HKSAR v. Babbs William James
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CACC 83 /2025, [2026] HKCA 1397 On Appeal From [2025] HKDC 462 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 83 OF 2025 (ON APPEAL FROM DCCC NO 979 OF 2022) ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ 1.The applicant applies for leave to appeal against his conviction on one count of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374. He was convicted after trial in the District Court before Deputy Judge Casewell (“the judge”) on 14 March 2025, and sentenced to 12 months’ imprisonment on 26 March 2025. He now seeks leave to appeal against his conviction only. 2.The applicant advances five substantive grounds of appeal (Grounds 1 to 5), together with a general Ground 6 that his conviction is unsafe and unsatisfactory. The respondent opposes the application. The prosecution case 3.The background facts are set out in the judge’s Reasons for Verdict[1]. The following are the essential factual features for the purposes of this application. 4.On 1 December 2021, at about 8:12 pm, a fatal collision occurred on Tai Tam Road, Hong Kong Island, between the applicant’s Tesla vehicle (“Tesla”) and a motorcycle driven by the deceased. 5.Tai Tam Road is a two-lane road, with a speed limit of 50 km/h[2]. Overtaking is permitted only on limited straight sections, marked by broken double white lines. 6.The applicant was driving his motor car southbound towards Stanley, while the deceased was driving his motorcycle northbound in the opposite lane. 7.The prosecution evidence showed that the applicant executed two consecutive overtaking manoeuvres. First, he overtook PW2’s sedan motor vehicle (“Sedan”), on an earlier stretch of road, accelerating to approximately 85 km/h[3] in the process of overtaking. Secondly, he overtook PW1’s vehicle, an Alphard 7-seater (“Alphard”)[4]. During this second manoeuvre, he accelerated from 42 km/h to about 79 km/h in the 4.5 seconds while overtaking before impact[5]. The collision occurred when the applicant’s vehicle, having moved into the northbound lane, struck the oncoming motorcycle head-on. Unfortunately, the deceased died as a result of his injuries. 8.PW1, the Alphard driver, testified that he saw the motorcycle approaching in the opposite lane, but close to the centre of the road, and that the applicant’s vehicle commenced overtaking near the start of the broken white lines[6]. The collision occurred about two seconds later. PW3, the prosecution expert witness, confirmed the point of impact was in the northbound lane[7]. 9.The prosecution contended that the applicant’s driving was dangerous because the road was narrow, winding, and steep[8]; the applicant significantly exceeded the speed limit on both overtaking manoeuvres[9]; the applicant overtook at night without a clear, unobstructed view of the opposite lane[10]; and there was no exigent circumstance justifying the manoeuvre[11]. The defence case 10.The applicant elected to testify at trial. He was 62 years of age at the time with a clear driving record; and, indeed, a clear record generally[12]. He drove on this particular road regularly and agreed that he overtook the Alphard, saying it was travelling slowly and braking often[13]. He waited for a broken white line section, checked for oncoming traffic for 1 to 1½ seconds, signalled, accelerated, and moved into the opposite lane. He believed the lane was clear[14]. He only saw the motorcycle when it was a few metres away, making the collision unavoidable. 11.Two defence experts gave evidence. DW2 calculated the motorcycle’s pre-braking speed as between 69.6 and 82.9 km/h, which was well above the speed limit[15]. He considered that the applicant could not have seen the motorcycle even if he had made the observations that could be made of the traffic condition on the opposite lane in the circumstances before he commenced overtaking the Alphard[16]. 12.DW3 specialised in collision investigation and provided simulations showing the applicant’s line of sight to the opposite lane was limited, and the motorcycle’s headlight would have been obscured by the Alphard. During the trial, DW3 was not cross-examined and his evidence was therefore unchallenged[17]. In his report, he suggested the applicant had a potential 175-metre view and may have expected cars with two headlights rather than motorcycles with one headlight when the applicant looked ahead and to the corner[18]. When the applicant’s vehicle began the overtaking manoeuvre, he was of the opinion that the applicant had only 1.5 to 1.9 seconds to react with a normal reaction time of 0.9 seconds once the motorcycle’s single light came into view[19]. The EDR data showed the applicant was only able to apply his brakes about half a second before the impact[20]. 13.The defence contended that the applicant’s driving, while careless, did not meet the high threshold for dangerous driving. The judge’s Reasons for Verdict 14.The judge identified the key issue as whether the applicant’s driving fell far below what would be expected of a competent and careful driver. He considered the nature, conditions and use of the road in question[21]. 15.The judge found that the road is narrow, restricted, and contains S-bends. He held that any overtaking on this road exceeding the 50 km/h speed limit was “a highly risky enterprise” and “swiftly becomes dangerous as the speed increases.”[22] 16.Regarding the first overtaking manoeuvre of the Sedan driving at up to 85 km/h, the judge described it as “objectively dangerous” and rejected DW2’s characterisation of it being “well-planned and safe” as “simply absurd” [23]. He noted the manoeuvre was conducted at night, and that the applicant’s age of 62 meant his vision in low light and his reactions were compromised by age[24]. 17.As for the fatal overtaking of the Alphard, the judge found that the same problems existed. He held that a competent driver should ensure that an overtaking manoeuvre was achievable “within the operable speed limit”; be aware of all road users, including motorcycles; and, where vision is compromised by a vehicle ahead, “temporise and pull back so as to have a clear view of the entire roadway ahead”[25]. 18.The judge noted that PW1 said he was aware of the motorcycle 20 to 30 metres ahead, and concluded that the motorcycle “was there to be seen by an observant driver who took sufficient care to make a full considered observation of the opposite roadway”[26]. The applicant’s failure to see it demonstrated that he had not obtained a full view of the road before accelerating to 74 km/h[27]. 19.The judge concluded that the applicant’s driving was dangerous, and convicted him accordingly[28]. Perfected grounds of appeal 20.By his Ground 1, Mr Hui SC, who with Mr Fan again acts for the applicant in this application, argues that the judge erred in considering that the applicant should have overtaken only when he had a “full view of the road”, when there was no evidence this was physically achievable. 21.By Ground 2, the applicant contends that the judge erroneously relied on the applicant’s speeding as constituting dangerous driving. 22.By Ground 3, the applicant states that the judge failed to consider, sufficiently or at all, the evidence of DW2 and DW3 regarding the motorcycle’s excessive speed and its implications on the cause of the collision and the dangerousness of the applicant’s driving. 23.By Ground 4, it is argued that the judge failed to consider, sufficiently or at all, the extended view and observations made by the applicant before overtaking. 24.By Ground 5, it is submitted that the judge erred in taking into account irrelevant matters of the applicant’s age and night conditions without a proper evidential basis. 25.By Ground 6, it is said the conviction is unsafe and unsatisfactory. This ground follows on from the above grounds and is unnecessary to consider separately. The respondent’s submission 26.Mr Lam, with him Mr Sin, for the respondent, opposes the application and submits that none of the grounds is reasonably arguable. The essence of the respondent’s case is that the judge applied the correct test under section 36(7) of the Road Traffic Ordinance, and his conclusion was amply justified by the objective circumstances: two overtaking manoeuvres at excessive speeds (85 km/h and 79 km/h) on a narrow, winding road at night, without a clear view of the opposite lane. 27.The respondent emphasises that the test for dangerous driving is objective and focuses on the quality of driving, not its consequences: see HKSAR v Lam Chi Fat[29]. The fault of another road user, which in this case would be the excessive speed of the deceased’s motorcycle, provided no defence to the applicant. 28.The respondent further submits that the judge’s references to the applicant’s age were legitimate contextual factors supported by the Road Users’ Code[30], and that the “full view” requirement was not imposed in isolation but as part of a cumulative assessment of the facts. 29.In relation to Grounds 3 and 4, Mr Lam argues that the judge expressly acknowledged the motorcycle’s possible excessive speed as evidenced by DW2 at [61] of his Reasons for Verdict. Furthermore, it is submitted that DW3’s evidence was considered but was of limited value as the simulations were based on assumptions and there were numerous possible scenarios put forward. The case HKSAR v Yu Jie[31]was said to be inapt because the facts differed materially. Consideration 30.Before turning to the grounds of appeal, I should acknowledge the tragic loss of life in this case. However, the offence of causing death by dangerous driving must be assessed by reference to the manner of driving, not the consequences which flow from it. My task is to examine whether the proposed grounds of appeal are reasonably arguable and I am mindful that I am not re-trying the case nor is it my function to reach conclusions on the facts. 31.The applicant contends by Ground 1 that the judge erred in requiring a “full view of the entire roadway ahead” when there was no evidence that this was physically achievable. I view this ground as an aspect of Ground 4, to which I will come in due course. 32.As for Ground 2, the applicant argues that the judge erred in treating the applicant’s speeding alone as dangerous driving, especially as there was no evidence his speed caused the collision. 33.However, the judge did not rely on speed in isolation; he considered it in the context of the road conditions and the applicant’s obscured view. At [74] of his Reasons for Verdict, the judge expressly said: “It is the position that speeding per se may not in itself be dangerous driving. However, it is the case that in the circumstances of this road it easily becomes so”[32]. He considered the totality of circumstances such as the narrow, winding road; the first overtaking manoeuvre at 85 km/h; the second at 79 km/h; the night-time conditions; and the applicant’s obscured view. His driving formed part of a pattern which the judge found was objectively dangerous. The fact that the applicant’s acceleration may have been “controlled” does not negate dangerousness, since a controlled manoeuvre can still be dangerous. On its own, Ground 2 is not reasonably arguable, but it seems to me that the applicant is entitled to make the point as part of his overall submissions when taking issue with the judge’s characterisation or finding that the pattern of the applicant’s driving was dangerous. 34.I will deal with Ground 5 first before discussing Grounds 3 and 4 below. For Ground 5, the applicant contends that the judge improperly considered his age and degraded night vision without evidential basis. 35.However, this complaint is somewhat overstated. The judge’s observation at [70] of his Reasons for Verdict was brief and contextual. He noted that vision in low light and reactions are “compromised with age”, and that aging drivers should exercise “restraint.” This is a matter of common sense and is not surprisingly supported by the Road Users’ Code, which states, “…reduce speed for night driving so that the overall stopping distance is well within the range of your headlamps” and “as people grow older, their reaction time becomes longer…”[33]. In any event, the judge did not rely on this as the basis for his finding. It was a peripheral factor. Ground 5 on its own is not reasonably arguable. 36.I turn now to Ground 3. The applicant argues that the judge failed to adequately consider the evidence that the motorcycle was, according to DW2 travelling at 69.6 to 82.9 km/h, which may have impacted on the reaction time available to the applicant and the avoidance, or avoidability, of the collision. 37.The judge did acknowledge this evidence at [61] of his Reasons for Verdict, stating that it “cannot be excluded and remains a possibility which must be considered.” However, he did not engage with the implications of the deceased’s speed. The applicant’s argument is not one of contributory fault or negligence. The question is whether the motorcycle’s high speed meant that, even with a proper lookout, the collision may have been unavoidable once the applicant committed himself to overtaking the Alphard. After all, a driver might see a vehicle coming towards him and determine that he still has time to execute the manoeuvre but fail to realise that the vehicle is travelling at well above the speed limit. In Yu Jie[34], for example, the Court determined that the appellant had seen the motorcyclist but miscalculated the safety margin in executing her manoeuvre. That was judged to have been careless driving but not dangerous driving. 38.At [41] of his Reasons for Verdict, the judge recorded DW3’s evidence that the applicant had 1.6 seconds to react, with a normal reaction time of 0.9 seconds, and that the vehicles were converging at over 150 km/h. This begs the question as to whether, despite the motorcycle’s speed, the applicant’s own driving still fell far below the standard of a competent and careful driver, rather than merely being careless. 39.While the respondent is correct that another road user’s fault is no defence, the applicant’s point is that the high speed of the motorcycle may have made the collision so sudden that his conduct, though careless, did not cross the high threshold for dangerous driving. This is a reasonably arguable point, and I would grant leave on this ground. 40.As for Ground 4, the complaint is that the judge focused on what the applicant did not see, without adequately considering the evidence of what he could or did see in the circumstances. 41.At [62] of his Reasons for Verdict, the judge said that “the defendant’s view of the entirety of the road ahead and his line of sight may have been partly occluded by the rear of the Alphard.” Yet, at [73] of his Reasons for Verdict, he said that the motorcycle “was there to be seen by an observant driver who took sufficient care to make a full considered observation of the opposite roadway.” PW1’s different vantage point of having no vehicle ahead could not be imputed to the applicant, who had the Alphard directly in front. There might seem to be an apparent inconsistency between the acceptance of an occluded visibility on the part of the applicant but then appearing to dismiss it as a possibility. 42.In his written submissions, the applicant further points to DW3’s evidence that the applicant may have had a line of sight extending 175 metres down the opposite lane, where he saw no oncoming vehicles or headlights, and thus formed a genuine belief it was safe to overtake. The judge’s Reasons for Verdict did not refer to the 175‑metre view. While DW3’s evidence is summarised at [40]-[41] of his Reasons for Verdict, the judge did not analyse how that evidence bore on the objective assessment of dangerousness. 43.In this regard, I should add that I am also concerned by another matter, which was not addressed in argument before me. The diagram referred to by Mr Hui SC at page 239 of the Appeal Bundle and drafted by a land surveyor is obviously not the complete section of road showing 175 metres from the place where the applicant commenced his overtaking manoeuvre. The image at page 214 of the Appeal Bundle shows perhaps the fuller extent of the road southbound and, interestingly, a slight bend to the left of the road and the applicant’s line of vision. 44.If one factors into the equation the occlusion by the Alphard of the applicant’s view of the road, which bends slightly left, then this may further impinge upon the issue of what the applicant was able to see of a speeding motorcycle travelling close to the centre of the road and the time he had to react to the situation. 45.It was said by the Court in Yu Jie at [42]:
46.As for the respondent’s argument that a competent driver must not assume the absence of lawful road users such as motorcycles, that proposition is correct as a general principle. However, it does not answer the specific question presented by the facts of this case: namely, whether the applicant’s failure to spot this particular motorcycle, travelling at an excessive speed (69.6 to 82.9 km/h), with a single headlight illuminated, close to the centre line of the road, and emerging from a blind spot created by the Alphard and from a slight bend of the road to the left, fell far below the standard of a competent driver within the category of blatant disregard for the safety of other road users, rather than merely reflecting a serious error of judgment. 47.The respondent’s argument is perhaps going too far. If taken to its logical conclusion, any failure to anticipate any lawful road user would amount to dangerous driving, which cannot be correct. The standard is objective, but it must also be viewed in its factual context. Arguably, the judge did not explain why, given the applicant’s actual field of vision, the failure to see a speeding motorcycle in the circumstances crossed the high threshold from careless driving to dangerous driving, which was the very distinction drawn by the Court in Yu Jie,at [44]. 48.I am satisfied that Ground 4 raises a reasonably arguable point. 49.For the reasons above, I shall grant leave on Grounds 1, 3 and 4 of the perfected grounds of appeal, but not Ground 5. I have already made my comments about Ground 2, which is not reasonably arguable as a discrete ground on its own but may form part of the overall complaint concerning the judge’s assessment. 50.In light of the argument before me, I consider that PW1’s evidence may be relevant as to his speed and manner of driving and will order that a full transcript of his evidence be added to the Appeal Bundle.
Mr Wilson Lam SPP and Mr Ivan Sin PP, of the Department of Justice, for the Respondent Mr Martin Hui SC and Mr Kasper Fan, instructed by Hon & Co, for the Applicant [1] Appeal Bundle (“AB”), pp 9-26. [2] Admitted Facts: AB, pp 6-8 at [7], [10]; AB, p 11, at [9]. [3] AB, p 13, at [17]. [4] AB, p 12 at [12]-[13]. [5] AB, p 13, at [20]. [6] AB, p 12, at [14]-[16]. [7] AB, p 13, at [21]. [8] AB, p 20, at [50]. [9] AB, p 20, at [50]-[51]. [10] AB, p 20, at [52]. [11] AB, p 20, at [50]. [12] AB, p 19, at [48]. [13] AB, p 14, at [23]. [14] AB, p 14, at [25]. [15] AB, p 15, at [33], where the judge noted the speed as “between 63.4 and 82.9 km/h”. However, DW2’s report records the pre-brake speed of the motorcycle as “within the range of 69.6 to 82.9 kph”: AB, p 67, at [86]. Yet, DW2’s report at AB, p 73, at [115] also suggests the speed of the motorcycle was “within the range of 73.4 - 82.9 kph”. It is not clear how these figures are to be reconciled, except that the upper speed is consistently estimated at 82.9 km/h. [16] AB, p 16, at [34]; AB, p 75, at [122]. [17] AB, p 16, at [35]. [18] AB, p 17, at [40]-[41]; AB, p 255, at [9.3], [9.5]. [19] AB, pp 17-18, at [41]; AB, p 255, at [9.8]. [20] AB, p 18, at [42]. [21] AB, p 23, at [63]. [22] AB, pp 23-24, at [64]-[65]. [23] AB, p 24, at [66]-[69]. [24] AB, pp 24-25, at [70]. [25] AB, p 25, at [72]. [26] AB, p 25, at [73]. [27] AB, p 26, at [74]. [28] AB, p 26, at [75]. [29] HKSAR v Lam Chi Fat [2012] 1 HKLRD 968, at [31]-[32]. [30] Transport Department, Road Users’ Code, effective from 19 June 2020, pp 59, 86. [31] HKSAR v Yu Jie [2023] 5 HKLRD 261. [32] AB, p 26, at [74]. [33] Transport Department, Road Users’ Code, effective from 19 June 2020, pp 59, 86. [34] Yu Jie, at [43]-[44]. |
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