HKSAR v. MOHAMMAD USMAN

DCCC 632/2018

[2019] HKDC 668

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 632 OF 2018

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REASONS FOR VERDICT

1.  The defendant pleads not guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance[1] and one charge of failing to stop after accident whereby personal injury was caused to a person, contrary to section 56(1)(a) and (5) of the Road Traffic Ordinance.

Introduction

2.  At around 9:20 a.m. on 29 December 2017 the defendant was riding his motorcycle SN 4416 southbound on Fat Kwong Street in Ho Man Tin when he was involved in a collision with Madam Szeto Yuk Yin who was using the light controlled pedestrian crossing on Fat Kwong Street.  Madam Szeto sustained serious injuries and was admitted to Queen Elizabeth Hospital where she underwent multiple operations.

3.  The prosecution case in summary is that the defendant failed to see Madam Szeto on the crossing in time to stop and avoid a collision and failed to stop after the collision.

4.  The defence case in summary is that the traffic lights were green in the defendant’s favour; Madam Szeto rushed out onto the road without looking; the defendant tried to avoid Madam Szeto but was unable to do so and that the defendant stopped shortly after the collision after he regained control of his motorcycle. 

Evidence

5.  The prosecution called two witnesses Madam Szeto (PW1) and PC 6594 (PW2) who attended the scene of the accident and later interviewed the defendant. 

6.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[2], including that the defendant was riding his motorcycle SN 4416 when he was involved in a collision with Madam Szeto Yuk Yin;  the medical reports of Madam Szeto; the defendant made a 999 call; photographs and a plan.  I will refer to the admitted facts as I review the evidence.

7.  The statement of Wan Kit Man who received the 999 call was read into evidence pursuant to section 65B of the Criminal Procedure Ordinance[3].

8.  The defendant elected to give evidence.  No witnesses were called on his behalf. 

9.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict.  On the other hand, if the court thinks 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 entitled to be acquitted.

10.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

Issues

11.  The main issues are whether the manner of the defendant’s driving was dangerous and whether the defendant stopped as required by section 56 of the Road Traffic Ordinance. 

Prosecution evidence

12.  Admitted in evidence is that the defendant is the registered owner of motorcycle SN 4416 and that at around 9:20 a.m. on 29 December 2017 he was riding the motorcycle southbound on Fat Kwong Street in Ho Man Tin when he was involved in a collision with Madam Szeto Yuk Yin who was using the light controlled pedestrian crossing on Fat Kwong Street[4].

Location of the collision

13.  Photographs (exhibits P5 and P12) showing various views of the location of the collision have been admitted in evidence[5].

14.  In cross-examination PC 6594 (PW2) agreed that the speed limit was 50 km/h; the road just before the pedestrian crossing is going uphill and there is a slight bend to the right.

Madam Szeto

15.  In summary Madam Szeto, aged 69, testified that before crossing the road she looked to her right all the way to a pedestrian footbridge.  The pedestrian footbridge is shown in photographs 3, 5, 7 and 9, exhibit P5 and photographs 1, 3, 4, 6, 7, 9 & 10, exhibit P12[6].

16.  Madam Szeto said there was no oncoming traffic therefore she started to cross the road.  Madam Szeto walked in a normal pace and was not using a mobile phone.  Later in examination-in-chief Madam Szeto said she did not take notice of the lights and only looked to the right. 

17.  In cross-examination when asked if she stopped at the pavement before crossing the road Madam Szeto replied that she was looking to the right while she was walking because she could see the traffic when she looked to the right.  Asked again whether she stopped at the pavement before crossing the road Madam Szeto replied no and explained that that there was no oncoming traffic therefore she walked at a normal pace. 

18.  Madam Szeto says she did not know there were twenty odd pedestrians waiting to cross the road and disagreed that some pedestrians told her to come back because it was dangerous.  Madam Szeto said this was made up and that she would not have stepped onto the road if there were vehicles travelling past.   Madam Szeto disagreed that she crossed the road in quick pace.

19.  Just before Madam Szeto reached the safety island in the middle of the road she felt that she was floating on air and did not know anything after that.  At the end of examination-in-chief Madam Szeto said that she did not see what caused her to float in the air and that when she was three steps from the safety island her mind went blank.  In answer to the court when asked if she felt being hit Madam Szeto said she was not clear about that[7].

20.  Photographs 1-5, exhibit P5 show the location where the emergency services helped Madam Szeto.

21.  The next thing Madam Szeto knew was that she was surrounded by people who helped her up.  Madam Szeto said she had no feeling in the lower part of her body.  Somebody told Madam Szeto she had been knocked down by a motorcycle.  In cross-examination Madam Szeto said she never saw a motorcycle. 

Injuries

22.  Admitted in evidence are the medical reports of Madam Szeto[8].  In summary Madam Szeto was admitted to Queen Elizabeth Hospital having sustained multiple injuries including fracture of the left superior pubic ramus; comminuted fracture of the right tibia and fibula; fractured pelvis and a 15 cm wound over the right anterior shin exposing the bone.  Madam Szeto underwent multiple operations over the next seven days and remained in hospital until 21 September 2018. 

Condition of the motorcycle

23.  Admitted in evidence is that on the road close to the location of the collision the police found a piece of a motorcycle foot pedal which on examination was found to be from SN 4416[9]. The plan of the location (exhibit P6) shows that the foot pedal was found 12.5 meters from the collision.  Photograph 9, exhibit P5 shows the location where the foot pedal was found.  Photographs 1-14, exhibit P8 show the gear lever[10] of the motorcycle was twisted and the position where the foot pedal broke off. 

24.  Admitted in evidence is that the motorcycle did not have any mechanical defects[11].

999 call

25.  Admitted in evidence is that following the collision the defendant  made a 999 call[12].  Read into evidence is the statement of Ms Wan Kit Man, who received the 999 call[13]. 

26.  In summary the defendant said that he hit an old lady who rushed out onto the road and asked what he should do as he had an examination to attend.  Ms Wan asked whether the lady was still at the scene.  The defendant replied he did not know but thought that she had left.  Ms Wan therefore told the defendant to report to the nearest police station after attending his exam. 

Record of interview

27.  In the afternoon PC 6594 interviewed the defendant.  PC 6594 testified that he did not assault, threaten or make any promise to the defendant to cooperate and that the record of interview was an accurate record[14].

28.  In summary the defendant told the police that:

Answer 2 – he was driving along the second lane of Fat Kwong Street on his way to the Open University; he passed the junction with Sheung Foo Street when the traffic light was green in his favour; he was travelling at a speed of 45km/h and was leaning into the right curve of the road; when he was about four private car lengths from the pedestrian crossing an old lady rushed out from the pavement; he had to decided what to do within milliseconds; as he was leaning to the right he decided not to brake and slow down so as to avoid a head-on collision and instead swerved around her but unfortunately his right foot pedal still came into contact with the right leg of the old lady[15];

After the collision the motorcycle was still in motion and there was traffic behind him therefore he slowed down and came to a stop at the next traffic light where he looked back but his view was blocked by vehicles and people. At this point having been unable to stop at the collision scene due to traffic circumstances he decided to go back to the collision scene and turned right into Chung Hau Street with the intention of making a U-turn to go to the accident scene.

Having turned right he discovered his gear shifter had been bent and he had lost his left foot rest; he could not get his motorcycle in gear and was unable to ride the motorcycle; he therefore decided to find the nearest parking spot and rolled his motorcycle downhill to the parking spot[16];

After parking the motorcycle, he called 999 and sought advice about what to do as he had an examination to attend; he was told to go to his examination first and then immediately report the accident to the nearest police station; during the examination a police officer called Lau had called him and after the examination he called the police officer and went to Traffic Kowloon West;

Answer 3 – with the assistance of PC 6594 a sketch was drawn showing the position where he first saw the old lady walking into the road; where he was when he kept right and the position of the collision;

Answer 4 – he has been driving a motorcycle for 2 years;

Answer 5 – since September 2017 he travelled this route every Monday to Saturday at least once a day;

Answer 6 – when the accident happened his speed was 30-35 km/h;

Answer 7 – he was not sure which gear he was in when the collision occurred;

Answer 8 – when he saw the old lady he was travelling at 50 km/h and turning; he did not have enough braking power to stop safely without hitting the old lady[17]; instead he decided to slow down and increase his turning angle and lean to go around the old lady; and he had about 15 meters to stop from 50km/h if he wanted to stop safely which was highly unlikely;

Answer 10 – his left leg was scratched, bruised and swollen;

Answer 11 – he did not need to consult a doctor; and

Answer 12 – he parked the motorcycle on Good Shepherd Street;

29.  In reaching my verdict I have considered the content of the record of interview in accordance with the decision in R v Sharp[18].  

Defence evidence

30.  In summary the defendant, aged 22, a second year student at the Open University testified that he obtained a motorcycle learner’s driving licence in 2015; passed his driving test and obtained a probationary driving licence in mid-2016 and a full driving licence in mid-2017. 

31.  The defendant purchased SN 4416 in April 2017.  Prior to that he had a smaller motorcycle.  The defendant rides his motorcycle daily and takes the route to the Open University every morning at least six days a week and sometimes more than once a day. 

29 December 2017

32.  On the 29 December 2017 the defendant left his home in Kwai Chung at about 8:45 a.m. to go to the Open University.  The defendant was going to attend an examination which started at 9:30 a.m.    

33.  In cross-examination the defendant said there was a grace period of 30 minutes after which the door of the examination hall was closed.  The defendant disagreed that when he reached near the crossing he was running pretty late for the examination.

34.  The defendant adopted as part of his evidence the account he gave to the police in the record of interview about how the accident happened. 

35.  In evidence the defendant testified that before reaching the pedestrian crossing on Fat Kwong Street the traffic lights were green in his favour and that he was travelling at about 45 km/h in the second lane (the right lane) so he could make a right turn to go to the Open University. 

36.  In the record of interview (answer 2) the defendant said that when he was about the distance of four private cars away from the pedestrian crossing an old lady rushed out from the left.  In evidence the defendant said the distance was 12-15 meters.  The defendant said that there was at least twenty persons waiting to cross the road and that he heard the sound “Oy” which may have been a warning to the lady.

37.  As soon as the defendant saw the lady he applied both the foot brake and the hand brake so he could swerve to the right in order to increase his braking distance.  The defendant felt that if he did not swerve he would have had a head-on collision with the lady.  By swerving in this way the defendant intended to avoid colliding with the lady but if he did collide with the lady then the speed would be as low as possible.  In cross-examination the defendant said that his intention was not to pass the lady but to come to a stop.   

38.  The defendant said the lady walked into him and that he believed the right leg of the lady came into contact with the gear shifter of his motorcycle.  The defendant believed this was when the gear shifter was bent because on later examination of the motorcycle he saw traces of blood on the gear lever. 

39.  The defendant believed his speed at the time of the collision was about 10 km/h. 

40.  The defendant lost balance and was thrown off to his right.  The defendant believed that when he straightened up his motorcycle he must have pressed too hard on the pedal which broke.  In cross-examination the defendant agreed that his motorcycle did not fall over on its side as a result of the impact with the lady.

41.  The defendant believed that he came to a stop shortly after the collision site after he regained control of his motorcycle.  The defendant said this was slightly beyond the crossing where the road becomes three lanes. In answer to the court the defendant said that he stopped about 10 meters from the crossing[19].  

42.  The defendant calmed himself down and looked back to see what had happened.  The defendant saw a crowd of people who he assumed were surrounding the lady.  The defendant decided it was better to turn right at the next junction and then make a U-turn and go back to the opposite side of Fat Kwong Street so he could be closer to the collision site. 

43.  When the defendant turned right at the junction the motorcycle stuck in gear.  The defendant stopped the motorcycle on the side of the road under a tree.  The motorcycle would not move anymore therefore the defendant decided the next best thing to do was call 999.  After calling 999 the defendant rolled the motorcycle downhill to where he usually parked, which was very close by.  The defendant then attended his examination and reported to the police after finishing the examination. 

Discussion

44.  I have carefully considered all the evidence and the written and oral submissions of Mr Laskey and Mr Ma. 

45.  In evidence the defendant said he had no criminal convictions.  I direct myself as to good character both as to credibility and propensity in accordance with the decision in HKSAR v Tang Siu Man[20].

Charge 1 - Causing grievous bodily harm by dangerous driving

Grievous bodily harm

46.  I am satisfied so I am sure the injuries sustained by Madam Szeto amount to grievous bodily harm.

Dangerous Driving

47.  A person is to be regarded as driving dangerously if the way he drives falls far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous[21].

48.  In determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including-

(a) the nature, condition and use of the road concerned at the material time;

(b) 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

(c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused[22].

49.  The test is objective, the elements of the offence not requiring an intention to drive dangerously[23].

50.  In reaching my verdict I keep firmly in mind, however tragic the outcome, the high threshold that the Ordinance establishes for the commission of the offence[24].

Colour of the traffic lights.

51.  The defendant told the court and the police in the record of interview that the traffic lights were green in his favour[25].

52.  In paragraph 3 of the prosecution opening it is stated that “Upon reaching the junction, D proceeded through as the traffic light governing his path was green”.  Mr Laskey explained that paragraph 3 was written based on what the defendant told the police and because there was no CCTV, no independent witness, no car camera evidence and Madam Szeto said she did not notice the colour of the lights at the time[26], the prosecution did not challenge that the light was green in favour of the defendant. 

53.  In considering whether the defendant’s driving was dangerous I proceed on the basis that the traffic lights were green in his favour.  This is only one factor to consider.  All the circumstances of the driving must be considered.

Defendant’s evidence of the collision

54.  Mr Laskey variously submits that the defendant’s evidence was unreliable and/or untruthful; the account the defendant gave in the 999 call was untrue; and that the defendant has given varying descriptions of what happened[27].

55.  Whilst there are some inconsistencies between what the defendant told the police and his evidence in court, for example the speed he was travelling at the time of the collision and whether his intention was to stop or pass Madam Szeto, I am nevertheless satisfied in essence the defendant gave the same account that on seeing Madam Szeto rush out onto the road he swerved to the right but was still unable to avoid a collision. 

Did Madam Szeto look before she crossed the road or did she rush out onto the road?

56.  The prosecution case in summary is that the defendant failed to see Madam Szeto on the crossing in time to stop and avoid a collision. 

57.  The shortest stopping distances are set out in the Road Users’ Code.  I note in the United Kingdom Highway Code, which adopts the same stopping distances, it is stated that motorcycles need a greater distance to stop. 

58.  Mr Laskey submits that Madam Szeto should have been visible to the defendant for a significant distance, in particular as Madam Szeto crossed the road from the left[28].

59.  Notwithstanding the road just before the crossing was uphill with a slight bend to the right[29], the photographs tend to show the defendant would have had a clear view of the pedestrian crossing as he went under the footbridge and through the traffic lights.  See for example photographs 1, 3 & 4, exhibit P12.  Equally, the defendant should have been visible to Madam Szeto if she looked towards the footbridge.

60.  There is however no evidence before the court of the distance from the footbridge to the pedestrian crossing or from where the defendant would have first had a clear view of persons crossing the road, from which the court may have been able to assess whether the defendant could have safely stopped and avoided a collision.  As Mr Ma pertinently points out there is no accident reconstruction report[30].

Speed

61.  The defendant’s evidence that at the time of the collision he believed his speed was about 10 km/h is inconsistent with what he told the police in the record of interview.  In answer 6 the defendant told the police that at the time of the collision his speed was 30-35 km/h.

62.  Mr Laskey submits that the damage to the motorcycle from the impact leads to the irresistible inference that the defendant’s speed on impact greatly exceeded 10 km/h which inference is supported by the severe injuries sustained by Madam Szeto[31].

63.  Although unlikely the damage to the motorcycle and the injuries to Madam Szeto were caused when the defendant was travelling at a speed of 10km/h, there is no evidence before the court as to the likely speed the defendant would have had to be travelling to result in the damage to the motorcycle and the injuries to Madam Szeto.

64.  Mr Laskey further submits that because the defendant was focused on getting to his exam room by 9:30 a.m., the defendant was driving too fast and failed to see Madam Szeto in time to avoid the collision[32].

65.  The only evidence of speed is the defendant’s own estimates of his speed as he approached the pedestrian crossing and at the time of the collision. 

66.  There is no evidence of how long it would take to travel from the footbridge to the pedestrian crossing within the speed limit of 50 km/h.  This again may have assisted the court to assess the time in which the defendant, if he was looking carefully, would have been able to see Madam Szeto and safely stop and avoid a collision.  Equally this may have assisted the court to assess the time Madam Szeto would have had to see the motorcycle if she was looking towards the footbridge as she crossed the road.    

67.  Without any other evidence from which the court can assess the speed the defendant was travelling, I am unable to say what speed the defendant was travelling, let alone whether he was travelling in excess of the speed limit or too fast as he approached the pedestrian crossing.

68.  Whilst one possible explanation for the collision is that the defendant was travelling very fast to attend his examination and did not pay careful attention to the road ahead and therefore did not see Madam Szeto crossing the road until it was too late to avoid a collision, an equally plausible explanation is that Madam Szeto, who did not take notice of the pedestrian lights, simply rushed onto the road without looking carefully whether there was any oncoming traffic.   

69.  Without any other evidence as to the cause of the accident I am not prepared to reject the defendant’s account given in the 999 call; in the record of interview and in evidence that Madam Szeto rushed out onto the road, may be true.  

Was swerving to the right to avoid a collision dangerous?

70.  Mr Laskey submits that on seeing Madam Szeto the defendant failed to take necessary and appropriate action to stop his motorcycle and that by swerving in front of Madam Szeto this was in itself dangerous[33].

71.  For the reasons already given without evidence of speed and distances the court is unable to say what speed the defendant was travelling and therefore whether the defendant had sufficient time to stop and avoid a collision. 

72.  In cross-examination when asked by Mr Laskey whether it would have been much safer to swerve around the rear of a person the defendant explained that in his situation he had to decide in a split of a second without time to check his mirrors if there was any car behind him and that he did not feel safe to make an abrupt change of direction to the left. 

73.  Similarly, the defendant told the police in the record of interview that he had to decide what to do within milliseconds and because he was leaning to the right he decided to slow and increase his turning angle and lean to go around the lady[34].

74.  Relevant in considering this explanation is the guidance given in the Road Users’ Code for motor cycles, in particular the section on “Riding Along” which states: “The best way to remain upright and in complete control of your machine is to avoid abrupt changes -- fierce braking, hard acceleration, bad gear changing, sudden changes of course -- and this means thinking ahead so that each change of condition is carried out smoothly and gradually. You cannot suddenly change direction at any but the lowest speed” [35].

75.  Taking into account that the traffic light was green in favour of the defendant and having determined that the defendant’s evidence that Madam Szeto rushed onto the road may be true, I am not satisfied that in the split second the defendant had to decide what to do that his decision to swerve right was dangerous or careless. The benefit of the doubt is given to the defendant and he is acquitted of causing grievous bodily harm by dangerous driving.

Charge 2 - Failing to stop after accident whereby personal injury was caused to a person

76.  As summarised earlier the defendant testified that after regaining control of his motorcycle he believed he came to a stop about 10 meters from the crossing where he looked back to see what had happened and decided it was better to turn right at the next junction and then make a U-turn and go back to the opposite side of Fat Kwong Street so he could be closer to the collision site[36].  

77.  I have no hesitation in rejecting the defendant’s evidence that he believed he came to a stop about 10 meters from the crossing.  At no time in his record of interview did the defendant say he stopped close to the collision site. 

78.  On the contrary the defendant told the police in the record of interview that after the collision his motorcycle was still in motion and because there was traffic behind him he slowed down and came to a stop at the next traffic light and that because he was not able to stop at the collision scene due to traffic circumstances he decided to turn right into Chung Hau Street with the intention of making a U-turn to go back to the accident scene[37]. 

79.  I am satisfied no weight is to be attached to the statement made in the record of interview that the defendant was unable to stop at the collision scene due to traffic circumstances.  Madam Szeto having been knocked down in the right lane there would be no further traffic travelling in that lane while she laid on the ground and therefore no traffic behind the defendant. 

80.  I remind myself that the rejection of the defence evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

81.  The defendant told both the police and the court that after he turned right at the junction of Chung Hau Street he discovered the gear shifter had been bent; he had lost his foot rest; he could not get his motorcycle in gear and was unable to ride the motorcycle[38].

82.  Mr Ma submits that the duty to stop arises only if the driver himself is safe after the accident and that if the circumstances are dangerous the driver should leave the scene first.   Mr Ma submits there were reasonable grounds for the defendant not to return to the scene as riding the non-roadworthy bike would be dangerous to him and other road users[39].

83.  I have no hesitation in rejecting this submission.  The defendant was only aware that he could not ride his motorcycle after turning right at Chung Hau Street.  In cross-examination PC 6594 agreed with Mr Ma that the junction with Chung Hau Street was approximately 50 meters from the crossing.  Furthermore, the defendant agreed in cross-examination that on no occasion did he walk back to the scene of the accident and that nothing physically prevented him from walking back to the scene of the accident.

84.  I am satisfied full weight is to be attached to the statement made in the record of interview that after the collision the defendant slowed down and stopped at the next traffic light where he decided to turn right into Chung Hau Street[40].  I am satisfied by slowing down and stopping at the traffic light about 50 meters from the collision scene the defendant failed to stop.  Stopping at traffic lights is not stopping after the accident as required by section 56(1) of the Road Traffic Ordinance.   

85.  I am satisfied so I am sure the prosecution has proved beyond reasonable doubt that an accident occurred on the road due to the presence of the defendant’s motorcycle resulting in personal injury to Madam Szeto; the defendant was aware that he had knocked down Madam Szeto and that the defendant failed to stop after the accident[41].

86.  In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Ma.  Nothing said by Mr Ma causes me to doubt the findings I have made.

87.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of charge 2 beyond reasonable doubt.  The defendant is convicted of failing to stop after accident whereby personal injury was caused to a person.