HKSAR v. EAV KINSON MING KEONG

DCCC 682/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 682 OF 2015

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REASONS FOR VERDICT

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1.  The Defendant has pleaded not guilty to one count on the indictment of causing grievous bodily harm by dangerous driving, contrary to Section 36A of the Road Traffic Ordinance, Cap. 374.

2.  The Defendant indicated at the outset through his Counsel that he was prepared to admit the offence of careless driving.  The Prosecution was not prepared to accept this plea and the trial proceeded.

3.  The Prosecution Opening was read into the record by Mr. Sadhwani and a list of Prosecution witnesses submitted.  Although there were 14 witnesses listed, only 8 live witnesses were called – for ease of reference, the witnesses are referred to by the numbers by which they were listed in the list of Prosecution witnesses. The evidence of PW1 on the list of Prosecution witnesses was admitted by way of Section 65B of the Criminal Procedure Ordinance, Cap. 221.    At the conclusion of the Prosecution case, no submissions were made on behalf of the Defendant.  I found that there was a case to answer on the charge as laid.  Having had his rights explained to him by his Counsel, the Defendant elected to give evidence and called two other witnesses, one of whom was an expert. The expertise of the Defence expert witness was not challenged by the Prosecution.  Closing submissions were made in writing, supplemented by submissions in Court, after which I adjourned the matter until today for verdict.

Prosecution Opening

4.  The Prosecution case was that the Defendant was the driver of a private car bearing the registration number BT 189 while Yeung Tin-lok, Patrick was the driver of the motorcycle RW 5129 on 30 December, 2014 at the time of the accident at near the junction of Argyle Street and Tong Mi Road in Mong Kok, Kowloon.  Yeung was driving his motorcycle RW 5129 along the 2^nd lane of Tong Mi Road, southbound. On reaching the junction with Argyle Street, he stopped his motorcycle in front of the white stop line to comply with the red traffic signal ahead.   When the traffic signal changed to green, he drove across the white stop line and entered the yellow box of the junction.  When he was 70 to 80 feet from the white stop line, the Defendant driving his private car BT 189 on Argyle Street, westbound, suddenly appeared from the left of Yeung at a high speed.  When BT 189 was about 10 feet from Yeung’s left side, Yeung tried to brake but he was still knocked down by PT 189. The right side of PT 189 hit the front part of Yeung’s motorcycle.  It was the Prosecution case that the Defendant drove BT 189 into the junction when the traffic signal controlling traffic travelling on Argyle Street, westbound, was red. By so doing, BT 189 collided with the motorcycle RW 5129 driven by Yeung, causing Yeung grievous bodily harm.  The manner of the Defendant’s driving by driving his vehicle into the junction when the traffic signal for traffic in his lane was red amounted to dangerous driving.

Issues

5.  The Prosecution’s case in essence was that the Defendant driving into a busy junction when the traffic signal for traffic in his direction was red, resulting in a collision with the motorcycle driven by Yeung, thereby causing Yeung grievous bodily harm, was dangerous driving – the Defendant drove in a way that 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.   The Defendant denied that he was driving dangerously at the material time although the Defence accepted that his manner of driving amounted to careless driving, as I was informed from the outset by Mr. Tse for the Defendant. That he was willing to admit the offence of careless driving was indicated to the Prosecution as early as 23/11/2015.  The issues to be determined are set out in Paragraph 13 of Mr. Tse’s closing submissions, namely whether there was dangerous driving by the Defendant and whether it was the dangerous driving by the Defendant that caused Yeung his grievous injuries.  The Defence did not dispute that at the material time and place, the Defendant drove into the junction in contravention of the red lights which were operating properly against him and collided with the motorcycle driven by Yeung inside the junction, and as a result of the collision Yeung suffered grievous bodily harm. The Defence submits that whilst an objective test insofar as whether the manner of driving is dangerous is concerned is to be applied, the factors to be taken into consideration in applying the objective test includes the subjective state of mind of the accused i.e. whether the manner of driving is objectively dangerous must be judged according to what the Defendant subjectively knew or believed at the time to be the situation.

Evidence

6.  A substantial part of the Prosecution case was by way of Admitted Facts under Section 65C of the Criminal Procedure Ordinance, Cap. 221 and the exhibits referred to in the Admitted Facts were produced by agreement. There were three sets of Admitted Facts, marked as Exhibits P6, P6A and P6B. In fact, it was not challenged that when the Defendant drove into the material junction at the material time, the traffic light governing traffic in his direction was red and he drove into that junction against the red traffic signal.

Admitted Facts (marked as Exhibits P6, P6A and P6B)

7.  The Admitted Facts under Section 65C of the Criminal Procedure Ordinance, Cap. 221 disclosed the following:

a. On 30 December, 2014 at about 7.04 p.m. the road surface was dry at the junction of Tong Mi Road (southbound) and Argyle Street (westbound).

b. The speed limit at the material time on Tong Mi Road (southbound) and Argyle Street (westbound) was 50 Km/H.

c. There was a collision between a motorcycle bearing the registration number RW 5129 driven by Yeung Tin-lok, Patrick (‘Yeung’), PW1 on the list of Prosecution witnesses submitted by the Prosecution, and a vehicle bearing the registration number BT 189 driven by the Defendant at about 7.04 p.m. on 30 December, 2014 at the junction of Tong Mi Road (southbound) and Argyle Street (westbound).

d. On 30 December, 2014, both BT 189 and RW 5129 did not have any mechanical defect before the accident.

e. Yeung sustained injuries amounting to grievous bodily harm as a result of the collision between BT 189 and RW 5129. He was

taken to the Queen Elizabeth Hospital after the accident on 30 December, 2014. His 3 medical reports dated 28/2/2015, 16/4/2015 and 23/10/2015 respectively were produced by agreement and marked as Exhibit P1A, P1B and P1C. Yeung was discharged from the Queen Elizabeth Hospital on 8 October, 2016.

f. The Defendant was arrested on 31 December, 2014 by SPC 54239. He has a clear criminal record.

g. The CCTV video recordings seized by the police from the vehicles DY 1397 and RS 1792 were produced by agreement and marked as Exhibits P2 and P3 respectively.

h. Exhibit P2 was a memory card seized by the police on 31 December, 2014 from Yeung Kam-yiu, PW4 on the list of Prosecution witnesses submitted by the Prosecution, the driver of the taxi with registration number DY 1397. The police subsequently copied the data from the memory card onto a disc. While the memory card was in the custody of Yeung Kam-yiu and the police, it was not tampered with save to copy the data onto a disc. The disc was produced by agreement and marked as Exhibit P2A.

i. Exhibit P3 was a memory card seized by the police on 31 December, 2014 from Lee Tat-choi, , the driver of a vehicle with registration number RS 1792. The police subsequently copied the data from the memory card onto a disc. While the memory card was in the custody of Lee Tat-choi and the police, it was not tampered with save to copy the data onto a disc. The disc was produced by agreement and marked as Exhibit P3A.

j. Photographs were taken by PC 3346 on 30 December, 2014 and

SPC 54239 on 9 January, 2015 and produced by agreement and marked as Exhibits P4 (21 photographs) and P5 (26 photographs) respectively.

k. On 30 December, 2014, the traffic signals at the junction of Argyle Street and Tong Mi Road, Kowloon were functioning properly with no defects.

8.  PW1 on the list of Prosecution witnesses submitted, Yeung Tin-lok, Patrick, was not called to give evidence.  His two witness statements including the sketch, dated 1/6/2015 and 7/7/2015 respectively, were admitted into evidence under Section 65B of the Criminal Procedure ordinance, Cap. 221.  It was agreed between the parties that the English translations of these Chinese statements were accurate translations.   The statement and sketch dated 1/6/2015 was marked as Exhibit P7 and the English translation P7A, whilst that dated 7/7/2015 was marked as Exhibit P8 and the English translation P8A.

9.  In his witness statement, Exhibit P7, PW1 said that at the material time, he was driving his motorcycle RW 5129. The motorcycle was functioning properly.  He was driving along Tong Mi Road towards Yaumatei.  At that section, Tong Mi Road had 3 lanes, and he was driving along the second lane counting from the left. As he approached the junction with Argyle Street, the traffic signal was red and he stopped his motorcycle behind the white stop line to comply with the red traffic signal.  When the traffic signal changed to red and amber for traffic travelling along Tong Mi Road towards Yaumatei, he accelerated as he knew the traffic signal would be changing to green. When he had driven across the white stop line, the traffic signal he had looked at had changed to green – he continued to drive through the junction of Tong Mi Road with Argyle Street in the second lane at a speed of about 20 Km/H.  When he had driven for 50 to 60 feet and was in the yellow box junction, he suddenly saw a private car coming towards him from his nearside, about 10 odd feed from him.  It was very sudden – the private car was very close, he did not even have time to sound his horn – he tried to brake, but the front of the motorcycle collided with the offside body of the private car.  He lost consciousness, and when he regained consciousness, he was in the ICU of the Queen Elizabeth Hospital.  He was asked which traffic light he had looked at and he replied it was the traffic light next to the white stop line on his nearside.  The weather was good and traffic was smooth. Lighting was sufficient from the street-lamps.  He also drew a sketch wherein he marked the traffic light that he had looked at the material time.  In a subsequent witness statement dated 7/7/2015 and marked Exhibit P8, he corrected himself – he said he had driven 70 to 80 feet past the white stop line when he saw the private car.

10.  PW2, Mr. Wong Kwok-leung, was the driver of a taxi with registration number DK 346 at the material time. He had 2 passengers in his taxi and he was driving from Sham Shui Po to Hung Hom.  He was on the second lane of Tong Mi Road, southbound, at the junction of Tong Mi Road and Argyle Street.  He stopped at the junction as the traffic signal was red.  His taxi was the second vehicle in the second lane stopped for the red traffic light. In front of his taxi, there was a motorcycle also stopped for the red traffic light. There were also vehicles stopped in the lanes to his left and right for the red traffic light.  The sketch dated 21/1/2015 that PW2 had drawn when he made his witness statement was shown to PW2 and produced by agreement – it was marked as Exhibit P9, and its English translation P9A.  On the sketch, PW2 had marked the position of his taxi behind the motorcycle stopped for the red traffic light on Tong Mi Road, southbound, and the position where the private car and the motorcycle collided.  He had marked that there was a goods vehicle stopped at the 4^th lane of Argyle Street waiting to turn into Tong Mi Road northbound, and he marked the route of the private car – that it had been travelling in the second lane of Argyle Street, westbound, prior to the collision.  He had also marked on the sketch the green traffic light he had looked at at the material time controlling traffic travelling on Tong Mi Road, southbound – he had circled the traffic light on the sketch.  When the traffic light changed to green, the motorcycle moved forward, and he drove his taxi and followed the motorcycle. When he entered the yellow box junction, he saw a private car on his left drive into the junction and there was a collision between the motorcycle and the private car.  PW2 said that he had marked on his sketch that the private car had been travelling along the second lane of Argyle Street, westbound, but in fact, he was not sure which lane it had been on, but it should be either the second or the third lane of Argyle Street, westbound.  After the collision between the private car and the motorcycle, the front of the motorcycle was severely damaged and there were parts of the motorcycle scattered on the ground. The motorcyclist was also lying on the ground.   As he had passengers on board his vehicle, he continued to travel, and did not make any report to the police.  He contacted the police the next day.  He estimated the speed of the private car to be not less than 50 Km/H.     He was referred to photos 2, 6

and 11 of Exhibit P4, and identified the motorcycle involved in the collision and the fragments of the motorcycle scattered on the road after the collision. He described the private car as a black vehicle but could not see the make clearly. Exhibit P2A and Exhibit P3A, the videos retrieved from the taxi DY 1397 and the vehicle RS 1792 respectively, were both played in Court, and he identified these as depicting the junction where the collision occurred and he identified his vehicle stopped behind the motorcycle. PW2 also explained the sequence of the traffic lights at that junction. Under cross-examination, PW2 confirmed that he did see the black private car slow down and eventually stop at the side of the road on Cherry Street after the collision. He agreed that on the video footage shown in Exhibit P3A 18:53:14 the motorcycle could be seen stopped when the traffic signal was red. It was suggested that when the motorcycle started to move the traffic signal was still red and it had moved into the junction box before the traffic light had changed to green – he disagreed. He confirmed that photo 4 of Exhibit P5 depicted the three lanes of Tong Mi Road, southbound. He also agreed that the traffic lights that were furthest from the camera on the right that can be seen on photo 5 was the same set of lights shown on Exhibit P2A at 19:05:33 and that the lights were as shown on photo 5 just before the collision of the black private car and the motorcycle. He also confirmed that the set of traffic lights shown on photos 5, 6 and 7 of Exhibit P5 was the same as the set of traffic lights he was looking at that he marked on his sketch Exhibit P9. PW2 testified that when he stopped his taxi for the red light, the goods vehicle on the fourth lane of Argyle Street, westbound, that he had drawn on his sketch Exhibit P9 had already been stationary for a while – he did not know if it had stopped past the white stop line or not. Exhibit P2A was played from 19:05:20 to 19:05:30 – after viewing the video footage, he agreed it had passed the white stop line when it was stationary – he agreed that there was a bus stationary in the first lane of Argyle Street, westbound, but was unable to tell if the bust had stopped past the white stop line. Under re-examination he said the black private car stopped about 40 metres from where it had collided with the motorcycle.

11.  PW3, Mr. Yip Tik-wa, was seated in the front passenger seat in a taxi that he had boarded in Tai Kok Tsui and he was travelling to the China Hong Kong Ferry Terminal at Canton Road. The taxi stopped at the junction of Tong Mi Road and Argyle Street.  A sketch dated 22/1/2015 that he had drawn when he made his witness statement was produced by agreement and marked Exhibit P10, and its English translation Exhibit P10A.   He marked his taxi as stopped immediately behind the white stop line on the first lane of Tong Mi Road, southbound, and a motorcycle was in the lane next to his.  He circles in red on Exhibit P10 the traffic light signals he was looking at – the set on the left at the white stop line.  When the lights changed to green, the taxi he was travelling in moved into the junction. A black Mercedes Benz private car travelling in the middle lane of Argyle Street, west bound, moving in the direction of Cherry Street moved into the junction. He had marked on Exhibit P10 the lane he thought the private car came from and the location where he saw the fallen motorcycle and the motorcyclist on the ground.  He did not see the actual collision – he just heard the sound of collision. He turned around in the taxi and looked back and saw the motorcycle on the ground and fragments of the motorcycle on the ground.  The motorcyclist had also fallen onto the ground.   He said when he saw the black private car enter the junction, he saw there were two buses stationary on Argyle Street, westbound, on the first and third lanes, and he had marked these on his sketch Exhibit P10. Exhibits P2A and P3A were played – PW2 identified the taxi he was travelling in shown on Exhibit P3A.  He was shown the photo albums Exhibits P4 and P5. He identified photo 4 of Exhibit P5 as showing the lanes his taxi and the motorcycle were stopped at on Tong Mi Road, southbound and the traffic lights he looked at were on the left of the photo.  He also said that the black private car he saw was similar to that depicted on photos 14, 15 and 16 of Exhibit P4.  He estimated the speed of the black private car when it drove into the junction was about 80 Km/H.

12.  PW4, Mr. Yeung Kam-yiu, was the driver of the taxi DY 1397.  At the material time, he was driving his taxi to Elements at Jordan.  He had a passenger in his taxi.   He was travelling on the third lane of Tong Mi Road, southbound. He identified the sketch he drew on 19/1/2015, that was produced by agreement and marked as Exhibit P11, and its translation marked as Exhibit P11A.  He was in the right most lane of Tong Mi Road, southbound, when he reached the junction with Argyle Street.  He stopped for the red traffic light.  He circled the set of traffic signals he was looking at on his sketch Exhibit P11 – the set of traffic lights furthest from the white stop line.  He intended to turn right into Cherry Street.  On the lane to his left, i.e. the second lane, a motorcycle was stopped for the red light. It was the first vehicle behind the white stop line.  Shortly after, the traffic light for traffic moving ahead on Tong Mi Road, southbound, changed to green.  The traffic light for traffic to turn right into Cherry Street was still red.  He did not pay attention to the motorcycle. Soon after, he heard a loud sound and turned to look – he saw the motorcycle that had been in the second lane beside his vehicle was lying on the ground in the junction. The motorcyclist was also lying on the ground.  He said Photo 3 of Exhibit P4 depicted what he saw.  He also saw fragments of the motorcycle on the ground, as depicted in Photos 6 to 9 of Exhibit P4.  His taxi was equipped with a video camera that recorded what was happening in front of his vehicle – it was functioning properly at the material time and it was recording.  When the traffic light turned to green for traffic in his lane to turn right into Cherry Street, he turned into Cherry Street and saw a black private car stopped on Cherry Street. It appeared to be the car depicted on Photo 14 of Exhibit P4 – it had the same damage as depicted on the car in Photo 14.   He continued on his journey.  The next day, he viewed the memory card of the video camera on his taxi and uploaded the footage in respect of the collision that was recorded onto you-tube.  He also gave the memory card from the video camera on his taxi to the police, and identified Exhibit P2 to be the memory card he gave to the police.  He confirmed that Exhibit P2A was a recording of what was recorded on the memory card Exhibit P2.  He identified the traffic lights he was looking at to be that depicted on photo 5 of Exhibit P5.   Both Exhibits P2A and P3A were played at court and viewed by PW4.

13.  PW5, PC 2370, was the first police officer to attend the scene of the collision.   He arrived at the scene at 7.12 p.m.  Photo 3 of Exhibit P4 was shown to him - he confirmed that when he arrived, the injured person Yeung Tin-lok was on the ground next to the motorcycle depicted on Photo 3. He was the driver of the motorcycle depicted in Photo 3.  Subsequently, an ambulance arrived and conveyed the injured person to the hospital.  He also spoke to the Defendant herein, who he learned was the driver of the private car BT 189 depicted in Photo 14 of Exhibit P4 that had been involved in the collision with the motorcycle depicted in Photo 3 of Exhibit P4.   He made inquiries from the Defendant and was told by the Defendant that he had been driving along Argyle Street, westbound, and stopped at the junction with Tong Mi Road for the red traffic light.  The traffic light changed from red to green and he started off and drove into the junction. There was the collision with the motorcycle.  He was frightened at the time – he did not stop his private car immediately – he drove the car past the junction and stopped at the left hand side of the road.   He was asked if he found out if there was any passenger in the Defendant’s car – he said he did not remember.   He conducted a screening breath test on the Defendant with negative result.  It was suggested to him in cross-examination that there was a passenger in the Defendant’s vehicle but he did not remember.   He was then asked if he had made inquiries of the Defendant as to whether there might be any passenger in the Defendant’s car – he said he did not. He was asked if he would be interested to know if there was a passenger in the car who could be a witness and he said he would be, but at that time his focus was on handling the scene of the traffic accident.   In response to a question from the Court as to whether he would be concerned if a passenger in the private car had sustained injuries in the collision – he said he had asked if anyone was injured and the Defendant said no so he believed that there was only the driver i.e. the Defendant, in the private car. He agreed that as far as he was aware, no one at the scene had asked the Defendant if there was any passenger in the private car. He disagreed that his conversation with the Defendant took place in different stages – he said it took place in one go in the form of questions and answers.  He marked the position where he had had the conversation with the Defendant with a cross on the sketch marked Exhibit P12. He also identified the set of traffic lights on Exhibit P2 at 19:04:58, the set of traffic lights in front of the pillar – he said he had the conversation with the Defendant near the police motorcycle depicted at the top of Photo 7 of Exhibit P4.   He said he did ask where the Defendant was heading but did not remember his answer.  He said the Defendant told him his car had been hit by the motorcycle – the Defendant told him he did not know what had hit him at first, he became scared and he pulled over to the side of the road so as not to block traffic.  He was asked if the Defendant had said he was heading to his mother’s home on Hong Kong side – PW5 said he had not.  He had made a record of his conversation with the Defendant in his own police notebook at page 41. He agreed that the record was never shown to the Defendant for him to read and sign to confirm it. He read out from his record what he said the Defendant told him.  In response to a question from the Court, he had said the Defendant had said he had stopped at the junction for a red traffic light.   Defence Counsel put to him he did not record in his notebook that the Defendant told him he had stopped at this junction.  PW5 disagreed.  He read out what he had recorded in his police notebook of what the Defendant had said to him.  “After inquiries the second driver (that would be the Defendant) said V2 (the private car) on Argyle Street, westbound, near Tong Mi Road in the 3^rd lane. Traffic light red. Turns to green. Starts off and drives.  V1 (the motorcycle) along Tong Mi Road, southbound, unknown lane, drives to Argyle Street. V1 V2 collided in the said junction”.  It was put to him the Defendant never said he had stopped at the junction – PW5 disagreed – he said the Defendant said  he started off and drove when the red light changed to green. PW5 did agree that the effect of what the Defendant said in that conversation was that so far as he was concerned, his light was green.

14.  PW6, Ip Tsz King, gave evidence that at the material time he was PC 3346, although he is now no longer a police officer.  At the material time, he was attached to Team 4, Traffic Accident Investigation Team, Traffic Division, Kowloon West. He had attended the scene of the collision and had made inquiries at 7.30 p.m. that day from the Defendant.  The Defendant told him that he was driving BT 189 at the material time. On reaching the junction of Argyle Street westbound with Tong Mi Road, he was driving in the third lane heading to Olympian City. He saw that the traffic light was red and stopped his car – his car was the first car behind the white stop line.  He waited for a while, and when the traffic light changed to green, he started off – suddenly a black shadow showed up on his right hand side and he heard a bang and he stopped his car. He found that he had hit something and at the same time he saw someone lying on the ground – he realized there had been a traffic accident and someone had been injured – he called the police.   He clarified with the Defendant which set of traffic lights he saw that he said had changed to green and the Defendant pointed out the set of traffic lights to him.  PW6 pointed out the set of traffic lights the Defendant had pointed to him as being depicted on photo 14 of Exhibit P5 – the set of traffic lights in the middle of the photo, furthest from the camera.   He was asked if he had made inquiries from the Defendant as to whether he had passengers in his car – PW6 said he recollected that he did make inquiries and the Defendant told him there were no passengers. He said under cross-examination that spoke to PW5 before he spoke to the Defendant, but when he spoke to the Defendant, PW5 had left. His role at the time was to take photographs, draw a sketch and take measurements.  He also made a record of his inquiries with the Defendant on the investigation report, Pol 155, when he returned to the police station.  This was never shown to the Defendant for him to agree or disagree with his record of their conversation.  He did not make any record in his police notebook.  He explained that he did not make a note in his notebook and ask the Defendant to sign as he was not taking a statement under caution from the Defendant – he was making inquiries of him as to the collision at the scene.  It was put to him that he had not recorded on the investigation report that the Defendant had pointed out the set of traffic lights to him. He agreed, but he said he remembered, just as he remembered the Defendant when he was asked to identify him.  He did not record this - at the time, he did not feel it was so important that he had to record this.    He agreed in the investigation report he had written ‘along argyle street westbound third lane towards Kowloon City Olympian City’ – he said he had mistyped ‘Kowloon City’ on the report – the Defendant had not said ‘Kowloon City’ – he had prepared the investigation report on his computer – he did not remember why he had not deleted ‘Kowloon City’ – it might be that he intended to delete it at the end after finishing the entire report but he forgot to do so.  He was shown the two witness statements he had made. The first was dated 29/4/2015 – he said the mistake in respect of “Kowloon City” was in this report as well as he had prepared the witness statement by referring to the investigation report that he had prepared using his computer and he had copied and pasted the relevant parts from the investigation report onto the witness statement and did not notice the mistake. He admitted that it was through his own ‘negligence’ that ‘Kowloon City’ was written on his witness statement and he did not notice it when he read through the witness statement.  He realised he had made the mistake when he looked through the records when he was told he had to attend court to give evidence. He did not change anything in the records – he explained the error he had made in Court.  He was referred to his second witness statement made on 5/8/2015 where ‘Kowloon City’ was not mentioned.  He agreed it was not mentioned – this second statement was not by means of ‘copy and paste’ from another document.  This second witness statement was made from memory of what the Defendant had said and as the Defendant had not mentioned ‘Kowloon City’, that error did not appear on this second witness statement. ‘Olympian City’ was also not mentioned in this second witness statement – PW6 explained that by ‘westbound’ this referred to Olympian City – ‘westbound’ was the direction of Olympian City.  He did not feel it was necessary to actually write the words ‘Olympian City’.   It was suggested to him that the Defendant had never mentioned Olympian City, nor had he said he had stopped for the red traffic light at the junction of Argyle Street and Tong Mi Road or that his was the first vehicle behind the stop line.   PW6 disagreed.  Defence Counsel put to PW6 that the Defendant had told him he was on the 4^th lane and changed to the third lane – PW6 disagreed.  The Defendant told him that he saw a red light, the red light governing traffic turning right on Argyle Street into Tong Mi Road, northbound. PW6 disagreed.  When he asked the Defendant to point out the traffic lights he was looking at, the Defendant pointed to the set of traffic lights that are depicted on Photo 14 of Album 5, on the right of the photo – PW6 disagreed.  It was also suggested to him that when he asked the Defendant which direction he was travelling to, the Defendant said he was going to the West Harbour Crossing – PW6 disagreed.  It was suggested that the Defendant never told him he had stopped for the red light at the junction – PW6 disagreed. PW6 also disagreed that he had never asked the Defendant if he had passengers in his car.

15.  The next witness was PW11, Mr. Fung Wai-sin, an engineer with the Transport Department responsible for management, design and daily operation of traffic lights.  He was contacted by the police on 30/12/2014 to provide a report in respect of the traffic signals at the junction of Argyle Street and Tong Mi Road. He provided a report to the Traffic Accident Investigation Unit dated 16/2/2015.  He confirmed that the traffic lights at this junction were all functioning properly at the material time.  He adopted the contents of his witness statement dated 8/6/2015 as his evidence-in-chief.  The Defence had no objection to the production of the witness statement and the report.  It was admitted under Section 65C of the Criminal Procedure Ordinance, Cap. 221, that the English translation of PW11’s witness statement dated 8/6/2015 in Chinese was an accurate translation of the Chinese witness statement. The report dated 16/2/2015 was marked as Exhibit P14, and the witness statement Exhibit P15, and its English translation Exhibit P15A. In his witness statement, he explained the time  sequences of the traffic lights controlling the material junction.  He was shown photo 4 in Exhibit P5 – he identified it as the junction of the accident at the material time.  It depicted Tong Mi Road, southbound at its junction with Argyle Street. The traffic lights that govern Tong Mi Road, southbound, at its junction with Argyle Street were referred to in his witness statement – He named the group of traffic lights in paragraph 5 of his witness statement as ‘Vehicular signal group no. 2 [allowing vehicles to go ahead to the direction of Ferry Street along the southbound of Tong Mi Road and allowing vehicles to turn left to the eastbound of Argyle Street at the same time] started with red/amber light for 2 seconds. Then the green go-ahead arrow and the green left-turn arrow was shown for 35 seconds. The green go-ahead arrow and the green left-turn arrow were still shown while entering Stage B. In the above Stage A. the vehicular signals in the other directions were all red.’  In paragraph 6, he said “Stage B lasted for 38 seconds in total. Under Stage B, the Vehicular signal group no. 2 [allowing vehicles to go ahead to the direction of Ferry Street along the southbound of Tong Mi Road and allowing vehicles to turn left to the eastbound of Argyle Street at the same time] started with the green go-ahead arrow and the green left-turn arrow which were shown for 35 seconds in Stage A. Afterwards it turned to amber for 3 seconds. Finally, it turned red and entered Stage C right away.’ He explained that in photo 4, one can see three sets of traffic lights. The set of traffic lights on the left of the photo governed traffic on southbound Tong Mei Road turning left to eastbound Argyle Street and going ahead to the direction of Ferry Street.  The set of traffic lights in the middle of photo 4 (which can also be seen on photo 5) had three green lights – there is a green left-turn arrow, a green go-ahead arrow and a green right-turn arrow.  In photos 4 and 5, the three green lights are on.  PW11 said that the green left-turn arrow and the green go-ahead arrow turned on before the green right-turn arrow.   He identified photos 13 and 14 of Exhibit P5 as depicting Argyle Street, westbound, at its junction with Tong Mi Road.   Traffic on westbound Argyle Street in the first three lanes can only go ahead, whilst traffic in the fourth lane can turn right into northbound Tong Mi Road.   He described the primary traffic lights that govern traffic going ahead on westbound Argyle Street as being on the left of photos 13 and 14. The auxiliary or secondary set of traffic lights governing traffic going ahead on westbound Argyle Street can be seen in the middle of photos 13 and 14, whilst the traffic to turn right into northbound Tong Mi Road is governed by the set of traffic lights depicted on the right of photos 13 and 14.  This is referred to in paragraph 8 of his witness statement where he describes the lights as being in Stage D.  He also said that if the traffic light had changed to green for traffic on Tong Mi Road southbound to go ahead or turn left, then all the traffic lights controlling traffic on all four lanes of westbound Argyle Street would have been red for at least 2 seconds. Under cross-examination, PW11 confirmed that on Photo 15 of Exhibit P5, one can vaguely see a set of traffic lights next to the pillar on the left of the photo that governed traffic on Tong Mi Road, southbound.  He confirmed that this view of the junction was taken from Argyle Street, westbound.  Photo 18 was a closeup of the same pillar on photo 15 and one can see side view of the set of traffic lights more clearly – this photo is a view taken from Argyle Street, westbound.   This is the same set of traffic light one can see on photo 4, which is furthest from the camera, and this photo is a view taken from Tong Mi Road, southbound.  He was asked to explain the difference between what he had described as the primary lights, the set of traffic lights on the left of photo 14 governing traffic to go ahead on Argyle Street, westbound, and what he had described as the secondary traffic lights, the set of traffic lights furthest from the camera in the middle of photo 14, which governed traffic on Argyle Street, westbound, for traffic going ahead as well as turning right into Tong Mi Road northbound.   He said that a primary set of traffic lights was the set of traffic lights at the stop line, whilst the secondary set of traffic lights would be provided at a further distance.  When asked if he was suggesting that motorists should primarily be looking at the primary set of traffic lights rather than the secondary set of traffic lights, he said no, a motorist should pay attention to all traffic lights governing the junction including the conditions on the road.  He also said that the secondary lights for Argyle Street, westbound, was two sets of traffic lights on a single pole, to govern traffic going ahead as well as traffic turning right.  The video clip on Exhibit P2A was also played for PW11.

16.  PW12, Dr. Tao Chi-hang, was an expert witness for the Prosecution.  His expertise was not challenged by the Defence. Dr. Tao has been employed as a chemist in the Forensic Science Division of the Government Laboratory in Hong Kong since February, 2009.    He had made a witness statement dated 23 June, 2015 in respect of the present proceedings and adopted the contents as his evidence-in-chief. There was no objection to this by the Defence.  His witness statement was marked as Exhibit P16. The purpose of Dr. Tao’s examination of  the traffic accident investigation booklet and two optical discs containing the video files of the course of the traffic accident captured by the car cameras of a taxi DY 1397 and a public bus RS 1792 delivered to him in respect of the collision (the 2 optical discs being  Exhibits P2A and P3A)  was to determine the traffic light signal of westbound Argyle Street governing the traffic direction of BT 189 at the time of the accident, and to determine  the accident speed of BT 189.  He was also provided with the scene photos, Exhibit P4 and P5, and the traffic signal report of the accident junction at the accident time dated 16 February, 2015, Exhibit P15.  In the main, he relied on the video footage contained in Exhibit P2A which he found recorded the course of the accident.   He found that the video footage contained in Exhibit P3A recorded mainly the post-impact movements of the two vehicles, the motorcycle RW5129, that he referred to as V1, and the private car BT 189 that he referred to as V2.  He concluded at paragraph 12 of his report that BT 189 was crossing the accident junction at an estimated speed of about 47 Km/H and it was ‘highly likely jumping the red light of the vehicular traffic signal governing westbound Argyle Street before the collision. The traffic light governing V2 (BT 189) changed from green to amber at about 7 seconds before the front of V2 (BT 189) arrived at the yellow box of the junction’.   Dr. Tao had also extracted 14 still images from the video he viewed, Exhibit P2A, which he included in his report in Appendixes 1 to 14.  He was cross-examined about the still images that he had extracted from the video Exhibit P2A.  He agreed that in the photo in Appendix 3, one can see a truck stationary on lane 4 of Argyle Street, westbound, and it was protruding beyond the traffic light that govern the junction, and had probably passed the white stop line of the junction.   He also agreed that the photo in Appendix 6 showed a double decker bus stationary in the first left lane of Argyle Street, westbound, but was unable to say if it had passed the white stop line when it was stationary.  He also said that the black private car BT 189 was probably on the second lane from the left when it passed the white stop line of the junction.

17.  PW10, PC 944 was tendered in cross-examination at the request of the Defence.  He had been sitting in Court assisting the officer-in-charge of the case throughout the proceedings as the Defence had indicated that he was not required.  The Defence took no issue on his having been in Court.  He produced a sketch he drew of the accident junction when he visited it on 2/6/2015, and it was marked as Exhibit P17.  He agreed that the sketch depicted that traffic travelling on Argyle Street, westbound, travelling ahead travelled through the junction into Cherry Street, and he agreed that there was a slight bend to the right after passing through the junction into Cherry Street, but said it was a slight bend.  He was shown a photograph, marked as Exhibit D1, which he confirmed showed the accident junction and the bend for traffic travelling on Argyle Street, westbound into Cherry Street.  Exhibit D1 is an enlargement of a photo in the report prepared by DW2, Dr. Timothy James Sterling, namely Exhibit D3, on page 28 of his report at paragraph 4.42.  The photograph was taken from the footpath on the southern side of Argyle Street.

18.  The Defendant gave evidence that he was aged 41 years and born in Hong Kong.  He is single and has a clear criminal record.   He studied until Form 2 in Hong Kong, before going to USA in 1991 to continue his studies.  He completed his tertiary education in the UK, obtaining a BA degree and a Masters degree in Art, design and visual culture. He then worked in the UK as an interior designer.  He returned to Hong Kong permanently in 2005.  At the time of the accident, he was an executive director of Asia Commercial Holdings Ltd., and currently he is a consultant of the company, which is a family owned business.  He testified that he was a Catholic.  He confirmed that he was the driver of the black private car BT 189 at the material time and place as seen on the video clips in Exhibit P2A and P3A that was involved in a collision with a motorcycle and in which the motorcyclist sustained serious injuries, for which he was very sorry.  He also confirmed that he was ready to admit the offence of careless driving in relation to the collision, as his Counsel had informed the Court.  He also said that it was when he viewed the video clips that he found that his view of the traffic light was blocked by a bus.   He testified as to his feelings since the accident and its effect on his family and the worry it has caused them.  He also told the Court about his charitable works, and produced the receipts of charitable donations he had made in the past as well as letters in appreciation, which were collectively marked as Exhibit D2.

19.  He said he first obtained his driving licence in the UK. However he did not drive often in Hong Kong, usually just on Sundays. He had a chauffeur during the week, personally employed by him, who was from the Philippines.  He lived in Repulse Bay and worked in Sheung Wan.   On Sundays when he drove, it was usually to his mother’s home - he described himself as a classic ‘Sunday driver’. The private car BT 189 was usually driven by his driver.  He said he was not familiar with the roads on Kowloon. He had never driven on the roads of Kowloon save on the day of the accident.  Prior to the date of the incident, he had seldom been to Kowloon.

20.  His dog had had two major surgeries and was in an animal hospital at Peace Avenue in Kowloon. He had been at the animal hospital in Peace Avenue since 20/12/2014 – the dog was only discharged from the animal hospital on 2/1/2015.  As the dog was in an animal hospital on Kowloon side, he visited him at the animal hospital. Prior to the day of the accident, he had been to see his dog 7 to 8 times. He was driven by his close friend Charles Chui, who also gave evidence.  His own driver was on leave and had returned to the Philippines from 19/12/2014 to 4/1/2015.  He asked his friend to drive him as he was not familiar with the roads on Kowloon side, and also he did not like to drive on Kowloon side.  He had asked Mr. Chui to drive him on the material day but Mr. Chui was not able to make it and he had an appointment to meet his dog’s surgeon at 6.30 p.m. that day.  He thus could not wait for Mr. Chui to drive him.  He drove fom his home with his Filipina domestic helper in his car.  Although he was not familiar with the roads, he knew the way to the hospital as he had been there 7 to 8 times and recognized the roads.   After seeing the vet, he intended to go and visit his mother at her home, and planned to cross to the Island using the Western Cross Harbour Tunnel.  He was on his way to the tunnel via Argyle Street westbound when the collision with the motorcycle occurred.

21.  He gave an account of what happened that day.  He was driving on the 4^th lane from the left of Argyle Street westbound, which had 4 lanes near the junction with Tong Mi Road.  He stopped for the red traffic signal ahead as the 10 to 12 vehicles ahead of his were all stationary.  The light he said he saw he said was the green light with the right turn arrow that is depicted on photo 14 of Exhibit P5. He knew the lane he was in was for traffic to turn right.  He put his indicator on to change to the third lane and checked his mirrors.  There were many vehicles in the third lane that passed his vehicle.  He waited and when there was no traffic on the third lane, he changed to the third lane and drove forward.   He said he saw a green light ahead on the left hand side of the road – the light he said he saw was depicted in photo 5 of Exhibit P5 – the Defendant pointed out the set of traffic lights depicted next to the pillar in the photo, which was to govern traffic on Tong Mi Road southbound.  Photo 5 is a view of the junction taken from Tong Mi Road southbound.  He confirmed that the same set of traffic lights that he saw was green also appear on photo 18 of Exhibit P5, a view of the junction taken from Argyle Street westbound, and he pointed to the set of traffic lights next to the pillar on the left of photo 18.  This set of traffic lights, as we can see from photo 5, has 3 green traffic lights – governing traffic turning left, going ahead or turning right on Tong Mi Road southbound.  In response to a question from the Court, he said he saw only one green light – the third bulb on the left side of the pole – it was the evidence of PW11 that the 2 green lights on the left side of this pole, to govern traffic going ahead on Tong Mi Road southbound or turning left from Tong Mi Road southbound into Argyle Street eastbound were both green at the same time and for the same length of time, namely 35 seconds (see paragraph 6 of Exhibit P15). The Defendant said that photo 18 depicted a view taken from the second lane of Argyle Street westbound, but he was travelling in the third lane. PW12, Dr. Tao, was asked under cross-examination if he was able to ascertain in which lane the black private car was travelling when it passed the stop line – his answer was that it probably travelled on the second lane from the left.  The Defendant said he could not see any red light as he approached the junction. He believed that the green light he saw allowed him to go straight ahead.  Mr. Tse showed the Defendant the traffic light depicted on the left of photo 14 of Exhibit P5, which was taken from the second lane of Argyle Street westbound.   It was the testimony of PW11 that that set of traffic lights on the left of photo 14 was the primary set of traffic lights governing that junction for traffic approaching the junction on Argyle Street westbound and it would show red if the traffic lights for traffic travelling on Tong Mi Road southbound turning left into Argyle Street eastbound or Tong Mi Road southbound going ahead was green.  The defendant said that he did not see this set of traffic lights at that time.  When he viewed the video clips he was shown by his lawyers after the accident, he saw that there was a bus blocking his view of that set of primary traffic lights.  He had returned to the scene of the accident subsequent to the accident and realised that he had looked at the wrong set of traffic lights.  He had viewed the traffic lights from the first, second and third lanes of Argyle Street westbound when he returned to the scene – it was 7 or 8 p.m. when he visited – the green light of the traffic signal governing traffic on Tong Mi Road southbound could be seen. He said the photos taken for Exhibit P5 were taken in the day time – at night that green light would be even brighter.  Photos 14 and 15 of Exhibit P5 are views of that set of traffic lights taken in the daytime from the second lane of Argyle Street westbound – there does not appear to be any light reflection from that set of traffic lights.  The Defendant also said that he saw a double decker bus in the first lane that was about 15 metres ahead of his private car drive through the junction, and therefore he thought that he could also drive through the junction. He drove through the junction at a speed of 40 odd Km/H – he was not speeding. He also saw a green light in the distance, which he subsequently learned was the green light for another junction further down the road. That set of traffic lights he said could just barely be seen on photo 19 of Exhibit P5 – the small red dot in the centre of photo 19 behind the motorcycle depicted in the centre of the photo.  He thought at the time that that distant green traffic light also governed the junction he was driving through.   He also saw the set of traffic lights that are depicted on photos 15, 16, 18 and 19 – at the centre of the photo – the set of traffic signals with two red lights – there are two sets of signals on a single pole – this set of traffic lights was described by PW11 as the secondary traffic lights to govern traffic travelling on Argyle Street westbound.  He saw only the red bulb on the left.  He took a quick glance at that set of traffic lights and saw the red traffic light on the left of the pole.  He thought this traffic light was to govern traffic travelling on the 4^th lane of Argyle Street westbound to turn right into Tong Mi Road northbound.  He said he saw these secondary traffic lights about 10 metres before he crossed the white stop line.  He could not see the traffic lights depicted on the right of photo 14 which governed traffic turning right into Tong Mi Road northbound as his view of that light was blocked by a truck in the 4^th lane that had stopped beyond the white stop line.  He also could not see the secondary traffic lights until he was about 10 metres from the white stop line because he said his view was blocked by the truck. Also, as the road bent a bit to the right, he did not this secondary set of traffic lights until he was some 10 metres from the stop line. When he was in the yellow box junction – his car was hit – at first he did not know what had hit his car – he was frightened – he continued to drive forward and then pulled up on the left on Cherry Street. He then got off his car and together with his maid walked back to the junction where he saw the motorcycle on its side and the motorcyclist lying on the ground. He called the police and the police arrived soon after.  He told the police officer that his car had been hit by something – he thought it was the motorcycle.  He was asked by the police officer if he was injured and he said he was not. He said the police officer asked him where he was going and he pointed that he was going towards the Western Cross Harbour Tunnel. Initially he said he was pointing towards the Western Cross Harbour Tunnel.  When asked by the Court if he had said anything, he said he pointed and he also said to the police officer that he was going to the Western Cross Harbour Tunnel ‘to his mother’s house’.  He was asked if he had had any alcohol, and he said he had not. Soon after an ambulance arrived and the motorcyclist was taken away.  He then was given the breath screening test, with a nil result for alcohol.  He was then taken by the police officer to a position near the police motorcycle, inside the yellow box, where the officer asked him where he was going – he said he was going to the Western Cross Harbour Tunnel. The officer asked him where he was driving from and he pointed to Argyle Street westbound.  The officer asked him what light he had seen, and he said he had seen a green light – the light on the right hand side of Argyle Street - he said the light was depicted on photo 14 of Exhibit P5, on the right, the one that had a green right arrow.  The officer than took down the details of his identity card and took him back to the pavement and told him to leave. There were two officers who spoke to him, one was PW6.  He said he never mentioned Olympian City to PW6 – he did not know it.   He agreed he had told PW6 that he had stopped his car at the junction for a red light.  In fact the only time he had stopped was when he was in the 4^th lane waiting to change to the third lane when there were 10 to 12 vehicles ahead of his vehicle.  He said he was frightened when he spoke to the police.

22.  The Defendant was cross-examined about the number of times he had been driven on Argyle Street westbound near Tong Mi Road southbound and he said he had been there 7 to 8 times. On those occasions, he was a passenger in the car, sometimes in the front passenger seat and sometimes in the rear passenger seat. He said he admitted he was careless at the material time as he had looked at the wrong traffic light for traffic governing his lane and also because he was looking at the traffic light for another junction. He was also careless because he thought the secondary set of lights that he had seen was only to govern traffic in the fourth lane turning right.  He agreed that the green light on the set of traffic lights that he saw that actually governed traffic on southbound Tong Mi Road did not directly face traffic on Argyle Street westbound.   He agreed there were no vehicles ahead of his vehicle as he went through the junction. He said that he only noticed a truck was stopped in the 4^th lane at the material time.  But he was only aware that a bus was stationary in the first lane when he was shown the video clips, and not on 30/12/2014.   He agreed that one should take care when approaching a junction, and that it was best to slow down, especially if one was unfamiliar with a junction.  He also agreed that one should look at traffic conditions apart from looking at the direction one is going.  He agreed too that one approached a junction, one should look around to ensure there were no pedestrians and he said he did and there were no pedestrians.  He agreed that as one approached the junction, the secondary set of traffic lights governing traffic on Argyle Street westbound was more clear than the set of traffic lights depicted on the left of photo 18 of Exhibit P5. Under cross-examination he also agreed that he had told the police officer that he had stopped for the red light at the junction and when the light changed to green he started his car.  He agreed he did not say at the time that when he stopped he was in the 4^th lane.

23.  DW2 was Timothy James Sterling. He was the expert witness called by the Defence.  His expertise was not challenged by the Prosecution. He had prepared his report, and adopted the contents as his evidence-in-chief. The report was marked as Exhibit D3.  His company had been appointed by the Defendant’s solicitors to prepare a report ‘considering certain highway aspects that may be pertinent to an accident that occurred on Tuesday 30 December, 2014.   Among other things, he was provided with the video images contained in Exhibits P2A and P3A, a copy of the witness statement of PW 12, Dr Tao, namely Exhibit P16.  He had also visited the accident location on a number of occasions as set out in paragraphs 1.6 to 1.12 of his report.  DW2 said he was familiar with the layout and traffic signals at the junction of Argyle Street westbound and Tong Mi Road southbound.   His first visits were between 25 May and 27 May, 2015.  He visited again between 30 November and 4 December, 2015.  He said in paragraph 1.10 of his report that he was driven through the site on numerous occasions in the private car BT 189, and he also drove the car through the said junction to Cherry Street while it was dark. In para 1.11 of his report, he said he was the front seat passenger during a series of test runs that were undertaken during the evening of 3 December, 2015. These involved the car approaching the material junction on Argyle Street westbound in the 4^th lane behind a truck and changing to the third lane during the 50-100 metres prior to the junction and then continued straight ahead at the junction.  He said he was able to observe the extent to which the truck obstructed the sightline to traffic signals on the offside of the road. He reproduced images from the 5 test runs he conducted when he was seated in the front passenger seat of a private car, not the same car as involved in the collision but a similar one, and the video camera was mounted at the centre of the windscreen of the car at driver’s eye height.  The view recorded by the video camera in these test runs cannot be the same as the view of a driver in the driver’s seat.  The views he reproduced are contained in paragraphs 4.17 to 4.24 of his report. The two photographs in paragraph 4.24 depict a view of a car driving on the third lane of Argyle Street westbound approaching the junction and the two circled lights are the signals governing traffic on Tong Mi Road southbound, the green light from these signals being the lights the Defendant said he saw at the material time (and these lights can be seen in photos 18 and 19 of Exhibit P5, which are taken from the 2^nd lane of Argyle Street westbound).  It is clear from these two photos that the junction was well lit in the hours of darkness.  It is also clear from these photos that the view of these traffic signals that a driver approaching this junction would have would only be an oblique view and not a full direct view of the traffic lights – if one looks at the first photo and compares the ‘green light’ from the circled traffic lights and the red light of the traffic signal on the right of the photo, it is clear that the red traffic light faces oncoming traffic.  This can be seen in the other images as well – e.g. the two images under paragraph 4.17, the 2 images under paragraph 4.20, the first image under paragraph 4.22.  DW2 agreed that the view of a driver in the 3^rd lane of Argyle Street westbound of these lights would be an oblique view and not a direct view. He said the lights would be visible, although less bright than if viewed head on. He also said under cross-examination that if one is viewing the signal sideways, you would not see as much of it as you would if you were viewing it head on and it would not be as bright.

24.  In response to a question from the Court as to the distance between the traffic signals he had identified as Signal E (at paragraph 2.16 of his report – which govern Cherry Street) from the signal he had identified as signal A at the material junction at paragraph 2.15 of his report),  he said the distance was 290 metres. DW2 accepted that the traffic lights controlling the material junction met all the safety standards that apply in Hong Kong.  He believed there was potential for improvement which he felt would be advantageous.

25.  DW2 was asked about a stationary truck in lane that protruded beyond the white stop line by about 3 metres, which was his estimate of how far the truck that is seen stationary in lane 4 of Argyle Street westbound on Exhibit P2A protruded and its effect on the view of a driver in the 3^rd lane approaching the junction (paragraph 4.30 of his report).  The Court asked him if he could estimate how much before the stop line would a driver in lane 3 be able to see the traffic signals he had identified as Signal C (at paragraph 2.15 of his report) that governed traffic on Argyle Street westbound. His first answer was that he preferred not to estimate – he would rather ‘model’ than ‘estimate’.   In response to this, the Court asked if all the ‘models’ in his report (paragraphs 4.25 to 4.30) were estimates. DW2 then said that a driver in the 3^rd lane would be able to see these traffic lights when he was 10 to 15 metres from the white stop line at the junction.  The Court asked him if the driver would be able to see vehicles that had stopped in the 1^st lane, and DW2 replied that the driver would.   The video Exhibit P2A was played (marker 19:05:32). DW2 was asked looking at the video image if a car travelling in lane 3 would have been able to see the bus coming to a halt in lane 1.  DW2 replied that the video did not show him what other traffic was in Argyle Street at the time. However it seemed likely to him that a driver in lane 3 would have been able to see the bus slowing down and stopping.  He also said that in the absence of any other obstruction such as large vehicles in lane 2, there should be a sight line to the bus for at least 5 seconds – but this was his estimation.

26.  Under cross-examination, DW2 agreed that the images he had appended at paragraphs 4.17 to 4.24 of his report from still images of taken from a video.  He accepted that still images did not show the movement of the traffic, and accepted too that with the movement of traffic, any obscuration of the lights would change if traffic was moving.  With moving traffic, there would be times when the traffic lights would not be obscured. He had referred to this in paragraph 4.8 of his report, where he said “clearly, the extent of any obscuration would depend upon the size, positions and alignments of vehicles approaching the traffic lights. There are clearly a great many possible scenarios and, because the vehicles are moving, certain obscuration effects will inevitably be transient.”

27.  He accepted that he could not say with any certainty what traffic lights the Defendant could or could not see at the material time.   He agreed that the video footage that he had viewed taken at the time of the collision (Exhibits P2A and P3A) that the motorcyclist entered the material junction as the traffic signals changed to green so as to permit this manoeuvre.  The Defendant had entered the junction in contravention of a red traffic signal. His understanding from the video evidence was that the defendant had entered the junction 4 seconds after the signal had turned red. (paragraphs 2.7, 2.8 and 2.10 of his report).   DW2 also agreed that a driver who was unfamiliar with the road conditions  would be more likely to misunderstand the environment and should exercise appropriate caution.  When a driver was approaching a junction, he should exercise caution. He should slow down when approaching a junction.   This was a very busy junction, and although there were not supposed to be pedestrians, its clear from the video images that jaywalkers are not uncommon.  Exhibit P2A was played. At marker 19:05:32  the traffic signals that DW2 referred to as Signal D are visible, showing 1 red light and 2 green lights being on – DW2 had said that a car travelling on the 3^rd lane of Argyle Street westbound would be able to see the lights from this set of traffic lights. So he would be able to see the lights from all 3 lights i.e. 1 red light and 2 green lights.

28.  DW2 was asked to compare the two images, Photo 15 of Exhibit P5 and Exhibit D1.  He agreed that although it was taken from the 2^nd lane, Photo 15 was more representative of the driver’s view as he approached the junction. Exhibit D1 was actually taken from the pavement, and the image was therefore not the view a driver on the 3^rd lane would have.  The purpose of Exhibit D1 was to show that the distant traffic lights i.e. the traffic signals he referred to as Signal E, was visible from the junction. He also said that he had calculated and only about 40% of the time would the traffic lights for Signal E be green when the other traffic signals for traffic on Argyle Street westbound was red.  He agreed that Signal E could not be seen in Photos 15, or in Photo 18, where the photographer had gone forward beyond the white stop line.  Even in Photo 19, Signal E is a very tiny speck.

29.  DW2 in his report had produced data from the Transport Department Appendix C wherein the material junction was described as a ‘traffic black site’ (paragraphs 8.5 to 8.7 of his report).  The legend in the footnote of Appendix C was that ‘blacksite’ were those junctions ‘where  there are also 2 or more fatal accidents in the past 5 years’. These were also where there are 6 or more pedestrian injury accidents and 9 or more injury accidents in the past year.  He also produced a letter from the Transport Department which showed that there were 3 serious accidents, 9 slight accidents and 0 fatal accidents in 2014.

30.  DW3, Mr. Chui Yuen-cheong, was a friend of the Defendant.  He has known the Defendant for about 10 years and they meet regularly.   He confirmed that the Defendant did not drive regularly – he had a driver who drove him around during the week.   From around 20/12/2014, he had driven the Defendant more regularly to see his dog who was in an animal hospital on Kowloon side.  The Defendant had asked him to drive as the Defendant himself was not quite familiar with the roads on Kowloon.  He drove the Defendant to the animal hospital 8 to 9 times, driving the defendant’s car VT 189 as his own car was smaller, and he was driving the Defendant and his domestic helper.  The Defendant would sit at the back whilst his domestic helper sat in the front passenger seat.   He could not remember if the Defendant had sat in the front passenger seat – he said if he had sat, it was at most once.  The Defendant had asked him to drive him on 30/12/2014, but he was not able to make it in time. So the Defendant drove himself.

Analysis

31.  I have carefully considered all the evidence that has been adduced before me, including the documentary exhibits, the video footage, the photographs taken, as well as the oral and written submissions of Counsel. The fact that I have not dealt with each and every piece of evidence does not mean the same has escaped my attention; I say the same about the matters raised in the submissions made by counsel. In reaching my verdict, I remind myself of the burden and standard of proof  and that the burden is upon the Prosecution throughout.  The Defendant has no duty to prove anything.  I direct myself that I must be sure of the guilt of the Defendant before I can convict.  On the other hand, if I think that the Defence evidence pointing to innocence is true or may be true, it would follow that the Defence has raised sufficient doubt in the Prosecution case, and the Defendant is entitled to be acquitted. The Defendant has a clear record – I have borne this in mind and given myself the requisite directions.

32.  I remind myself that when drawing inferences from the evidence,  the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved. 

33.  Section 36A(10) of the Road Traffic Ordinance, Cap 374, provides:

(10) A person is to be regarded as driving dangerously within the meaning of subsection (1) if -

(a) the way he or she drives falls far below what would be expected of a

competent and careful driver; and
(b) it would be obvious to a competent and careful driver that driving in

that way would be dangerous.

Further under Section 36A(12) provides that for the purposes of subsections (10) and (11), ‘dangerous’ refers to danger either of injury to any person or of serious damage to property. Section 36A(13) provides that for the purposes of subsections (10) and (11), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard must be had to all the circumstances of the case including the nature, condition and use of the road concerned at the material time, the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time and 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.

34.  That the Defendant was the driver of BT 189 at the material time and place was not disputed.  Nor was it disputed that there was a collision at the material time and place – that there was a collision between BT 189 driven by the Defendant and the motorcycle RW5129 on which PW1 was riding inside the material junction when the motorcycle entered the junction from Tong Mi Road southbound when the traffic signals governing traffic in his lane was green while the traffic signal for traffic travelling in the direction the Defendant was driving was red.   As a result of the collision, PW 1 sustained injuries, and it was not in issue that the injuries he sustained amounted to grievous bodily harm. It was admitted that the traffic signals governing the junction were operating properly at the material time.

35.  The only issue to be determined is whether at the material time the Defendant’s driving amounted to ‘dangerous driving’ i.e. the Prosecution must prove that the driving acts of the Defendant 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 the Defendant’s driving manner or acts could be dangerous.  Yeung V-P, in delivering the decision of the Court of Appeal in HKSAR v. Lam Chi Fat [2012] 1 HKLRD 968, said:

“31. 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.”

And further:

“33. Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way of driving.”

I have borne in mind that I must consider the Defendant’s manner of driving rather than the consequences of the accident.

36.  On the evidence before me, I am satisfied beyond all reasonable doubt that at the material time when the Defendant driving BT 189 along Argyle Street westbound entered the junction with Tong Mi Road, he did so in contravention of the red traffic signals that governed traffic on Argyle Street westbound while PW1 riding his motorcycle RW 5129 drove into the same junction at the material time  when the traffic signals governing traffic travelling along Tong Mi Road southbound to go ahead or to turn left onto Argyle Street eastbound was green.

37.  The video images captured on Exhibit P2, and copied on Exhibit P2A, which was played in Court was taken by the video camera of a taxi that was also travelling on Tong Mi Road westbound. It shows very clearly what happened at the junction.  It is clear that when PW1 entered the material junction, the traffic signals were green in his favour. Traffic on Argyle Street westbound had come to a halt for the red traffic signals governing traffic on Argyle Street westbound. BT189 drove into the junction without slowing down at all when the other traffic had already stopped.  The evidence of the Prosecution witnesses was to the same effect – that PW1 entered the junction when the traffic signals was in his favour.

38.  The speed limit at the stretch of road was 50 Km/H. PW12 estimated the speed of BT 189 to be approximately 47 Km/H and DW2 reached the same conclusion.  There was no evidence that the Defendant was speeding, despite the evidence of some of the Prosecution witnesses in this regard. Clearly they were mistaken – they had a brief glance and theirs was an estimate of the speed of BT 189.

39.  PW 5 was the first police officer at the scene and he did make some inquiries of the Defendant. He made inquiries from the Defendant and was told by the Defendant that he had been driving along Argyle Street, westbound, and stopped at the junction with Tong Mi Road for the red traffic light.  The traffic light changed from red to green and he started off and drove into the junction. Then there was the collision with the motorcycle.  The Defendant himself in his testimony said that he told the police officer that he was stopped at the junction for a red light and started off when the light changed to green. The Defendant said that what he meant was that he had stopped in the 4^th lane and waited for traffic to clear before he changed to the 3^rd lane. PW5 said he did not ask about passengers in the Defendant’s car but he did ask the Defendant if there was anyone injured and the Defendant said no, so he did not think there was anyone in the Defendant’s car.  

40.  PW6 admitted he had made careless mistakes when preparing his investigation report by including ‘Kowloon City’ when the Defendant had never mentioned ‘Kowloon City’.  He maintained that the Defendant had mentioned ‘Olympic City’ as his destination.  It does not take the matter further.  It was his testimony that when he made inquiries of the Defendant, the Defendant told him that on reaching the junction of Argyle Street westbound with Tong Mi Road, he was driving in the third lane heading to Olympian City. He saw that the traffic light was red and stopped his car – his car was the first car behind the white stop line.  He waited for a while, and when the traffic light changed to green, he started off – suddenly a black shadow showed up on his right hand side and he heard a bang and he stopped his car. He found that he had hit something and at the same time he saw someone lying on the ground – he realized there had been a traffic accident and someone had been injured – he called the police. This account that the Defendant told him that he had stopped at the junction for a red light and drove into the junction when the light was green is the same as that which the Defendant himself said he told the police officers. PW6 clarified with the Defendant which set of traffic lights he saw that he said had changed to green and the Defendant pointed out the set of traffic lights to him.  PW6 pointed out the set of traffic lights the Defendant had pointed to him as being depicted on photo 14 of Exhibit P5 – the set of traffic lights in the middle of the photo, furthest from the camera. These were the traffic lights that actually governed traffic on Argyle Street westbound.  He was asked if he had made inquiries from the Defendant as to whether he had passengers in his car – PW6 said he recollected that he did make inquiries and the Defendant told him there were no passengers.

41.  I believed what PW5 and PW6 said in relation to what the Defendant said to them at the scene – that he told them he had stopped at the white stop line for the traffic light and drove into the junction when the traffic light changed to green.  I accepted PW6’s testimony as to the traffic lights that the Defendant pointed out to him at the scene that he looked at – the signals that DW2 identified in his report as Signal B.

42.  Where the Defendant said he was going and whether inquiries were made as to whether there were passengers in the Defendant’s car in my view is immaterial.

43.  The Defendant in his testimony said he was travelling in the third lane and he could only see green light of the traffic signals that DW2 identified in his report as Signal D. He drove into the junction because he thought that the green light applied to traffic travelling on Argyle Street westbound and therefore he could proceed into the junction.  But he also said he saw the set of traffic lights that are depicted on photos 15, 16, 18 and 19 – at the centre of the photo – the set of traffic signals with two red lights – there are two sets of signals on a single pole – this set of traffic lights was described by PW11 as the secondary traffic lights to govern traffic travelling on Argyle Street westbound, what DW2 identified in his report as Signal C.  The Defendant said he saw only the red bulb on the left.  He took a quick glance at that set of traffic lights and saw the red traffic light on the left of the pole.  He thought this traffic light was to govern traffic travelling on the 4^th lane of Argyle Street westbound to turn right into Tong Mi Road northbound.  He said he saw these secondary lights about 10 metres before he crossed the white stop line.  If the traffic lights for Tong Mi Road southbound are green, then both red lights would have been on on Signal C.  Yet the Defendant said he saw only 1. He said he saw the green light of Signal D – but at the same time a red light was on – that red light governed traffic on Tong Mi Road southbound turning right into Cherry Street.  He didn’t see that.   He did not see the traffic that was stopped for the traffic lights on Argyle Street westbound which had stopped for several seconds already. At the scene he told the police officers making inquiries of him that he had stopped for the red traffic light at the junction and only drove into the junction when the traffic light changed to green. Clearly that is not what happened.  The video image captured by exhibit P2 showed BT 189 driving straight into the junction without slowing down at all.   This was an extremely busy junction – the video shows pedestrians and cyclists on the junction, albeit they are not supposed to be there. The Defendant said he was unfamiliar with roads on Kowloon – all the more reason he should have exercised more care when approaching the junction. 

44.  As it was conceded by the Defence, there was an error of judgment. But in my view, it goes beyond this. This was a busy junction. To enter such a junction without being consciously aware and taking care to be aware of the nature of the traffic light conditions and traffic is especially dangerous. There is evidence the Defendant did not lower his approach speed and appeared of oblivious of traffic conditions.  To drive in this manner at this location is dangerous judge by any objective standard.  The definition of the offence provides an objective standard.  Necessarily there may be some subjective aspect of culpability. I have borne this in mind.

45.  I did not believe the Defendant.  That I comment thus is not to misconstrue the burden of proof remaining throughout on the Prosecution to prove guilty beyond all reasonable doubt but takes account of practice matters pertaining to the credibility of witnesses and the weight to be attached to evidence.

46.  I did consider the evidence of DQ2 – I did not find his evidence very helpful.  He conducted test runs at the material junction and in his report appended still images from the video taken during the test runs. But he accepted that the traffic signals at the junction complied with safety regulations in force here. He also testified that if there was obscuring of the traffic lights, this was not continuous as there was movement of traffics.  He also said that the Defendant should have been able to see Signal C from 10 to 15 metres behind the stop line.

47.  DW3’s evidence does not assist at all. 

48.  I am satisfied beyond all reasonable doubt that the Defendant drove BT 189 dangerously within the meaning of Section 36A at the material time and place in that he drove in a way that fell far below what would be expected of a competent and careful driver and it would have been obvious to a competent and careful driver that driving in that way would be dangerous.  He is convicted as charged.