HKSAR v. Ahmed Kaleem

HCMA 266/2024

[2026] HKCFI 3311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 266 OF 2024

(ON APPEAL FROM TMS 339 OF 2024)

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.The Appellant was convicted after trial of “careless driving”, contrary to section 38(1) of the Road Traffic Ordinance (“the Ordinance”), Cap 374. He was ordered to pay a fine of HK$2,500.

2.He was represented in the court below by Mr William Allan.

PROSECUTION CASE

3.By reference to the Appeal Bundle (“AB”), the Respondent has succinctly summarised the prosecution case as follows.

4.The admitted facts[1] (P4) show that at around 7:52 p.m. on 25 September 2023, light goods vehicle UV 8108, private car WL 8387, private car VD 3089, and motorcycle YA 4765 were being driven by Mr WONG, Ms TONG, Mr CHAN Kwan Hung (“PW1”) and the Appellant respectively, in sequence, one after another, along the 1^st lane of Yuen Long Highway. The speed limit was 80 km/h.

5.PW1 was the only prosecution witness. He testified that he was driving VD 3089 at the speed of 50-60 km/h. He admitted that he was not driving attentively. When he noticed the traffic in front was slowing down and that the private car in front had activated its hazard warning, he could not brake in time and crashed into the rear of the private car (WL 8387) in front. Around one second later, the motorcycle driven by the Appellant crashed into the rear of his car, and the impact pushed his vehicle forward, causing it to collide with WL 8387 again[2]. As a result of the collisions involving the three vehicles, the front part of his vehicle was slightly damaged, while the rear was seriously damaged[3].

6.The front and rear car camera videos of WL 8387, which captured the two collisions[4], were admitted into evidence[5].

DEFENCE CASE

7.The Appellant elected not to give evidence and called no witnesses[6].

8.In his closing submissions, Mr Allan submitted that the prosecution case had not been challenged, but contended that the evidence adduced by the prosecution failed to prove that the Appellant drove carelessly[7].

THE MAGISTRATE’S FINDINGS

9.In the Reasons for verdict, the magistrate said[8]:

“16. It is a known fact to every driver that if driving too close to the vehicle in front, he can’t see any of the road ahead and anticipate any potential hazards. I considered all the evidence carefully including the car cam video footage (P1) which, no doubt, is the most important piece of evidence in this case.

17. According to PW1’s evidence, the 2nd collision occurred 1 second after the 1st collision. Such evidence is not challenged by defence. I viewed P1 repeatedly whilst deliberating my verdict and noted the time shown on the footage does tally with PW1’s evidence, i.e. the defendant’s motor cycle did crash into the rear of PW1’s vehicle from behind a second or two after the 1st collision. Even though the motor cycle driven by the defendant cannot be seen in the footage, by the defendant’s body flown up in the air, I can say the defendant’s motor cycle crashed straight into the rear of PW1’s vehicle. Based on my observation, the only reasonable and irresistible inference the court can draw is, at the material time, the defendant did not keep a safe driving distance from the vehicle in front and he was following too close to PW1’s vehicle at an inappropriate speed, hence, when PW1‘s vehicle braked suddenly, the defendant was unable to brake in time to avoid crashing into the rear of PW1’s vehicle. Also, based on the seriousness of the damage at the rear of PW1’s vehicle as one can see in P1 photograph (7), the only reasonable and irresistible inference the court can draw is, at the material time, the defendant was driving too fast, it follows, the impact which can reflect the speed of the defendant’s motor cycle was so great to cause such serious damage.

18. Based on the above findings, I am satisfied beyond all reasonable doubt that the defendant was at the material time driving without due care and attention, and my conclusion is, he did commit the offence of careless driving.”

GROUNDS OF APPEAL AND THE SUBMISSIONS

10.The Perfected Grounds of Appeal Against Conviction and the Appellant’s Written Submissions were prepared by Mr Allan.

11.Mr James McGowan appeared for the Appellant at the appeal hearing. Mr McGowan said he received late instructions to appear for the Appellant and that, due to an oversight, the instructing solicitors had failed to write to notify the court of the change of the Appellant’s legal representation.

12.Mr McGowan adopted the written submissions prepared by Mr Allan and emphasised that at the material time PW1 did not slow down, did not apply the brake, and did not flash his indicators. He submitted that no warning at all was given to the Appellant that there was any danger coming up.

13.The grounds of appeal and the gist of the Appellant’s submissions were as follows.

Ground 1

14.First, it was submitted that the magistrate erred in law and in fact by making collective assumptions and/or speculating as to the Appellant’s manner of driving in finding that the Appellant had failed to keep a safe distance from the vehicle in front, had in fact been following too closely at an inappropriate speed, and had been unable to brake in time. It was further argued that, based on the seriousness of the damage to the rear of PW1’s vehicle, the magistrate wrongly found that the Appellant had been driving too fast.

15.No evidence was admitted as to the Appellant’s speed, following distance or driving manner, nor as to the distance from the Appellant’s motorcycle and the vehicle in front. There was no independent witness to the accident. No expert traffic accident report was produced to explain the cause of the accident. PW1 admitted that he was not driving attentively. He was unable to brake in time. He never stated that the driving manner of the Appellant had been careless or that the Appellant had been driving too fast.

16.It was further submitted that the Appellant’s motorcycle could not even be seen in the car camera footage; only the Appellant’s body could apparently be seen flying into the air. Therefore, it was argued, the magistrate erroneously found as a fact that the Appellant had not kept a safe distance and had been following too closely behind PW1. Besides, it was submitted that there was no evidence that the Appellant was driving too fast by reference to photograph (7) of P2. Only an expert witness, it was argued, could have given expert evidence as to the Appellant’s speed.

Ground 2

17.The magistrate erred and wrongly misdirected himself when he said at paragraph 16 in his Reasons for verdict:

“It is a known fact to every driver that if driving too close to the vehicle in front, he can’t see any of the road ahead and anticipate any potential `hazards.”

18.It was submitted that there was no evidence that the Appellant had been driving so close that he could not see any of the road ahead or anticipate any potential hazards. Further, the magistrate failed to remind himself that a rear-end collision was not irrefutable evidence of carelessness on the part of the Appellant.

THE RESPONDENT’S SUBMISSIONS

19.In relation to ground 1, the Respondent submitted that the magistrate’s findings were the only reasonable and irresistible inferences from the evidence, including the evidence of PW1, the car camera video footage and the photographs[9].

20.In relation to ground 2, the Respondent submitted that the magistrate was well aware that the mere fact that of a rear-end collision did not, by itself, mean that the Appellant had driven carelessly. The magistrate had expressly stated in the Reasons for Verdict that: “the question for this court to determine is, based on the fact that the defendant did crash into the rear of PW1’s vehicle from behind, whether the defendant was also driving carelessly” [10].

CONSIDERATION

21.In HKSAR v Hui Lai Ki[11], the Court of Final Appeal held that the magistracy appeal is conducted by way of rehearing on the evidence before the trial court. On such rehearing, if the judge comes to a different view on the evidence before the Court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate.

22.Although two grounds of appeal have been advanced, they are in substance the same complaint: namely, that there was insufficient evidence to support the magistrate’s findings. I therefore deal with the grounds collectively.

23.There was no dispute that the Appellant’s motorcycle hit the rear of PW1’s car. The issue at the trial was whether the Appellant had driven his motorcycle carelessly within the meaning of section 38(2) of the Ordinance which provides:

“A person drives carelessly within the meaning of this section if on a road he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road.”

24.In his submissions, Mr McGowan referred to Kit Wing-wo and R[12], in which the appellant, a motorcyclist, succeeded in having his conviction for careless driving set aside on appeal. It was submitted, inter alia, that the court in that case said:

“The Court is not entitled to simply apply the doctrine of res ipsa loquitur. That doctrine applies in civil cases but there must be some positive evidence of carelessness in a criminal prosecution unless the evidence is so strong that, in the absence of any explanation from the defendant he must have been negligent. If there is such positive evidence then the court is entitled to say that the drive had not performed the standard of care required.”

25.At the outset, I should say that the magistrate did not say the doctrine of res ipsa loquitur applied in the present case. The magistrate bore in mind the burden and standard of proof[13] in criminal proceedings. The fact that the appellant in Kit Wing-wo was acquitted turned on the facts of that case which has no bearing on the present case.

26.Mr McGown repeatedly emphasised that PW1 admitted that he had not been driving attentively. However, that does not mean that the Appellant was not driving carelessly. This court referred him to HKSAR v Chan Kam Shing[14] in which Deputy High Court Judge M Poon (as she then was) said:

“The key issue in this case does not rest solely on the reliability and credibility of the first witness. In any event, even if the first witness was also careless in the incident, that would not reduce the appellant’s culpability. The magistrate correctly pointed out that the first witness had priority on the right-hand lane in which he was travelling. As the driver changing lanes, the appellant was under a duty to exercise extra vigilance regarding the traffic conditions in the lane he intended to enter. Even if the appellant mistakenly believed that the first witness would allow him to change lanes and proceeded to do so, the fact that a collision occurred in the course of that manoeuvre means that his misjudgment as the lane-changing driver was itself tantamount to a failure to pay proper attention and to carefully assess the other vehicle’s movement, as well as a failure to ensure that the lane change could be carried out safely. That plainly amounted to careless driving. Even if the driver whose lane was being entered was himself also guilty of careless driving, that would not constitute a defence for the driver changing lanes. [15]”

(English translation by this court)

27.The issue remains whether or not the Appellant was, at the material times, driving carelessly.

28.It is true that there was no direct evidence of the speed of the Appellant’s motorcycle and of the distance between his motorcycle and PW1’s private car. However, as the magistrate rightly stated, P1, which was played in court and in my chambers many times, is an important piece of evidence. The 2^nd recording of P1 shows:

(a) at 7:49:39 PW1 was driving his car and crashed into the rear of the car in front;

(b) at 7:49:39 a red helmet on the Appellant’s head could be seen behind PW1’s private car; and

(c) at 7:49:39-7:49:41 the Appellant was thrown into the air and landed on the roof of PW1’s car, then slid down from the side of PW1’s car and fell to the ground.

29.PW1’s car crashed into the front car at 7:49:39, and one second after at 7:49:40, the Appellant was seen flown up in the air. As a result of the crash, serious damage was caused to PW1’s private car. The photographs[16] taken after the traffic accident show the rear part of PW1’s car was extensively dented. The motorcycle was also damaged.

30.The proximity in time and distance between PW1’s car and the Appellant’s motorcycle, as shown in P1, provides a strong and sufficient factual basis for the magistrate to draw the only reasonable and irresistible inference that the Appellant had failed to keep a safe driving distance from the private car in front. If the Appellant had not been following too closely behind PW1’s private car, he would then have had sufficient time to react, brake, and stop behind PW1 without crashing into PW1’s private car.

31.In a case such as the present, where the movement of the Appellant was captured in P1, that evidence was sufficient for the magistrate to reach the conclusions that he did. By way of rehearing, I consider that there was sufficient evidence for the prosecution to prove beyond reasonable doubt that the Appellant committed the offence of careless driving. I therefore dismiss the appeal against conviction.

Mr Lau Chirk Yen Jason, SPP of the Department of Justice, for the Respondent

Mr William Allan (for written submissions) and Mr James McGowan (for the hearing), instructed by Mohnani & Associates, for the Appellant