會預期有車輛會違規從左一線右轉，而他們亦難以預計車輛會採取甚麼行車角度、路線及速度駛至。一名合格和謹慎的駕駛者亦必然會認為，從北河街左一線右轉進入海壇街卻又沒有小心清楚觀察路面情況，這顯然是危險的駕駛模式。

Hence, regardless of the reasons that prompted the applicant to turn right into Hai Tan Street from the left first lane of Pei Ho Street, in view of his failure to keep a proper lookout of the road conditions and the pedestrian traffic during driving, it is apparent that the way he drove fell far below what would be expected of a competent and careful driver; and a competent and careful driver would regard driving in the way the applicant did would obviously be dangerous.
因此，不管申請人是基於甚麼原因決定從北河街左一線右轉進入海壇街，他在行駛時沒有小心觀察路面情況和注意路上的行人，他的駕駛方式顯然遠遜一名合格和謹慎駕駛者會被期望達到的水平；而合格和謹慎的駕駛者亦會認為以申請人的方式駕駛顯然是危險的。

The trial judge was entirely correct to find the applicant guilty of causing death by dangerous driving.
原審法官裁定申請人危險駕駛引致他人死亡罪罪名成立是正碓無誤。

Conclusion
結論

In light of the above reasons and analysis, we dismiss the applicant’s application for leave to appeal against conviction.
本庭基於上述理由和分析，拒絕申請人的上訴定罪許可申請。

Tony LI, instructed by Messrs Simon C.W. Yung & Co., assigned by Director of Legal Aid, for the Applicant.
答辯人：由律政司高級助理刑事檢控專員黃錦卿代表。

WONG Kam Hing, Senior Assistant Director of Public Prosecution of the Department of Justice, for the Respondent
申請人：由翁宗榮律師所轉聘李頌然大律師代表。