Ken Chung v. Her Majesty the Queen

(British Columbia) (Criminal) (As of Right)


Criminal law –- Dangerous driving causing death –- Mens rea –- Whether the Court of Appeal misinterpreted the reasons for judgment and incorrectly determined that the trial judge had committed an error of law by misconceiving the test for the mens rea of dangerous driving –- Whether the Court of Appeal erred in law by substituting a guilty verdict based on a theory of liability not advanced by the Crown at trial, to wit that momentary excessive speed alone was sufficient to prove the mens rea for dangerous driving –- Whether the Court of Appeal had the jurisdiction to overturn the acquittal in the circumstances of this appeal –- Whether the Crown has a right to appeal an acquittal arising from the application of the legal standard to the facts.


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The appellant was acquitted at trial of dangerous driving causing death. He drove approximately 140 km/hr in a 50 km/hr zone and, despite braking, hit and killed a driver making a left turn. While the trial judge found that the appellant’s driving was dangerous, he concluded that the mental element of the crime was not established. In reaching this conclusion, he found that the appellant’s excessive speed alone, if it continued for only a couple of seconds, could not be said to constitute a marked departure from the standard of a reasonably prudent driver. A unanimous Court of Appeal allowed the appeal and entered a conviction. In its view, the trial judge’s conclusion that momentary speeding, without more, could not sustain a conviction for dangerous driving was flawed because it failed to consider the degree to which the conduct departed from reasonable standards. The court explained that while it is true that driving moderately in excess of the speed limit will not necessarily amount to a marked departure from reasonable standards of driving, driving at a grossly excessive speed will. In this case, the court failed to understand how the trial judge “could possibly describe the accused’s conduct in driving at almost three times the speed limit into a major urban intersection as anything but a marked departure from the standard expected of a reasonable driver” (para. 33).

Lower Court Rulings

May 31, 2019
Court of Appeal for British Columbia (Vancouver)

2019 BCCA 206, CA45350
Appeal allowed and conviction entered