HKSAR v. Yu Jie

DCCC 579/2020

[2022] HKDC 96

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 579 OF 2020

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REASONS FOR VERDICT

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1.The defendant appears before the court on one charge of causing grievous bodily harm to Huber Christian and Li Shuangying, by dangerous driving, contrary to section 36A of the Road Traffic Ordinance[1].

2.Before plea was taken Mr Khattak informed the court that the defendant would plead guilty to careless driving.  When entering her plea, the defendant pleaded not guilty to the charge and confirmed her plea to careless driving.  This plea was not accepted by the prosecution. 

Introduction

3.At about 3:25 p.m. on 9 January 2020 private car PU 2102 driven by the defendant and motorcycle LL 8276 driven by Mr Huber with his wife, Madam Li, sitting behind him, collided on Nam Fung Road.   At the point of collision Nam Fung Road is a two-way road with three lanes, two uphill and one downhill with a continuous double white line separating the uphill and downhill lanes.  The speed limit of the road is 50 km/h.

Prosecution case

4.The prosecution case in summary is that Mr Huber was riding his motorcycle uphill in the second left lane when suddenly he saw in the middle of the road a vehicle (PU 2102)  from the opposite direction making a U-turn and blocking his lane.  Mr Huber being unable to brake in time collided with the vehicle.  Both Mr Huber and Madam Li sustained injuries amounting to grievous bodily harm.

Defence case

5.  The defence case in summary is that the defendant made the U-turn from a layby/bus stop area having first checked the traffic on both sides of the road at which time she saw the motorcycle about 120 meters away travelling at a speed of about 50 km/h in the slow lane (first left lane)  and that while making the U-turn the motorcycle accelerated to try pass the front of the defendant’s car but was unable to do so and crashed into the rear passenger door.   

Evidence

6.The prosecution called four witnesses on the list of prosecution witnesses attached to the prosecution opening:  Mr Huber (PW1); Madam Li (PW2); PCA 7222 (PW3)  who was the first police officer to attend the scene of the accident and PC 14875 (PW4)  the investigating officer who also attended the scene of the accident. The prosecution tendered for cross-examination SPC 58095 (PW5)  who attended the scene of the accident together with PCA 7222. 

7.In addition, the prosecution called two ambulance men who attended the scene of the accident SA 13986 Leung Ho Yin (PW6)  and SA 16347 Cheng Tin Lok (PW7).  The prosecution also called the government chemist Dr Tao Chi Hang (PW8)  to give expert evidence on traffic accident reconstruction in rebuttal of the reports of the defence expert Ir Lo. 

8.Facts were admitted pursuant to section 65C of the Criminal Procedure Ordinance[2], including that there was an accident between PU 2102 driven by the defendant and motorcycle LL 8276 driven by Mr Huber; damage was caused to both vehicles; photographs; sketch and medical reports of Mr Huber and Madam Li.  I will refer to the admitted facts as I review the evidence.

9.The defendant elected to give evidence and called five witnesses including Ir Lo Kok Keung as an expert witness.  The distances between various points on Nam Fung Road were admitted pursuant to section 65C of the Criminal Procedure Ordinance[3].

10.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.

11.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.

Prosecution evidence

Collision

12.Admitted in evidence is that at about 3:25 p.m. on 9 January 2020 private car PU 2102 driven by the defendant and motorcycle LL 8276 driven by Mr Huber with Madam Li sitting behind him, collided on Nam Fung Road[4].

13.Admitted in evidence is that Nam Fung Road is a two-way road with three lanes, two uphill and one downhill with a continuous double white line separating the uphill and downhill lanes and that the speed limit of the road is 50 km/h[5].

14.Admitted in evidence is that the weather was fine and the road surface was dry[6]. 

Christian Huber (PW1)[7]

15.Mr Huber testified that he had been driving a motorcycle in Hong Kong for 12 years. 

16.At 3 p.m. on 9 January 2020 Mr Huber together with his wife left home in Ap Lei Chau to go to a meeting at their daughter’s school in North Point.  Before setting off Mr Huber checked the steering, brakes, tyres and headlights to make sure that everything was in order.  Mr Huber said everything was good.

17.In cross-examination Mr Huber said that when removing the anti-theft locks he visually checked that the tyres were sufficiently inflated and moved the steering left and right to ensure the motorcycle would steer properly; put his hands in front of the headlight to check the light was on and after starting the motorcycle he would drive a short distance and then check the brakes were working.

18.Mr Huber travelled on Nam Fung Road, the speed limit of which he knew was 50 km/h.  Prior to the accident Mr Huber said he was travelling at a speed of around 30-40km/h, which he believed was the maximum speed he could go on the road because his wife was a passenger and he was going uphill.  Mr Huber said he was travelling in the second lane from the left.

19.Asked by Ms Chan what he could remember about the accident Mr Huber said:

“Traffic condition were very good because there were no vehicle in front of me and there were also no vehicle behind me. And suddenly I saw a vehicle going in the opposite direction making a U-turn and obstructing, blocking my lane. And this vehicle was also encroaching on the first left lane and also on the downhill lane and I was wondering what that vehicle was doing in the middle of the road and laying perpendicular to the traffic. I tried to apply my brakes to brake my vehicle. I could not have changed lane because I didn’t know what that vehicle was going to do, moving forward or backward, I didn’t know. And as a result the collision was inevitable. And then after that either I lost consciousness or either I lost my memories but my next memories are a few days after this event when I was already in hospital.”

20.When asked to estimate the time from when he first saw the vehicle blocking his lane to the collision, Mr Huber replied that his estimate would be two to three seconds.  Asked how far his motorcycle was from the vehicle when he first saw the vehicle, Mr Huber replied that he believed the distance was about 15-20 meters.  

21.Mr Huber marked on a copy of photograph 13, exhibit P2 (marked exhibit P2(13A))  the approximate position where he was when he first saw the vehicle and where the vehicle was.  Mr Huber marked his position with a green cross in a circle and the position of the vehicle with a red rectangle with an arrow indicating the front of the vehicle. 

22.Mr Huber collided with the left side of the vehicle between the front door and the rear passenger door.  

23.Mr Huber said that he never changed lanes and that the collision happened on the second lane from the left. 

24.In cross-examination Mr Huber disagreed the defence case including that prior to the collision he was travelling in the first lane; on seeing the private car making the U-turn he accelerated to a speed of over 80 km/h; unable to drive through the first lane he failed to brake in time causing the collision; that the collision happened as depicted in photograph, exhibit D2[8] and that the accident was entirely his fault.

Injuries/grievous bodily harm

25.Admitted in evidence is that Mr Huber was injured and sent to Queen Mary Hospital[9].   Two medical reports of Mr Huber have also been admitted[10]. One from the Accident & Emergency Department detailing the medical findings on admission to Queen Mary Hospital and one from the Department of Orthopaedics & Traumatology detailing the treatment of Mr Huber’s injuries up to 23 April 2020 the date of Mr Huber’s last follow up prior to the writing of the report.

26.Only after Mr Huber detailed further operations arising from his injuries to remove the screws from his pelvis and to repair an incisional hernia and how the injuries have affected his daily life including lifelong consequences for example the removal of parts of his intestine cause chronic diarrhoea, very painful cramps and difficulties in digesting fatty foods such as butter, cream and cheese, did the defence admit that the injuries sustained by Mr Huber as a result of the collision amounted to grievous bodily harm[11].

Li Shuangying (PW2)[12]

27.When asked to tell the court what she remembered about the accident, Madam Li said that at the time she was sitting behind her husband holding onto him and that she saw there was no traffic ahead of them.  A few seconds later all of a sudden a vehicle emerged in front of them.  Madam Li described the vehicle as a rather big vehicle, bigger than usual.

28.Madam Li said there was a continuous double white line on their right and that they were travelling in lane 2.  The body of the vehicle was in their lane, the front was in lane 1 and the rear was on the other side of the double white lines on the opposite side of the road.  In cross-examination Madam Li said that in the police station when giving her statement and drawing a sketch she asked the police what to call the lane.  Madam Li then came to know in Hong Kong that the lane was called lane 2[13].

29.When asked how far the big vehicle was from her when she first saw the vehicle, Madam Li replied, “I don’t know how far it was from me, but I know that since I was focused on my lane 2, in the beginning it wasn’t there, but it suddenly appeared.”Asked if she could estimate how long after she first saw the vehicle the collision occurred, Madam Li replied “To be honest, I cannot give you an estimate because it all happened so fast.”.

30.Madam Li was shocked and didn’t know what to do.  The next second Madam Li was lying on the ground, crying loudly because she felt pain.  Madam Li said she was conscious after the accident.  Someone asked her if she was alive but she could not see who this was because she was crying.  The person also asked if she could move at which time she realised her husband was lying on top of her. Madam Li was very painful and asked the person to call for an ambulance.  In answer to the court Madam Li said she felt the voice was that of a male.  Madam Li felt the safest thing to do was wait for the ambulance to arrive.

31.In cross-examination Madam Li disagreed that prior to the accident her husband had been travelling in the first lane for about 120 m; disagreed the accident happened in the first lane; disagreed immediately before the collision her husband had been travelling at a speed over 80 km/h; disagreed her husband crashed his motorcycle as shown in photograph, exhibit D2 and disagreed her husband accelerated to pass through the first lane.

Injuries

32.Admitted in evidence is that Madam Li was injured and sent to Queen Mary Hospital[14].   Six medical reports of Madam Li have also been admitted showing that Madam Li sustained a fracture of the distal phalanx of the left little finger, the treatment of the fracture and subsequent physiotherapy up to 29 April 2020, the date of Madam Li’s last assessment prior to the preparation of the medical reports[15].

33.Madam Li testified that she was told her finger will not regain full mobility.  Madam Li said she could not fully bend her left little finger.  At the request of the court Madam Li demonstrated the difference between her left little finger and her right little finger from which could be seen the left little finger could not fully bend to touch the hand.

34.Asked if the fracture of the left little finger affects her daily life Madam Li said that although she was right handed she very often used both hands and that she mentally felt she was not a complete person.

35.Madam Li also told the court that as a result of the accident she felt pain in her chest and that she struggled to go to bed normally for two months.  The doctors however told her that after conducting a CT exam they could find nothing wrong. In November/December 2020 Madam Li consulted a doctor in Shanghai who conducted an MRI which showed there were two cracks in her bones which could have occurred between 6 months and a year earlier as a result of a severe impact[16].

Evidence of the ambulance men and the police who attended the scene of the accident

36.Admitted in evidence is that PCA 7222 arrived at the scene for investigation at around 3:42 p.m. at which time the ambulance men were attending to Mr Huber and Madam Li[17]. 

Leung Ho Yin (Senior Ambulance man 13986)  (PW6)

37.SA 13986 arrived at the accident scene at 3:34 p.m. in ambulance A333 together with two colleagues.  SA 13986 found there were two injured persons, a male and a female.  SA 13986 attended to Mr Huber. 

38.Due to the lapse of time SA 13986 could not remember if any police officers had already arrived at the scene, where the vehicles involved in the accident were or the position of Mr Huber.  In cross-examination SA 13986 said he could not remember if he helped any of the injured persons to take off their helmets.

39.SA 13986 described Mr Huber in the beginning as a bit unconscious but was able to respond when he spoke to him. 

40.SA 13986 believed Mr Huber’s condition was stable.  SA 13986 found a 4 cm long abrasion on Mr Huber’s right shin which he disinfected.  Later in the ambulance Mr Huber said he had pain in his back but no treatment was given because SA 13986 could not find any open wound, redness or swelling. 

41.When asked if Mr Huber was able to walk to the ambulance SA 13986 replied that he thought Mr Huber was moved to the ambulance on a stretcher.

42.SA 13986 left the accident scene at 4:01 p.m.

Cheng Tin Lok (Senior Ambulance man 16347)  (PW7)

43.SA 16347 arrived at the accident scene at 3:39 p.m. in ambulance A409 together with two colleagues. Due to the lapse of time SA 16347 could not remember if any police officers had already arrived at the scene.

44.SA 16347 attended to Madam Li.  SA 16347 could not remember where he found Madam Li or her position except that she was on the road or by the roadside and had no recollection whether anyone was already treating Madam Li when he arrived. 

45.In cross-examination SA 16347 agreed that photograph 64 (exhibit D1)  shows him attending to Madam Li and that Madam Li was lying down in this position when he arrived; he could not remember if he helped Madam Li take off her helmet and had no recollection where Mr Huber was when he arrived at the scene of the accident.

46.After inspection and enquiry SA 16347 found Madam Li had pain on her chest and in the lower right leg which was swollen.  SA 16347 gave emergency treatment before taking Madam Li to the ambulance.  When asked if Madam Li was able to walk to the ambulance SA 16347 replied that he believed she did not because they needed to stabilise her spine first after which they placed her on a long board and carried her to the ambulance. 

47.SA 16347 said Madam Li was conscious and could speak coherently.  SA 16347 could not remember anything about Madam Li’s emotions at that time.  In cross-examination SA 16347 said he asked Madam Li about her injuries before taking her to an ambulance and that he had no recollection whether any police officer spoke to Madam Li.

48.SA 16347 left the accident scene at 3:55 p.m.

PCA 7222 (PW3)

49.PCA 7222 testified that he arrived at the accident scene together with PC 58095, PC 13588 and PCA 3304[18].

50.Admitted in evidence is that when PCA 7222 arrived he saw that private car PU 2102 had stopped in front of the motorcycle LL 8276 on the uphill kerb-side lane[19].  PCA 7222 testified that the motorcycle was lying on the ground facing in the opposite direction of the lane and that there were two ambulances behind the motorcycle.  In cross-examination PCA 7222 agreed the position of the motorcycle when he arrived was as shown in photographs 66 & 67 (exhibit D1).

51.PCA 7222 testified that when he arrived Mr Huber was lying on the ground behind the private car (PU  2102)  and that Madam Li had been moved onto an ambulance[20].  PCA 7222 said he did not look at Madam Li’s injuries because he was told she needed to be taken to hospital.  In cross-examination PCA 7222 said he did not know who placed the helmets on the pavement as shown in photograph 66 (exhibit D1).

52.PCA 7222 described Mr Huber as semi-conscious.  When PCA 7222 asked Mr Huber for his identity card and driver’s licence, Mr Huber said that they were in his black bag in the tail box of his motorcycle.   

53.PCA 7222 spoke to the driver of the private car (the defendant).  In cross-examination when put the defendant was under panic, emotionally unstable, very upset, PCA 7222 replied that he did not pay attention to that and said if you ask me to describe her I would say calm, normal, in normal tone. 

54.PCA 7222 said he could not remember each and every word the driver said.  PCA 7222 recollected that he first asked if she was injured and to which the driver answered she was not injured.  PCA 7222 then asked for her identity card and driver’s licence. 

55.After giving her driver’s licence PCA 7222 then asked the driver “How the vehicle was driving?”  PCA 7222 said he could not remember verbatim what the driver said.  Asked to try his best PCA 7222 said the driver said she was driving along the downhill lane when she made a U-turn; that there was a motorcycle on the opposite side of the road at some distance and that when making the U-turn she heard the sound of collision.  In cross-examination PCA 7222 said the defendant did say she saw the motorbike at some distance but did not remember her saying the motorcycle was very, very far away.   

56.In cross-examination PCA 7222 said he had no recollection that the defendant said that she had waited one or two minutes at the bus stop area before making the U-turn; no recollection she said that when she saw no car approaching she made the U-turn; no recollection that she said she did not know why the motorbike drove so quickly and that nothing would have happened if it had slowed down a bit; did not pay attention to whether other police officers spoke to the defendant; did not hear a police officer say anything like “Do you think the motorbike was running at 60 or 70?”;“The foreigners can be very troublesome, they will claim as much as they can in compensation, so you better go back and ask clearly with your insurance agent clearly.” or “I’ve driven a motorbike before.  It’s difficult to slow down sometimes”.

57.PCA 7222 also asked the driver if she had moved the car after the collision. The driver replied “To this position”.  In answer to the court PCA 7222 said he probably asked this before asking “How the vehicle was driving?”  In cross-examination PCA 7222 said he had no recollection that when giving this reply the defendant said “moving by braking”.

PC 14875 (PW4)

58.Admitted in evidence is that PC 14875 arrived at the accident scene at around 3:58 p.m. and drew a sketch (exhibit P1)  and took photographs (exhibit P2)[21].  

59.PC 14875 testified that when he arrived the motorcycle was in the position as shown in photograph 7 (exhibit P2); Mr Huber and Madam Li had already been taken to hospital by ambulance; he went to the hospital where he spoke to Madam Li; he did not see Mr Huber and that he took statements from Mr Huber and Madam Li on 21 March 2020 after Mr Huber was discharged from hospital and because Madam Li said she would like to wait for her husband and go to the police station together.

60.PC 14875 spoke to the driver of PU 2102 (the defendant)  asking how the accident happened.  The driver replied that when she made a U-turn the motorcycle collided with her.  PC 14875 then asked the driver if she knew there was a continuous double white line and that she was not allowed to do a U-turn.  The driver replied that she knew.  

61.In cross-examination PC 14875 said he was not sure if other police officers spoke to the defendant[22]; the defendant looked scared; he did not pay attention to whether other police officers surrounded the defendant because his focus was on examining the vehicle; he did not pay attention to whether from time to time different police officers approached the defendant; he did not hear the defendant say she did not know what happened, did not know why the motorbike drove so quickly and that nothing would have happened if it had slowed down a bit; he did not hear a police officer say “I’ve driven a motorbike before.  It’s difficult to slow down sometimes”, or “Do you think the motorbike was running at 60 or 70?”; agreed he told the defendant to inform her insurance company but disagreed that he said foreigners are troublesome; agreed he said no need to question the child who appeared very scared and did not hear the defendant say that she had stopped in the bus-stop area waiting for one to two minutes; that when she saw no car approaching she made the U-turn or that when she saw the motorcycle the distance was very, very far away[23].

62.Admitted in evidence is that the defendant was arrested for the offence of dangerous driving causing grievous bodily harm on 7 April 2020[24].   PC 14875 said he was responsible for arresting the defendant.

SPC 58095 (PW5)

63.SPC 58095 was tendered for cross-examination.

64.In summary SPC 58095 said he saw Mr Huber lying on the ground near to Madam Li and that Madam Li was lying on the ground as shown in photograph 64 (exhibit D1). 

65.Asked if Mr Huber was conscious, SPC 58095 said from afar he could see his eyes move.  SPC 58095 did not pay attention to whether Madam Li was conscious.  SPC 58095 did not see anyone taken on an ambulance because his focus was on checking vehicles and controlling the traffic.

66.SPC 58095 did not pay attention to whether Mr Huber had his helmet on and did not pay attention when he arrived as to whether the helmets were already on the pavement as shown in photograph 66 (exhibit D1).

67.SPC 58095 said when he arrived the motorcycle was lying on the ground as shown in photograph 66; he did not touch the motorcycle and did not remember moving the motorcycle and did not pay attention to who lifted up the motorcycle as shown in photograph 63.

68.SPC 58095 said he did not tamper with any evidence and did not pay attention to whether other police officers tampered with evidence and whether anyone moved any of the debris, glass or mirrors found on the ground.  SPC 58095 said he only knew what he did and for others he was not sure. 

69.PCA 7222 gave him the personal particulars of Mr Huber and the defendant.  SPC 58095 did not speak to Mr Huber, Madam Li or the defendant and did not pay attention to whether any other police officer did. 

Damage to the car (PU 2102)  and the motorcycle (LL 8276)

70.Admitted in evidence is that the nearside rear passenger door of the car was dented with scratch marks and the window of the door shattered and that the front of the motorcycle was damaged[25]. Photographs showing the damage have also been admitted in evidence[26].

71.In cross-examination PC 14875 said that the damage to the car was mainly below the handle on the rear passenger door; he did not see the damage extend to the front passenger door; both rear view mirrors of the motorcycle were damaged, photograph 8 (exhibit P2)  showing a broken mirror on the ground next to the yellow line and photographs 66, 67 and 68 (exhibit D1)  showing where a broken mirror, debris and glass were when he arrived at the scene and that the right hand side suspension fork was deformed[27].

72.In answer to the court PC 14875 said that the other mirror was shown in photographs 64 and 67 (exhibit D1)  between the yellow line and the pavement. When asked if that was the same mirror shown in photograph 8 (exhibit P2)  PC 14875 explained that the mirror in photograph 8 was not shattered whereas the mirror in photographs 64 and 67 was shattered.  PC 14875 said that photograph 63 (exhibit D1), which was taken after the police had gathered up all the debris and cleared the scene for other vehicles to pass, also shows mirror in the same position as in photograph 8 although the mirror is partially blocked and that the same mirror is also shown in photograph 67 under the number plate. PC 14875 said when he arrived the scene was as shown in photograph 63 and therefore he was not sure who cleared up the scene[28].

73.Dr Tao pointed out that the damage to the private car was to the rear of the nearside passenger door as shown in photograph 5 (exhibit P2)  and photograph 70 (exhibit D1)  and the damage to the motorcycle was to the right front fork and the right indicator light which was shattered as shown in photographs 7 and 8 (exhibit P2).  

Expert evidence

74.The prosecution called Dr Tao Chi Hang (PW8), a forensic scientist, to give expert evidence in reply to the reports of Ir Lo Kok Keung.  The evidence of Dr Tao is summarised after the defence evidence[29].

Defence evidence

75.The defendant, aged 41, a housewife with three children aged 13-19, elected to give evidence[30]. Throughout her evidence the defendant referred to the defence photographs, exhibit D1.

76.In summary the defendant testified that at around 2:40 p.m. on 9 January 2020 she drove from Tung Shang Terrace on Stubbs Road to pick up her son from school. After picking up her son at the bus station near the school the defendant drove to the layby area shown in photographs 24 and 42 where there is a bus stop which was not in service[31]. The defendant drove to the bus stop area intending to make a U-turn. 

77.In cross-examination when asked why she did not make the turn using Nam Fung Path as shown in photograph 7, the defendant replied that she did not know this road and that she would make a turn at Ocean Park.  Asked why she did not choose Ocean Park on that day the defendant replied she was in a hurry to go back home and pick up her daughter[32].

78.The defendant parked her car in the same position her car is parked in photograph 42.  A seven seater car arrived after the defendant and parked behind the defendant in the same position as shown in photograph 42.  The defendant parked her car in this position so that she could have a clearer vision to make observation of the traffic on both sides of the road. 

79.The defendant made observation for 1-2 minutes during which time she first saw the motorcycle driven by Mr Huber which was far away at the bend in the same position as the motorcycle shown in photographs 24 and 25. 

80.Asked to estimate the distance the motorcycle was from her, the defendant replied that when she first saw him he was at the bend at the fourth lamppost about 120 m away.  With reference to photograph 29 the defendant said that she first saw the motorcycle between the yellow post and the lamppost in front which she called the fourth lamppost[33].

81.The defendant described the speed of the motorcycle as normal which she estimated to be around 50km/h and said the motorcycle was travelling along the slow lane.

82.Having observed there were no vehicles coming downhill and the motorcycle was at a very safe distance away the defendant turned on the right indicator and moved her car forward a little bit, about one third the length of the car, and started to make a right turn. 

83.While moving her car forward the defendant took a glance at the motorcycle which was just passing through the bend.  The defendant said the motorcycle was a little bit ahead of where the motorcycle is seen in photograph 25 which was between the fourth lamppost and the third lamppost shown in photograph 29.  The speed of the motorcycle was still 50 km/h and the motorcycle was still in the slow lane.  The defendant estimated the motorcycle was around 100 m away.

84.The defendant saw the motorcycle a third time when her car was across the fast lane and about to enter the slow lane.  The defendant said the position of her car when she saw the motorcycle for the third time was the same position her car is shown in photograph 44.  The defendant said that it took her 2-3 seconds to reach this position. 

85.At the end of her evidence the defendant said that her car was relatively long and that she could not do a U-turn from the downhill lane without doing a three-point turn which would lengthen the time on the road and be very dangerous.  The defendant said that photographs 44-46 show how she made the U-turn.  Photograph 45 is leaving the layby area and photographs 44 and 46 show the same position when her car was across the fast lane and about to enter the slow lane. 

86.The speed of the motorcycle was still around 50 km/h and the motorcycle was still in the slow lane.  The defendant estimated the motorcycle was around 80 m away, between the third lamppost and the second lamppost shown in photograph 25, in a very similar position to the motorcycle in photograph 43.

87.In cross-examination the defendant disagreed that she did not take a good look before the accident; disagreed that she had fabricated that she saw the motorcycle three times; disagreed that during the U-turn she did not look to her left and disagreed that the motorcycle was all along traveling on the second lane at a speed of about 40km/h.

88.The defendant estimated she needed no more than 2-3 seconds to complete the U-turn into the slow lane.  When the defendant had almost finished entering the first lane and straightening up her car she heard a loud bang sound on her left side.  The defendant said the position of her car when she had almost straightened up the car was the same position her car is shown in photograph 20. 

89.The defendant saw that glass was shattered.  The defendant was very nervous and did not know what had happened.  The defendant’s instinct was to apply the brake at once.  The defendant described the braking distance as half the length of the car. The defendant said the position of her car after she stopped was the same position her car is shown in photograph 62. 

90.After the collision the defendant turned on the hazard lights and got out of the car.  The defendant saw the motorcycle driver and the passenger on the ground in the slow lane near the yellow line.  The passenger was lying on the ground in the position shown in photograph 64.  The defendant described part of the body of Mr Huber was lying on his wife with his head on the pavement.  Both Mr Huber and his wife were wearing helmets.  The defendant did not pay attention to who took their helmets off. 

91.The defendant asked Mr Huber and his wife if they were OK.  The defendant said Mr Huber and his wife looked like they were conscious but they did not answer her. 

92.The defendant saw that the motorcycle was facing the direction to Aberdeen as shown in photographs 64 and 66. The defendant did not pay attention to who stood the motorcycle up as shown in photograph 63.  

93.When the defendant was about to call the police she heard a male on the opposite side of the road say he had already reported to the police and told her to wait for the police to arrive.  The defendant did not know him.  The defendant learnt this was the driver of the seven seater which had parked behind her in the bus stop area when the driver wound down the window of his car before he left and told her, “I reported to the police for you”.   Later the defendant saw the driver at the school.

94.In cross-examination the defendant said she saw the male driver unexpectedly at a bus station/bus stop near the school; asked him whether he remembered the accident on 9 January 2020 and when he said he remembered asked for his phone number which she passed to her lawyer to handle. 

95.Asked when this was the defendant first replied “I think it’s around July”. Asked by the court which year, this year (2021)  or last year (2020)  the defendant said “I’m sorry, let me think again.  I can’t remember the exact time.  I only remember it’s when my child was at school in the afternoon when I picked him up”.  Ms Chan next asked “And you cannot tell whether it’s just three months ago or last year”, to which the defendant replied “It’s this year (2021), but I can’t remember the date”.

96.After the case had been reported to the police the defendant realising her son was in the car went over to the car and saw a lot of shattered glass on his body.  The defendant was very afraid and her hands were shaking.  The defendant asked her son to get off the car and cleaned the glass off his body.  The son was also very afraid.   The defendant said her son was not injured. 

97.When the police arrived the defendant was nervous, in shock and afraid.  The police did an alcohol test which was negative.  Police officers spoke to the defendant but she could not remember how many spoke to her or how many she spoke to.

98.When asked what happened the defendant told the police officer, whilst at the same time using hand gestures, that she had waited 1-2 minutes in the layby area at the opposite side and that when there were no vehicles approaching she made a big U-turn; she did not know what happened and that she heard a bang sound and saw glass was broken.  The defendant said she also told the police officer she saw the motorcycle in a very far distance. 

99.The police also asked the defendant where she intended to go.  The defendant replied she was going home.  On telling the police her son was sitting in the back in the middle and that he was eleven, a police officer said there was no need to ask the child. 

100.When two police officers went over to the side of her car they had a conversation saying do you think it’s (motorcycle)  going 60 or 70.  A police officer also told the defendant that Westerners are troublesome and will claim a large amount of money so she had better ask her insurance agent clearly about the terms of her insurance. 

101.The defendant also asked a police officer why the motorcycle drive so fast and said that if he had braked a little this would not have happened.  The police officer replied that he had also driven a motorcycle and said that it was difficult to brake. 

102.The defendant did not move the car after the arrival of the police.  When asked by the police whether she had moved the car the defendant replied that she did brake immediately. 

103.The defendant testified that after the traffic accident she went to the police station with her lawyer.  The lawyer asked PC 14875 (PW4)  why the defendant was charged with such a serious offence.  PC 14875 replied that he had written a letter to the injured person saying the defendant would be charged with dangerous driving.

104.PC 14875 said the injured person sent an email saying he had consulted with his lawyer why the defendant was not charged with a more serious offence and also mentioned that he was a director of a company.  When PC 14875 told the lawyer the police had not yet replied to the injured person, the lawyer said “It is the injured person, the westerner, who caused trouble.”

Driving experience

105.The defendant testified that she had been driving for 18 years and held a driving licence in both the Mainland and Hong Kong.  The defendant said that she drove almost every day.  The defendant had never been involved in a collision before and considered herself a careful and competent driver. 

Defence witnesses

Lo Ki Kan (DW1)

106.Mr Lo testified that when PU 2102 was first brought to his vehicle repair company he took photographs 47, 48 and 49 and checked the vehicle[34].  Mr Lo found the door was totally dented, about 5-6 cm deep, but could still be opened; that there were some scratches on the rear fender and glass was broken.  At that time the driver did not ask Mr Lo to do any work on the car. 

107.About 10-20 days later the car was driven again to Mr Lo’s vehicle repair centre to ask for a quotation.  Mr Lo took photographs 50-54 and prepared a quotation (exhibit D7).  Mr Lo said photograph 54 showed the dent in the door and photograph 52 the fender arch over the left rear wheel which needed replacing.  

Wong Wai Kei (DW2)

108.Mr Wong, who drives a motorcycle, testified that he was asked by the defendant’s husband, who was also his boss, to drive his motorcycle to do some driving tests along Nam Fung Road.  Mr Wong conducted two tests using a GoPro attached to his helmet to film the tests.  The first test was conducted at an average speed of 35 km/h (exhibit D3)  and the second test at an average speed of 40km/h (exhibit D4)[35].

109.Photographs 8-23 are screen captures taken from the first test save that photograph 21 is a close up of photograph 20.  In the first test PU 2102 is seen being driven out of the bus stop area.  Mr Wong said Mr Lau was the driver[36]. 

110.In answer to the court Mr Wong said the first test was conducted on 25 August 2021 and the second test on 26 August 2021.

Lau Por (DW3)

111.Mr Lau, the defendant’s husband, testified that PU 2102 was his car which he would usually drive at weekends while his wife would drive the car during the week. Mr Lau said that almost every day his wife would drive him to work.  Mr Lau regarded his wife a competent and careful driver who would usually drive in the slow lane, seldom overtake, never drive over the speed limit and would give way to pedestrians and cyclists.

112.After the traffic accident involving his wife, Mr Lau returned to Nam Fung Road many times, almost every week to pick up his son from school and to take measurements.  Mr Lau explained he took measurements to assist the court in understanding the truth of the incident and to prove his wife was innocent. 

113.Distances between various points along Nam Fung Road uphill have been admitted in evidence[37].

114.Mr Lau also testified he tried to simulate the traffic accident by driving his car uphill at speeds of 30 km/h and 40 km/h to show the times taken to reach various points on the road[38].

115.Mr Lau testified photographs 1-7 and 24-46 were taken by his son except photographs 32, 33 and 36 which he took.  In answer to the court Mr Lau said his son took the photographs on 11 August 2021 and he took photographs on 20 August 2021. Mr Lau said photographs 69-75 were taken by the management company where he works after the car had been driven to his work place.

Wong Ka Wai (DW4)

116.Mr Wong testified that he worked as driver having twenty years driving experience.  Mr Wong said his responsibilities included driving the children of his boss to school and picking them up after school.  One of the children went to South Island School on Nam Fung Road. 

117.Mr Wong remembered that on 9 January 2021 he went to pick up the daughter of his boss from school.  As usual Mr Wong drove a black Toyota Alphard to the bus stop area shown in photograph 44 (exhibit D1)  and waited for the daughter to finish school. 

118.Mr Wong said he drove there every day and had never seen any bus stop to pick up or drop off passengers.  Other cars used to park there waiting to pick children up from school.  Often the drivers did a U-turn from the bus stop area.  Mr Wong said if he was driving downhill like the car shown in photograph 42 he would be unable to do a U-turn in one go and would need to borrow some space from the bus stop area. 

119.Mr Wong parked behind another car in the same position as shown in photograph 42.   After parking his car Mr Wong saw a traffic accident happen.  Mr Wong said the vehicle in front moved forward about to make a turn with the indicator light on. 

120.Mr Wong saw a motorcycle in the first lane approaching upwards from the foot of the hill by the retaining wall and travelling at a speed of about 50-60 km/h.  Mr Wong estimated the motorcycle was 15-16 car lengths away, about 70 odd meters.

121.Mr Wong said the motorcycle was in a similar position to the motorcycle in photograph 43 and the car was just past the double white lines in the middle of doing a U-turn as the car shown in photograph 44.  In cross-examination Mr Wong disagreed that his observations were wrong and disagreed that the motorcycle was in the second lane and that the speed of the motorcycle was around 40km/h[39].

122.After seeing the motorcycle Mr Wong did not pay attention to either the motorcycle or the car.  Mr Wong looked in his mirror to see whether the daughter of his boss was coming. 

123.When he looked again the vehicles had collided.  Mr Wong said this was within 1-2 seconds after he saw the car in the position as shown in photograph 44.   Mr Wong saw that the motorcycle was in the slow lane near the kerb and that a lady was lying on the ground behind the car. 

124.Mr Wong called the police using his mobile phone, number  9469 8806[40].  Mr Wong then opened the window of his car and told the woman driver of the car, who he identified in court as the defendant, that he had called the police and told her to wait for the police.  Mr Wong then left.

125.After 9 January 2021 Mr Wong saw the defendant again in the same bus stop area when he was waiting to pick up the daughter of his boss from school. The defendant asked if he recognised her.  When Mr Wong replied yes the defendant ask if he could be a witness for her.  Mr Wong said he was in a hurry to leave and gave his phone number to the defendant.  

126.In cross-examination when first asked when he met the defendant Mr Wong said he could not remember.  Asked which year he said this year but could not remember the month and said it was around the beginning of the year, before the summer holiday. 

Expert evidence

127.The defence called Ir Lo Kok Keung (DW5), a mechanical engineer, to give expert evidence on traffic accident reconstruction.  The prosecution called as part of their case Dr Tao Chi Hang (PW8), a forensic scientist, to give expert evidence in reply to the reports of Ir Lo Kok Keung[41].

Expertise

128.The expertise of both witnesses was challenged. 

Dr Tao Chi Hang

129.Dr Tao produced two statements which were adopted as his evidence in chief[42].  The qualifications and experience of Dr Tao, including attending training courses on traffic accident reconstruction, are set out in both statements. 

130.Dr Tao gave further details of the training courses and experience in traffic accident reconstruction in both examination and cross-examination.  Dr Tao said he had given evidence in the District Court and Magistracy around fifty times and as far as he was aware his evidence had been accepted. 

Ruling

131.After hearing submissions from Ms Chan and Mr Khattak, I ruled that Dr Tao could give expert evidence on traffic accident reconstruction.  By reason of his qualifications as a forensic scientist and attendance on traffic accident reconstruction courses, I was satisfied Dr Tao was an expert witness in traffic accident reconstruction.

Ir Lo Kok Keung

132.Ir Lo produced two reports which I will refer to as the original report (exhibit D5)  and the supplementary report (exhibit D5A).  The professional qualifications and experience of Ir Lo are shown in his curriculum vitae attached to the reports[43]. Ir Lo is a chartered mechanical engineer and a chartered marine engineer.

133.Ir Lo testified that he studied mechanical engineering at the Hong Kong Technical college in the 1970’s from which he acquired his knowledge in relation to road accident reconstruction, in particular from the subjects of applied mechanics and automotive engineering.

134.In cross-examination when asked how he updates the knowledge obtained from studying in the 1970’s, Ir Lo replied through reading books in the library for reference and that as an academic staff in the Polytechnic University he knew where to look for the books to update his knowledge.  Asked by Ms Chan which books he had read to update his knowledge; Ir Lo replied “I have read many books.  If you need a copy, I can show to you.”  Asked for the title of the book Ir Lo said he did not quite remember the title and repeated he can show a copy. 

135.Asked by the court why he did not include this material in his appendix, Ir Lo replied “There was no need for me to do that because I have done many court cases.  I was not asked to supplement these.  But I have prepared a copy showing the title of the books, I can show it to you if you want.”  Ir Lo confirming he had copies with him in court I directed disclosure be made to the prosecution.  Ir Lo produced photocopies of the front cover of six books (exhibit D5C). 

136.Ir Lo said he had not attended any training courses on traffic accident reconstruction because when he studied in the 1970’s there were no such courses. Ir Lo explained that only in later years was the subject singled out for training and that he teaches the training courses in both Hong Kong and Macau as particularised in his reports under Professional and Community Involvement, Appendix 1, together with the certificates 1d-1h. 

137.In addition, Ir Lo said that in October last year he was invited by the Open University to be an instructor on traffic accident reconstruction.  Ir Lo said the course lasted twenty-five hours and the subjects he taught included theory and knowledge of traffic accident reconstruction, mathematical formula to calculate speed and analysis of car camera video footage.

138.In cross-examination Ir Lo said he would not attend overseas courses on traffic accident reconstruction because they were very costly and that he did not think it was necessary for him to attend as he already had enough knowledge on how to solve traffic accident reconstruction problems.[44].   

139.Ir Lo said he had been an expert witness since 1994, including in Macau in May 2017, as particularised in Appendix 1b and 1c in his reports.

140.In cross-examination Ir Lo said that after he was informed of the result of the case by the lawyer he would write down on the file envelope that the charge was dismissed.[45]. When asked by Ms Chan if he made a record of cases where the defendant was convicted, Ir Lo replied he would write fail on the envelope.  Asked why he did not record these cases in the Appendix to his reports, Ir Lo replied that in most of the cases listed, about 80%, he was accepted as an expert.  Asked by the court if he did not think that it was his duty to state that in some of the cases listed his evidence had not been accepted, Ir Lo replied “Because the purpose was to show I was recognised as an expert witness to give evidence.”

141.Ms Chan cross-examined Ir Lo about DCCC 695/2013 (No. 6, Appendix 1b, exhibit D5A).  After being shown the Reasons for Verdict Ir Lo agreed that he was called to give evidence only as an expert in mechanical engineering and not as an expert in traffic accident reconstruction and that the judge rejected his opinion as to speed[46].

142.Asked by Ms Chan why he did not include in his table that his evidence had been rejected in this case, Ir Lo replied “There’s no need for me to write down things like this.  I’m just trying to tell the court that I had been accepted as an expert witness to give evidence in what capacity and for the court’s reference.  Whether the reports were accepted or not is the decision of the court, so I do not need to write it down intentionally.  That’s why I said this table is not 100 per cent successful.”[47]

Ruling

143.After hearing submissions from Ms Chan and Mr Khattak I permitted Ir Lo to give expert evidence limited to mechanical engineering and automotive engineering. I was not satisfied Ir Lo was an expert in traffic accident reconstruction. 

144.In HKSAR v Leung Ching Chung the Court of Appeal said that in the absence of formal qualifications, accreditation and attendance at traffic accident reconstruction courses, it was for the defence to establish a foundation on which it could be accepted that Ir Lo had the relevant knowledge and experience to be permitted to give expert evidence on traffic accident reconstruction[48].

145.In my view the information placed before the court was very similar to the information placed before the judge in HKSAR v Leung Ching Chung, which Lunn VP said was “at best perfunctory and at worst merely declaratory”. [49]  The fact Ir Lo stated he had taught some courses was not in my view sufficient to establish a foundation that he had relevant knowledge and experience in traffic accident reconstruction.

146.The reading material upon which Ir Lo stated he relied on was not included in his curriculum vitae and clearly the photocopies of the front cover of books he said he had read were brought to court to be produced only if asked in cross-examination. 

147.I was also not satisfied about Ir Lo’s impartiality with regard to traffic accident reconstruction.  More than once Ir Lo stated he had no need to tell the court about cases where he was not accepted as an expert in traffic accident reconstruction or his evidence had been rejected. 

148.The table (appendix 1b & 1c)  listing cases where Ir Lo had given expert evidence was updated in the supplementary report.  Some of the cases in the original report were not included in the supplementary report, for example items 6 and 7 in the original report are not included in the supplementary report.  In answer to the court Ir Lo was unable to say why he had deleted these case from his table.  Ms Chan then cross-examined Ir Lo about DCCC 1094/2009 (No. 7, Appendix 1b, exhibit D5). After being shown the Reasons for Sentence Ir Lo then remembered that he had removed this case from his table because a prosecutor in another case had pointed out to him that he had not given evidence[50].

149.In giving this answer Ir Lo also said that there was one case where he was not recognised as an expert witness and so he deleted that case.  After the court repeatedly asked in which case he was not recognised as an expert witness, Ir Lo said he could not remember the case number and that it was not included in his table because the table only shows for the reference of the court when he had been recognised as an expert witness. 

150.Asked by the court if he did not think that it was his duty to tell the court that he had not been accepted as an expert, Ir Lo replied “I don’t know that I need to tell, otherwise I would have listed it out.”  Ir Lo further stated that on appeal to the High Court he was accepted as an expert[51].  At this juncture the court adjourned to the next day and directed Ir Lo to provide the court with the reference of the appeal judgment.  Ir Lo immediately responded that he had a copy of the judgment with him and took out the copy from his bag.  Ir Lo produced the judgment of the Court of Appeal in HKSAR v Leung Ching Chung[52].

151.When cross-examined by Ms Chan about the ruling of the District Court judge (Deputy Judge Chainrai)  in HKSAR v Leung Ching Chung, Ir Lo stated this was the only time his expertise had not been accepted ‘officially’.  Later when Ms Chan cross-examined Ir Lo on DCCC 397/2017, which is also not included in the table of cases in either appendix 1b & 1c, Ir Lo agreed after being shown the Reasons for Verdict that the court in that case rejected that he was an expert in traffic accident reconstruction[53]. Asked by Ms Chan why he earlier said the only time his expertise had not been accepted was in HKSAR v Leung Ching Chung, Ir Lo explained that by saying ‘officially’ he meant he was told in court he was not accepted as an expert[54].

152.Ms Chan also cross-examined Ir Lo about HCPI 404/2014, which is also not included in either appendix 1b & 1c of Ir Lo’s table of cases[55].  Ir Lo said he was not aware of the criticisms of the judge (Master Leong)  but did say he had been referred to this case by another prosecutor.

153.Ir Lo clearly knew what the court had said in HKSAR v Leung Ching Chung as the relevant parts of the judgment of Lunn VP were highlighted on his copy of the judgment shown to court, including paragraph 41,yet Ir Lo did not include the requisite information in his curriculum vitae or tell the court in examination-in-chief.

Summary of the expert evidence

154.Ir Lo adopted his two reports as his evidence.  Ir Lo was asked to give his expert opinion on three issues: (1)  to determine the speed of the motorcycle prior to the accident; (2)  was it possible to avoid the collision if the motorcycle was not speeding and (3)  to identify whether the accident took place in the first left lane or the second left lane[56].

155.Mr Khattak only asked Ir Lo about paragraph 5 of his supplemental report, asking Ir Lo whether he wished to elaborate on anything.  Ir Lo repeated what was in paragraph 5.1 and went through the calculation in paragraph 9 (a)  to show how he calculated the speed of the motorcycle as 81.5 km/h.

156.Dr Tao adopted his two statements as his evidence in chief.  The first statement commented on the supplemental report of Ir Lo.  The second statement commented only on paragraph 9 of the first report of Ir Lo.  In evidence Dr Tao gave his opinion on the reports of Ir Lo.

157.The following is a summary of the reports of Ir Lo together with a summary of the evidence of Dr Tao.

The speed of the motorcycle prior to the accident

Paragraph 9 of the Traffic Accident Investigation Report of Ir Lo (exhibit D5)

158.Considering the kinetic energy of a motorcycle and applying the conservation of energy principle Ir Lo calculates the speed of the motorcycle prior to the accident as 64.4 km/h (paragraph 9 (a)). 

159.By applying Newton’s 2^nd law of motion Ir Lo calculates the speed of the motorcycle prior to the accident as 64.6 km/h (paragraph 9(b)).  According to the defendant’s explanation given to him (paragraph 4.2)  Ir Lo calculates the speed of the motorcycle prior to the accident as 67.2 km/h (paragraph 9 (c)).

Paragraph 9 of the Traffic Accident Investigation Report of Ir Lo (exhibit D5A)

160.Considering the kinetic energy of a motorcycle and applying the conservation of energy principle to calculate the impact velocity and the linear motion equation Ir Lo calculates the speed of the motorcycle prior to the accident as 81.5 km/h (paragraph 9 (a)). 

161.By applying Newton’s 2^nd law of motion Ir Lo also calculates the impact velocity of the motorcycle to be the same as calculated by applying the conservation of energy principle (paragraph 9(b)).

Dr Tao

162.Dr Tao states that the calculation of speed calculated by Ir Lo involves speculation and unstated assumptions[57]. In evidence Dr Tao said that from looking at the accident photographs of the scene provided by the police he did not find any physical evidence such as skid marks or scratches on the road to objectively and accurately determine the speed of the accident vehicles. 

163.Dr Tao explained that paragraph 9 (b), exhibit D5, was based on an impact time of 0.04 second however Ir Lo did not state in his report how he obtained this value. Dr Tao was of the view that there was not any means to accurately determine the impact time.  Dr Tao contrasted this with 9 (b)  in the supplementary report (exhibit D5A)  in which Ir Lo assumed a different impact time of 0.36 second. 

164.In cross-examination Ir Lo agreed that he assumed the impact time was 0.04 in his first report.  When asked later why he used a different impact time in this supplementary report, Ir Lo did not explain save to say that it was only slightly different.

165.Dr Tao also explained that in his calculation Ir Lo used impact deceleration of the motorcycle to the value of 7.72 m/s².  Dr Tao said from his experience this value was equivalent to suggesting that Mr Huber had applied hard braking[58]. 

166.Dr Tao was of the opinion, there being no evidence such as skid marks left on the road showing that the motorcyclist had applied hard braking or if he did then for how long, that Ir Lo speculated that Mr Huber perceiving danger ahead applied hard braking for a distance of 20 meters to slow down or avoid the collision. 

167.Dr Tao was of the opinion that the calculations in paragraph 9 (a)  of the reports which also used a deceleration value of 7.72 m/s² were also speculation by Ir Lo that Mr Huber applied hard braking. 

168.In cross-examination Ir Lo agreed that in making his calculation he assumed that Mr Huber applied hard braking and that based on Mr Huber’s witness statement that the distance he saw the car appeared was 15 to 20 metres assumed Mr Huber applied hard braking for 20 meters[59]. In re-examination Ir Lo stated that the damage profile showed that there was hard braking.

169.Dr Tao also referred to Ir Lo using door indentation to calculate the impact velocity.  From his experience and training in the United States Dr Tao said this damage should not be used to calculate the impact speed which could only be considered as a very rough estimate and not very reliable.  This Dr Tao explained was because different cars have different material and construction.

170.Dr Tao said that the calculation in paragraph 9 (c)  (exhibit D5)  was based on assumptions that the private car took six seconds to make the U-turn and the motorcycle was 112 m away[60].

171.Dr Tao explained the differences in the speeds of the motorcycle as calculated by Ir Lo in the two reports was because in his first report Ir Lo calculated the speed on the assumption that the motorcycle was under hard braking for 20 m and in the supplementary report calculated the speed on the assumption that the motorcycle was under hard braking for 2.5 seconds[61]. The assumptions made by Ir Lo being different the calculations of speed were different. 

172.Dr Tao also pointed out that the calculation did not include the reaction time of Mr Huber, only the effective braking time of 2.5 seconds[62].  In cross-examination Ir Lo disagreed when Ms Chan put that Mr Huber’s estimate from first seeing the vehicle to the collision would be two to three seconds included Mr Huber’s thinking time. 

The stopping distance of the motorcycle with a speed of 30-40 km/h[63]

Paragraph 10 of the Traffic Accident Investigation Report of Ir Lo (exhibit D5)

173.Ir Lo calculates the stopping distance of the motorcycle when travelling between 36 km/h and 40 km/h using a deceleration value of 7.725m/s² (i.e. hard braking)  and a reaction time of 0.9 second as between 15.5 m and 18 m. 

Paragraph 10 of the Supplementary Report of Ir Lo (exhibit D5A)

174.Applying the linear motion equation Ir Lo calculates the stopping distance when travelling between 36 km/h and 40 km/h as between 8.7 m and 17 m. 

Dr Tao

175.Dr Tao states that the data and equations used by Ir Lo in his supplemental report to calculate the braking distance were not applicable in this case scenario and includes for reference a table of the braking distances and stopping distances using a deceleration value of 7.725m/s² (i.e. hard braking)  and a reaction time of 0.9 seconds (the same data used by Ir Lo)[64].

176.In evidence Dr Tao explained that in his first report Ir Lo calculated the braking distance by assuming a constant deceleration of 7.725m/s² whereas in his supplementary report Ir Lo assumed the motorcycle decelerated 7.725m/s² for either 2 seconds or 3 seconds. 

177.Dr Tao said the equation used in the supplementary report was applicable for calculating the displacement and not the braking distance.  Dr Tao explained displacement was the distance between the initial position and the final position of the vehicle irrespective of the path taken by the vehicle. 

178.Dr Tao explained in paragraph 10 (a)  of the supplementary report Ir Lo used a speed of 40 km/h; a braking time of 2 seconds and a deceleration rate of 7.725m/s².  Dr Tao calculated that with a deceleration rate of 7.725m/s² the motorcycle would have come to a halt after 1.4382 seconds.  The motorcycle being under deceleration for 2 seconds would mean that for 0.5618 second the motorcycle would move backwards resulting in a displacement of 6.95 m.

179.Similarly, with regard to paragraph 10 (b)  the motorcycle would come to a halt after 1.4382 seconds.  The motorcycle being under deceleration for 3 seconds would mean that for 1.5618 second the motorcycle would move backwards resulting in the motorcycle being behind the initial position by 1.46 m.

180.In paragraph 10 (c)  Ir Lo used a speed of 30 km/h; a braking time of 2 seconds and a deceleration rate of 7.725m/s².  Dr Tao calculated that with a deceleration rate of 7.725m/s² the motorcycle would come to a halt after 1.0783 seconds. The motorcycle being under deceleration for 2 seconds would mean that for 0.9217 second the motorcycle would move backwards resulting in a displacement of 1.2 m.

181.Similarly, with regard to paragraph 10 (d)  the motorcycle would come to a halt after 1.0783 seconds.  The motorcycle being under deceleration for 3 seconds would mean that for 1.9217 second the motorcycle would move backwards resulting in the motorcycle being behind the initial position by 9.77 m.

182.To enable the court to better understand the explanation that the equation used by Ir Lo resulted in the motorcycle moving backwards Dr Tao, at the request of the court, prepared a table (exhibit P16B)  showing the time taken for the motorcycle to come to a halt when applying a deceleration rate of 7.725m/s². Dr Tao also revised the table (exhibit P16C)  in his statement (paragraph 6, exhibit P16)  to include the braking times and the stopping times. 

183.At the end of his comments on paragraph 10 of Ir Lo’s supplementary report, Dr Tao pointed out that unlike a private car under hard braking a motorcycle may fall on its side or the rider become airborne.

Is it possible the accident can be avoidable if the motorcycle was not speeding

Paragraph 11 of the reports of Ir Lo (exhibits D5 & D5A)

184.In paragraph 11 of both reports Ir Lo is of the opinion that the accident could be avoidable if the motorcycle was not speeding[65].

Dr Tao

185.In both his statements and in evidence Dr Tao said this assertion by Ir Lo was based on the assumption that when the private car started the U-turn the motorcycle was 112 m away[66].

Whether the accident took place in the first left lane or the second left lane

Paragraphs 5.6-5.8 of the Supplementary Report of Ir Lo (exhibit D5A)

186.In paragraph 5.6-5.8 of his supplementary report Ir Lo is of the opinion that the accident took place in the first left lane and that it was impossible the accident took place in the second left lane. 

Dr Tao

187.Dr Tao states that the opinion of Ir Lo that the accident took place in the first left lane is questionable.  Dr Tao explained this was because Ir Lo only used the damage profile, the final resting place of the motorcycle and the location of debris to determine the point of impact whereas qualified traffic accident investigators do not determine the point of impact of two vehicles solely on this information which could only tell the configuration of the engagement of the accident vehicles but not the exact position of the impact of the accident vehicles on the road[67].

188.In evidence Dr Tao repeated this explanation that the damage profile could mainly tell how the two vehicles collided but not the location on the road where the collision happened. This Dr Tao said was because the same collision could have occurred on the first left lane, the second left lane or the right lane with the same configuration and the same damage profile.

189.Dr Tao stated that without using marks on the road such as skid marks and scratches locating the exact position of the collision was difficult. 

190.Dr Tao agreed that the motorcycle did not squarely ram into the left side of the private car and that he was inclined to the view that the collision occurred when the motorcycle and the private car were at an angle, albeit a small angle, which may have deflected the motorcycle to the left. 

191.Dr Tao reached this view from the damage profile of the private car and the motorcycle.  Dr Tao pointed out that the damage to the private car was to the rear of the nearside passenger door as shown in photograph 5 (exhibit P2)  and photograph 70 (exhibit D1)  and the damage to the motorcycle was to the right front fork and the right indicator light which was shattered as shown in photographs 7 and 8 (exhibit P2).  

192.Dr Tao said he could not rule out the possibility that the collision occurred in the first left lane or the second left lane and that he was more inclined to the view that even if the collision occurred in the first left lane that it would have been on the right side of the lane. 

193.A video reconstruction of the collision made by Ir Lo with use of a toy car and a toy motorcycle was played to Dr Tao (exhibit D5B).  Dr Tao said that in general he had reservations of using toy cars to simulate what happened because the damage to the vehicles would not be shown. 

194.Dr Tao was of the view the video could not help the court in understanding where the collision took place.  Dr Tao noted that the video clip showed that the motorcycle was deflected to the left when the collision was at an angle.  Dr Tao said that there was a possibility that if the collision took place in the second lane the motorcycle could be deflected and rest on the first left lane.  

195.In cross-examination Dr Tao said he could not rule out the possibility that the configuration of the accident occurred as shown in Appendix 8A of Ir Lo’s supplementary report but repeated that he did not rule out the possibility of the collision occurring in the first left lane or the second left lane.

Discussion

196.I have carefully considered all the evidence and the submissions of Ms Chan and Mr Khattak. 

197.Admitted in evidence is that the defendant has no criminal and traffic conviction record[68].  I direct myself as to good character both as to credibility and propensity in accordance with the decision in HKSAR v Tang Siu Man[69]. I take into account the evidence given by the defendant’s husband as to the driving manner of his wife.

Did the defendant make the U-turn from the downhill lane or from the layby/bus stop area?

198.The defence case is that the defendant made the U-turn by pulling out from the layby/bus stop area and not from the downhill lane.  

199.In the sketch attached to his witness statement (exhibit P12B)  Mr Huber drew an arrow indicating the private car made the U-turn from the downhill lane[70].  Mr Khattak submits that Mr Huber’s evidence all along was that the defendant was driving her car downhill when she suddenly made the U-turn whereas in cross-examination he introduced the possibility the defendant may have come from the layby/bus stop area. 

200.This change of evidence Mr Khattak submits is an indication that Mr Huber was fully aware of the truth and fact that the defendant came out from the layby/bus stop area and that in the sketch he lied to mislead the police about how the defendant drove her car[71].

201.I have no hesitation in rejecting that Mr Huber changed his evidence in cross-examination and lied in the sketch in order to mislead the police.  In his witness statement Mr Huber states that downhill driving vehicles are not allowed to U-turn or change lane.  In cross-examination Mr Huber explained that the sketch was an addition to his witness statement; the car either did a U-turn or made a change of lane from right to left and that he drew the arrow on the sketch indicating what appeared to him to be the most likely option that the car made a U-turn from the downhill lane[72].

202.This was not the first time Mr Huber had mentioned that the car may have crossed the road from right to left.  In his draft statement (exhibit P12)  Mr Huber stated that, “As for why the car was there, I can only guess that either the car was crossing the road (from right to left), or it was coming from opposite direction (downhill), and decided to make a U-turn.”[73].

203. Mr Huber disagreed that he tried to hide the fact the car pulled out from the layby/bus stop area and said that even as of today (the day giving evidence)  he did not know whether the car made a U-turn from the downhill lane or from the bus stop[74]. 

204.In my view it is more likely than not that the defendant made the U-turn from the layby/bus stop area.  Mr Huber being unable to say whether the defendant made the U-turn from the downhill lane or from the layby/bus stop area, I proceed on the basis that the defendant may have made the U-turn from the layby/bus stop area.

205.Whilst accepting the defendant may have made the U-turn from the layby/bus stop area, I have no hesitation in rejecting the defence evidence that the defendant first saw the motorcycle about 120 m away travelling in the slow lane at a normal speed of around 50km/h; that the defendant next saw the motorcycle when she started to make the U-turn at which time the motorcycle was 100 m away still in the slow lane and travelling at a speed of 50 km/h; that the defendant saw the motorcycle for a third time when she was about to enter the slow lane at which time the motorcycle was 80 m away still in the slow lane and travelling at a speed of 50 km/h; that Mr Wong Ka Wai (DW4)  saw the motorcycle about 70 m away travelling in the first lane at a speed of about 50-60km/h at which time the car was just past the double white lines making a U-turn and the evidence of Ir Lo that the collision happened because the motorcycle accelerated to speeds of up to 81.5 km/h.

206.I do not find this evidence credible.  I find inherently improbable that a motorcyclist with a clear view ahead and having sufficient time not only to slow down but to stop to avoid a collision would instead accelerate to speeds of up to 81.5 km/h, 31.5 km/h over the speed limit, in an attempt to pass the front of the car thereby risking not only his life but the life of his passenger as well. 

207.In rejecting the defence evidence, I have carefully considered the submissions of Mr Khattak: the speed issue, the lane issue and the angle issue[75].  These submissions do not cause me to doubt the rejection of the defence evidence.

208.I remind myself that the rejection of 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. 

Credibility of Mr Huber and Madam Li

209.Mr Khattak submits that the evidence of  Mr Huber and Madam Li is self-contradictory and not credible[76].Unless otherwise stated I accept the evidence of Mr Huber and Madam Li. 

The speed issue

210.Mr Khattak submits that it is highly unlikely Mr Huber was travelling at a speed of 30-40 km/h because if that was the case Mr Huber could have avoided the collision and that prior to the collision Mr Huber was in fact driving at speeds of up to 81.5 km/h[77].

211.For the reasons already given I reject the defence evidence Mr Huber was travelling at speeds of up to 81.5 km/h[78].

212.In addition, I accept the criticisms made by Dr Tao of the calculations in paragraph 9 of Ir Lo’s reports which calculations Dr Tao stated involved speculation and assumptions. 

213.I accept the opinion of Dr Tao that there was no physical evidence such as skid marks or scratches on the road to objectively and accurately determine the speed of the vehicles; that Ir Lo speculated that Mr Huber perceiving danger ahead applied hard braking for a distance of 20 meters to slow down or avoid the collision; and that damage of the vehicles should not be used to calculate impact speed which could only be considered as a very rough estimate and not very reliable[79].  

Was Mr Huber travelling at a speed of 30-40 km/h?

214.In paragraph 10 of his reports Ir Lo calculates the stopping distance of the motorcycle according to what Mr Huber said in his witness statement and concludes that if that was the case Mr Huber would not have crashed into the car. 

215.I accept the criticisms made by Dr Tao of these calculations including that the data and equations used by Ir Lo were not applicable in this case scenario; Ir Lo assumed different deceleration rates and the equation used in the supplementary report was applicable for calculating the displacement and not the braking distance[80].

216.Mr Khattak relies on the evidence given by Dr Tao in cross-examination when he agreed that if the driver of the motorcycle perceived immediate danger in front at a distance of 20 m from the point of impact he would be able to stop before reaching the point of impact if travelling at a speed of 30 or 40 km/h and if he reacted in 0.9 second and applied emergency braking, the stopping time being 2-3 seconds as shown in his table (exhibit P16C)[81].

217.This evidence must be read together with Dr Tao’s evidence-in-chief when he stated that there was no evidence such as skid marks left on the road showing that the motorcyclist had applied hard braking or if he did then for how long and that Ir Lo speculated that Mr Huber perceiving danger ahead applied hard braking for a distance of 20 meters to slow down or avoid the collision[82]. 

218.At no time did Mr Huber say he applied hard braking.  What Mr Huber said in evidence was that he tried to brake but a collision was inevitable.  The distance and time given by Mr Huber were only estimates.  As Mr Huber stated when cross-examined about his draft statement: “At that time I did not believe it was important for me to do an estimate of the distance.  At that time, I believed that the most important for me to say was to say the distance was very short.  I did not think about putting a number on the distance” [83].

219.I accept Mr Huber’s evidence in cross-examination that when giving his witness statement on 21 March 2020 he was asked by the police to estimate the time, distance and speed[84]. I accept the evidence of PC 14875 that the estimates of time, distance and speed given by Mr Huber and Madam Li were as a result of him asking for estimates[85].

220.This submission does not cause me to doubt that Mr Huber was suddenly confronted by the car in front of him at a distance where a collision was inevitable. 

The lane issue

221.Mr Khattak submits the debris, broken glass and the resting positions of the motorcycle, Mr Huber and Madam Li, as shown in the defence photographs, lead to the conclusion that the collision happened in the first lane[86].  The defence also rely on paragraphs 5.6-5.8 of the supplemental report of Ir Lo that the accident definitely took place in the left 1^st lane and that it was impossible the accident took place on the second left lane[87].

222.I accept the opinion of Dr Tao that using the damage profile, the final resting place and the location of debris can only tell the configuration of the engagement of the accident vehicles but not the location on the road where the collision happened[88].

223.In giving his opinion Ir Lo also relies on a video toy car model demonstration.  I accept the opinion of Dr Tao that he had reservations using toy cars to simulate what happened because the damage to vehicles would not be shown and that the video cannot help the court in understanding where the collision took place[89].

224.This submission does not cause me to doubt the evidence of Mr Huber and Madam Li that the collision took place in the second left lane. 

225.In addition, I am not satisfied this opinion that the collision occurred in the first lane was within Ir Lo’s expertise as a mechanical and automotive engineer.

226.When Mr Khattak asked Ir Lo about paragraph 8 of Dr Tao’s report (exhibit P16)  where Dr Tao questions Ir Lo’s findings in paragraph 5.6 of his supplementary report, Ms Chan objected to the question on the ground this was not within Ir Lo’s expertise, the court having ruled that Ir Lo was not an expert in traffic accident reconstruction[90].

227.Before Mr Khattak responded to the objection and without being asked any questions Ir Lo immediately said in English “No.  This is the area of…” at which stage I stopped Ir Lo and explained to him that the court was hearing an objection and that he was to wait for Mr Khattak to ask him questions[91]. 

228.Mr Khattak then asked Ir Lo whether he agreed this was not within his expertise as a mechanical and automotive engineer.  Ir Lo said that it is in the area of the subject of automotive engineer and sought to justify this by applying Newton’s 1^st law of motion that when the collision occurred the glass window shattered and fell vertically on the ground and therefore the accident occurred in the first left lane.  

229.I note no mention is made in this regard to Newton’s 1^st law of motion in the supplementary report.  In answer to the court Ir Lo said this was because “It may not be understood, so I explain it in court.”

230.I am satisfied the opinion of Ir Lo that the accident definitely took place in the left 1^st lane and that it was impossible the accident took place on the left 2^nd lane was speculation and not within his expertise as a mechanical and automotive engineer. 

231. Mr Khattak also relies on the opinion of Dr Tao that he could not rule out the possibility that the collision occurred in the first left lane or the second left lane and that he was more inclined to the view that even if the collision occurred in the first left lane that it would have been on the right side of the lane[92]. 

232.The fact that Dr Tao cannot rule out the collision occurred in the first left lane or the second left lane does not cause me to doubt the evidence of Mr Huber and Madam Li that the collision took place in the second left lane. 

233.Mr Khattak also submits that the evidence of Mr Huber is unreliable because in evidence-in-chief he said he never changed lane whereas in cross-examination he said at one point the road only allows for a right turn[93].  Mr Khattak also poses the question if there were no cars on the left first lane why was Mr Huber driving in the second left lane?

234.In cross-examination when put he should have been riding on the first left lane when there were no other vehicles on the first or second lane, Mr Huber replied that it was his belief that it was more prudent for him and safer to drive in the second lane from the left because cars would be parked on the left which may suddenly set off or open a door.  Mr Huber agreed that on that day there were no cars parked on the left and explained because there was such a possibility he chose to drive on the second lane from the left[94]. 

235.After drawing to the attention of Mr Huber the road sign shown in photograph 22 (exhibit D1)  which states “KEEP LEFT UNLESS OVERTAKING” Mr Khattak asked:

Q. “So you realised that you had to keep your lane – to the first lane unless you had to overtake while you were travelling on this Nam Fung Road on that day.”

A. “By seeing photograph 22, yes, but I do not remember having paid attention or having seen this road sign on the day of the accident.”

236.The fact that prior to the layby/bus stop area, as shown in photograph 28, Mr Huber had to move into the first lane does not cause me to doubt his evidence that prior to the collision he was in the second lane.  I accept Mr Huber’s evidence given in cross-examination that at least 100 meters before the location of the traffic accident he was in the second lane and did not change lane. 

237.Asked by Mr Khattak which photograph shows where he changed lane from the first lane to the second lane, Mr Huber replied that he was unable to say with precise accuracy and said that photograph 11 shows the point for certain from where he was in the second lane.  Mr Huber said that with reference to photograph 28 he would have been in the first lane; that he would not have changed to the second lane before the point where the photographer would be when taking photograph 35; there was an 80 per cent chance he was already in the second lane when he passed the yellow post in photographs 35-38 and that he was almost certain that by photograph 39 he was already in the second lane[95].  Nor does the fact that the second lane was for overtaking cause me to doubt Mr Huber’s evidence that prior to the collision he was in the second lane. 

The angle issue

238.Mr Khattak submits that the opinion of Dr Tao that the collision occurred when the motorcycle and the car were at an angle supports the evidence of the defendant and contradicts the evidence of Mr Huber that the collision took place at a perpendicular 90 degree angle[96]. I have no hesitation in rejecting this submission.

239.The first quotation from Dr Tao’s evidence on page 18 of the defence final submission is taken from cross-examination whereas the second quotation is from evidence-in-chief.  The quotation from evidence-in-chief is at the end of a very long answer when Dr Tao was asked about paragraph 5.6 of Ir Lo’s supplementary report. 

240.The last sentence quoted by Mr Khattak is incomplete and the end of the answer is omitted.  What Dr Tao said was:

“From my point of view, I agree that the motorcycle was not squarely rammed into the left side of the private car. I am inclined that when the collision occurred the motorcycle and the private car are at an angle, but not squarely. Considering that during the collision the motorcycle and the private car may be of a small angle with each other, the motorcycle may be deflected to the left after the collision. So assuming that the location as shown in the accident scene photo provided by the police was the final resting position of the motorcycle, I could not rule out the possibility that the collision happened either on the second lane. I also cannot rule out the possibility that the collision happened or occurred on the first lane. But I am more inclined even if the collision was occurred on the first lane, it would be on the right side of the road -- right side of the first lane”.

241.When Dr Tao was referred to the video reconstruction of the collision made by Ir Lo with use of a toy car and a toy motorcycle he also noted that after the collision the toy motorcycle was deflected to the left and reached the hatched area to the left and that if the same test was repeated with the collision in the second lane, there is a possibility that the toy motorcycle would be deflected and rest on the first left lane. 

242.In giving the answer recited by Mr Khattak from cross-examination Dr Tao also repeated his evidence in chief that he did not rule out the possibility that the collision occurred on either the left first lane or the left second lane.

243.At no time did Mr Huber say he collided head on with the car.  What Mr Huber said was that when he first saw the car, the car was blocking his way and that he tried to brake but a collision was inevitable.  Confronted with a vehicle in front, the immediate reaction would be to try avoid a collision by turning the motorcycle either to the left or to the right.  This is nothing more than common sense and is in my view entirely consistent with the opinion of Dr Tao that the collision was at an angle and that the motorcycle may have been deflected to the left. 

244.The angle of the collision does not cause me to doubt Mr Huber’s evidence. 

Were Mr Huber and Madam Li conscious after the collision?

245.Mr Khattak submits that both Mr Huber and Madam Li were fully conscious after the collision; failed to describe clearly about the driving manner of the defendant; that Mr Huber failed to describe how the collision had happened because he knew that the collision was caused as a result of his speeding and dangerous driving and that Madam Li attempted to conceal how her husband had driven the motorcycle prior to the collision[97]. I have no hesitation in rejecting this submission.

Mr Huber

246.Mr Huber testified that after the collision he either lost consciousness or lost his memory and that his next memory was a few days later when he was in hospital. 

247.SA 13986 (PW6)  described Mr Huber in the beginning as a bit unconscious but was able to respond when he spoke to him.  In cross-examination SA 13986 agreed that in his witness statement he said he found the male injured person was conscious and that he did not stop any police officer questioning Mr Huber and allowed the police to make enquiries of Mr Huber inside the ambulance. 

248.PCA 7222 (PW3)  described Mr Huber as semi-conscious.  When PCA 7222 asked Mr Huber for his identity card and driver’s licence, Mr Huber said that they were in his black bag in the tail box of his motorcycle.   In cross-examination PCA 7222 said he asked this after Mr Huber had been taken onto an ambulance; when he tried to ask Mr Huber how the accident happened Mr Huber said he was not clear how the accident had happened and that he had written down in his notebook that when Mr Huber was sent to Queen Mary Hospital he was conscious. 

249.In cross-examination after being referred to his investigation report PC 14875 (PW4)  recalled that he had seen Mr Huber at the scene of the accident and that Mr Huber told him that while he was driving his motorcycle, the private car suddenly made a turn, so he was not able to brake in time and that was how the collision occurred.  PC14875 said that he did ask Mr Huber where the private car was at the first moment he saw the car but the ambulance man said the situation was urgent and Mr Huber needed to be sent to the hospital[98].  

250.In cross-examination when asked if Mr Huber was conscious SPC 58095 (PW5)  said he could see Mr Huber’s eyes move.

251.In re-examination Mr Huber said that he thought the reason behind his loss of memory may be because of shock or the fact that he had been treated with morphine[99].

252.I accept the evidence of Mr Huber that he had no memory of what happened after the collision and that his next memory was a few days after when he was already in hospital.  As Mr Huber said in cross-examination when asked if he saw any police officer at the scene, “The last image that I have from this accident in my memory is the actual collision.  After that, I have no further memories on that day.” [100]

253.I accept the evidence of Mr Huber given in cross-examination that he remembered everything that happened before and up to the accident but not what happened after the accident until a few days after when he was already in hospital[101].  In my view what Mr Huber told PCA 7222 and PC 14875 is consistent with his evidence in court that suddenly a vehicle was blocking his way, he wondered why that vehicle was there, he tried to brake and that a collision was inevitable.

Madam Li

254.Madam Li testified that after the accident she was conscious, lying on the ground and crying loudly because she felt pain. 

255.SA 16347 (PW7)  said Madam Li was conscious and could speak coherently.  In cross-examination SA 16347 agreed he spoke to Madam Li in the ambulance who told him the motorcycle lost balance and she fell on the ground.  SA 16347 had no recollection whether any police officer spoke to Madam Li.

256.In cross-examination PC 14875 agreed that on the same day of the accident he went to the hospital to see Madam Li to try find out whether she knew how the traffic accident happened.  Madam Li told him that she was sitting behind her husband when she saw a car suddenly make a U-turn and then the motorcycle crashed into the rear left side of the car. 

257.PC 14875 said he asked Madam Li when she first saw the car what speed was the car travelling but Madam Li did not answer because the time did not allow since the doctor needed to do some treatment.  PC 14875 also asked Madam Li when she first saw the car what was the distance between the car and the motorcycle but Madam Li did not answer because she was scared[102].

258.In my view what Madam Li told SA 16347 and PC 14875 is also consistent with her evidence in court that she was sitting behind her husband when all of a sudden a vehicle emerged in front of them and the next second she was lying on the ground. 

259.The fact that according to the doctors Mr Huber and Madam Li were unable to recall any information regarding the injury/speed of vehicle or injury mechanism does not cause me to doubt their evidence[103].

False story

260.Mr Khattak submits that Mr Huber and Madam Li have concocted a false story, in particular the version that Mr Huber was travelling at a speed of 30-40 km/h and that he only saw the defendant’s car 2-3 seconds before the collision at a distance of about 15-20 meters[104].This Mr Khattak submits starts with Mr Huber and Madam Li adopting delaying tactics in giving their witness statements; to preparing draft statements to iron out inconsistencies in their false story and with the co-operation of PC 14875 discarding sketches drawn by Madam Li because they were inconsistent with what Mr Huber drew.

Delaying tactics applied by Mr Huber and Madam Li to give witness statements

261.Mr Khattak submits that the evidence of Madam Li that the police told her that her statement was not very important and that they wanted to wait for her husband to be discharged from hospital before taking a witness statement is contradicted by the evidence of PC 14875 who said it was Madam Li who said she wanted to wait for her husband to be discharged and that she needed to take care of her husband[105].

262.In cross-examination PC 14875 said that he called Mr Huber once while he was in hospital but Mr Huber told him his mental state was not fit enough and asked him to contact his wife[106]. In answer to the court PC 14875 said he made the call one week after the accident.

263.In cross-examination Mr Huber stated that his wife did not tell him she had told the police she had to wait for him to give a statement; his wife told him that the police told her that their statements were to be given simultaneously and that he did not tell his wife to wait for him to give a statement because as far as he knew it was the police themselves who wanted them to give their statements simultaneously[107].

264.I agree that it is unlikely PC 14875 would have told Madam Li that her statement was not very important[108]. I accept the evidence of PC 14875 that Madam Li said that she needed to take care of her husband and wanted to wait for her husband to go to the police station together.  In my view it is not at all surprising that Madam Li said she needed to care for her husband and wanted to wait for her husband to be discharged from hospital.  I reject the submission that Madam Li was obviously avoiding the police until she was ‘ready’ to give statement, and to give witness statements jointly with her husband. 

265.The rejection of the evidence of Madam Li and Mr Huber that the police wanted to wait for the discharge of Mr Huber so they could give their statements simultaneously does not cause me to doubt their evidence about the collision.   

The two draft statements (exhibit P12)

266.Mr Khattak submits that as early as mid-March 2020 or before that Mr Huber and Madam Li put their heads together to create a consistent but false story[109].  I have no hesitation in rejecting that Mr Huber and Madam Li have created a false story. 

267.In cross-examination Mr Huber said that before going to the police station he had spoken to his wife about how the traffic accident happened on two or three occasions; he did not remember that they talked about any numbers in terms of distance or time; that the purpose of their discussion was to understand the cause of the accident; that the cause was that the car suddenly obstructed their way; that “immediately” or “suddenly” are well understood but not measured in time and that he said the accident happened quickly and that when the car appeared in his way the distance was short[110]. 

268.When asking Mr Huber whether he had discussed the accident with his wife, Mr Khattak also asked Mr Huber whether he had directly spoken to any police officer before going to the police station on 21 March 2020.  Mr Huber replied that he had not met any police officer and believed he had spoken to a police officer to set the date to go to the police station. 

269.This was before the morning break on 7 September 2021 (Day 2).  After the break, before Mr Khattak resumed his cross-examination, Mr Huber told the court he remembered that the police officer asked him to send a draft of the circumstances of the accident.  This Mr Huber did and sent the draft to the police officer by email. 

270.In answer to Mr Khattak, Mr Huber said his wife also made a draft and that both drafts were sent by the same email.  Asked by Mr Khattak if the content of the drafts were basically identical, Mr Huber replied “Yes, because in our previous discussions we had no disagreement or no doubt with regard to how the accident occurred.” [111]

271.Both Ms Chan and Mr Khattak stated that they did not have copies of the drafts.  The OC case in court also said he did not have a copy of the drafts.  I therefore directed Mr Huber to return home during the lunch break and obtain copies of the drafts.  After the lunch break Ms Chan confirmed she had received copies of the drafts from Mr Huber and had served copies on Mr Khattak.  Mr Khattak confirmed that he had had sufficient time to consider the drafts. 

272.Mr Khattak then proceeded to cross-examine Mr Huber on the drafts and invited the court to look at the drafts.  I therefore received the drafts, which were marked exhibit P12 for identification, pursuant to section 14 of the Evidence Ordinance, Chapter 8.  

273.In cross-examination Mr Huber said that the police officer told him to prepare a statement of how the traffic accident happened and to tell his wife to prepare her statement; he did not specifically discuss with his wife how to prepare the draft and just forwarded to her the request of the police officer and disagreed that his wife typed her statement on the same computer where he had saved his draft so she could copy his draft.  I accept Mr Huber’s evidence.

274.I accept the evidence of Madam Li given in cross-examination that she only adopted the parts of her husband’s draft that she agreed with, including some of the expressions and vocabulary [112]. I accept the evidence of Madam Li in cross-examination that her husband did not coach her how to make a draft statement or how to give evidence[113].

275.The fact that Madam Li did not know what SUV meant and could not remember clearly when she first learnt the word perpendicular does not cause me to doubt her evidence about the collision.  

276.In my view it is not at all surprising that Mr Huber and Madam Li, husband and wife, discussed what happened.  I accept their evidence given in cross-examination that they did not create a false story[114].

The two witness statements (exhibits P12B and P15)

277.Mr Khattak submits the evidence of Mr Huber and Madam Li that they were asked by PC 14875 to estimate the time and distance is contradicted by the evidence of PC 14875[115]. I have no hesitation in rejecting this submission. 

278.In cross-examination PC 14875 said that because Mr Huber had already stated the cause of the accident in the draft sent by email he copied it into the witness statement [116].As noted by Mr Khattak the time and distance is not mentioned in the draft statements of Mr Huber and Madam Li.  Neither is mention made of the weather, the road surface, the daylight, the traffic condition or the speed. 

279.Asked by the court the circumstances Mr Huber came to tell him about the weather, the road surface, the daylight, the traffic condition and the speed, PC 14875 replied that he asked Mr Huber about the weather condition on that day and the approximate speed that he was travelling[117]. PC 14875 then typed up Mr Huber’s answers in narrative form. 

280.Similarly, PC 14875 said the distance recorded in the witness statement “I think around 15-20 meters” and the time “This lasted around 2-3 seconds.” were given as a result of him asking Mr Huber to estimate the distance and the time. 

281.PC 14875 said that he followed a similar practice when taking the witness statement from Madam Li by copying some of the information from the draft sent by email and then asking Madam Li about the weather and asking her to give estimates and putting the answers in narrative form.

282.I accept the evidence of PC 14875 that the estimates of time, distance and speed given by Mr Huber and Madam Li were as a result of him asking for estimates.

The sketches

283.The only sketch shown to court is the sketch drawn by Mr Huber which is annexed to his witness statement (exhibit P12B).  In cross-examination Madam Li testified she also drew a sketch.  No sketch is annexed to the witness statement of Madam Li (exhibit P15). 

284.Mr Khattak submits either Mr Huber required the assistance of Madam Li to draw a sketch because he was unable to do so or the sketches drawn by Madam Li were inconsistent with what Mr Huber drew[118] and that with the co-operation of PC 14875 the sketches of Madam Li went missing[119].

285.In cross-examination Mr Khattak asked Madam Li to draw a sketch as far as possible identical to what she drew in the police station.  Madam Li drew a sketch which she described as a rough sketch (exhibit P14).

286.I accept the evidence of PC 14875 that he first took the witness statement of Mr Huber; Mr Huber drew a sketch without the assistance of Madam Li and that after Mr Huber finished he took the witness statement of Madam Li[120].

287.I do not accept Madam Li’s evidence given in cross-examination as to the circumstances she recalled the sketch came to be drawn as summarised in the defence final submission[121].

288.I do not agree that PC 14875 dramatically changed his evidence in re-examination.  In cross-examination after Mr Khattak drew to the attention of PC 14875 paragraph 6 of Mr Huber’s witness statement in which he states he can provide a sketch, PC 14875 agreed no sketch was attached to Madam Li’s witness statement[122].

289.PC 14875 was then asked by Mr Khattak to confirm that he had written in his investigation report that at 12:30 (when the statement taking with the wife was over)  the wife did not have any photo or film or provide any sketch for investigation purpose.  After PC14875 said he remembered putting that in his investigation report Mr Khattak asked PC 14875 to confirm that the wife did not draw a sketch.  PC 14875 replied “Correct.”

290.In re-examination Ms Chan asked PC 14875 whether Madam Li was ever asked to draw a sketch.  PC 14875 said yes, on 21 March.  Asked what she drew PC 14875 replied “She drew a little bit but it was not submitted.  For explanation.”  PC 14875 explained that he wanted Madam Li to draw what happened but after she drew a little bit she thought it was not good enough so she did not submit the sketch.

291.In further cross-examination PC 14875 disagreed that Madam Li was not willing to submit the sketch because the sketch she drew was inconsistent with the sketch drawn by her husband[123].

292.I accept the evidence of PC 14875 given in re-examination that Madam Li did draw a sketch but this was not submitted because Madam Li did not think it was good enough. 

293.I reject Mr Huber, Madam Li and PC 14875 colluded together to produce only one sketch drawn by Mr Huber and to discard any sketches drawn by Madam Li.  The fact that no sketch drawn by Madam Li is annexed to her witness statement does not cause me to doubt her evidence or the evidence of Mr Huber about the collision.

Complaints made by Mr Huber to the police

294.Mr Khattak submits that the evidence of Mr Huber that he did not complain to the police and only made enquiry to learn the progress of the ongoing investigation is contradicted by the evidence of PC 14875 that Mr Huber had made a complaint about the charge[124]. I have no hesitation in rejecting this submission. 

295.Admitted in evidence is that the defendant was arrested for the offence of dangerous driving causing grievous bodily harm on 7 April 2020[125].  In cross-examination PC 14875 agreed that when the defendant went to the police station on 7 April 2020 she was accompanied by a lawyer[126].

296.PC 14875 agreed that the lawyer asked why the defendant was charged with such a serious offence; that he told the lawyer the police had sent Mr Huber a letter informing him that the police would proceed with the charge of dangerous driving; that Mr Huber had sent an email to make a complaint saying he had consulted his own lawyer and asked why the police did not charge a more serious offence and that the police had not yet responded to Mr Huber’s complaint.

297.Mr Khattak then asked PC 14875 whether he had read the complaint by email or correspondence.  PC 14875 replied that Mr Huber contacted him by phone to raise the question and not to make a complaint.  PC 14875 could not remember when this was but said it was after Mr Huber and Madam Li had given their witness statements. 

298.Asked by Mr Khattak if a letter had been sent to Mr Huber informing him of the decision of the police to proceed with the charge of dangerous driving, PC 14875 replied that no letter was sent; that on 21 March 2020 when the statements were taken Mr Huber had asked what charge would be brought; Mr Huber was told that it was possible the charge would be dangerous driving and that when Mr Huber telephoned to ask why a more serious charge could not be proceeded he explained to Mr Huber that legal advice would be sought before making a decision.   

299.When the court sought clarification from PC 14875 whether or not Mr Huber made a complaint, PC 14875 replied that Mr Huber did not make a complaint; Mr Huber asked on the phone why the charge was not dangerous driving causing grievous bodily harm and that he did not regard this conversation as a complaint.[127]

300.Whether or not an enquiry about what charge is to be laid can be regarded as a complaint is in my view not material.  The fact that Mr Huber enquired about what charge was to be laid does not cause me to doubt his evidence about the collision.

The driving manner of Mr Huber before the collision

301.Mr Khattak submits that it was impossible for both Mr Huber and Madam Li to have failed to see the defendant’s car from a long distance and that either Mr Huber is lying in order to hide his deliberate dangerous driving or he was grossly negligent[128].

302.With reference to the defence photographs Mr Khattak spent a long time in cross-examination of various witnesses seeking to establish that Mr Huber must have seen the defendant’s car in the layby/bus stop area a long distance before the point of collision.  After ruling the defendant had a case to answer the defence submitted admitted facts relating to distances between various points along Nam Fung Road (exhibit D6).[129]  

303.I accept from looking at the defence photographs and viewing the two video tests performed by Mr Wong (DW2)  that when travelling uphill the layby/bus stop area would begin to come into view at least 150 meters away.

304.Whether or not the driver of a motorcycle (or a motor car)  travelling uphill would notice the layby/bus stop area and whether there were any vehicles in the layby/bus stop area would depend upon whether the driver was paying attention to the opposite side of the road.

305.In my view a driver in the uphill lane would primarily concentrate on the road ahead and not on the opposite side of the road, let alone a layby/bus stop area on the opposite side of the road.  As Mr Huber stated in cross-examination he may have seen a car on the downhill lane but he didn’t pay a lot of attention to that car because that car was travelling in the opposite direction and did not amount to any danger for him[130]. I accept the evidence of Mr Huber in cross-examination that he had never before seen any car making a U-turn at the layby/bus stop area[131].

306.When the layby/bus stop area begins to come into view there is a double white line dividing the uphill and downhill lanes.  A driver in the uphill lane can therefore reasonably expect that a driver in the downhill lane will not cross the double white lines and therefore can focus his attention on the road ahead.  Equally, if the driver in the uphill lane at some stage noticed that there was a car in the layby/bus stop area, the driver can also reasonably expect that the car would not make a U-turn from the layby/bus stop area contrary to the double white lines and therefore focus his attention on the road ahead. 

307.I accept the evidence of Mr Huber and Madam Li that the defendant’s car suddenly appeared in front of them blocking their lane.

Dangerous Driving

308.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[132].

309.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[133].

310.The test is objective, the elements of the offence not requiring an intention to drive dangerously[134].

311.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[135].

312.Having carefully considered all the evidence I find that I am satisfied so I am sure the only inference to draw is that the defendant made the U-turn from the layby/bus stop area contrary to the double white lines without paying attention or sufficient attention to the traffic on the uphill lanes resulting in the collision.  I am satisfied so I am sure the defendant’s driving 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 driving in that way would be dangerous.

313.In reaching this finding I have considered the two cases referred by Mr Khattak[136].  I am satisfied the facts of both cases are different, the U-turn in each case made contrary to double white lines was made from the same side of the road in which the motorcycle was travelling.  These cases do not cause me to doubt the finding that the defendant’s driving was dangerous.

Grievous bodily harm

Mr Huber

314.As noted already the defence admit that the injuries sustained by Mr Huber as a result of the collision amount to grievous bodily harm[137].  I am satisfied so I am sure the injuries sustained by Mr Huber as particularised in the medical reports and described by Mr Huber amount to grievous bodily harm.  

Madam Li

315.The prosecution case was opened on the basis that Madam Li suffered from a fracture of the distal phalanx of the left little finger and complained of bilateral chest wall pain. 

316.Madam Li testified that she sustained two cracks of the chest bone and was told in November/December 2020 that the cracks could have occurred six to twelve months earlier as a result of a severe impact.  Without medical certificates to concretely prove this injury the prosecution do not rely on this evidence to establish Madam Li sustained grievous bodily harm[138].

317.I am satisfied that without supporting medical reports that Madam Li sustained two cracks of the chest bone and that the cracks were sustained as a result of the collision, I should not take into account this part of Madam Li’s evidence in determining whether the injuries sustained by Madam Li amount to grievous bodily harm.  

318.After careful consideration I am not satisfied the injury to the left little finger amounts to grievous bodily harm. 

Verdict

319.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Khattak both individually and collectively.  Nothing said by Mr Khattak causes me to doubt the findings I have made.

320.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.  Save that the prosecution is unable to prove Madam Li sustained grievous bodily harm, I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.

321.The defendant is convicted of causing grievous bodily harm to Huber Christian by dangerous driving.