HKSAR v. Hussain Ashfaq

DCCC 759/2024

[2026] HKDC 756

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 759 OF 2024

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REASONS FOR VERDICT

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1.The defendant is charged with:

(a) Dangerous driving causing death, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (Charge 1);

(b) Failing to stop after accident whereby personal injury was caused to a person, contrary to section 56(1)(a) and (5) of the Road Traffic Ordinance, Cap 374 (Charge 2);

(c) Failing to report an accident involving personal injury to another person, contrary to section 56(3) and (6) of the Road Traffic Ordinance, Cap 374 (Charge 3);

(d) Using a vehicle without good and efficient braking system, contrary to regulations 5(4) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A (Charge 4);

(e) 2 counts of using a trailer with unsuitable tyres, contrary to regulations 22(1)(a) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A (Charges 5 and 6); and

(f) Using a trailer fitted with a pneumatic tyre that has a portion of the ply or cord structure exposed, contrary to regulations 22(1)(e) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A (Charge 7).

2.The defendant pleaded guilty to Charges 4 to 7, but pleaded not guilty to the other charges.  The defendant was therefore convicted of Charges 4 to 7 on the first day of trial.

3.It is also agreed between the parties that the conviction of Charges 4 to 7 in this case bears no relevance to the case against the defendant in Charge 1.

Prosecution Case

4.The prosecution in this case relied on the Admitted Facts (Exhibit P9) and the exhibits therein, as well as the evidence from prosecution witnesses.

Admitted Facts (Exhibit P9)

5.At around 1335 hours on 6 January 2024, the defendant drove a medium goods vehicle bearing registration mark PF7520 with a trailer displaying registration mark 48598T (“the Vehicle”) out of a trailer warehouse (“the warehouse”), turning left onto Kam Sheung Road, Pat Heung, Yuen Long, near lamppost No. U8403 (“the lamppost”).

6.At that time, Madam Ting Sau Wah (“the deceased”) was standing on the pedestrian pavement near the vehicular access to the warehouse. When the Vehicle turned left, the deceased stepped back for a short distance, but she was hit by the trailer (48598T) which then drove over her.  The defendant continued driving the Vehicle along Kam Sheung Road.

7.At the same time, PW1 was driving along Kam Sheung Road behind the Vehicle.  He witnessed the incident and he repeatedly sounded his car horn and shouted out that someone had been hit.

8.Around 30 seconds later, the defendant stopped the Vehicle and alighted, and there was an “interchange” between him and PW1 at a distance.  The defendant did not at that time return to the scene of the incident, but he returned to the Vehicle and drove away without reporting the case.

9.PW1 provided the police with camera footage of the incident recorded on his car camera (Exhibit P1).

10.At around 1343 hours, the ambulanceman (PW2) arrived at the scene.  The deceased was then fully conscious.  PW2 observed that there was an acute fracture near the left knee of the deceased.  The deceased was taken to hospital where she developed cardiac arrest.  Despite receiving treatment, she was certified dead at 1543 hours on 6 January 2024.  The medical report of the deceased is produced as Exhibit P2.

11.An autopsy was later carried out on the deceased.  The cause of death was multiple injuries.  The autopsy report is produced as Exhibit P3. 

12.The injuries that led to the death of the deceased were caused by the trailer colliding with her and rolling over her.

13.At 1555 hours on 6 January, the defendant arrived at the police station to help the police with their inquiries.  At the time, he was towing a different trailer and he was asked by PC 19963 (PW5) to go and fetch the relevant one, i.e. trailer with registration mark 48598T.  He did as requested and returned later with the trailer to the accident scene where he assisted in the investigation.

14.He was arrested at 1802 hours on the same day and was cautioned by PW5 for the offences of (1) causing death by dangerous driving, (2) failing to stop after an accident, and (3) failing to report an accident.  He was subsequently detained in police custody.

15.35 photographs of the scene were taken by PW5 and produced as Exhibit P4(1-35).  PW5 also drew a sketch of the scene on the same day. The sketch is produced as Exhibit P5 and its English translation is produced as Exhibit P5A.

16.On the next day, 7 January 2024, a notice to person in custody (Exhibit P6) was issued to the defendant.  He also voluntarily took part in a video-recorded interview conducted by PC 9331 (PW6) and DPC 12801 (PW7) between 1548 hours and 1743 hours.  The DVD containing the record of interview is produced as Exhibit P7, the transcript is produced as Exhibit P7A, and its certified English translation is produced as Exhibit P7B.

17.The Vehicle was later inspected by a vehicle examiner in the Vehicle Examination Centre, and defects on the trailer of the Vehicle were found, being the subject of Charges 4 to 7.  None of the defects was a cause or contributed to the accident or the death of the deceased.  The vehicle examination report is produced as Exhibit P8.

18.The defendant has a clear criminal record and has been living in Hong Kong for over 30 years.

Evidence from prosecution witnesses

PW1 – Mr Lau Man Ho

19.PW1 said he was driving his private vehicle with his wife on board along Kam Sheung Road towards Sheung Tsuen.  There was a private vehicle, registration number CP9999, in front.  He said that he saw the Vehicle coming out of the warehouse and he did not see the defendant stopping the Vehicle before he drove onto Kam Sheung Road.

20.PW1 said as the Vehicle needs to occupy two carriageways going in both directions, the defendant wanted to block these lanes.  He stretched his right hand out of his driver compartment and tried to stop traffic in PW1’s direction. 

21.PW1 said when the Vehicle was near the carriageway on the opposite side, it started to negotiate the left turn.  PW1 saw through the underneath of the trailer that there was a person standing on the left side of the trailer as he could see the legs, and when the trailer turned left, this person fell backwards.  PW1 realised that the middle part of the trailer had hit this person.  PW1 also saw the trailer shook upwards and downwards later, and he realised that this trailer had rolled over the person.

22.PW1 said after the Vehicle turned left, it headed towards Sheung Tsuen.

23.PW1 said the car in front and also the car at the back realised that there was an accident and all started to sound their horns frantically to alert the driver of the Vehicle.  He said CP9999 continued to move forward and he followed, following the trailer.  All cars continued to sound their horns in the meantime. 

24.PW1 said after travelling for about 100 metres, the Vehicle stopped.  PW1 said he shouted loudly in his own vehicle that the defendant hit someone and rolled over someone.  Afterwards, when the driver, ie the defendant, alighted from the Vehicle, PW1 also got out from his own vehicle and walked towards the trailer to outside of driver seat of CP9999.  Whilst he walked, he shouted in Punti that there was a traffic accident and asked his wife to report to police.

25.PW1 said initially the defendant was by the side of the trailer.  He looked confused, but after PW1 told him two times of the happening of the accident, the defendant then had moved and was standing by the side of the rear of the trailer, changed from confusion to denial and turned his back and left.

26.PW1 said he was at a distance of about half the trailer when he shouted to the defendant that he had rolled over a person and that there was an accident.  At first, he used Punti, later he got more excited and he used English and repeated.  He said the defendant just shook his head.  He also said when the defendant walked towards himself, he saw the defendant opened his mouth and spoke, but he could not hear what he said clearly.  It should be something like “冇，冇呀.”

27.PW1 said the defendant denied, waving his hand in the air as if saying “No, no”, and he turned his back, returned to the Vehicle and drove away.

28.In cross-examination, PW1 said initially, the vehicle in front, CP9999, did not give way to the Vehicle coming out from the access road to Kam Sheung Road, but the Vehicle dashed out.  The defendant also used his hand to signal CP9999 to stop.  He said the defendant coming out from the side of the main road should give way to the traffic on Kam Sheung Road, but the defendant did not. 

29.PW1 said he could see the legs of the deceased from underneath the trailer before the accident.  Before the deceased was hit by the middle part of the left side of the trailer, the deceased was standing near the lamppost on the pavement.  He also saw the legs of the deceased moving backwards.  The deceased later fell backwards when she was hit.

30.PW1 said after the Vehicle hit the deceased, the driver of the car behind PW1’s car, PW1, and also the driver of the car in front, all sounded their horns.

31.PW1 said when he later returned to the accident site after the defendant left, which was about 3 to 4 minutes after the accident, he could see the flesh, the fat and the blood from the leg of the deceased all over, and the deceased was moaning and shaking.

32.PW1 said it is possible that the car camera of his car might not be able to record what he said outside his car because the window of his car was closed.

PW5 – PC 19963

33.PW5 was tendered by the prosecution for cross-examination by the defence. 

34.PW5 was the investigation officer of the traffic accident and the first to arrive at the scene.  He did not see the deceased when he arrived.  He drew the sketch of the scene (Exhibit P5).

35.PW5 was the one who met the defendant who came voluntarily at the request of the police on 6 January 2024.  He arrested the defendant later on the same day.  He also cautioned the defendant in Punti and the defendant replied in simple English that “Never say anything.  I don’t know traffic accident.”

36.PW5 said when he spoke to the defendant in Punti, the defendant understood what he said, and when the defendant was investigated, the defendant did not speak Chinese.

PW7 – PC 12801

37.PW7 was also called for cross-examination at the request of the defence.

38.PW7 was attached to New Territories North Traffic Special Investigation Team Team 1. 

39.On 7 November 2024, PW7 took the defendant from detention cell to Tin Shui Wai Police Station for the video-recorded interview.  PW7 said he did not notice the defendant taking any medication whilst he was with him.  He explained to the defendant about the procedures in the video-recorded interview briefly in English. He said he did not have much conversation with the defendant because the defendant only spoke simple English and Urdu.  The defendant exercised his right to remain silent in the video-recorded interview after preliminary questioning. 

40.This is the case for the prosecution.

41.Defence counsel did not make any half-way submission and the court ruled there was a case to answer by the defendant on Charges 1, 2 and 3.

Defence case

42.The defendant elected to give evidence after he had been explained of his rights.

43.The defendant, born in year 1969, came to Hong Kong in 1989 from Pakistan.  He is an Urdu dialect speaker.  He is married with 6 children.  It is said that he has a clear record in Hong Kong and Pakistan. He is a professional heavy goods vehicles driver and had been driving heavy goods vehicles for about 20 years.  He had been employed by the present employer for around 30 years.

44.The defendant said his colleagues are mostly Pakistan.  He speaks to his colleagues in Urdu and his customers, mostly African, in simple English.  He also speaks a little Chinese that relates to his work.  Outside office hours, he would use Urdu.  The defendant said sometimes when others spoke to him in Chinese, he used English and gestured in response.

45.He said on the day in question, he had just started work and there was only an empty container on the trailer.  He has been working in the same warehouse for about 12 years, driving container trucks in and out of the warehouse every day, sometimes as much as 4 to 5 times a day, and if there was no work, then he would not drive in and out of the warehouse. He admitted he was very familiar with the place. 

46.The defendant said he encountered no problem in the past driving in and out of the warehouse.

47.On the day in question, the defendant said when he was driving the Vehicle out from the warehouse, and when his vehicle came near to the main road, he stopped.  He looked at the traffic on the left side, then he used his right hand and signalled to the traffic on the right side, and then he looked to the traffic on the left side again.  He said he saw the deceased standing near the electric pole on the left side of his vehicle (Exhibit P4(1) and P4(2)). He then moved his vehicle forward a bit. 

48.The defendant said the deceased did not move but remained at the same spot standing between the first time and the second time when he looked to the left side. 

49.He also said there was a car coming from the left going past his vehicle before he pulled his vehicle onto the main road.  In the meantime, the defendant said the first car on his right had stopped completely and gave way to him.  He then noticed that the traffic on the left was clear.  He looked at the deceased standing on the left side and pulled out his vehicle onto the road.  He said the deceased was standing at the same spot the third time he looked at her.

50.The defendant said when he turned left, he could not see the deceased in the mirror because of the position of the mirror.  He did not further see her when he made the turn. 

51.After the defendant moved further down the road, he heard the hooting of horns and then he stopped.  He said he stopped “because I thought there might be something happened at the back and I got out.”  When he got out, he saw a Chinese male (PW1) standing at the back, at some distance from him, he walked a little bit forward but he was unable to understand what PW1 was saying.  He said he could not hear the voice of PW1 because there was traffic on both sides of the road and there was noise from the engine of his own vehicle. He then thought that the reason why the man shouted at him was because of the traffic jam he had created earlier on.

52.He also said that it was usual for car drivers to hoot at the lorries and buses on Kam Sheung Road.  He explained he got off his vehicle because there were “too many hooting.” He said when heavy goods vehicles drivers drive heavy goods vehicles, they drive at low speed and sometimes people press horns lightly.  He thought they wanted him to move with speed, but when they pressed their horns loudly for a long period of time, then he got off the Vehicle.

53.The defendant said he did not see the deceased hit by the trailer.  When he saw the deceased, she was at a fair distance from him.  He did not know if the deceased did move forward or backward later when he made the turn.  He admitted after watching the car camera footage (Exhibit P1), the deceased did not move forward when he made the left turn.

54.He also admitted that, in fact, there were 4 mirrors fitted to the left side of the Vehicle (Exhibit P4 photos 25, 26, 34, 35), and they were placed at different angles so that he could see what was happening on the left side of the Vehicle.

55.In cross-examination, he admitted that at all times he could see the rear of his trailer and he knew the deceased was standing close to his vehicle.

56.The defendant said when he moved forward halfway, he looked at the deceased, but when the lorry turned completely, he could not see her.  He explained the reason was because the Vehicle then was in an L shape.  He reiterated he considered the spot where the deceased used to stand was in a safe place.

57.In cross-examination, the defendant admitted he did not observe the position of his trailer when he made the left turn whilst he knew his trailer would cut across the pavement.  He explained the reason was that he saw the deceased standing at a safe place and his vehicle could pass by that place.

58.He said he did not realise the trailer did run over something because the trailer was running over the kerb of the pavement which was not a smooth surface.  He denied he noticed bumping of some kind from the trailer.

59.He said he did not understand PW1 as he spoke in Chinese, although he admitted he knew simple English and simple Chinese.

60.He admitted that the hooting of horn on that occasion was different because it lasted for quite some period of time.  He thought he was the one who created the traffic jam resulting in the sounding of horns and, therefore, he gestured by raising his hand and said sorry.

61.He said PW1 was standing on the right side, had PW1 been standing on the left side, then he would have noticed what had happened.

62.When the defendant was asked why he did not go forward to PW1 and ask the reason for PW1 shouting, he explained that he thought PW1 was shouting because of the traffic jam.  He said he honestly did not ask what PW1 was saying, had he known there was a traffic accident, he would not have left.  He denied knowledge of an accident.

63.The defendant said though he noticed the deceased standing on the left side of the Vehicle, he thought the place was safe because people used to stand there when they moved out from the warehouse onto Kam Sheung Road.  He also believed the deceased was aware of his vehicle as she was looking at the Vehicle when she stood there waiting for the Vehicle to move onto Kam Sheung Road.

64.In cross-examination, the defendant admitted that he knew fully that the rear wheel of the trailer would not follow the same path as the tractor when he made the turn, and they would cut a smaller curve. He said that was why he turned only when the road was completely clear.

65.In re-examination, when the defendant was asked if he felt a “bump” when he moved out of the warehouse, the defendant replied there was some problem with the spring, it used to go up and down, and he did not feel he had hit something or driven over something.  He had no concern that he might hit the deceased because she was standing in a safe place looking in the direction of the Vehicle.  He did not anticipate any risk of him hitting the deceased.

66.There is no other defence witness. This is the case for the defence.

Discussion

67.This court has carefully considered the closing submissions of the parties, evidence before the court, in particular, the car camera footage from PW1’s car (Exhibit P1) which is the most helpful to this court. 

68.This court finds all prosecution witnesses truthful witnesses.  Although PW1 did say the defendant’s vehicle did not stop before he moved his vehicle onto Kam Sheung Road, the car camera footage shows otherwise, the defendant did stop, though briefly, at some distance before he reached Kam Sheung Road after he exited from the warehouse.  One must not forget that PW1 was in the car following the private vehicle CP9999 so he might only notice the existence of the Vehicle when the Vehicle started to move again after the initial stop.

69.The defendant is a man of clear record and due consideration to his propensity to commit crime and his credibility has been given.

70.In court, the defendant has admitted that he had been working as a goods vehicle driver for about 20 years, he had worked in this warehouse as a professional heavy goods vehicle driver towing trailer in and out for about 10 years, and he was familiar with the environment of the warehouse.

Charge 1

71.On the day in question, the defendant said he drove the Vehicle out from the warehouse.  When he was still at some distance from the Kam Sheung Road, he did stop briefly before he negotiated the left turn.

72.He admitted seeing the deceased on the left side of the Vehicle on the pavement near the lamppost, and therefore not very close to the Kam Sheung Road carriageway.  In fact, the defendant said repeatedly that he considered the place where the deceased was standing in a safe place. Therefore, he had not thought of the possibility of his vehicle hitting the deceased when he made this left turn.  The facts turned out otherwise.  As one could see from the car camera footage (Exhibit P1) at 13:35:56 hours, the trailer went diagonally across and covering the whole of the pavement where the deceased used to stand.

73.The defendant also confirmed that from the few times he noticed the deceased, she was not moving but remained at the same spot waiting for the Vehicle to turn, and she was paying attention to the Vehicle and at some distance from the Vehicle.

74.The car camera footage showed that when the defendant then started to move again after the brief stop, in order to make his left turn onto Kam Sheung Road, he started to drive onto and across the carriageway in the direction of Sheung Tsuen, which led the driver of CP9999 to brake continuously for nearly 3 seconds.  The braking of the CP9999 was relatively abrupt as one could see from the sideward, upward and downward movements of the car body of CP9999 before it stopped.  This would explain why the defendant extended his right arm out of the driver compartment and signalled to the driver of CP9999.  It is obvious that because of the driving manner of the defendant that the driver of CP9999 was forced to give way to the Vehicle.

75.The defendant then made his way across the Kam Sheung Road slightly at an angle to the right, and then continued to complete his left turn.  At that juncture, there was a private vehicle, PR6667, coming in the opposite lane, ie in the opposite direction of Sheung Tsuen, which did not give way to the Vehicle but continued travelling.  The Vehicle did not stop but continued its left turn.  The two moving vehicles were at short distance from each other[1].

76.It is therefore not true when the defendant said he stopped the Vehicle until the traffic in the opposite lane was clear before he continued the left turn.

77.The defendant said even if he wanted to, he could not see the deceased during the turn.  Again, this is not true because the defendant was well assisted by the 4 mirrors fixed at different angles to the left side of the Vehicle.

78.Furthermore, when the Vehicle was already in the direction of Sheung Tsuen and the trailer was still in the course of making its turn, as described by the defendant, the Vehicle was at an L shape.  It would be easier for the defendant to see the deceased.  In cross-examination, the defendant admitted that at all times he could see the rear of his trailer. 

79.Further, if the defendant really could not see the deceased even if he had looked, which is not accepted by this court, the defendant well knowing the deceased’s presence on the pavement, chose to continue to negotiate the left turn.

80.Actually, the defendant also admitted in cross-examination that he did not observe the location of the trailer when he negotiate his left turn.  This must be dangerous driving manner, apparent to all, when he knew the trailer of his vehicle might go and cross over the pavement, well knowing the existence of the deceased on the pavement.

81.The defendant did not pay proper attention or look out to see if the deceased would be hit when he continued to make his turn.  He also did not pay proper attention to the trailer when he negotiated his turn because if he did, he would have avoided the tragic accident.

82.One could also see that when the Vehicle exited from the warehouse, there was a wide gap between the right side of the Vehicle and the right side of the warehouse entrance/exit, whilst the Vehicle, especially the trailer part, was at the very left of the entrance/exit to the warehouse, which clearly contributed to the occurrence of the accident[2].  The defendant should have manoeuvred the Vehicle much more to the right side when he exited from the warehouse.  It might well be that he was hesitant to do so because of the existence of the oncoming CP9999 or the traffic on his right.

83.The car camera footage showed that the deceased was standing still on the left of the Vehicle at some distance on the pavement and some distance from Kam Sheung Road carriageway when the Vehicle first went on to Kam Sheung Road.  It was only when the defendant later continued his left turn which led to the trailer going sideways to the left, followed by the feet of the deceased going backward towards the lamppost for 3 to 4 steps before the deceased fell on the ground.

84.The autopsy report of the deceased (Exhibit P3) showed existence of the injuries to the lower limbs and the pelvis showed multiple blunt injuries, keeping well with being hit by the container truck and being run over.  These injuries could not be caused by an accidental backward fall to the ground alone.  In fact, this fact is covered by paragraph 4 and 11 of the Admitted Facts.  Blood found at the accident site also indicated the location where the deceased was hit and run over.

85.Counsel for the prosecution in his final submission submitted that section 109(5) of the Road Traffic Ordinance, Cap 374, allows the court to rely on the defendant’s failure to observe the Road Users’ Code to establish liability.

86.He referred to page 58 of the Road Users’ Code (June 2020 Edition) which says that when entering or emerging from a place facing the road, a driver must “give way to pedestrians”.  He submitted that in this case, the deceased was standing on the pavement prior to the defendant crossing the pavement.  By executing a turn in such a way that the trailer crossed diagonally across the pavement and struck the deceased, the defendant failed to use the driveway properly or give way.

87.He submitted further that page 61 of the Road Users’ Code says the rear of a long vehicle may not follow the same path as the front when turning.  As an experienced licensed driver, the defendant must possess this knowledge.  He knew his trailer would cut across the pavement and he knew the position of the deceased on the pavement.  It imposes a duty of care on the driver to ensure that the path which the trailer would take is clear of pedestrians before moving. In this case, the defendant turned without ensuring the path of his trailer was clear of the deceased.  His failure to account for this known danger constitutes dangerous driving.

88.This court accepts these submissions in full.

89.The driving manner of the defendant on the day was not solely as a result of a minor misjudgment or a momentary loss of attention, but a series of gross recklessness and neglect.

90.In the manoeuvring of the Vehicle out of the warehouse onto Kam Sheung Road, a place where the defendant was very familiar with, he as an experienced professional driver had entered Kam Sheung Road causing CP9999 to abruptly stop to allow his vehicle from the access road onto Kam Sheung Road.  He has not stopped and waited for the vehicle in the opposite lane, PR6667, to go past first before continuing his turn, which would definitely go onto and in fact did occupy most of the opposite lane, leaving only a small gap between the two moving vehicles, ie the Vehicle and PR6667.

91.The defendant clearly failed to pay any proper attention to the deceased throughout the period when he negotiated his left turn, while knowing her existence and her position which he described as a safe place, not paying proper attention to the location of the trailer when he negotiated left turn.  These all contributed to the deceased being hit by the left side of the middle part of the defendant’s trailer which resulted in her death.

92.This court has no doubt that the deceased had been standing still at a safe distance from the left of the Vehicle whilst watching the Vehicle and waiting for it to complete its left turn.  She knew of the oncoming danger and immediately responded to and made a few steps backwards to avoid the accident, but her effort was unsuccessful, and was hit and run over by the trailer which led to her death.

93.Defence counsel in the closing submission suggested where the deceased stood was not a safe place.  This was inconsistent with the evidence from the defendant and from the car camera footage.  She was standing then at some distance from the carriageway of Kam Sheung Road and some distance from the left of the Vehicle.  The place where she stood had only became dangerous because of the driving of the defendant later on.

94.Considering all that was before me, the court has no doubt that, on the day, the way the defendant drove fell 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.

95.This court therefore finds Charge 1 proved beyond reasonable doubt and the defendant is convicted of Charge 1.

Charges 2 and 3

96.It is admitted that the accident occurred involving the defendant’s trailer leading to the bodily injury of the deceased, and the defendant did not stop the vehicle or report to police the accident as soon as reasonably practicable.

97.The defendant admitted that the hooting of horns on the day was unusual because it lasted longer than usual.  Obviously, he would have noted that the hooting of horns came from a number of cars.  He testified in court and said, therefore, he suspected that something had happened and that was why he alighted from the Vehicle.

98.PW1 said he shouted at the defendant a few times, at first in Chinese and later in English, telling the defendant that he had run over someone.  He said that the defendant appeared to say something, but he could not hear clearly.  He noted the gesture of the defendant changed from confusion to denial, and later he left.

99.The defendant explained he saw PW1 gesturing, he thought PW1 was complaining about the traffic jam that he himself caused earlier on.  He said there were about 4 to 5 cars at the back of his vehicle. Therefore, he gestured to PW1 and said “Okay, okay, I am moving.”  The defendant then got on the Vehicle and moved forward.  He said he did not hear any more horns.  He thought therefore the hooting was because of the traffic jam.

100.In court, the defendant failed to answer questions directed at him various times as to why if he could not hear what PW1 was saying to him at a distance, he did not go forward to the side of PW1 and ask, but instead returned to the Vehicle and left.  This conduct is inconsistent with his perception that something had happened which led to this prolonged hooting of horns.  This court finds the explanation of the defendant difficult to accept.

101.However, if PW1 could not hear what the defendant was saying, but only saw he was moving his mouth, could it also be that the defendant was unable to hear what PW1 was saying?  Though PW1 was definitely shouting whilst defendant was not.

102.Defence counsel commented that the saying of PW1 was not recorded by PW1’s car camera.  From the car camera footage (Exhibit P1), one could see PW1 was then standing at the back of CP9999, at some distance from PW1’s own vehicle, and according to PW1, the car window of his vehicle was closed at the time.  It was understandable, therefore, the saying of PW1 was not recorded.

103.The car camera footage did not show PW1 at any time pointing to the defendant the direction where the deceased laid on the ground.

104.This court also considered that there was a hand gesture of the defendant at the time, and the fact that the defendant did not appear to have looked in the direction of the accident site after he alighted from the Vehicle.

105.In the circumstances of this case, though the conduct of the defendant is highly suspicious, having considered the language proficiency of the defendant, the distance between the defendant and PW1 at the time they exchanged the conversation, the noise level of the location, the hand gesture of the defendant, this court finds it doubtful as to whether the defendant actually knew, rightly or wrongly, that his trailer had run over the deceased.

106.Accordingly, the court will give the defendant the benefit of the doubt and acquit him of Charge 2 and Charge 3.