Hong Kong Criminal Law: Motorcyclist acquitted of dangerous driving with costs
Hong Kong Criminal Law
On 22 February 2023, the Court ruled that the Prosecution failed to prove that the Defendant motorcyclist in HKSAR v Cho Wai Hing (KCS 20689/2022) was guilty of dangerous driving beyond all reasonable doubt. Andrew Lau acted for the successful Defendant.
The case involved the Defendant’s motorcycle (“Motorcycle”) running into the offside rear of a private car (“Car”) driven by PW1 near the junction of Princess Margaret Road southbound/Chi Man Street (“Junction”), i.e. the exit of a Petro China gas station (“Gas Station”).
It is common ground that:-
(1) At the material time, (i) it was raining; (ii) the road surface was wet and slippery; (iii) the road was intact; and (iv) the traffic was smooth;
(2) The speed limit of the relevant part of Princess Margaret Road was 70 km/h, and that there was no evidence that the Defendant had been travelling beyond the speed limit; and
(3) There were no independent witnesses to the accident.
The Prosecution’s Case
On 18 April 2022, at around 2254 hours, PW1 was driving the Car along Chi Man Street westbound. Upon reaching the stop sign at the Junction, PW1 stopped and observed the traffic condition on the right. PW1 did not see any vehicles approaching on the first lane of Princess Margaret Road southbound. PW1 then started his car and negotiated a left turn to the first lane of Princess Margaret Road southbound, travelling at a speed of about 10-20 km/h. Having travelled some distance, PW1 felt that the rear of his car was hit. PW1’s case is that he did not see any vehicles coming before he negotiated a left turn. It was not until his car was hit that he saw the Defendant’s vehicle behind his car.
Upon the matter being reported to the police, PW2 arrived at around 2301 hours and confirmed the identities of PW1 and the Defendant.
PW3 was the investigating officer. On 15 May 2022, PW3 went to the Gas Station and requested the manager thereat, i.e. PW4, to provide him with the CCTV footage of the night in question. PW3 claimed that he had watched the relevant CCTV footage with PW4 and that the footage showed, inter alia, that the Motorcycle had cut the double white lines when it approached the Junction. Thus, the Defendant had driven dangerously within the meaning of section 37(1) of the Road Traffic Ordinance (Cap. 374).
The Defence’s Case
On the night in question, the Defendant was travelling to Tsim Sha Tsui. At or around the entrance to the Gas Station, he cut to the first lane of Princess Margaret Road southbound from the second lane, i.e. before there were double white lines. When the Defendant was almost at the Junction, he saw the Car emerge from the side road.
At the time, the Defendant tried to stop his Motorcycle, but to no avail. The Defendant could not have stopped the Motorcycle in time because there was not enough braking distance. Also, a quick motorcycle braking would be dangerous because: (i) it would throw the Defendant off the Motorcycle; and (ii) it was a possibility that he could have been sandwiched between the Car and another vehicle coming up from the rear. Accordingly, the Defendant tried to mitigate the risks by running into the offside rear of the Car. That way, he could at least avoid the possibility of being sandwiched between two cars.
After the accident, the Defendant was hospitalised. He received a shoulder surgery and was discharged 4 days later.
As to the evidence of PW3 and PW4, the Defence submitted that their evidence regarding the CCTV footage was inadmissible hearsay. Even if it had not been hearsay, zero weight ought to be given to their evidence. During cross-examination, PW3 and PW4 (i) gave varying accounts of what they had seen in the CCTV footage; and (ii) failed to address the Court on various key matters, including but not limited to the number of cameras involved, the position of the cameras, the quality of the images, and whether or not the CCTV footage had been tampered with. Furthermore, their witness statements were made months after they had allegedly viewed the CCTV footage. More importantly, PW4 admitted that his witness statement was authored by PW3.
The Court’s Findings
The learned Magistrate accorded no weight to the evidence of PW3 and PW4. The Court also accepted the Defendant’s oral testimony, i.e. PW1 had driven out of the Junction at the very last second.
In the circumstance, the learned Magistrate ruled that the Prosecution had failed to prove that the Defendant was guilty of dangerous driving beyond all reasonable doubt and awarded costs to the Defence.
Andrew Lau, instructed by William Law of Cedric & Co, acted for the Defendant.
Andrew is a Charles Ching Scholar and a Patrick Yu Scholar. He has a broad civil practice, with experience in areas such as commercial disputes, company/insolvency, construction, equity/trusts, land, probate, family, personal injuries and public law.
On the criminal side, Andrew specialises in road traffic offences. Recently, Andrew successfully convinced the Court to find no case to answer for a bus driver charged with causing grievous bodily harm by dangerous driving: HKSAR v Ng Chun Ming (KCCC 2948/2021). Andrew also mitigated on behalf of Defendants convicted of various road traffic offences: see, e.g., (i) HKSAR v Tong Leong Kwong (STCC 3307/2022), where the defendant bus driver (originally charged with dangerous driving causing death) was fined after pleading guilty to, inter alia, a charge of careless driving; and (ii) HKSAR v Lam Lok Man Jason  HKDC 1383, where the defendant driver was sentenced to 20 months’ imprisonment after pleading guilty to a charge of dangerous driving causing death.
Visit Andrew’s profile for more details.
This article was first published on 27 February 2023.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.