Hon Yeung VP (giving the Judgment of the Court):
上訴法庭副庭長楊振權頒發上訴法庭判案書：

At about 1 p.m. on 7 February 2010, the applicant (Lam Chi Fat) was driving a goods vehicle of registration number DT 2398 (“the goods vehicle”) travelling towards Mongkok along the southbound carriageway of Tai Po Road.  It was raining heavily at that time and the road surface was wet and slippery.
2010年2月7日下午約1時，申請人(林志發)駕駛DT2398號貨車(“貨車”)沿大埔道南行線往旺角方向行駛。當時下大雨，路面濕滑。

When the goods vehicle reached the intersection of Tai Po Road and Shek Kip Mei Street, it suddenly went out of control and crashed into the metal railings by the pavement on the left before the intersection.  Then it mounted the pavement after the intersection and only came to a halt after hitting the canopies and a lamppost outside the shops at Nos. 152 and 154 Tai Po Road.
當貨車駛到大埔道與石硤尾街交界時，突然失控，先撞向路口交界前的左面行人路邊的鐵圍欄，再衝上路口交界後的行人路及撞向大埔道152號和154號店舖外的簷蓬及電燈柱後才停下。

As a result of the accident, the applicant’s wife (Ms Kwok), who was on board the goods vehicle at the time, was thrown out of the vehicle and died three days afterwards.  Seven other passers-by also suffered minor injuries, while severe damage was caused to the objects outside the shops at Nos. 152 and 154.
意外導致貨車上的申請人妻子(郭女士)被拋出車外，並在三天後死亡。意外亦有導致另外七名途人受輕傷及152及154號店舖外的物件嚴重損毀。

Eventually the applicant was charged with dangerous driving causing death.  He denied the charge and was tried before Judge Stanley Chan in the District Court.
事後申請人被控危險駕駛引致他人死亡罪，申請人否認控罪並在區域法院法官陳廣池席前受審。

On 1 February 2011, Judge Chan convicted the applicant of the charge and sentenced him to a term of imprisonment of 18 months.  He was also disqualified from driving for 4 years.
2011年2月1日，陳法官裁定申請人罪名成立並判他入獄1年6個月，另停牌4年。

Feeling aggrieved, the applicant seeks leave to appeal against his conviction.
申請人不服定罪，故提出上訴許可申請，要求獲准就定罪上訴。

The Prosecution Allegations and Evidence
控方指控及證據

There was no dispute about most of the background facts and the course of the accident, which were put before the court by way of admitted facts.
事件的背景及意外的經過，大部分沒有爭議，並以同意事實向法庭呈上。

The speed limit on the stretch of road in question was 50 km/hr.  At the time of the accident, the traffic lights at the scene were functioning properly, while the road surface was wet and slippery because of the rain.
有關路段的行車限速為每小時50公里。案發時，現場的交通指示燈運作正常，路面則因下雨而濕滑。

After the accident, the alcohol test on the applicant showed that he had not consumed any alcohol.  The vehicle examination also confirmed that there had been no mechanical failure in the vehicle.  No skid marks were found on the road.
案發後，申請人的酒精測試顯示他沒有飲酒，驗車證實貨車沒有任何機件故障，而路面亦沒有剎車痕跡。

The owner of the goods vehicle indicated that the vehicle had been repaired one month before the accident and the foot brake had also been checked.   In addition, the goods vehicle had been examined before the vehicle licence was renewed about a year ago.
貨車車主表示意外前一個月，貨車進行過維修，亦有檢查腳掣，而約一年前貨車亦曾在續牌前驗車。

Numerous passers-by testified that when the goods vehicle drove past the intersection at high speed, it went out of control and mounted the pavement.  However, they did not hear any “sounding of horns” or braking sounds.  There was evidence that the goods vehicle was travelling at a speed of about 40 to 50 km/hr.
多名作供的途人都指貨車快速駛過路口時，失控撞上行人路，但他們都聽不到“響銨”或剎車聲。有證人指貨車車速約為每小時40至50公里。

When the police was carrying out an investigation at the scene, the applicant claimed that the brake of the goods vehicle had not responded or had been defective.  The vehicle examination report, however, showed that the vehicle was on the whole satisfactorily maintained.  Its foot brake and parking braking system were functioning properly and there was no leakage or overheating at all.
警員在現場調查時，申請人表示貨車的剎車掣沒有反應或壞了，但驗車報告顯示貨車整體保養滿意，腳掣制動和泊車掣制動系統都操作正常，沒有任何洩漏或過熱的情況。

The prosecution case was that the way the applicant drove fell far below what would be expected of a competent and careful driver, and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.
控方的立場是申請人的駕駛方式遠遜於一名合格和謹慎的駕駛者所預期，而合格和謹慎的駕駛者都會認為申請人的駕駛方式顯而易見是屬危險的。

The Defence
答辯理由

The applicant did not give evidence in his own defence, nor did he call any witnesses to explain the cause of the accident.
申請人沒有作供自辯，亦沒有傳召任何證人解釋意外原因。

Findings by the trial judge
原審法官的裁決

The trial judge found that there was no evidence to suggest that the applicant was speeding, and the absence of any skid marks or grease stains on the road might have been caused by the accumulation of water, the slipperiness of the road or other reasons.
原審法官指出沒有證據顯示申請人有超速，而路面上沒有剎車痕或油漬亦可能是積水，路滑或其他原因造成的。

The learned judge stressed that the immense force of the impact caused by the accident was borne out by the damage to the objects on the road and Ms Kwok’s being thrown out of the vehicle.  He stressed that the applicant was driving in the slow lane, but given the rainy weather and the slippery road condition, a speed of 40 to 50 km/hr could lead to serious consequences.
原審法官強調意外對路上物件造成的損毀及令郭女士被拋出車外等都顯示意外涉及的衝撞力十分巨大。原審法官強調申請人在慢線行車，以當時天雨路滑，40至50公里的車速亦會造成嚴重後果。

The learned judge emphasized that the goods vehicle had been mechanically sound according to the evidence, and the applicant’s claim that the braking system had failed to respond was just an excuse.  The learned judge pointed out that the goods vehicle was not carrying any goods, the road was flat and at the time of the accident, the applicant did not use the hand brake to brake or to reduce speed.  The learned judge found that the reasonable and irresistible inference to be drawn was that the applicant had driven dangerously.
原審法官強調證據顯示貨車機件正常而申請人指制動器沒有反應亦是自圓其說。原審法官指出貨車沒有貨物，道路平坦，意外時申請人亦沒有用手掣來剎車或減速。原審法官認為合理及不可抗拒的推論是申請人有危險駕駛。

Grounds of appeal
上訴理由

The main ground of appeal put forward by Mr Michael Leung for the applicant was that there was no concrete evidence to support the charge of dangerous driving.  Mr Leung stressed that the trial judge had not specified the evidential basis on which he found the applicant’s way of driving to be dangerous so as to convict him as charged.
代表申請人的梁鴻谷大律師提出的主要上訴理由是案中沒有確實證據支持危險駕駛的罪行。梁大律師強調原審法官沒有指明基於甚麼證據來裁定申請人的駕駛方式危險並因而裁定申請人面對的控罪成立。

Mr Leung also submitted that in rejecting the applicant’s claim that the braking system had been inoperative, the trial judge only considered the complaint he made to the police at the scene but failed to take into account the fact that he had made the same complaint to the investigating police while in hospital and that he had asked the vehicle owner to have the vehicle examined.
梁大律師亦指原審法官否定申請人指制動系統失效的說法時，只考慮他在現場向警員作出的投訴，而沒有考慮他在醫院時亦有向調查警員作出過同一投訴，並曾有要求車主驗車。

Mr Leung emphasized that the vehicle examiner’s conclusion that the braking system of the goods vehicle had been functioning normally was only based on a stationary test instead of a road test.  He argued that the vehicle examiner’s conclusion was not inconsistent with the applicant’s claim made after the accident that the brakes had been ineffective.  Mr Leung’s stance was that the result of a road test might have supported the applicant’s case.
梁大律師強調驗車專家認定貨車的制動系統操作正常的結論只是建基在靜止測試，而沒有根據路面測試作出。梁大律師指驗車專家的結論和申請人在意外後指剎車掣失靈的說法並非不符。梁大律師的立場是路面測試的結果可能會支持申請人的說法。

Mr Leung submitted that the applicant’s conviction was unsafe and unsatisfactory.
梁大律師認為裁定申請人有罪是不安全及不穩妥的。

Discussion
討論

The trial judge’s finding that the goods vehicle had been mechanically sound was based on evidence from various sources.
原審法官裁定貨車機件正常是建基在多方面的證據。

Apart from the undisputed expert report which showed that the foot braking system and the parking braking system were functioning properly, the trial judge pointed out that at the time of the accident, there were no braking sounds or “sounding of the horn”, nor had the applicant cried out or used the hand brake to stop or slow down the goods vehicle.
除了無爭議的專家報告顯示貨車腳掣制動系統和泊車掣制動系統正常外，原審法官指出意外時沒有剎車聲，沒有“響銨”聲，而申請人亦沒有叫嚷，或用手掣令貨車停止或減速。

The trial judge stressed that the goods vehicle had been repaired one month before the accident and the foot brake had also been checked.  Moreover, the goods vehicle was required to be examined annually for the renewal of the vehicle licence.
原審法官強調意外前一個月，貨車曾有維修，亦有檢查腳掣，而每年貨車亦要驗車才能換領行車證。

At the trial, the applicant did not produce any evidence to show that there had been any problem with the braking system of the goods vehicle, nor did he allege or adduce any evidence that while a stationary test showed the braking system of the goods vehicle to be functioning normally, that did not necessarily mean that it was normal when the vehicle was moving.  In those circumstances, there were absolutely ample reasons for the trial judge to find that at the time of the accident, the mechanical parts of the goods vehicle, including the braking system, were functioning properly.  Mr Leung’s complaint on this ground could not stand.
原審時，申請人沒有提出任何證據顯示貨車制動系統有任何問題，亦沒有指稱或提出證據，證明靜止測試顯示貨車制動系統操作正常時，不一定表示行車時，系統亦正常。在上述情況下，原審法官絕對有足夠理由裁定意外時貨車的機件，包括制動系統操作正常。梁大律師的這一點投訴不成立。

After the accident, the applicant told the investigating police that the braking system of the goods vehicle had been ineffective, and he later made the same claim in hospital.  That claim, however, was his one-sided story.   The applicant did not give evidence and hence did not make the same claim under oath.  His one-sided assertion was not tested.
申請人在意外後，向調查警員說過貨車制動系統失效，其後他在醫院再作出相同指稱。該些指稱都屬片面的說法。申請人沒有作供，故沒有在宣誓下作出同樣的說法，其片面的說法未遭測試。

In our view, it was absolutely reasonable and correct for the trial judge to reject the applicant’s explanation that the braking system of the goods vehicle had become ineffective and dismiss that as an excuse.
本庭認為，原審法官否定申請人指貨車制動系統失靈的解釋，並指該解釋是自圓其說，絕對是合理正確的裁決。

The main contention in this appeal was whether there was sufficient evidence to allow the trial judge to draw the only reasonable inference, namely that the applicant’s way of driving constituted dangerous driving.
本上訴的主要爭議點是是否有足夠證據令原審法官得出唯一合理的推論，顯示申請人的駕駛方法構成危險駕駛罪行。

Pursuant to section 36(4) of Chapter 374 of the Laws of Hong Kong, a person is to be regarded as driving dangerously 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.
根據香港法例第374章第36(4)條，危險駕駛是指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屬危險，會是顯然易見的。

Sections 36(6) and 36 (7) set out what constitutes “dangerous” driving as follows:
條例第36(6)及36(7)條亦就如何構成“危險”駕駛作出以下闡釋：

“(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.
“(6)就第(4)及(5)款而言，‘危險’指對任何人造成損傷或對財產造成嚴重損壞的危險。

(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 –
(7)就第(4)及(5)款而言，斷定在某個案中，對合格而謹慎的駕駛人有何預期，或斷定在某個案中，對合格而謹慎的駕駛人而言甚麼是顯然易見，須顧及該個案的整體情況，包括：

(a) the nature, condition and use of the road concerned atthe material time;
(a)在關鍵時間有關道路的性質﹑狀況及使用情況；

(b) the amount of traffic which is actually on the road concerned at the material time or what might reasonably be expected to be on the road concerned at the material time; and
(b)在關鍵時間在有關道路上的實際交通流量，或按理可預期的在關鍵時間在該道路上的交通流量；及

(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.”
(c)能夠預期被告知悉的有關情況(包括被告的身體狀況)以及經證明被告已知悉的任何情況(包括被告的身體狀況)。”

Whether a person’s way of driving is dangerous is a matter to be decided objectively, but the elements of the offence of dangerous driving do not include any specific intent to drive dangerously.  Lord Woolf CJ, in AG’s Reference (No. 4 of 2000) (R v GC) [2001] R. T. R. 415 at p. 425, made the following comments:
要決定某人的駕駛方式是否危險時，應採納客觀的論證準測。但危險駕駛罪行的要素不包括故意作出危險駕駛的行為。Lord Woolf大法官在AG’s Reference (No. 4 of 2000) (R v GC) [2001] R.T.R 415案的判案書第425頁有以下評論：

“As is pointed out by the Attorney General, there are two limbs to the definition of “dangerous driving”: first, that the driving fell far below that of a careful and competent driver; and
“誠如律政司指出，危險駕駛的定義由兩部分組成：第一，駕駛方式遠遜於一個合格而謹慎的駕駛人所可預期的；及

secondly, that it would be obvious to a careful and competent driver that driving in such a way would be dangerous.
第二，合格和謹慎的駕駛人會認為以該方式駕駛汽車顯然是危險的。

The essential limbs, as is common ground, do not require any specific intent to drive dangerously.  The section [sic] sets out a wholly objective test.  The concept of what is obvious to a careful driver places the question of what constitutes dangerous driving within the province of the jury.  It is the jury who should set the standard as to what is or what is not dangerous driving.”
雙方同意，上述主要部分並不包括故意去危險駕駛。條例列出的驗證標準完全是客觀的。合格和謹慎的駕駛人會否認為某駕駛行為顯然是危險的概念，將甚麼構成危險駕駛之議題交由陪審團裁決，陪審團有權提出危險駕駛之驗證標準。”(非官方翻譯)

The accident in the present case led to extremely serious consequences, including death to Ms Kwok, in addition to injuries to numerous passers-by and serious damage to property.  However, in deciding whether the applicant was guilty of dangerous driving, the court must base its consideration on his way of driving rather than the consequences of the accident.
本案所涉及的意外導致極為嚴重的後果，除了郭女士死亡外，亦有多名途人受傷及嚴重的財產損毀。但決定申請人是否犯有危險駕駛罪，需根據他的駕駛方式而非意外所導致的後果而定。

Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way of driving.  Evidence that supports the charge of dangerous driving may include:
危險駕駛是一項結論，該結論必需根據和駕駛方式有關的行為而作出，支持危險駕駛行為的證據可以包括：

(1) Excessive speeding, particularly when it is raining and the road is slippery.
(一)嚴重超速，特別是在天雨路滑的情況下超速。

(2) Non-compliance with traffic signs, such as driving through a police road block; “jumping a red light”; failure to stop in front of a “zebra crossing” to give way to pedestrians; ignoring pedestrian stud crossing and driving past at high speed; driving into a “No entry” section of road; speeding at double white lines, etc.
(二)不遵守交通標誌，例如衝警方所設的路障；“衝紅燈”；“斑馬線”前不停車讓行人先過馬路；不理會行人過馬路輔助線高速駛過；駛入不準駛入路段；雙白線超速等。

(3) Ignoring road safety regulations, such as intentionally driving a vehicle that is not maintained in good condition; driving a goods vehicle that is greatly overloaded; going against traffic directions and driving a heavy goods vehicle down a very steep slope; illegal car racing, etc.
(三)不理會交通安全規則，例如故意駕駛一輛並非維持良好狀態的車輛；駕駛一輛極度超重貨車；違反交通指示，將重型貨車駛過極斜的下山路段；非法賽車等等。

(4) Disregarding the danger and going on driving, while knowing full well that one’s physical condition is not good and hence not suitable to drive, such as being under the influence of alcohol or drugs or being generally ill.
(四)明知自己身體狀況不佳，包括醉酒﹑受藥物影響或有病，故不適宜駕駛，而仍然不顧危險，繼續駕駛。

Of course the above examples are just factors to be considered in dealing with acts of dangerous driving and they by no means represent an exhaustive list of all relevant factors.
當然上述例子只是處理危險駕駛行為時可作考慮的因素，而非有關因素的全面清單。

If the above or similar way of driving 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, then the driver concerned would be guilty of dangerous driving.
假若上述或同類駕駛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者而言，駕駛者以該等方式駕駛汽車屬危險，會是顯然易見的，則該名駕駛者就是犯了危險駕駛罪。

To support the charge of dangerous driving, the prosecution must point out what driving acts of the defendant constitute dangerous driving.  They must also adduce sufficient evidence to establish that those driving acts fall far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that the defendant’s driving in that way would be dangerous.
要支持一項危險駕駛罪，控方要指出被告人的甚麼駕駛行為構成危險駕駛，亦要提出足夠證據證明該駕駛行為遠遜一個合格而謹慎的駕駛者會被期望達到的水平，而對一名合格及謹慎的駕駛人而言，被告人的駕駛方式顯然易見是屬危險的。

The prosecution cannot rely on the doctrine of res ipsa loquitur to prove dangerous driving (see R v Kit Wing-wo [1985] 1 HKC 204).
控方不能利用“事情不言自明”(res ipsa loquitur)的法律原則證明危險駕駛罪行(見R v Kit Wing-wo [1985] 1 HKC 204案)。

In the present case, the trial judge pointed out that the applicant had not “sounded the horn”, shouted loudly, “braked”, turned on the hazard light or used the hand brake to brake and stop the goods vehicle.  Hence he found that the applicant’s way of driving fell 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.
在本案，原審法官指出申請人沒有“響銨”，沒有大聲叫嚷，沒有“剎車”，沒有按動緊急燈號，沒有用手掣來剎停貨車，並因此認定申請人的行徑遠低於一個合格而謹慎的駕駛者應有的駕駛水平，而一名合格和謹慎的駕駛者亦會認為他的駕駛方式顯然是危險的。

The above factors set out by the learned judge only show that the applicant had failed to take appropriate measures to prevent the accident from further worsening after the accident had happened and in a split of a second, but they were not factors that constituted dangerous driving.  They were therefore irrelevant to the charge.
原審法官所列出的上述因素只顯示申請人在意外發生後及在電光火石間未能採取適當的方法避免意外繼續惡化，而非構成危險駕駛的因素，故和控罪無關。

The accident in this case was most likely caused by a momentary loss of control when the applicant was driving at a relatively high speed in the circumstances concerned, when it was raining and the road was slippery.  Mr Robert Lee, SADPP, who appeared on behalf of the respondent stressed that taking into account the road conditions at the material time, the applicant’s speed alone was sufficient to support the allegation of dangerous driving, and judging from the trial judge’s reasons for verdict as a whole, it was on that very basis that the applicant was convicted.
本案所涉的事故極可能是申請人在天雨路滑的情況下，以當時環境而言屬較高車速行駛，一時失控所導致。代表答辯人的高級助理刑事檢控專員李鏡鏞強調單就申請人的車速，以當時的路面情況而言，足以支持危險駕駛的指控，而根據原審法官的裁決理由書的整體內容，原審法官亦是以該基礎來裁定申請人有罪的。

We do not agree with Mr Lee’s submission.  Although the learned judge said that the applicant was driving at a speed of 40 to 50 km/hr at the material time and found that the road conditions at that time were such that a speed of 40 to 50 km/hr could lead to serious consequences, he did not convict him for dangerous driving on the basis of his speed.  Nor did he set out other objective factors relevant to the applicant’s way of driving to show that his speed at the material time was sufficient to constitute dangerous driving.
本庭不同意李高級助理刑事檢控專員的立場。雖然原審法官指出申請人案發時的車速是每小時40至50公里，並認為以事發時的路面情況，40至50公里的時速亦會造成嚴重的後果，但原審法官沒有根據申請人的車速來裁定他面對的危險駕駛罪罪名成立。原審法官亦沒有指出和申請人駕駛方式有關的其他客觀因素，證明申請人事發時的車速足以構成危險駕駛罪行。

We agree with Mr Leung’s submission that the trial judge did not identify what way of driving of the applicant constituted dangerous driving.  We do not agree that on the facts of this case, the applicant’s speed at the material time alone was sufficient to establish that he was guilty of dangerous driving.
本庭認同梁大律師的立場，即原審法官並沒有列出申請人的哪一種駕駛方式構成危險駕駛。本庭亦不同意以本案的案情而言，單單是申請人在事發時的車速，便足以證明他犯了危險駕駛罪。

In those circumstances, we concluded that the applicant’s conviction for dangerous driving causing death was unsafe.  However, taking into account the facts of this case and the fact that the applicant did not testify to explain the reasons for the accident, a reasonable and irresistible inference to be drawn was that the applicant had driven carelessly (see R v Kit Wing-wo [1985] 1 HKC 204, Wright v Wenlock [1971] RTR 228, Rabjohns v Burgar [1971] RTR 234, etc cited by Mr Lee).  Mr Leung raised no dispute in that regard.
在上述情況下，本庭認為裁定申請人危險駕駛引致他人死亡罪是不穩妥的。但以本案的案情而言及在申請人沒有作供解釋造成意外的原因，一項合理及不可抗拒的推論是申請人有不小心駕駛(見李高級助理刑事檢控專員援引的R v Kit Wing-wo [1985] 1 HKC 204, Wright v Wenlock [1971] RTR 228, Rabjohns v Burgar [1971] RTR 234等案)。對此，梁大律師亦不表異議。

In the result, we allow the applicant’s application for leave to appeal and, treating the application as the appeal proper, allow the applicant’s appeal.  We quash his conviction for dangerous driving causing death and substitute a conviction for careless driving.
因此，本庭批准申請人上訴，並視其申請為正式上訴。本庭裁定申請人上訴得直，其危險駕駛引致他人死亡罪撤銷而代之以不小心駕駛罪。

Sentence
判刑

Having heard submissions from Mr Leung, we found that the applicant’s offence of careless driving was serious and the accident resulted in extremely serious consequences, including casualties and severe damage to property.  Hence a short term of imprisonment would be appropriate.  In view of the fact that the applicant has been in prison for over two months, and that this matter must have left him extremely troubled, we order that in respect of the sentence for careless driving, the applicant shall serve such period of imprisonment as will allow his immediate release without imposing any further penalty on him.  However, we do order that the applicant be disqualified from holding or obtaining any types of driving licence for two years starting from the date of the original sentence, namely, that he be disqualified from driving for two years.
經聆聽過梁大律師的陳述後，本庭認為申請人的不小心駕駛行為嚴重，而意外更導致極為嚴重的後果，包括人命傷亡及嚴重的財物損毀，因此申請人應判短時間的監禁。考慮到申請人已服刑超過兩個月，事件亦必然令申請人受極度困擾。本庭下令申請人不小心駕駛罪的判刑可令他能即時獲釋，毋需另加懲罰。但本庭下令申請人在原判刑後的兩年內，不能擁有或考取任何種類的駕駛執照，亦即停牌兩年。

Mr Robert Lee, SADPP of the Department of Justice, for the Respondent
答辯人：由律政司高級助理刑事檢控專員李鏡鏞代表。

Mr Michael H.K. Leung, instructed by Boase Cohen & Collins, for the applicant
申請人：由布高江律師行轉聘大律師梁鴻谷代表。