HKSAR v. CLARK, DOUGLAS STEPHEN

HCMA 177/2025

[2026] HKCFI 4520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 177 OF 2025

(ON APPEAL FROM ESS 746 OF 2024)

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BETWEEN

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J U D G M E N T

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Background

1.  The Appellant was summoned for careless driving[1]. It was alleged that the Appellant on 30 August 2023 at 11.45am at Eastern Harbor Crossing (Westbound) near tube exit did drive a private car displaying registration mark RF 9761 (“the Van”) on a road carelessly.

2.  The Appellant was convicted after trial of careless driving and fined $1,500.

3.  The Appellant filed a Notice of Appeal to a Judge Against Conviction. He was represented by Mr Sherry both at trial and at the appeal hearing.

Prosecution case

4.  The prosecution called 2 witnesses, namely, Mr. Ng (“PW1”) and Dr Ng (“PW2”) as an expert witness. It was not in dispute that the Appellant was the driver of the Van at the material time. The magistrate summarised the evidence of PW1 and PW2 in the Statement of Findings as follows[2]:

“6. PW1 gave evidence that there were three lanes at the tube exit. The 1^st and 2^nd left lanes were towards Causeway Bay and the 3rd left lane was towards Shau Kei Wan. At the material time, he was driving the Tesla on the 2^nd left lane at around 70 km/h and the Van was driving ahead of him on the 3^rd left lane. When the Van was in the hatched area between the 2^nd left lane and the 3rd left lane, it suddenly swerved into the 2^nd left lane which affected his safety so that PW1 had to brake and stop. The closest distance between the nearside of the Van and the offside front of the Tesla was probably less than one foot. He described that the two vehicles were very close to each other.

7. Dr Ng adopted his expert report (exhibit P3) as his evidence. He determined the distance and the average speeds of the Tesla and the Van based on the same frame rate of PW1’s footage and a control footage captured by the iVAST system mounted in a police vehicle. He found that both PW1’s footage and the control footage had the same average frame rate and thus he applied it for the subsequent speed calculations.

8. He concluded that the Tesla was travelling at an average speed of 61 ± 6 from Frame 48 to Frame 124, i.e. from Position CV1 to Position CV3 (see Appendix I of his expert report) and then accelerated to an average speed of 65 ± 7 from Frame 124 to Frame 158, i.e. from Position CV3 to Position CV4, and then further accelerated to an average speed of 67 ± 7 from Frame 158 to Frame 187, i.e. from Position CV4 to Position CV5. Since his calculations for the said average speeds are in a ± range, so the Tesla could have been accelerated up to an average speed of 74 km/h from Position CV4 to Position CV5.

9. In respect of the Van, he concluded that the Van was travelling at an average speed of 52 ± 5 from Frame 99 to Frame 240, i.e. from Position DV1 to Position DV2 and then travelling at an average speed of 54 ± 5 from Frame 240 to Frame 276, i.e. from Position DV2 to Position DV3.

10. He added that PW1 could have difficulties in accurately determining the distance between the Van and the Tesla in close proximity by looking. ”

5.  The Appellant elected not to testify but he called Dr Timothy John Letters (Dr Letters, DW1) to give evidence as an expert. The magistrate summarised DW1’s evidence as follows[3]:

“15. Dr Letters gave evidence that he was a Registered Australian and New Zealand Patent Attorney and a Registered Australian Trade Mark Attorney. He obtained a PhD in Biomedical Engineering from University of New South Wales, a Bachelor degree in Mechanical Engineering from University of Sydney, a Master degree in Mechanical and Orthopaedic Engineering from University of Sydney, and a Master degree in Intellectual Property Law at University of Technology, Sydney.

16. He did not have any experience in giving evidence as an expert witness in Court. He had experience in mechanics, kinematics, dynamics analysis of vehicle by way of teaching undergraduate Mechanical Engineering and Aeronautical students in system mechanics, materials engineering, mechanical design, kinematic and dynamic analysis.

17. He also had experience and knowledge in traffic flow monitoring and vehicle analysis techniques by drafting and preparing patent applications for video image surveillance and analysis in vehicle detection and traffic flow analysis in Hong Kong. He explained that these involved using mathematics to calculate the speed of vehicles.

18. He took a video by himself when driving another vehicle which was a Range Rover at a constant speed of 50 km/h (hereinafter the ‘RR Video’) along the same path of travel as that of the Tesla in the footage which recorded the same segment of roadway, so that he could compare the RR Video with PW1’s footage to calculate the distance and speed of the Tesla and the Van respectively.

19. He concluded that the average speed of the Van was 55.1 km/h and that of the Tesla was 70.1 km/h.

20. He estimated that the closest distance between the Tesla and the Van was about 1.8 meters but it was not based on any calculation.

21. He said that PW1 could not see any objects within the field of 222 cm from the front of the Tesla due to obstruction of the Tesla’s hood and other body parts (hereinafter the ‘Obstructed Area’). The Obstructed Area he meant the “triangle” below and beyond the front of the Tesla, which is shown in the diagram under paragraph 53 of his report. ”

The magistrate’s findings

6.  The magistrate considered the evidence of DW1, and rejected both his claimed expertise and his opinions. Although acknowledging his engineering qualifications, she found that he lacked relevant training or experience in video analysis, vehicle speed determination, accident investigation, or traffic reconstruction. She was not satisfied that he was qualified to give expert evidence in this field. In any event, she found his methodology unreliable, particularly because he compared videos without adequately accounting for frame rates and failed to demonstrate that the comparison footage accurately replicated the Tesla’s path. She also rejected his estimate of the closest distance between the vehicles as a mere unsupported approximation.

7.  The magistrate further rejected DW1’s opinion that PW1 could not have seen the distance between the two vehicles because of a visual obstruction caused by the Tesla’s bonnet. She accepted that a driver might not see objects immediately in front of the vehicle, but held that PW1, seated in the driver’s seat, could observe the side of the Van above the bonnet and was therefore capable of estimating how close the vehicles were. She regarded his assertion that the obstruction extended to the side of the vehicle as illogical.

8.  The magistrate acknowledged inconsistencies regarding how long PW1 had stopped after the incident. However, she considered these discrepancies immaterial, attributing them to the passage of time rather than any attempt to exaggerate. She found PW1 honest, noting that he readily admitted matters that were adverse to his case, including that he had been driving at about 70 km/h in a 50 km/h zone. Despite his criminal record and fixed penalty history, the magistrate found his testimony clear, logical, truthful and reliable. She accepted his evidence that the vehicles came very close to one another and that he was compelled to brake suddenly to avoid a collision.

9.  The magistrate accepted in full the evidence of Dr Ng whose evidence was not challenged. She found that PW1 had been speeding and might have been travelling at up to 74 km/h. Nevertheless, after repeatedly reviewing the dashcam footage, she concluded that PW1 had already been accelerating before the Appellant activated his left indicator. She therefore rejected the defence argument that PW1 had deliberately accelerated to close the gap and prevent the lane change. Instead, she found that the Appellant’s manner of changing lanes was the primary reason why PW1 was forced to brake.

10.  The magistrate held that even though PW1 was speeding, the Appellant remained under a duty to ensure that changing lanes was safe. A driver exercising due care and attention should have taken into account both the Tesla’s speed and its proximity before moving into the lane. She further considered the amount of time the Appellant had waited before changing lanes to be irrelevant; the critical question was whether it was safe to do so at that moment.

11.  Having carefully reviewed the footage, the magistrate found that when the Van began moving into Lane 2, its front wheel had already reached the tip of the hatched area and that the vehicle crossed the hatched markings before fully entering the lane. Referring to the Road Users’ Code, she considered that a careful driver would have chosen the appropriate lane earlier rather than crossing the hatched area.

12.  Finally, she found that there was no vehicle behind the Appellant in Lane 3 that prevented him from slowing down further. In her view, a driver with due care and attention and with reasonable consideration would have reduced the speed and allowed the Tesla to pass before attempting to change lane. Instead, the Appellant took an unnecessary risk by changing lanes across the hatched area, causing PW1 to brake suddenly.

13.  Accordingly, the magistrate concluded that the Appellant had crossed the hatched area and changed lanes without keeping a proper lookout or exercising due care and attention, thereby driving carelessly and causing PW1 to brake to avoid a collision. She was satisfied that the prosecution had proved the charge beyond reasonable doubt.

Grounds of Appeal

14.  Mr Sherry raised a total of 14 grounds of appeal against conviction, although he abandoned ground 1. From his written submissions, it appears that he challenged almost every paragraph of the magistrate’s analysis from paragraph 34 onwards in her Statement of Findings.

15.  In gist, Mr Sherry contended that the magistrate:

Ground 2: was wrong to reject the evidence of DW1’s expertise;

Ground 3: erred in rejecting DW1’s evidence as to the speed of the two vehicles;

Ground 4: erred in finding that PW1 could see the closest distance between the two vehicles;

Ground 5: erred in finding that PW1, despite his poor criminal record and the concessions he made during cross examination, to be a reliable witness;

Ground 6: erred in rejecting the Appellant’s submissions that, had PW1 not been speeding through an area where other motorists were required to change lanes in order to reach their desired destinations, he would not have had to brake suddenly;

Ground 7: erred in concluding that the Appellant had not kept a proper look out and failed to take into account the speed and the distance of the Tesla;

Ground 8: erred in finding that it was irrelevant how long the Appellant had waited before changing lanes;

Ground 9: failed to afford the Appellant a fair hearing by independently applying the decision of HKSAR v Lee Man-leung[4] without first inviting counsel to make submissions on its relevance to the issues to be decided;

Ground 10: erred in finding that PW1 had the right of way in his lane;

Ground 11: erred in finding that, when the Van had only just begun changing lanes, its left front wheel had reached the tip of the hatched area;

Ground 12: erred in finding that a “driver with due care and attention would have chosen the intended lane earlier and not cross at the hatched area”;

Ground 13: erred in concluding that, at all material times, there was no vehicle driving behind the Appellant in Lane 3 such that the Appellant could have slowed down; and

Ground 14: erred in law in finding that the Appellant’s careless driving was constituted by his apparent failure to slow down and wait for PW1 to pass, and by driving his vehicle into the hatched area delineated by the diverging chevron markings.

Consideration

16.  The Court of Final Appeal in HKSAR v Hui Lai Ki[5] held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate.

17.  I have carefully considered the submissions advanced on behalf of both the Appellant and the Respondent. It is unnecessary to repeat the Appellant’s submissions in detail, as the substance of those arguments will be addressed in the discussion below.

18.  Since some of the grounds are similar or even repetitive, for the discussion below, I would group them as follows:

Grounds 2 & 3 : the defence expert’s evidence;

Grounds 4 to 6 : PW1’s evidence;

Grounds 7 & 8, 10 to 14 : the Appellant’s driving manner and the magistrate’s finding on careless driving;

Ground 9 : the case of HKSAR v Li Man-lang.

Grounds 2 & 3

19.  Mr Sherry submitted that the magistrate erred in not accepting the evidence of the defence expert as the expert was not called to give evidence on accident investigation or reconstruction but only on the timing of any relevant event recorded by the video; the relevant speed of PW1’s vehicle and that of the Appellant; and the closest distance between the two vehicles.

20.  When rejecting Dr Letters as an expert, the magistrate said[6]:

“34. …His academic background and qualifications were not related to video analysis for vehicles. His PhD and Master degrees were about Biomedical Engineering, Mechanical and Orthopaedic Engineering, and Intellectual Property Law. Engineering in these aspects can be very different from video analysis for vehicle speed determination and for distance determination between vehicles. His major experience and knowledge were mainly about patent applications and traffic flow monitoring. There is no evidence showing that he had any training or experience in accident investigation or reconstruction of traffic cases. I refuse to accept Dr Letters’s evidence as an expert witness.”

21.  Given DW1’s experience and qualifications above, I do not consider that the magistrate had erred in rejecting his evidence. In fact, I agree with the magistrate that “Engineering in these aspects can be very different from video analysis for vehicle speed determination and for distance determination between vehicles”. Here, video analysis is the key and if DW1’s training and expertise is not on this but on something peripheral or different, I cannot see how the magistrate could be criticized for rejecting his evidence.

Grounds 4 to 6

22.  These grounds relate to the assessment of PW1’s evidence.

23.  In respect of the observation made by PW1, although the prosecution expert said that he generally agreed with DW1 that PW1 could have difficulties in accurately determining the distance between the two vehicles in close proximity from the driving compartment, we should note the words “accurately determining”. The essence is that no accurate distance could be given, not that no observation could be made. In fact, it defies common sense to say that a driver could not observe from the driver seat the whereabouts of the vehicles on the other lanes.

24.  Insofar as PW1’s previous convictions and inconsistent evidence are concerned the magistrate was well aware of those but came to the conclusion that she could still safely rely on his evidence. The reasons the magistrate provided were: PW1 could not recall the details as the incident happened 2 years ago. He did not intend to exaggerate. PW1 frankly admitted that he could not see the flashing of the left indicator lamp of the Van and he frankly admitted that he was driving at an excessive speed. I consider these to be good and sufficient reasons for accepting PW1’s evidence and I do not notice any errors committed by the magistrate.

25.  Although Mr Sherry suggested that the magistrate failed to give proper consideration to the fact that PW1 had agreed under cross-examination that the incident would have been avoided if PW1 had not been speeding, for the reasons given when I deal with the grounds below, I do not find this to be a valid complaint.

Grounds 7 & 8, 10 to 14

26.  In finding the Appellant guilty, the magistrate had considered the Appellant moving onto another lane by crossing the hatched area. The magistrate also noted that[7]:

“42. …As it can be clearly seen from the footage to which Counsel for the Defence had conceded, PW1 did suddenly apply the brake at the time when the Van started to move into the 2^nd left lane…”.

27.  Needless to say, whether the offence was made out would depend on the driving manner of the Appellant at the time: crossing the hatched area when changing lanes and causing the vehicle on the other lane to brake. If such a driving manner indeed constitutes careless driving, PW1’s speeding was quite irrelevant.

28.  I do not accept Mr Sherry’s suggestion that once the Appellant had activated the left indicator,

“… he was entitled to assume that other approaching motorists would drive in such a manner that would not prevent him from changing lanes. As PW1 did not have a right of way, he was not permitted to do anything which might prevent the Appellant from safely changing lanes. To put it another way, in the circumstances and after the lane change had started, PW1 had a positive duty to let him in. …”.[8]

29.  Mr Sherry has not provided any authority or any relevant part of the Road Users Code to support the above assertion. In fact, the suggestion, in its barest form, is that once a driver activates the left indicator, he is the king of the road and the other motorists have “a positive duty to let him in”, failing which the fault is always on the other motorists. This is a bold assertion and does not sit with the notion that all motorists must exercise due care and attention when driving. In this particular case, as the Appellant’s vehicle crossed the hatched area when changing lanes, it also does not sit with the repeated warnings given in the Road Users Code: “Do not cross or enter hatched area”.

30.  Further, given that it was the Appellant who wanted to change onto the lane on which PW1 was driving, I do not see how the magistrate could be criticized for stating that, “… A driver with due care and attention and with reasonable consideration for other persons using the road would have waited for PW1 to pass first, instead of taking the risk to change lane in the hatched area, causing PW1 to apply the brake for preventing a collision”[9].

31.  The case of HKSAR v Lau Yue Wah[10] is not of assistance to the Appellant, not to mention that the facts are entirely different.

Ground 9

32.  This complaint is unjustified. The magistrate referred to this case to reiterate that for the offence of careless driving, it is not necessary to prove damage caused or a collision. I do not see how the Appellant could argue with this.

Conclusion

33.  Having considered all the material before me, I find none of the grounds substantiated. With the evidence adduced, I, too, would have recorded a conviction if the case was brought before me.

34.  The appeal is dismissed.