HKSAR v. BABBS WILLIAM JAMES

DCCC 979/2022

[2025] HKDC 462

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 979 OF 2022

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REASONS FOR VERDICT

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1.  On 1 December 2021 at about 8:12 pm in the evening a fatal collision occurred between a Tesla motor car driven by the defendant and a motorcycle driven by the deceased.

2.  The defendant was driving his vehicle in the direction of Stanley in the southbound section of Tai Tam Road between Tai Tam Reservoir and Stanley.  The deceased was driving a motorcycle in the opposite direction.

3.  At the time the defendant’s vehicle had been following an Alphard People Mover Vehicle.  The collision occurred as a result of the defendant initiating a takeover maneuver of that vehicle.  Shortly after the defendant moved his vehicle into the opposite lane it collided with the motorcycle driven by the deceased.  The collision proved fatal to the deceased.

4.  The Prosecution say that the defendant’s driving in the circumstances of this case amounted to dangerous driving causing death in that his standard of driving fell far below that which would be expected of a competent and careful driver and it would be obvious to such a driver that driving in that way would be dangerous.

5.  The defendant agrees that the deceased died as a result of the collision.  The defendant submits that in committing to the overtaking maneuver he made the best observations that could be made in the particular circumstances and that his decision to overtake, as well as the way that he made the maneuver was not dangerous but only careless.

THE EVIDENCE

Prosecution case

6.  The evidence in the case was largely undisputed. Amongst the area in agreement were the identification of the defendant, the identification of the deceased, the approximate time and location of the accident and the injuries sustained by the deceased.  Forensic matters related to the accident included evidence retrieved from the onboard computer of the Tesla and readouts from remote computer records from Tesla.

7.  The Prosecution evidence consisted of two factual witnesses and one expert witness.

THE LOCATION

8.  The location of the collision was on the Tai Tam Road between Stanley and the Tai Tam gap roundabout.  It is an uphill stretch of road heading northwards from Stanley and southbound downhill from the roundabout. One lane in either direction.

9.  The road has a general speed limit of 50 km/h and that was the speed limit at the point of the collision.

10.  The road has double and broken double white lines.  At the point of the collision there was a double line with the downhill southbound lane being a broken white line permitting overtaking for vehicles travelling in the defendant’s direction.

11.  The weather was dry, the road was lit by street lighting and visibility was generally good.

12.  PW1 was the driver of the vehicle in front of the defendant.

13.  That vehicle was a 7-seater Alphard.  PW1 said the traffic was light or sparse when he first saw the defendant’s vehicle in his rear view mirror. His speed was around 40-50 km/h.

14.  After rounding the corner he saw a motorcycle travelling in the opposite lane towards him.  The motorcycle was in a centre position in the road.

15.  PW1 then saw the car to his rear commence to overtake.  He saw no indicator lights.  The commencement of the overtaking occurred at the start of the broken double while lines.

16.  About 2 seconds later the collision occurred at about the rear right passenger seat of the Alphard.

PW2

17.  PW2 was also travelling behind the Alphard.  He evidenced that on an earlier stretch of road his vehicle had been overtaken by the defendant’s Tesla. He did not notice if indicator light had been used on the Tesla.  The maneuver had brought the Tesla to its location behind the Alphard.

PW3 PROSECUTION’S EXPERT

18.  PW3 tried to locate the accident and assess the point of impact.

19.  He concluded the motorcycle hit head on with the offside of the Tesla. The accident occurring near scuff marks found on the northbound lane.

20.  From data recovered from the Tesla event data recorder (EDR)  and the Tesla logs the Tesla had accelerated from 42-79 km/h for around 4.5 seconds prior to the collision.

21.  PW3 agreed in his reconstruction that it was possible that the Tesla crossed the opposite lane after the end of the continuous white line.

DEFENCE CASE

22.  The defendant elected to give evidence he was DW1 – two expert witnesses were called both traffic accident reconstruction experts.

23.  The defendant is 64 years of age and 62 at the time of the collision. He lives in Stanley and drove this road regularly.  He was driving home at the material time.  He admitted overtaking PW2’s vehicle.  He said he came up behind the Alphard, thought that the vehicle was not travelling particularly quickly and was braking often.  He decided to overtake the Alphard.  He was aware of the road markings and decided to overtake when it was permissible to do so.

24.  PW1’s Alphard came out of the bend and onto the straight part of Tai Tam Road.  The defendant decided to overtake.

25.  When he reached the broken white line in his favor he saw, signaled, accelerated and crossed into the opposite lane.  He said he observed for 1 to 1.5 seconds before he commenced to overtake.  At the time he believed the road ahead was clear.  He first saw the motorcycle as he moved to the opposite lane.  The motorcycle was only a few meters in front and it was not possible to avoid a collision.

DEFENCE EXPERTS

26.  DW2’s evidence mainly dealt with accident reconstruction and calculation of vehicle speeds and also the relative visibility of the motorcycle to the defendant’s car as positioned behind the Alphard.

27.  The defendant’s speeds at all times could be taken from the computer data.

28.  In overtaking the Sedan earlier the defendant had accelerated to 85 km/h. In overtaking the Alphard the defendant’s highest speed attained was 79 km/h.

29.  Both DW2 and PW3 had agreed as to the point of impact which was the scuff marks as shown in the photo in exhibit 1.

30.  There was a further second mark from that location which PW3 had seen as the scuff marks of the motorcycle’s tyres as it was pushed back whereas DW2 considered this to be the braking marks of the motorcycle before the collision.  This led DW2 to the conclusion that the motorcycle has travelled close to the center line of the road.

31.  I did note that PW1 had said that the motorcycle was travelling close to the centre line and logically on a narrow road such as this a vehicle would tend toward the centre line as would have both the Alphard and the Tesla.

32.  He did evidence some concern about what appears to have been faulty steering data in the EDR of the Tesla which did not appear to show that the vehicle making any right turn.

33.  DW2 had calculated the pre-braking speed of the motorcycle as between 63.4 and 82.9 km/h.

34.  The Tesla EDR had shown two collisions.  The first DW2 said was the actual collision the second being the Tesla impacting a concrete structure along the roadway.  PW3 had suggested that the second collision might have been that of the Tesla recording the part of the collision when that Tesla had gone over the motorcycle.  DW2 did opine that the defendant could not have seen the motorcycle even if he had made the observations that could have been made of the traffic condition on the opposite lane in the circumstances before he commenced overtaking the Alphard.  Once the defendant committed to the overtaking action the collision could not have been avoided.

DW3 DR ELLWOOD

35.  DW3 also specialised in collision investigation.  He was not subject to cross examination and his evidence was not challenged by the Prosecution.

36.  DW3 also considered that the collision occurred at the end of the scuff marks.  He considered collision one in the Tesla EDR data was the collision with the motorcycle and collision two might have been the Tesla passing over the motorcycle but also could have been with the concrete block on the side of the roadway.  The most probable of those options being the concrete block because of the higher change in velocity which would occur in that collision. He also agreed that the second tyre mark was probably that of the motorcycle’s rear tyre braking before the impact.

37.  He considered the EDR data was useful in determining the trend of action and useful only in giving approximate estimations of speed and direction.

38.  He also considered that due to the angle of the tyre mark before impact that the motorcycle was travelling towards the centre of the road.

39.  DW3 considered it was not necessary to place reliance on the Tesla EDR steering angle data as it would only show a trend.  The data showed a smooth and controlled turn around the bend prior to the overtaking of the Alphard.

40.  DW3 provided various simulations based on the Tesla commencing its overtaking when it reached the broken white line, which would provide the Tesla with an angled line of sight to the road ahead and the opposite lane to the next corner.  The motorcycle would not appear as the overtaking manoeuver is commenced.  Furthermore, the observation of the motorcycle’s headlight would be delayed or possibly obscured by the Alphard’s rear light.

41.  DW3 said his analysis provided a possible explanation for the collision in that the defendant could have looked ahead and to the corner not seeing the double headlight from a motor car.  He considered it was safe to proceed.  He may not have considered the possibility that a single headlight motorcycle could have been closer than the corner but just out of his line of sight or on the available evidence, the line of sight between the Tesla and the motorcycle could have been obscured until just before the Tesla started the overtaking maneuver, and once commenced by the time motorcycle single light would come into view. The defendant would have 1.6 seconds to react with a normal reaction time of 0.9 second and the two vehicles converging at over 150 km/h. Therefore, there was no time left to avoid a collision.

42.  The EDR data showed the defendant was able to apply his brake about 0.5 second before the impact.

THE LEGAL FRAMEWORK

43.  The Prosecution bring the Charge. They must prove all elements of the offence beyond reasonable doubt.  The burden to do so remains on them throughout the trial. S36 of Cap 374 requires the prosecution to prove that the defendant drove dangerously. He does so if:

(a)  The way he 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.

44.  In determining what would be expected of or obvious to a competent and careful driver regard shall be had to all the circumstances of the case including:

(a)  the nature, condition and use of the road;

(b)  the amount of traffic actually on the road or which might reasonably be expected to be on the road concerned at the material time;

(c)  the circumstances of which the accused could be expected to be aware and any circumstances shown to have been within the knowledge of the accused.

45.  The threshold for dangerous driving is said to be high.

46.  The Court must base its consideration on the defendant’s way of driving rather than the consequences of the accident.

47.  The Court should identify what driving acts of the defendant constituted dangerous driving.  Furthermore the speed of a vehicle per se may not be sufficient to establish dangerous driving see HKSAR v Lam Chi Fat [2012] HKLRD 968.  A choice which is slightly below par may not definitely constitute dangerous driving.

48.  D has a clear driving record and clear record generally. As I said he was 62 at the time of the accident that must show he has long history of being a competent and careful driver. Also his clear record tends upon questions of credibility and reliability of evidence he had given. And I must consider that.

49.  The parties’ submissions on dangerous driving.

PROSECUTION

50.  The Prosecution said the road concerned was steep, narrow and twisting with overtaking allowed only in restricted areas.  It was one lane in each direction.  The speed limit was 50 km/h.  The defendant overtook two vehicles travelling, which have been travelling at or near that speed limit.  There was no overarching need to overtake either car.

51.  In overtaking the Sedan and the Alphard the defendant must necessarily exceed the speed limit and did so.  That speed the defendant achieved was well in excess of the speed limit.

52.  The risks of overtaking without a clear unobstructed view of the road ahead was an unjustifiable risk.  In essence, the defendant did not take the trouble to ensure that the road ahead of him was clear before committing to the fatal overtaking maneuver.  The defendant could have taken a moment to pull out safely behind the car in front and satisfy himself that the road ahead was clear.

DEFENCE

53.  The defence submits that the speed of the Tesla was not the main cause of the accident.  DW2 evidenced that the speed in overtaking the Sedan was necessary in order to achieve a well-planned, safe and calculated overtake and the defendant was travelling at similar speeds when he overtook the Alphard. The acceleration was neither abrupt or reckless.

54.  Speeding itself per se does not necessarily render a defendant driving dangerous see DPP v Milton [2006] RTR 21.

55.  There was no definitive evidence to suggest that the defendant had not signaled prior to initiating overtaking.  The defendant commenced overtaking when it was legally permissible to do so.  The defendant kept a proper lookout but was unable to see the motorcycle in that the defendant moved the Tesla to as close to the centre of the road as possible without crossing the double white line to observe the opposite lane. And after becoming confident the opposite lane was clear to the corner he commenced the maneuver.

56.  Unfortunately as outlined by DW3 the defendant could have been under a false impression that the whole road was clear.  This was false because it was possible that the rear of the Alphard blocked a small angle of the defendant’s line of sight obscuring or partly interfering with the motorcycles headlight. The motorcycle travelling close to the centre of the road.  Furthermore, once the overtake was commenced the relative velocity of both vehicles meant that a collision was inevitable.

57.  The defendant accepted that the accident occurred because he was careless when he decided to overtake the Alphard but says that decision alone did not render his driving manner to fall far below that of a competent and careful driver, let alone being obviously dangerous to the defendant or such a driver.

58.  It is also said there are no indicia of typical dangerous driving such as excessive speedy driving, total disregard for road signage or loss of control or reckless driving behaviour.

RESOLUTION OF THE ISSUUE

59.  A large body of the evidence was undisputed where a dispute existed for example the exact position of the collision and what the ‘second tyre’ track represented.  The witnesses on either side could not exclude the alternative experts conclusions and allowed for them to be possibilities.

60.  Furthermore, the traffic accident reconstructions allowed for a clear reconstruction of the likelihood or possibility of what had occurred.  The speed and course of the Tesla could be plotted with a degree of accuracy and this speed and relative road positon of the motorcycle could be posited as a most reasonable position.  The Prosecution was prepared to concede that the scuff marks and tyre marks aside the precise location of the collision between the defendant’s vehicle and the motorcycle is uncertain.  The precise speed of the motorcycle is not known.  The exact view and position of the defendant’s car at the time he overtook to Alphard is not precisely known.

61.  However the evidence of DW2 who calculated that the motorcycle was possibly travelling in excess of the speed limit and towards the centre of the road (as also evidenced by PW1)  cannot be excluded and remains a possibility which must be considered.

62.  Also the defendant’s point of overtaking as evidenced by PW1 and the defendant was at a point after the commencement of the broken white line in his favour that must also be a possibility and must be considered in arriving at a conclusion.  Also at that time the defendant’s view of the entirety of the road ahead and his line of sight may have been partly occluded by the rear of the Alphard.

63.  In resolving the issue presented, that, being did the defendant’s way of driving that evening on Tai Tam Road fall far below what would be expected of a competent and careful driver, one must firstly look at the nature, condition and use of the road itself.

64.  This is a two lane road one lane in each direction.  It winds uphill from the reservoir to the roundabout.  To handle that ascend it winds through the contours creating a road that contains a number of S bends.  These are governed by double white lines.  Due to the nature of the road and its nonlinear nature, the speed is restricted to 50 km/h to allow for safe navigation.  In some straight parts of the road overtaking is permitted.  However the speed restriction is maintained. To be achieved safely any overtake must restrict itself to that limit.

65.  On looking at the road it is obvious the road is narrow, restricted and obstructions are present on both sides.  One can see this on the stretch of roadway around the point of the accident.  The downhill part of the road has a gutter on the nearside which pushes cars to the centre line.  The uphill roadway has a concrete structure that the Tesla eventually collided with.  I consider that any overtaking on this road that proposes or involves an excess of that speed limit to be a highly risky enterprise and any speed above 50 km/h is inappropriate and swiftly becomes dangerous as the speed increases.

66.  In the initial stage of the defendant’s progress down Tai Tam Road we see him overtake a Sedan on the straight stretch leading down to the S bend which the Alphard is approaching.  In order to achieve this overtake the defendant accelerated the Tesla up to around 85 km/h.  Some 70% over the existing speed limit.

67.  DW2 had described this as necessary to achieve a well-planned, safe, and calculated overtake.  Issue must be taken with this opinion. It is simply absurd to describe such a manoeuver in this way.  There is nothing well-planned or safe in accelerating a vehicle to this speed, which is above the limit, on that road which ends with a blind S bend corner.

68.  Furthermore, the minimum speed reached was only 10 km/h below which a compulsory disqualification would be imposed.

69.  Such an overtake is objectively dangerous in the circumstances of that road.  The best that can be said is that it was controlled.  The Sedan was travelling close to the speed limit. There was no necessity to conduct this unsafe overtake.  I also note as well generally this and the other manoeuver were conducted at night.

70.  Although there is street lighting vision, in such situations it is degraded. I also note the defendant is aged 62.  Both vision, especially vision in low light, and reactions are compromised with age.  Both of these factors require aging drivers to exercise restraint.

71.  When the Tesla reaches the second overtake and the fatal collision location, it is behind the Alphard the same set of problems exist.  The Alphard is travelling below the speed limit but given that limit of 50 km/h it cannot be described as a slow-moving vehicle.  Thus the overtake will involve exceeding the speed limit by a considerable margin with all the risks involved and entailed on this narrow road where vehicles tend to the centre line.

72.  In undertaking such an overtake the highway code and road traffic law would require:

(1)  that it is achievable within the operative speed limit;

(2)  that the overtaker be aware that other road users than cars such as cycles and motorcycles could be present and could occupy any part of the opposite road; and

(3)  when vision may be compromised ie by a large vehicle in front, to temporise and pull back so as to have a clear view of the entire roadway ahead.

73.  PW1 the Alphard driver was well aware of the motorcyclist who was some 20-30 metres ahead of him.  Thus the motorcycle was there to be seen by an observant driver who took sufficient care to make a full considered observation of the opposite roadway.

74.  Clearly the defendant accepts his driving fell below the standard of a competent and careful driver.  It is the position that speeding per se may not in itself be dangerous driving.  However it is the case that in the circumstances of this road it easily becomes so.  Here it is compounded by the fact that the defendant failed to delay his overtake until a clear and unobstructed vision of the entire road ahead was visible.  The motorcycle was there to be seen and failure to see it must show that a clear full view of the road ahead was not obtained before the defendant decided to accelerate his car from 42-47 km/h up to 74 km/h. A speed clearly inappropriate for that stretch of the roadway.

75.  I find that his way of driving was dangerous beyond reasonable doubt, it evidenced driving that was far below what would be expected of a competent and careful driver and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.

76.  There is no dispute as to fact that the defendant’s driving was causative of the death of the deceased.  I accordingly convict the defendant of the offence as charged.