HKSAR v. LOVEPREET SINGH

HCMA 203/2025

[2026] HKCFI 3484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 203 OF 2025

(ON APPEAL FROM KCCC NO 1633 of 2024)

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  The Appellant was convicted after trial of the offence of “dangerous driving causing grievous bodily harm”, contrary to section 36A(1) of the Road Traffic Ordinance (Cap. 374) (the “Ordinance”). The particulars of the charge are that on 26 January 2024, outside 468 Castle Peak Road, in Hong Kong (the “Location”), the Appellant caused grievous bodily harm to YU Ching-ha (“PW4”) by driving a motor vehicle, namely, a motorcycle displaying registration mark WP9806 (the “Motorcycle”), on a road dangerously.

2.  The magistrate sentenced the Appellant to 5 months’ imprisonment, and ordered that he be disqualified from driving for 2 years and that he must attend and complete a driving improvement course within the last three months prior to the end of the disqualification period at his own expense. The magistrate granted the Appellant’s bail pending appeal.

3.  The Appellant now appeals against conviction.

Prosecution Case

4.  In the Statement of Findings[1], the magistrate provided a “Summary of the parties’ case”:

“4. In essence, the prosecution’s case is that PW4 was a pedestrian crossing the road. The road had 2 lanes. PW4 was walking slowly with her walking stick and was crossing from the right to the left, namely, from the right of the 2^nd lane to the left of the 1st lane. As PW4 walked some distance into the 1^st lane, the Motorcycle collided into her, causing PW4 to sustain grievous bodily harm, including multiple fractures in her pelvis and spine, brain haemorrhage, as well as superficial abrasion and some bruising. The collision was captured on CCTV footage (Exhibit P6) …

5. The facts are undisputed by the defence. The only issue in dispute is whether D’s driving manner was dangerous. The defence’s position is that D was merely careless. The defence suggests that PW4 was jaywalking and as such put herself in danger …”

5.  The prosecution called one witness, namely PW4, to testify. The witness statements of the two police officers who attended the scene for investigation after the accident, as well as that of the CCTV Footage provider, were admitted under section 65B of the Criminal Procedure Ordinance.

6.  At the time of giving evidence, PW4 was aged 80. She testified that she was heading from her home to Caritas Medical Centre at the material time to submit a phlegm sample. As she walked to the Location, she saw that no vehicles were approaching, and she therefore crossed the road. However, when she was about two steps away from the pavement on the other side, the Appellant’s motorcycle drove towards her from her left and collided with her. She identified herself as the person hit by the Motorcycle at 12:38:12 of the CCTV Footage.

7.  Under cross-examination:

(i) PW4 agreed that there were problems with her eye(s). Her glaucoma had been operated upon but her vision was still unclear.

(ii) It was put to PW4 that she was jaywalking, but PW4 disagreed, explaining that the nearest crossing with traffic lights was about two blocks away and that many people crossed the road at the Location.

(iii) It was also put to PW4, as shown on the CCTV footage, that she had not checked the traffic. PW4 maintained that she had checked and had seen that no vehicles were approaching before she crossed the road. She disagreed that she had only looked down at the road.

Defence Case

8.  Mr William Allan, Counsel for the Appellant in the court below, made half time submissions, pointing out the similarities of the present case to that of HKSAR v Ali Zain[2] (“the DCCC case”).

9.  The magistrate ruled there was a case to answer. The Appellant elected not to give evidence and called no witnesses.

The Magistrate’s Findings

10.  In coming to convict the Appellant, the magistrate said[3]:

“30. In other words, PW4 had been crossing the road for about 8 seconds before the collision happened. She had also been walking within the area of the 1^st lane for about 3 seconds before the collision happened. All along, she was walking in the same direction with a slow and steady pace.

…

35. In relation to various points made by the defence as to PW4’s evidence, this court observes as follows: -

a. Whether PW4 had problems with her eyesight and whether she checked the traffic is immaterial in the present case. PW4 had been steadily walking in the same direction for 8 seconds prior to the collision. This is clearly not a case where the victim, being a pedestrian, suddenly stepped onto the road or had suddenly changed direction, so that the driver could not reasonably be expected to see her in time. This is markedly different from the DCCC case, where the deceased victim “suddenly took a step backward” before being hit by a motorcycle. In any event, the DCCC case is fact-sensitive and is not a binding authority.

b. ….

c. Whether PW4 was jaywalking is also immaterial. In this regard the present set of facts is again clearly distinguishable from the DCCC case. The road, though not a pedestrian crossing, does not have any traffic lights. As such PW4 was not in violation of any traffic lights. This is different from the DCCC case, where the motorcyclist was proceeding under a green vehicular light and the victim was crossing the road against a red pedestrian light. PW4 also stated clearly that there were no crossings until 2 blocks away from the Location, which is not challenged by the defence. Therefore, it appears that was PW4 also not in violation of crossing the road within 15 metres of crossings, footbridges and subways.

d. Nonetheless, even if PW4 was indeed jaywalking and not paying attention to the road, it does not mean that D did not have to pay attention to her. The issue does not merely turn on whether PW4 had jaywalked or had paid attention. Rather, this court should consider the entirety of the circumstances to determine what the reaction expected of a competent and careful driver would be to PW4 walking onto the road. It was obvious that PW4 was walking in a continuous manner towards the other side of the road, in other words, the pavement to the left of the 1^st lane. Given PW4’s steady path and pace, it is clear that a competent and careful driver should have been able to see her well before reaching the Location, and should accordingly have managed to avoid colliding with her.

36. …

37. There is no direct evidence as to whether D’s view of PW4 and the road could have been obstructed prior to him reaching the Location, but given the lack of vehicles travelling down the road, as well as the Motorcycle’s speed and path, the irresistible inference is that D must have had an unobstructed view prior to reaching the Location. In any event, D should have ensured that he had a clear view before proceeding.

38. I note the defence’s submission about the lack of any evidence suggesting that D was speeding. Even if D was not driving above the speed limit, this per se does not mean that he was not driving dangerously. D should proceed at a safe speed, meaning a speed that allows sufficient time for him to observe and react to the surrounding traffic conditions.

39. If D had paid adequate attention to the traffic condition at the Location, he would certainly have been able to see the pedestrians on the road, including PW4.

40. Considering all the circumstances, including those specified under section 36A(13) of the Ordinance, I find that the fact that D failed to avoid PW4 is not just a momentary lapse of attention, but is, rather, a prolonged and sustained failure to take heed of her before driving to the Location, which in turn caused the collision.

41. … I am sure that D drove in a dangerous manner.”

Grounds of Appeal and the Submissions

11.  Mr James McGowan appeared for the Appellant at the appeal hearing and he adopted the Perfected Grounds of Appeal and the Appellant’s Written Submissions prepared by Mr Allan. The grounds of appeal and the Appellant’s submissions were summarised as follows.

Ground 1

12.  The magistrate erred in law when she adjudged that whether PW4 was jaywalking was "immaterial", when the defence case was clearly that she was jaywalking. Further, the magistrate failed to consider properly or at all that there was no evidence of the Appellant speeding, that PW4 did not even look as to on-coming traffic when crossing the road according to the CCTV footage or have regard to her own safety when jaywalking, that PW4 was an elderly lady with poor eyesight and the whole accident happened very quickly within seconds. The magistrate failed to consider properly or at all that PW4 was jaywalking crossing the road of her own freewill without paying any proper attention to on-coming traffic.

Ground 2

13.  The Appellant relied upon the DCCC case as persuasive authority, in which reference was made to HKSAR v Yeung Yiu Kin[4], and Yeung VP said[5]:

“As a reasonable driver, the appellant should of course try to pay attention to the circumstances on the road, but this does not mean that he should be prepared for pedestrians crossing the road at their freewill at any time. A reasonable driver is also entitled to assume that pedestrians will not cross the road recklessly and dangerously for their own safety.”

14.  It was contended that the magistrate erred in law in failing to have proper regard to the principles articulated in the above authorities, which were said to be directly applicable to the present case. Further, it was contended that the Appellant, who is of clear record, had not been speeding and the whole incident happened in a few seconds. Therefore, the Appellant’s way of driving was not dangerous but careless.

Ground 3

15.  The magistrate erred in law and in fact in concluding that the Appellant's failure to avoid PW4 was not a momentary lapse of attention but was rather, a prolonged and sustained failure to take heed of PW4 when in fact the whole accident occurred in a matter of seconds.

Ground 4

16.  The said conviction is in all the circumstances unsafe and unsatisfactory.

The Respondent’s submissions

17.  The Respondent dealt with Grounds 1 to 4 collectively.

18.  The Respondent submitted that the place where PW4 crossed the road, although not a pedestrian crossing, did not have any traffic lights. Consequently, the magistrate was correct in finding that PW4 was not in violation of any traffic light or other traffic regulations.

19.  The Respondent further submitted that the factual matrix of the present case was clearly different from the DCCC case. In contrast to the DCCC case, PW4 did not make any sudden movement that the Appellant could not reasonably have been expected to see. The CCTV footage showed that PW4 was walking slowly and steadily and had been on the road for 8 seconds before the collision.

20.  At the material time, there were indeed other pedestrians who were also crossing the road at the Location. As observed from the CCTV Footage, the road in question was situated in a busy urban district, and the incident occurred during the particularly busy noon hour with significant pedestrian traffic. Consequently, a driver would reasonably have been expected to anticipate the possible presence of pedestrians crossing the road at the Location. Whether from the perspective of “actual traffic flow” or “reasonable foreseeability”, there was simply no justification for the Appellant to have completely ignored the pedestrians ahead.

21.  PW4 was visible and walking slowly for a full eight seconds before the collision. This was not a case of a pedestrian emerging suddenly or unexpectedly. The Appellant had more than sufficient time to be aware of her presence and to take appropriate action. Given the circumstances, the magistrate was amply justified in concluding that the Appellant's failure was not a mere momentary error in judgment, but a sustained period of inattention that directly led to the incident.

Consideration

22.  In HKSAR v Hui Lai Ki[6], the Court of Final Appeal held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court. On such rehearing, if the judge comes to a different view on the evidence before the Court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate.

23.  In the present case, the footage is the most important piece of the evidence. I have viewed the footage in court and in chambers. The magistrate gave a brief description of the images captured in the footage with which I agree. The magistrate said[7]:

“29. The undisputed CCTV footage (Exhibit P6) shows that: -

a. There are 2 lanes on the road. Both are straight, consistent with what is seen on the photos (Exhibit P1). To the left of the road is a pavement.

b. At 12:37:41-42, PW4 appears on screen. She is walking from the right hand side of the screen onto the 2^nd lane with a walking stick.

c. PW4 then continues to walk towards the direction of the pavement on the left.

d. At 12:37:47, PW4 finishes crossing the 2^nd lane and steps onto the 1^st lane.

e. Subsequently, PW4 continues to walk towards the pavement.

f. At 12:37:49, The Motorcycle appears on screen.

g. At 12:37:50, The Motorcycle collides into PW4 in the 1^st lane.

h. PW4 is then seen lying on the ground. The Motorcycle and D also fall onto the ground.”

24.  Before turning to the grounds of appeal, it is appropriate to make some of my own observations regarding the CCTV footage. It is noted that:

(i) the weather was fine, visibility was clear and the road surface was dry;

(ii) from 12:35:00 to the time of PW4 being knocked down by the Appellant’s motorcycle, there were pedestrians crossing the road in the same manner as PW4;

(iii) PW4 is not of small build;

(iv) PW4 did not lower her back when she crossed the road;

(v) PW4 was wearing a red jacket;

(vi) at 12:37:47 a man appeared and he walked a little behind PW4; he crossed the 2^nd lane of the road almost the same time as PW4;

(vii) at 12:37:48, the man, after crossing the 2^nd lane, stopped walking and simply stood in the middle of the road while PW4 continued crossing the 1^st lane of the road, and 2 seconds later, at 12:37:50, the Appellant’s motorcycle collided with PW4.

25.  I now deal with grounds 1 and 2 as the cases cited in support of ground 2 relate to jaywalking.

26.  The Appellant complained that the magistrate was wrong when she adjudged in paragraph 35(c) of the Statement of Findings that “whether PW4 was jaywalking is also immaterial”. The Appellant said PW4 was clearly jaywalking.

27.  First, it is clear that the magistrate did not merely conclude the issue of jaywalking was immaterial; rather, she proceeded to consider, in paragraph 35, “even if PW4 was indeed jaywalking and not paying attention to the road, it does not mean that D did not have to pay attention to her”[8].

28.  She then continued to say[9]:

“35(d). …The issue does not merely turn on whether PW4 had jaywalked or had paid attention. Rather, this court should consider the entirety of the circumstances to determine what the reaction expected of a competent and careful driver would be to PW4 walking on the road…”

29.  In my view, the magistrate was correct in emphasising that the determination of dangerous driving must be undertaken by reference to the totality of the circumstances. Whether or not the Appellant was driving dangerously at the material time was not merely to be determined by the manner of how PW4 crossed the road. Even if PW4 was jaywalking, this does not absolve the Appellant from his duty, as a driver, to pay attention to pedestrians and to the traffic conditions. Section 36A(13) of the Ordinance provides:

“… 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—

(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.”

(Emphasis added)

30.  The footage shows that PW4 was present on the road for eight seconds and was walking at a steady pace. This is not a situation involving sudden or unpredictable movement. A competent and careful driver should have observed her presence in sufficient time to react accordingly.

31.  The contention advanced in ground 1 fails to engage with the main issue in the present case.

32.  Reliance was placed on the DCCC case and on HKSAR v Yeung Yiu Kin; however, the passages referred to by the Appellant should be considered in their proper context. They do not say that drivers are entitled to disregard the possibility of pedestrians crossing outside designated crossings. In this regard, it is of note that the Court of Appeal in HKSAR v Cheung Kwok Leung[10], as referred to by the Respondent, said[11]:

“It is plainly irrelevant whether the deceased crossed the road at the pedestrian crossing or whether he was in breach of traffic light signals when doing so. The thrust of this case is whether the applicant’s manner and way of driving fell far below what would be expected of a competent and careful driver... a cautious and careful driver should pay particular attention to pedestrians and traffic condition when reaching a traffic lights controlled pedestrian crossing. He should also be aware of the possibility that the pedestrians might cross the road without complying with regulations.”

(Emphasis added)

33.  The issue of the present case at the trial was whether the Appellant’s manner of driving fell far below the standard expected of a competent and careful driver. As such, the magistrate was right in finding that the issue of jaywalking was not a determinative factor and was correct in focusing the evidence in its entirety.

34.  It is also emphasised in Ground 2 that the Appellant (a) was of clear record and (b) had not been speeding. In fact, the magistrate mentioned it thrice in the Statement of Findings that the Appellant had a clear record[12], and therefore she gave herself the required legal directions relating to the Appellant’s propensity to commit crime[13]. The fact that the Appellant was not speeding was repeatedly made known to the magistrate[14]. In the words, the magistrate was well aware of items (a) and (b) in her consideration and assessment of the evidence in this case.

35.  Having considered Grounds 1 and 2, I am satisfied that they are devoid of merit. Grounds 1 and 2 fail.

36.  Ground 3 asserts that the magistrate erred in finding that the Appellant failed to avoid PW4 was not just a momentary lapse of attention, but was, rather, a prolonged and sustained failure to take heed of PW4.

37.  It is noted that at the time when PW4 first appeared in the footage, there were no vehicles travelling on the road. There was a man standing almost beside her, and they crossed the 2^nd lane more or less the same time. In other words, there had been 2 human figures appearing on the road. Their presence should have been so visible and obvious to any drivers travelling on the road. PW4 did not appear suddenly. On the contrary, she was walking slowly for eight seconds before the collision. PW4 is not of small build. She was wearing a red jacket which was very eye-catching. In light of the circumstances, there was nothing on the road which would have obstructed the view of the Appellant when he was travelling on the road. He should have had sufficient time to be aware of the presence of PW4. As shown in the footage, the Appellant did not slow down or swerve to either right or left of the road but simply went straight to collide with PW4.

38.  Having regard to all the circumstances of the case including the duration which PW4 was visible, coupled with the Appellant’s failure to slow down or take evasive action, I am satisfied that the conclusion that the lapse was not momentary was justified.

39.  Ground 3 fails.

40.  Ground 4 is, in substance, a generalised challenge to the safety of the conviction. It must fail in view of the above analysis.

41.  By way of re-hearing, I am satisfied that the prosecution has proved all the elements of the charge beyond reasonable doubt that the Appellant committed the offence of dangerous driving causing grievous bodily harm.

42.  The appeal is devoid of merit. I therefore dismiss the appeal and affirm the conviction.