區域法院（刑事）Deputy District Judge Peony Wong20/6/2024[2024] HKDC 1024
DCCC960/2022
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DCCC 960/2022
C [2024] HKDC 1024 C
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IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 960 OF 2022
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HKSAR
H H
v
I SO CHUN MAN I
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K Before: Deputy District Judge Peony Wong K
Date: 21 June 2024
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Present: Mr Neil S. Mitchell, Counsel-on-fiat, for HKSAR
M Mr Anthony W. M. Yuen, instructed by Messrs Lau & Co, M
Solicitors, for the defendant
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Offence: [1] Causing death by dangerous driving (危險駕駛引致他人
O O
死亡)
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R REASONS FOR VERDICT R
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1. The Defendant has pleaded not guilty to a single charge of
C causing death by dangerous driving, contrary to section 36(1) of the Road C
Traffic Ordinance, Cap. 374. He had indicated willingness to plead guilty
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to careless driving, but his plea was not accepted by the Prosecution.
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The Admitted Facts
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G 2. Most of the Prosecution evidence had been admitted under G
s65C of the Criminal Procedure Ordinance. It is admitted by the parties
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that, inter alia, at the material time:-
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(a) the location in question was a straight section of road, with a
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single lane carriageway in each direction;
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(b) the weather was fine, and the road surface was dry and in good
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condition;
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(c) the material section of the road was lit by street lamps; and
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O (d) traffic flow was relatively low. O
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3. It is also admitted by the parties that:-
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(a) the incident occurred at about 0630 hours on the 27th January
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2022 in Tin Ha Road, Yuen Long, New Territories, near
S lamppost number FB 9079 (hereinafter referred to as the S
“Lamppost”);
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(b) the Deceased (Madam Chong) left home at 06:29:58 hours,
C and was on the way to collect newspaper from a nearby shop C
when the incident occurred;
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E (c) she was wearing dark colour upper garment; E
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(d) a bus with registration number UL 9538 (hereinafter referred
G to as the “Bus”) travelled along the bus route of Tin Ha Road; G
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(e) at around 0630 hours, the Bus stopped at a bus stop near the
I Lamppost to allow passengers to board and alight; I
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(f) two vehicles stopped behind the bus, the first one being a
K refuse collection vehicle UD 3330 driven by the Defendant K
(hereinafter referred to as “V1”), and the second being a
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medium goods vehicle US 627 (hereinafter referred to as
M “V2”) driven by Mr. Lee which had stopped closely behind M
V1;
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O (g) after the incident, Mr. Lee remained at the scene, whereas the O
Defendant had left with V1, and was later on located by the
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police;
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(h) Both the Defendant and Mr. Lee had tested negative of
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alcohol;
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(i) the ambulance arrived at 0650 hours, and the ambulance crew
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found Madam Chong to be trapped underneath V2; and
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C (j) it was not until 0724 hours that V2 was lifted sufficiently to C
allow the ambulance crew to gain access to Madam Chong.
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She was confirmed dead on the spot;
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4. It is also agreed that:-
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G (a) Madam Chong was 85 years old on the day of the incident, G
and was living on the southbound side of Tin Ha Road;
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I (b) she was in good general physical and mental health for her I
age before the incident occurred;
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K (c) The autopsy report of Madam Chong indicated:- K
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(i) gaping laceration to the head with a piece of the scalp
M detached from the flaying laceration exposing the skull bone; M
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(ii) the left upper limb was almost completely amputated, and the
O right forearm had a gaping laceration of 29 cm in length and O
22 cm in width extending circumferentially on the whole of
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the forearm exposing underlying torn muscle;
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(iii) there were fractures to the skull, vertebral body of the 5 th
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cervical vertebrae, breastbone and front and rear ribs, right
S clavical, left arm bone, right elbow joint, left thigh bone, left S
knee joint, left ankle joint, right knee joint and right ankle
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joint and various other parts of the body; and
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C (iv) blood analysis showed therapeutic levels of chlorpheniramine C
and paracetamol, neither of which would have likely affected
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her level of consciousness at the material time.
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5. The Defendant was arrested and cautioned by PC22461 for
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causing death by dangerous driving. The Defendant stated under caution
G that “I had no idea that I had knocked down anyone.” G
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6. It was common ground between the parties that the following
I footages and 2 photo albums P5(1)-(11) and P6(1)-(14) were to be admitted I
into evidence as showing what happened at the scene, and that:-
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K (a) the CCTV system of the vegetable market at Ha Tsuen K
(Exhibit P3) relevant to the incident had timestamp from
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approximately 0638 to 0658 hours, but was in fact about 12
M minutes faster than real time (i.e. the relevant parts should be M
about 0626 to 0646 hours in real time);
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O (b) the CCTV system of Tong Fong Tyre and Battery Company O
at the junction of Tin Ha Road and Ping Ha Road (Exhibit P4)
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relevant to the incident had timestamp approximately
Q synchronized to real time; and Q
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(c) the CCTV footages P3 and P4 had not been tampered with or
S altered in any way. S
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7. Both V1 and V2 had been sent to vehicle examination, and no
C defects were found on either of them. There was also no contact evidence C
found between Madam Chong and V1.
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E The Prosecution Case E
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8. The Prosecution called 4 live witnesses, and PW5’s witness
G statement was admitted under section 65B of the Criminal Procedure G
Ordinance. The evidence of PW1 and PW3 (i.e. the son of Madam Chong
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and the police officer who had attended the scene) was unchallenged by
I cross examination. Their evidence were in line with the Admitted Facts. I
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9. The evidence of PW2, i.e. the cleaner who was on board V1
K beside the Defendant at the front passenger seat when the Incident K
happened, was also not disputed. She was cross-examined to elicit
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evidence. She stated that just after 6:30 am, when it was not yet broad
M daylight, V1 had just started off, being driven by the Defendant. Before the M
journey began, she had briefed the Defendant on how to use the refuse
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compressor when they arrive at the Lam Tei refuse collection point later
O on in the journey. There were streetlights along Tin Ha Road, but they O
were relatively dim. During the journey, there was nothing special about
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the driving manner of the Defendant, and there was no speeding involved.
Q She did not have the sensation of V1 having ran over or hit anything along Q
the journey.
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S 10. PW4 was the traffic accident reconstruction and forensic S
video analysis expert Dr. Tam Cheok Ning (hereinafter referred to as “Dr.
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Tam”). His expertise was not disputed, and he was accepted by this Court
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as an expert in traffic accident reconstruction. He adopted his witness
C statement (Exhibit P7) as part of his evidence. He stated that with reference C
to common events, he had synchronized the 3 footages for which he had
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based his reconstruction and analysis on: Footage A (Exhibit P4), Footage
E B (from the entrance of the vegetable distributor, from P3), and Footage C E
(equivalent to channel 2 in P3). He had then compiled a table which
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indicates the events and the corresponding timestamp as shown on the 3
G footages. He had also made an assumption as to the point of impact with G
reference to Madam Chong appearing to have started to fall from Footage
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A and marked it as T. The aforesaid events were listed in the table with
I reference to the no. of seconds from the time of impact, from T-5.0 to T, I
and T+5.0 to T+16.4.
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K 11. Dr. Tam’s evidence on the reconstruction was that by using a K
mannequin of similar height and wearing similar dark coloured clothing as
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Madam Chong, and with reference to the footages mentioned in his report,
M he was able to reach the conclusion that, although the driver of V1 could M
not see Madam Chong through the front windscreen during the course of
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the incident, he could have unobstructed or partially obstructed views of
O Madam Chong walking towards the gap between V1 and the bus at T-4.0, O
T-3.0, and at or before T-2.0 through the offside window and from the
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nearside fisheye mirror between T-1.5 and T. He also stated that in his
Q findings, V1 started pulling away at T-2.0, and that the speed of V1 had Q
started with 1.4 km/h +/-0.14 between T-2.0 and T-1.5, and accelerated to
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5.4 km/hr +/-0.54 from T-1.0 to T.
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12. PW5’s two witness statements and the attached sketches and
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photos were introduced under s65B of the Criminal Procedure Ordinance
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(Exhibit P8 & P8A, and P9 & P9A) and he was not called for live evidence.
C His evidence indicated that at about 6:28 am on the day in question, he left C
home as usual and intended to walk to the bus stop on Ping Ha Road
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Eastbound to take a bus to work. The weather was dark but there was
E sufficient lighting from the streetlights. When he was walking past the E
corner of the village path and the pavement of the main road, he heard a
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weak voice calling for help from the road outside, but he could not hear the
G content. He took a few steps forward immediately to the kerbside, and G
looked towards the carriageway of Tin Ha Road bound for Ping Ha Road.
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He saw 3 vehicles on the said carriageway, in the sequence of a bus, V1,
I and V2. The bus and V1 were stationary, while V2 was moving forward I
slowly. He was about 2.1 m from V1.
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K 13. Thereafter, the bus started moving, and V1 followed. After K
V1 had driven past and was about 7.9 m away from him, he saw an old
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lady (i.e. Madam Chong) lying supine with legs pointing in the direction
M of Hung Shui Kiu, on the road very close to the kerb of the pavement, about M
1-2 metres away from him. He was not sure as to the distance between
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Madam Chong and the kerb, and whether she had been leaning over the
O kerb. Madam Chong was conscious and had her eyes opened. There was O
no blood on her face, nor was there blood on the ground. Apart from
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uttering a sound with a weak voice, Madam Chong made a move with her
Q left hand and slightly raised her left arm. He did not know if Madam Chong Q
had sustained any fractures, as her limbs did not appear to be mangled.
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S 14. He then heard the sound of a vehicle coming from the right. S
When he looked to his right, he saw V2 with headlights turned on with only
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about one private car’s distance (4.4 m as measured at the scene) to Madam
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Chong. At this point, the distance between V1’s end and V2’s front was
C 6.7 m as measured at the scene. He could not walk onto the road to stop C
V2 as there were metal railings at the kerbside. He therefore shouted
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towards V2, but the windows of V2 were closed and the driver did not
E respond to PW5’s shouting. E
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15. Within 1 second thereafter, he realized that Madam Chong
G was ran over by V2 and dragged under V2 to the nearside front. He did G
not witness the running over by V2, as he had been looking at the driver of
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V2 while signaling for V2 to stop. The location is as indicated in the 2 nd
I sketch attached to his 1st witness statement dated 30th January 2022. V2 I
continued moving and stopped after travelling for a distance of
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approximately one refuse collection vehicle, when the bus and V1 had
K stopped at the red traffic light. At this point, the distance between V1 and K
V2 was 1.3 m as measured on site, and the distance between PW5 and V2
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was 2.2 m as measured on site. Before V1 and V2 could start moving again,
M PW5 went forward to a distance of 1.4 m and thereafter of 1.1 m (as M
measured on site) from V2, and signaled to the driver of V2 to stop, and
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pointed at the nearside rear wheels of V2. After the driver of V2 realized
O that someone was trapped under his vehicle, he called the police, and PW5 O
left. V1 had already left at that point.
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Q Defence Case Q
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16. The Defendant elected to give evidence but did not call any
S Defence witnesses. The Defendant testified that he is 54 years old, and S
was employed by a cleaning company on the day of the incident as a refuse
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th
collection driver. It was his 4 day working for this company. He had
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taken the same route for all 4 days up to the time of the incident. He had
C travelled infrequently along this road before working for this company, and C
therefore was not very familiar with this section of the road.
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E 17. He stated that he had started working at about 6 am that day, E
and had picked up the refuse collection vehicle V1 at the company
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warehouse at Tin Ha Road. His colleague PW2 was responsible for
G assisting in the refuse collection work, and was his passenger on V1. He G
drove V1 along Tin Ha Road towards Yuen Long direction. The sun had
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not yet risen at the time, and it was still dark. The road was illuminated by
I street lights. I
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18. At around 6:30 am, V1 arrived at a bus stop. A bus had
K stopped at the bus stop. The Defendant assumed that the bus was picking K
up and allowing other passengers to alight from the bus, but he could not
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see if it was in fact true. He stopped V1 behind the bus by applying the
M brakes, securing the hand brake, engaging neutral gear and applied the foot M
brake.
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O 19. He then paid attention to the pavement on his left, as from his O
experience, people who intend to cross the road might pass through the gap
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between the back of the bus and the road after alighting, i.e. from left to
Q right. He waited for 8 seconds when the bus remained stationary at the bus Q
stop.
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S 20. During the 8 seconds’ wait, he had not looked towards the S
right offside window. There were not many pedestrians or vehicles at that
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stretch of the road at the material time. It was also not a pedestrian crossing
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nor a bus lane. It therefore did not occur to him that someone might appear
C onto the carriageway from the right. C
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20. Subsequently, he saw the bus started to move. Before he
E started moving V1 again, he looked at the fisheye mirror on the top left E
hand corner of the front of V1. He was able to see whether anyone was
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present within 2 m immediately in front of V1. After seeing that no one
G was moving out in front of V1 from the left, and that was in front of his G
vehicle by checking on the fisheye mirror, he checked the side mirrors on
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the left and right of V1 to see if anyone was near the bodywork of V1. He
I did not find anyone there, therefore he started moving V1, by engaging I
second gear, releasing the hand brake, and stepping on the accelerator. V1
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moved forward for a short distance and stopped at a traffic light after the
K bus. K
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21. Eventually V1 travelled to Long Ping Estate for refuse
M collection. The Defendant received a message at that place that V1 was M
involved in a traffic accident and he had to return to the bus stop.
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O 22. During all material times, he did not see Madam Chong O
approaching V1 from the offside window or in front of V1 from the fisheye
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mirror. Under cross-examination, he stated that when he looked at the right
Q side mirror, he could see if anything was on the right of V1 by seeing the Q
surroundings of the right side mirror. Upon further cross-examination, he
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agreed that the side rear mirror could only allow a partial view of the right
S side, and that in order to have a full view of the right side, he had to look S
at the right side window.
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23. The Defendant agreed under cross-examination that there
C were buildings, including residences along the material stretch of the road, C
and that the bus stop was a marked bus stop at a main road. He agreed that
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he was aware of the possibility that passengers trying to board the bus may
E cross from the other side of the road, and in front of V1 from its offside to E
its nearside. He also agreed that the railings came to an end at the area
F F
where the bus stop was, and therefore pedestrians may cross from V1’s
G offside to the nearside. G
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24. The Defendant eventually agreed in the final part of the cross-
I examination that he should have looked out of the right offside window to I
ascertain if anyone was crossing the road and approaching V1, and that
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Madam Chong was visible had he looked from the fisheye mirror.
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25. The Defendant stated in response to the Court‘s clarification,
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that when V1 almost came to a halt behind the bus at the bus stop, he had
M checked the pavement to his left, the carriageway as well as to the right on M
the Southbound pavement. He only saw 1 pedestrian on the Southbound
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pavement to his right front.
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Case Analysis
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Q Analysis of the Credibility and Reliability of the Prosecution Case Q
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26. I bear in mind that the Prosecution has the burden of proving
S all elements of the offence beyond reasonable doubt, and that the S
Defendant has no burden to prove his innocence.
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27. I have carefully considered the content of the evidence of all
C Prosecution witnesses, including those who gave live evidence, for which C
I have in addition considered their demeanour while doing so, and of those
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whose evidence is contained solely in witness statements submitted under
E section 65B of the Criminal Procedure Ordinance. Unless otherwise stated E
specifically, I have found all Prosecution witnesses to be honest and
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reliable witnesses in respect of material parts of their evidence. Unless
G otherwise stated specifically, the material parts of their evidence were G
reasonable and credible, and there were not any material inconsistencies or
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material inherent improbability. I will therefore accord full weight to the
I material parts of their evidence, except for parts which I will indicate below I
as expressly excluded.
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K 28. PW5’s evidence in his 2nd witness statement concerning the K
location of himself, V1 and V2, with measurements being made on site on
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a day after the incident, is considered by this Court to have certain obvious
M errors. He had indicated in his 1st witness statement that after Madam M
Chong was ran over by V2, he raised his hand to the driver of V2 to make
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a signal to stop, and that Madam Chong was under the rear wheel of V2.
O Photo 25 attached to his 2nd witness statement indicates the location of O
himself and V2, where the front of V2 had not even reached the
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carriageway ground markings of the Chinese character “站” at the final
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section of the bus station.
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29. A comparison with Photo P5(4) (with marking of no. 13 in the
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photo album) where the rear wheel of V2 with blood stains would reveal
T that the rear wheel which was on top of Madam Chong was on the Chinese T
character “巴” which was alongside another Chinese character “士” and
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ahead of the Chinese character “ 站 ”. According to PW5’s witness
C statements, V2 had already ran over Madam Chong, and that when he C
raised his hand, V2 had stopped at the traffic light and had not moved
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further. Therefore when he raised his hand, he and V2 must have been
E further ahead to the Northbound direction instead of the location shown in E
Photo 25 of his 2nd witness statement.
F F
G 30. As can be seen from Photos 4, 7 and 8 of his 2 nd witness G
statement, he had also indicated the location of Madam Chong when V1
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had moved away at an earlier stage of the incident, i.e. when the bus had
I moved off and V1 followed, and when V1 had driven right past, and I
Madam Chong was found lying on the carriageway. From these
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photographs, the mannequin representing Madam Chong was lying on the
K carriageway, outside the ground marking of the bus station, i.e. some K
distance away from the end of it.
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M 31. That does not, however, tally with the CCTV footage of M
channel 2 of the vegetable stall. The relevant part of channel 2 has been
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referred to in the table on page 5 of PW4’s expert report as T+5.0 to T+6.5
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in Footage C, and the screen captures are contained on pages 18 to 20 of
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the same report. P
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32. Upon viewing the footage, it can be seen that the camera for
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channel 2 captured V1 moving past, and immediately after, the dark patch R
on the carriageway appeared. There was sufficient distance between V1
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that had just passed by the view of the camera, and V2 entering its view, to
T enable the Court to confirm that this dark patch was not the shadow of the T
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two vehicles, nor of any other discernible object. This can also be shown
C from the photos of the expert report of Footage C from T+5.0 to T+6.5. C
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33. Further, the Court played the footage of channel 2 from the
E time before the bus arrived, until V2 left the view of the camera, with the E
assistance of the magnifying function of the media player. It can be seen
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that from that viewing, that before the bus arrived, there were
G approximately 5 people waiting at the bus stop. The person on the utmost G
left of the screen was in dark clothing with light coloured shoes, and
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carrying something that appears to be a bag or bags with his or her left
I hand. The said person was standing on the pavement, next to the I
carriageway ground marking of bus stop, in between the Chinese
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characters “巴士” and “站”. As the camera did not move, the ground
K markings would be useful reference when viewing the footage. K
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34. At 064225 the bus stopped at the bus stop and blocked the
M view of the ground markings. Most of the bus was seen from the footage, M
but the last part was outside the camera’s view. Therefore the impact
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between Madam Chong and V1, if it did happen, would not appear in this
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footage.
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35. Shortly after the bus left at 064245, at 064249 V1’s offside
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vehicle front with its headlight appeared into view. At this particular
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moment, there was no dark patch on the left front part of the ground R
marking Chinese character “站”.
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T 36. Thereafter V1 continue to move forward, and when it was T
passing through the bus station, at 064253 to 064254, the dark patch
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appeared on the left front part of the ground marking Chinese character
C “站”. At 064258, V2 stopped. C
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37. It is also Dr. Tam’s evidence that if an impact occurred, it
E would have been in the manner of a push and not a hit, as the speed of V1 E
was very slow at that time. He was of the opinion that Madam Chong
F F
would be pushed forward along with the movement of V1 along the
G carriageway to the front. G
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38. Considering PW5’s evidence in conjunction with PW4’s
I expert report and evidence, it can be seen that the dark patch could only I
have been Madam Chong and not any other object that might have fallen
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off V1 as it passed by or had by other means got onto the carriageway,
K since it was PW5’s evidence in his witness statement that after V1 passed K
by, Madam Chong was lying on the carriageway, before V2 had arrived at
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the particular spot.
M M
39. I am therefore of the view that PW5 was mistaken in his
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observation of the location of Madam Chong on the carriageway, due to
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the fact that he was observing in night conditions from a distance, after
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having just entered Tin Ha Road from the village road; and that there were P
railings beside and ahead of him in between the view from him to V1 and
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Madam Chong (as seen from Photos 1 and 2 of his 2 nd witness statement).
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40. That would, however, not affect other parts of his evidence,
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and his honesty as a witness. The difficulty with the observation had been
T referred to above, and is entirely understandable. I therefore find that his T
evidence concerning the exact location of V1, V2 and Madam Chong, and
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the relevant distance between different persons and objects to be not
C sufficiently reliable as to be relied upon by a criminal court. His evidence C
on other general aspects of the case, however, will be accepted by this
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Court.
E E
41. Defence disputes that the “dark patch” on the ground as
F F
captured by the CCTV of the vegetable market (Exhibit P3) was the
G Deceased after V1 had just driven off from the location of the alleged G
impact. It would therefore be convenient for the Court to deal with the
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factual dispute of what constitutes the “dark patch” mentioned above, as
I this factual dispute is in my view material, and will affect the consideration I
of whether the Prosecution can prove the Prosecution case and successfully
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refute the lines advanced by the Defence.
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42. First of all, the Court notes that this factual dispute has not
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been brought up by the Defence either in case management stage, nor in
M the cross-examination of Dr. Tam. It was first raised in the closing M
submissions of the Defence. In that regard, Dr. Tam was not afforded the
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opportunity to respond to this challenge by the Defence.
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43. But in any event, as stated above, Dr. Tam had indicated in
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his expert report and his live evidence, that he thinks the dark patch was
Q the Deceased having been pushed forward by V1 after impact. And due to Q
the above analysis, I accept Dr. Tam’s evidence and find that the dark patch
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was Madam Chong.
S S
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Analysis of the Credibility and Reliability of the Defence Case
C C
44. I have carefully considered the content of the evidence and
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demeanour of the Defendant. His evidence was not seriously contested by
E the Prosecution in terms of the factual content. It was the extent of his duty E
as a driver, and the steps that he should have taken before starting V1, that
F F
was the subject matter of dispute. I therefore do not find it necessary in
G these circumstances to make a finding as to whether his evidence is G
factually credible or not, save as the issue of whether the Defendant could
H H
see the surroundings on his right side by looking at the right side mirror.
I I
45. The Defendant’s answer under cross-examination that he
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could is obviously incredible, as the right side mirror could only allow him
K to see the right bodywork to the rear of V1, and would not allow him to K
observe the southbound pavement on his right. In any event this might not
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be in dispute, as the Defendant had admitted at the final part of the cross-
M examination that he should have looked outside of the right offside window M
to see if anyone was crossing the road and approaching V1. I shall analyse
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the Defence case on the basis of the Defendant’s factual evidence, and his
O aforesaid answer in the final part of the cross-examination. O
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Case Analysis Based on the Evidence Accepted by the Court
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46. There are three lines of Defence put forward by the Defendant
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in the present case: (1) that the Defendant’s driving manner was dangerous;
S (2) that the Prosecution has failed beyond reasonable doubt to prove that S
there was an impact between V1 and Madam Chong; and (3) that the
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A A
B B
Defendant’s manner of driving, if dangerous, had caused the death of
C Madam Chong. C
D D
47. The Prosecution’s response to (1) and (2), was that there was
E an impact despite there being no impact evidence. The Prosecution went E
on further to submit that, whether or not there was an impact, i.e. whether
F F
Madam Chong had fallen to the ground due to an impact with V1 or having
G lost balance while trying to get away from V1 which was moving slowly G
forward, the Defendant’s failure to notice Madam Chong’s presence before
H H
moving V1 was dangerous. What the Prosecution is in fact submitting is
I that it is not necessary to prove an impact in order to support a finding of I
dangerous driving in this case.
J J
K 48. I note that the witness statement of PW5 mentioned that he K
heard a weak cry for help when he was still on the village road. He
L L
therefore took a few steps onto Tin Ha Road immediately, and saw the bus
M and V1 remaining stationary on Tin Ha Road, whereas V2 was moving M
slowing from behind. It was obvious that at this point, the alleged impact
N N
between Madam Chong and V1 had not yet occurred. It was only after the
O bus and V1 had moved off, and after V1 had driven past, then PW5 saw O
Madam Chong lying on the ground.
P P
Q 49. The Court is of the view that it is not necessary for the Q
Prosecution to prove that Madam Chong had fallen down onto the ground
R R
because of an impact with V1. Even if Madam Chong had fallen onto the
S ground for whatever reason, the real issue is the Defendant’s failure to S
notice her presence and her approach towards the front of V1, and starting
T T
to move the vehicle regardless. If he had looked to the right offside
U U
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A A
B B
window, he would have noticed Madam Chong’s approach and the
C potential danger of driving forward under those circumstances. Whether C
Madam Chong had fallen down of her own accord, or had an impact with
D D
V1 and thereafter fell, is not material to this case. What is relevant is that
E the Court is of the view that there was an impact one way or the other with E
V1.
F F
G 50. The analysis in the earlier part of this Judgment on the G
credibility and reliability of the Prosecution case had already discussed the
H H
evidence in relation to the CCTV footage depicting the dark patch on the
I ground, which the Court is of the view represents Madam Chong having I
remained on the ground after an impact with V1 and having been pushed
J J
forward to the location of the dark patch. I shall not repeat the analysis as
K aforesaid, but will make a finding that there has been an impact between K
Madam Chong and V1. To suggest otherwise would be an affront to the
L L
only reasonable and only possible conclusion from the evidence of the
M CCTV footages and the subsequent photos being taken. M
N N
51. I find that it is not unduly burdensome and difficult for a
O driver to turn his head 70 to 90 degrees to the right, in order to look through O
the offside window, to see if anyone was trying to cross the road or
P P
approach the vehicle before moving forward. This is especially important,
Q when the Defendant knew that the particular stretch of road was lined with Q
buildings and residences, that he had stopped near a bus stop, and that
R R
people wanting to catch the bus might cross the road in front of V1. In his
S cross-examination, he had agreed he should have looked through the S
offside window for such purposes before moving forward.
T T
U U
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A A
B B
52. I am of the view that the fact that there were not many
C pedestrians on the southbound pavement at that time does not assist him, C
as he was actually aware of the presence of at least one pedestrian, and the
D D
possibility of pedestrians crossing the road.
E E
53. I am also of the view that even though the mannequin used by
F F
Dr. Tam in the reconstruction turns out to be 10 cm taller than Madam
G Chong, I am satisfied that Dr. Tam’s response that the difference does not G
affect his conclusions on the visibility of Madam Chong at the various
H H
points of time mentioned in his report carries force, as the mannequin was
I spotted either on the lower part of the body, which would not be affected I
by the difference, or had at least the entire head being spotted, and
J J
deducting 10 cm height would still give a reasonably large area of the head
K to be spotted. I therefore accept the adjusted findings of the degree of K
visibilty of Madam Chong at various points of time made by Dr. Tam under
L L
cross-examination.
M M
54. The Defendant in his evidence also mentioned that the
N N
particular location was not a pedestrian crossing. Defence counsel pointed
O out from the photos that not far away at the back of the bus stop was a O
pedestrian crossing. It is human nature that some pedestrians will obey the
P P
rules, and others not. The Defendant’s evidence that he had paid attention
Q to the left as he was afraid passengers who had alighted from the bus might Q
cross the road in the gap between the bus and V1 is evidence that he was
R R
aware that some people might cross the road at places other than the nearby
S pedestrian crossing. I am therefore of the view that the location of the S
pedestrian crossing and Madam Chong’s failure to cross the road at the
T T
pedestrian crossing does not assist the Defence.
U U
V V
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A A
B B
C 55. According to the Defendant’s evidence, he had decided at the C
time that it was not necessary for him to check the offside window of V1
D D
before moving the vehicle. I am therefore of the view that his omission to
E check the right offside window was deliberate, and not a momentary lapse E
of attention. He had stopped behind the bus for 8 seconds, but had only
F F
looked at the right to the southbound pavement before he had completely
G stopped V1. I find that his failure to check if anyone was approaching from G
the right before moving off again was a flagrant breach of his duty as a
H H
driver to pay attention to the obvious danger of people crossing the road
I lined with buildings to another side with a bus stopping at a bus stop. I
J J
56. Defence counsel also submits that Madam Chong’s decision
K to cross the road in front of V1 at T-2.0, when V1 had just started to move K
forward, was a “suicidal act”, which would take the Defendant’s failure
L L
outside the area of dangerous driving. I do not agree with that submission.
M It would be another matter if Madam Chong had suddenly appeared out of M
nowhere, when the Defendant could not have noticed her approach and
N N
crossed the road in front of V1 when V1 had just started to move. It would
O be entirely different, as in the present case, when the Defendant had ample O
opportunity to spot Madam Chong’s presence and obvious intention to
P P
cross the road all the way to the northbound pavement, to fail to take
Q advantage of the opportunity to ensure it was safe to move ahead, before Q
actually driving forward from a completely stationary condition.
R R
S 57. When determining what would be expected of, or obvious to, S
a competent and careful driver in a particular case, regard was made by this
T T
Court to all the circumstances of the case, including the nature, condition
U U
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A A
B B
and use of the road concerned at the material time; the amount of traffic
C which is actually on the road concerned at the material time or which might C
reasonably be expected to be on the road concerned at the material time;
D D
and the circumstances (including the physical condition of the accused) of
E which the accused could be expected to be aware and any circumstances E
(including the physical condition of the accused) shown to have been
F F
within the knowledge of the accused.
G G
58. In regard to the above considerations, the Court is aware that
H H
the relevant section of the road was lined with buildings, some of which
I were residential buildings. The road condition was good, and the road was I
used by traffic of all kinds including large size vehicles and buses, and
J J
pedestrians were seen in the CCTV footages as crossing the road, or
K walking along both the northbound and southbound pavement. Quite a K
number of passengers were waiting at the bus stop before the bus arrived.
L L
From the CCTV footages, it could also be seen that he vehicular traffic was
M rather busy despite the material time being 6:30 am in the morning. There M
was a pedestrian crossing nearby, but from the CCTV it appears that at
N N
least part of it was blocked by V2 which had waited at that location when
O the bus and V1 were also stationary. The Defendant might not be aware of O
the blocking of the pedestrian crossing by V2, but he would be aware that
P P
V2 had waited behind him, as he had checked the side mirrors which serves
Q the same purpose as a rear mirror in smaller vehicles. Q
R R
59. I am therefore of the view that the need to check the right
S offside window, and the danger involved in not ascertaining that S
pedestrians were not approaching a large vehicle with blind spots to the
T T
front were obvious. This finding has been made bearing in mind the
U U
V V
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A A
B B
presence of at least one pedestrian on the right (which was within the
C Defendant’s knowledge), the presence of a bus that had stopped at the bus C
stop right in front of V1, the presence of buildings and residences along the
D D
road, and the feasibility of turning his head to the right to look through the
E offside window. The Defendant’s driving manner had fallen to a level E
which is far below what would be expected of a competent and careful
F F
driver; and it would be obvious to a competent and careful driver that
G driving in that way would be dangerous. I therefore find that the G
Defendant’s manner of driving was dangerous.
H H
I Causation I
J J
60. In relation to causation, Defence had indicated after evidence
K had closed for both sides, that there is no dispute as to the legal principles K
stated in the Prosecution’s Opening and the authorities attached thereto.
L L
The Defence submits, however, that there is an intervening act of the driver
M of V2 (Mr. Lee) in allowing V2 to roll over Madam Chong who was M
conscious on the carriageway. Defence says that the legal principle of
N N
novus actus interveniens applies to the present situation, and that causation
O cannot be proved between the Defendant’s manner of driving and Madam O
Chong’s death.
P P
Q 61. Further, Defence argues that Madam Chong’s manner of Q
crossing the road as a pedestrian, i.e. to move between the bus and V1,
R R
when V1 had started to move at T-2.0, was a “suicidal” act, which made it
S impossible for the Prosecution to prove causation. S
T T
U U
V V
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A A
B B
62. The Prosecution submits that it is not necessary for the
C Prosecution to prove that the Defendant’s manner of driving was a C
substantial cause of the death. According to R v Hennigan [1971] 3 All ER
D D
133 at 135 D-G, Dennis Chiu Tat-shing v R [1985] 2 HKC 487 at paragraph
E 3, R v Kimsey [1996] Crim L.R. 35, and R v Skelton [1995] Crim L.R. 635, E
it has been stated that for an offence of dangerous driving causing death,
F F
the Prosecution must prove that the accused has caused the death of another
G person, in the sense that the causal link is more than “de minimus”, and G
that it does not have to prove that the accused’s dangerous driving was a
H H
substantial cause of death.
I I
63. As for the Defence’s submissions on novus actus interveniens,
J J
Defence submitted an authority R v Girdler [2010] R.T.R. 28. Without
K going into the details of the said case of Girdler, the Court notes that it is K
an English Court of Appeal case which has no binding effect on this Court.
L L
It shall suffice for present purposes that the case of Girdler had introduced
M the concept of foreseeability into the direction to jury of a case of M
dangerous driving causing death. The Girdler direction is to the effect that
N N
in circumstances where the immediate cause of death was a second
O collision, the defendant would have caused the death only if the jury were O
sure that it could sensibly have been anticipated that a fatal collision might
P P
occur in the circumstances in which the second collision did occur.
Q Q
64. Defence agrees that there has not been any Hong Kong
R R
authorities which had applied the said legal principle into Hong Kong
S criminal law. In fact there is a Hong Kong Court of Appeal authority which S
had considered Girdler. In HKSAR v Lam Ying Yu CACC 320/2012, the
T T
applicant referred the Court to Girdler. The Court of Appeal decided that
U U
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A A
B B
it was unnecessary to decide whether the test in Girdler is one which should
C be applied in Hong Kong, as the situation in the case is not the same kind C
of situation for which the English Court of Appeal formulated the Girdler
D D
test. In Lam Ying Yu, it was held that the death of the deceased was not
E caused by a new, intervening act. The applicant’s driving caused the taxi E
driver to be put in harms way, and that in order for him to escape that
F F
potential harm, he took evasive action.
G G
65. In view of the above, the Court will not accept that the de
H H
minimus rule should be varied in accordance with the Girdler directions.
I The test as it stands in HK law, is in line with the authorities submitted by I
the Prosecution, and I am satisfied that, by failing to notice Madam
J J
Chong’s approach and later presence in front of V1, and driving forward
K regardless, thereby causing impact with Madam Chong and causing her to K
fall to the ground and unable to get up, the causation link has been proved
L L
beyond the requirement of more than “de minimus”. The Defendant’s
M driving had played a part, not simply in creating the occasion of the fatal M
accident, but in bringing it about.
N N
O 66. Even if I am wrong, in that should the Girdler test be applied O
to the present case, I am satisfied that in the circumstances of the present
P P
case, by moving the vehicle forward when Madam Chong was crossing in
Q front, and causing her to come into impact with V1 and falling onto the Q
ground, and being pushed forward by V1, it could sensibly have been
R R
anticipated that a fatal collision might occur in the circumstances in which
S the second collision did occur. The causation would also be proved even S
if the Girdler test is to be applied.
T T
U U
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A A
B B
67. I therefore find the Defendant guilty of dangerous driving
C causing death. C
D D
E E
F F
( Peony Wong )
G G
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
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Q Q
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S S
T T
U U
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A A
B B
DCCC 960/2022
C [2024] HKDC 1024 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 960 OF 2022
F F
G --------------------------- G
HKSAR
H H
v
I SO CHUN MAN I
----------------------------
J J
K Before: Deputy District Judge Peony Wong K
Date: 21 June 2024
L L
Present: Mr Neil S. Mitchell, Counsel-on-fiat, for HKSAR
M Mr Anthony W. M. Yuen, instructed by Messrs Lau & Co, M
Solicitors, for the defendant
N N
Offence: [1] Causing death by dangerous driving (危險駕駛引致他人
O O
死亡)
P P
Q Q
---------------------------------------
R REASONS FOR VERDICT R
---------------------------------------
S S
T T
U U
V V
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A A
B B
1. The Defendant has pleaded not guilty to a single charge of
C causing death by dangerous driving, contrary to section 36(1) of the Road C
Traffic Ordinance, Cap. 374. He had indicated willingness to plead guilty
D D
to careless driving, but his plea was not accepted by the Prosecution.
E E
The Admitted Facts
F F
G 2. Most of the Prosecution evidence had been admitted under G
s65C of the Criminal Procedure Ordinance. It is admitted by the parties
H H
that, inter alia, at the material time:-
I I
(a) the location in question was a straight section of road, with a
J J
single lane carriageway in each direction;
K K
(b) the weather was fine, and the road surface was dry and in good
L L
condition;
M M
(c) the material section of the road was lit by street lamps; and
N N
O (d) traffic flow was relatively low. O
P P
3. It is also admitted by the parties that:-
Q Q
(a) the incident occurred at about 0630 hours on the 27th January
R R
2022 in Tin Ha Road, Yuen Long, New Territories, near
S lamppost number FB 9079 (hereinafter referred to as the S
“Lamppost”);
T T
U U
V V
-3-
A A
B B
(b) the Deceased (Madam Chong) left home at 06:29:58 hours,
C and was on the way to collect newspaper from a nearby shop C
when the incident occurred;
D D
E (c) she was wearing dark colour upper garment; E
F F
(d) a bus with registration number UL 9538 (hereinafter referred
G to as the “Bus”) travelled along the bus route of Tin Ha Road; G
H H
(e) at around 0630 hours, the Bus stopped at a bus stop near the
I Lamppost to allow passengers to board and alight; I
J J
(f) two vehicles stopped behind the bus, the first one being a
K refuse collection vehicle UD 3330 driven by the Defendant K
(hereinafter referred to as “V1”), and the second being a
L L
medium goods vehicle US 627 (hereinafter referred to as
M “V2”) driven by Mr. Lee which had stopped closely behind M
V1;
N N
O (g) after the incident, Mr. Lee remained at the scene, whereas the O
Defendant had left with V1, and was later on located by the
P P
police;
Q Q
(h) Both the Defendant and Mr. Lee had tested negative of
R R
alcohol;
S S
(i) the ambulance arrived at 0650 hours, and the ambulance crew
T T
found Madam Chong to be trapped underneath V2; and
U U
V V
-4-
A A
B B
C (j) it was not until 0724 hours that V2 was lifted sufficiently to C
allow the ambulance crew to gain access to Madam Chong.
D D
She was confirmed dead on the spot;
E E
4. It is also agreed that:-
F F
G (a) Madam Chong was 85 years old on the day of the incident, G
and was living on the southbound side of Tin Ha Road;
H H
I (b) she was in good general physical and mental health for her I
age before the incident occurred;
J J
K (c) The autopsy report of Madam Chong indicated:- K
L L
(i) gaping laceration to the head with a piece of the scalp
M detached from the flaying laceration exposing the skull bone; M
N N
(ii) the left upper limb was almost completely amputated, and the
O right forearm had a gaping laceration of 29 cm in length and O
22 cm in width extending circumferentially on the whole of
P P
the forearm exposing underlying torn muscle;
Q Q
(iii) there were fractures to the skull, vertebral body of the 5 th
R R
cervical vertebrae, breastbone and front and rear ribs, right
S clavical, left arm bone, right elbow joint, left thigh bone, left S
knee joint, left ankle joint, right knee joint and right ankle
T T
joint and various other parts of the body; and
U U
V V
-5-
A A
B B
C (iv) blood analysis showed therapeutic levels of chlorpheniramine C
and paracetamol, neither of which would have likely affected
D D
her level of consciousness at the material time.
E E
5. The Defendant was arrested and cautioned by PC22461 for
F F
causing death by dangerous driving. The Defendant stated under caution
G that “I had no idea that I had knocked down anyone.” G
H H
6. It was common ground between the parties that the following
I footages and 2 photo albums P5(1)-(11) and P6(1)-(14) were to be admitted I
into evidence as showing what happened at the scene, and that:-
J J
K (a) the CCTV system of the vegetable market at Ha Tsuen K
(Exhibit P3) relevant to the incident had timestamp from
L L
approximately 0638 to 0658 hours, but was in fact about 12
M minutes faster than real time (i.e. the relevant parts should be M
about 0626 to 0646 hours in real time);
N N
O (b) the CCTV system of Tong Fong Tyre and Battery Company O
at the junction of Tin Ha Road and Ping Ha Road (Exhibit P4)
P P
relevant to the incident had timestamp approximately
Q synchronized to real time; and Q
R R
(c) the CCTV footages P3 and P4 had not been tampered with or
S altered in any way. S
T T
U U
V V
-6-
A A
B B
7. Both V1 and V2 had been sent to vehicle examination, and no
C defects were found on either of them. There was also no contact evidence C
found between Madam Chong and V1.
D D
E The Prosecution Case E
F F
8. The Prosecution called 4 live witnesses, and PW5’s witness
G statement was admitted under section 65B of the Criminal Procedure G
Ordinance. The evidence of PW1 and PW3 (i.e. the son of Madam Chong
H H
and the police officer who had attended the scene) was unchallenged by
I cross examination. Their evidence were in line with the Admitted Facts. I
J J
9. The evidence of PW2, i.e. the cleaner who was on board V1
K beside the Defendant at the front passenger seat when the Incident K
happened, was also not disputed. She was cross-examined to elicit
L L
evidence. She stated that just after 6:30 am, when it was not yet broad
M daylight, V1 had just started off, being driven by the Defendant. Before the M
journey began, she had briefed the Defendant on how to use the refuse
N N
compressor when they arrive at the Lam Tei refuse collection point later
O on in the journey. There were streetlights along Tin Ha Road, but they O
were relatively dim. During the journey, there was nothing special about
P P
the driving manner of the Defendant, and there was no speeding involved.
Q She did not have the sensation of V1 having ran over or hit anything along Q
the journey.
R R
S 10. PW4 was the traffic accident reconstruction and forensic S
video analysis expert Dr. Tam Cheok Ning (hereinafter referred to as “Dr.
T T
Tam”). His expertise was not disputed, and he was accepted by this Court
U U
V V
-7-
A A
B B
as an expert in traffic accident reconstruction. He adopted his witness
C statement (Exhibit P7) as part of his evidence. He stated that with reference C
to common events, he had synchronized the 3 footages for which he had
D D
based his reconstruction and analysis on: Footage A (Exhibit P4), Footage
E B (from the entrance of the vegetable distributor, from P3), and Footage C E
(equivalent to channel 2 in P3). He had then compiled a table which
F F
indicates the events and the corresponding timestamp as shown on the 3
G footages. He had also made an assumption as to the point of impact with G
reference to Madam Chong appearing to have started to fall from Footage
H H
A and marked it as T. The aforesaid events were listed in the table with
I reference to the no. of seconds from the time of impact, from T-5.0 to T, I
and T+5.0 to T+16.4.
J J
K 11. Dr. Tam’s evidence on the reconstruction was that by using a K
mannequin of similar height and wearing similar dark coloured clothing as
L L
Madam Chong, and with reference to the footages mentioned in his report,
M he was able to reach the conclusion that, although the driver of V1 could M
not see Madam Chong through the front windscreen during the course of
N N
the incident, he could have unobstructed or partially obstructed views of
O Madam Chong walking towards the gap between V1 and the bus at T-4.0, O
T-3.0, and at or before T-2.0 through the offside window and from the
P P
nearside fisheye mirror between T-1.5 and T. He also stated that in his
Q findings, V1 started pulling away at T-2.0, and that the speed of V1 had Q
started with 1.4 km/h +/-0.14 between T-2.0 and T-1.5, and accelerated to
R R
5.4 km/hr +/-0.54 from T-1.0 to T.
S S
12. PW5’s two witness statements and the attached sketches and
T T
photos were introduced under s65B of the Criminal Procedure Ordinance
U U
V V
-8-
A A
B B
(Exhibit P8 & P8A, and P9 & P9A) and he was not called for live evidence.
C His evidence indicated that at about 6:28 am on the day in question, he left C
home as usual and intended to walk to the bus stop on Ping Ha Road
D D
Eastbound to take a bus to work. The weather was dark but there was
E sufficient lighting from the streetlights. When he was walking past the E
corner of the village path and the pavement of the main road, he heard a
F F
weak voice calling for help from the road outside, but he could not hear the
G content. He took a few steps forward immediately to the kerbside, and G
looked towards the carriageway of Tin Ha Road bound for Ping Ha Road.
H H
He saw 3 vehicles on the said carriageway, in the sequence of a bus, V1,
I and V2. The bus and V1 were stationary, while V2 was moving forward I
slowly. He was about 2.1 m from V1.
J J
K 13. Thereafter, the bus started moving, and V1 followed. After K
V1 had driven past and was about 7.9 m away from him, he saw an old
L L
lady (i.e. Madam Chong) lying supine with legs pointing in the direction
M of Hung Shui Kiu, on the road very close to the kerb of the pavement, about M
1-2 metres away from him. He was not sure as to the distance between
N N
Madam Chong and the kerb, and whether she had been leaning over the
O kerb. Madam Chong was conscious and had her eyes opened. There was O
no blood on her face, nor was there blood on the ground. Apart from
P P
uttering a sound with a weak voice, Madam Chong made a move with her
Q left hand and slightly raised her left arm. He did not know if Madam Chong Q
had sustained any fractures, as her limbs did not appear to be mangled.
R R
S 14. He then heard the sound of a vehicle coming from the right. S
When he looked to his right, he saw V2 with headlights turned on with only
T T
about one private car’s distance (4.4 m as measured at the scene) to Madam
U U
V V
-9-
A A
B B
Chong. At this point, the distance between V1’s end and V2’s front was
C 6.7 m as measured at the scene. He could not walk onto the road to stop C
V2 as there were metal railings at the kerbside. He therefore shouted
D D
towards V2, but the windows of V2 were closed and the driver did not
E respond to PW5’s shouting. E
F F
15. Within 1 second thereafter, he realized that Madam Chong
G was ran over by V2 and dragged under V2 to the nearside front. He did G
not witness the running over by V2, as he had been looking at the driver of
H H
V2 while signaling for V2 to stop. The location is as indicated in the 2 nd
I sketch attached to his 1st witness statement dated 30th January 2022. V2 I
continued moving and stopped after travelling for a distance of
J J
approximately one refuse collection vehicle, when the bus and V1 had
K stopped at the red traffic light. At this point, the distance between V1 and K
V2 was 1.3 m as measured on site, and the distance between PW5 and V2
L L
was 2.2 m as measured on site. Before V1 and V2 could start moving again,
M PW5 went forward to a distance of 1.4 m and thereafter of 1.1 m (as M
measured on site) from V2, and signaled to the driver of V2 to stop, and
N N
pointed at the nearside rear wheels of V2. After the driver of V2 realized
O that someone was trapped under his vehicle, he called the police, and PW5 O
left. V1 had already left at that point.
P P
Q Defence Case Q
R R
16. The Defendant elected to give evidence but did not call any
S Defence witnesses. The Defendant testified that he is 54 years old, and S
was employed by a cleaning company on the day of the incident as a refuse
T T
th
collection driver. It was his 4 day working for this company. He had
U U
V V
- 10 -
A A
B B
taken the same route for all 4 days up to the time of the incident. He had
C travelled infrequently along this road before working for this company, and C
therefore was not very familiar with this section of the road.
D D
E 17. He stated that he had started working at about 6 am that day, E
and had picked up the refuse collection vehicle V1 at the company
F F
warehouse at Tin Ha Road. His colleague PW2 was responsible for
G assisting in the refuse collection work, and was his passenger on V1. He G
drove V1 along Tin Ha Road towards Yuen Long direction. The sun had
H H
not yet risen at the time, and it was still dark. The road was illuminated by
I street lights. I
J J
18. At around 6:30 am, V1 arrived at a bus stop. A bus had
K stopped at the bus stop. The Defendant assumed that the bus was picking K
up and allowing other passengers to alight from the bus, but he could not
L L
see if it was in fact true. He stopped V1 behind the bus by applying the
M brakes, securing the hand brake, engaging neutral gear and applied the foot M
brake.
N N
O 19. He then paid attention to the pavement on his left, as from his O
experience, people who intend to cross the road might pass through the gap
P P
between the back of the bus and the road after alighting, i.e. from left to
Q right. He waited for 8 seconds when the bus remained stationary at the bus Q
stop.
R R
S 20. During the 8 seconds’ wait, he had not looked towards the S
right offside window. There were not many pedestrians or vehicles at that
T T
stretch of the road at the material time. It was also not a pedestrian crossing
U U
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B B
nor a bus lane. It therefore did not occur to him that someone might appear
C onto the carriageway from the right. C
D D
20. Subsequently, he saw the bus started to move. Before he
E started moving V1 again, he looked at the fisheye mirror on the top left E
hand corner of the front of V1. He was able to see whether anyone was
F F
present within 2 m immediately in front of V1. After seeing that no one
G was moving out in front of V1 from the left, and that was in front of his G
vehicle by checking on the fisheye mirror, he checked the side mirrors on
H H
the left and right of V1 to see if anyone was near the bodywork of V1. He
I did not find anyone there, therefore he started moving V1, by engaging I
second gear, releasing the hand brake, and stepping on the accelerator. V1
J J
moved forward for a short distance and stopped at a traffic light after the
K bus. K
L L
21. Eventually V1 travelled to Long Ping Estate for refuse
M collection. The Defendant received a message at that place that V1 was M
involved in a traffic accident and he had to return to the bus stop.
N N
O 22. During all material times, he did not see Madam Chong O
approaching V1 from the offside window or in front of V1 from the fisheye
P P
mirror. Under cross-examination, he stated that when he looked at the right
Q side mirror, he could see if anything was on the right of V1 by seeing the Q
surroundings of the right side mirror. Upon further cross-examination, he
R R
agreed that the side rear mirror could only allow a partial view of the right
S side, and that in order to have a full view of the right side, he had to look S
at the right side window.
T T
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B B
23. The Defendant agreed under cross-examination that there
C were buildings, including residences along the material stretch of the road, C
and that the bus stop was a marked bus stop at a main road. He agreed that
D D
he was aware of the possibility that passengers trying to board the bus may
E cross from the other side of the road, and in front of V1 from its offside to E
its nearside. He also agreed that the railings came to an end at the area
F F
where the bus stop was, and therefore pedestrians may cross from V1’s
G offside to the nearside. G
H H
24. The Defendant eventually agreed in the final part of the cross-
I examination that he should have looked out of the right offside window to I
ascertain if anyone was crossing the road and approaching V1, and that
J J
Madam Chong was visible had he looked from the fisheye mirror.
K K
25. The Defendant stated in response to the Court‘s clarification,
L L
that when V1 almost came to a halt behind the bus at the bus stop, he had
M checked the pavement to his left, the carriageway as well as to the right on M
the Southbound pavement. He only saw 1 pedestrian on the Southbound
N N
pavement to his right front.
O O
Case Analysis
P P
Q Analysis of the Credibility and Reliability of the Prosecution Case Q
R R
26. I bear in mind that the Prosecution has the burden of proving
S all elements of the offence beyond reasonable doubt, and that the S
Defendant has no burden to prove his innocence.
T T
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B B
27. I have carefully considered the content of the evidence of all
C Prosecution witnesses, including those who gave live evidence, for which C
I have in addition considered their demeanour while doing so, and of those
D D
whose evidence is contained solely in witness statements submitted under
E section 65B of the Criminal Procedure Ordinance. Unless otherwise stated E
specifically, I have found all Prosecution witnesses to be honest and
F F
reliable witnesses in respect of material parts of their evidence. Unless
G otherwise stated specifically, the material parts of their evidence were G
reasonable and credible, and there were not any material inconsistencies or
H H
material inherent improbability. I will therefore accord full weight to the
I material parts of their evidence, except for parts which I will indicate below I
as expressly excluded.
J J
K 28. PW5’s evidence in his 2nd witness statement concerning the K
location of himself, V1 and V2, with measurements being made on site on
L L
a day after the incident, is considered by this Court to have certain obvious
M errors. He had indicated in his 1st witness statement that after Madam M
Chong was ran over by V2, he raised his hand to the driver of V2 to make
N N
a signal to stop, and that Madam Chong was under the rear wheel of V2.
O Photo 25 attached to his 2nd witness statement indicates the location of O
himself and V2, where the front of V2 had not even reached the
P P
carriageway ground markings of the Chinese character “站” at the final
Q Q
section of the bus station.
R R
29. A comparison with Photo P5(4) (with marking of no. 13 in the
S S
photo album) where the rear wheel of V2 with blood stains would reveal
T that the rear wheel which was on top of Madam Chong was on the Chinese T
character “巴” which was alongside another Chinese character “士” and
U U
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B B
ahead of the Chinese character “ 站 ”. According to PW5’s witness
C statements, V2 had already ran over Madam Chong, and that when he C
raised his hand, V2 had stopped at the traffic light and had not moved
D D
further. Therefore when he raised his hand, he and V2 must have been
E further ahead to the Northbound direction instead of the location shown in E
Photo 25 of his 2nd witness statement.
F F
G 30. As can be seen from Photos 4, 7 and 8 of his 2 nd witness G
statement, he had also indicated the location of Madam Chong when V1
H H
had moved away at an earlier stage of the incident, i.e. when the bus had
I moved off and V1 followed, and when V1 had driven right past, and I
Madam Chong was found lying on the carriageway. From these
J J
photographs, the mannequin representing Madam Chong was lying on the
K carriageway, outside the ground marking of the bus station, i.e. some K
distance away from the end of it.
L L
M 31. That does not, however, tally with the CCTV footage of M
channel 2 of the vegetable stall. The relevant part of channel 2 has been
N N
referred to in the table on page 5 of PW4’s expert report as T+5.0 to T+6.5
O O
in Footage C, and the screen captures are contained on pages 18 to 20 of
P
the same report. P
Q Q
32. Upon viewing the footage, it can be seen that the camera for
R
channel 2 captured V1 moving past, and immediately after, the dark patch R
on the carriageway appeared. There was sufficient distance between V1
S S
that had just passed by the view of the camera, and V2 entering its view, to
T enable the Court to confirm that this dark patch was not the shadow of the T
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B B
two vehicles, nor of any other discernible object. This can also be shown
C from the photos of the expert report of Footage C from T+5.0 to T+6.5. C
D D
33. Further, the Court played the footage of channel 2 from the
E time before the bus arrived, until V2 left the view of the camera, with the E
assistance of the magnifying function of the media player. It can be seen
F F
that from that viewing, that before the bus arrived, there were
G approximately 5 people waiting at the bus stop. The person on the utmost G
left of the screen was in dark clothing with light coloured shoes, and
H H
carrying something that appears to be a bag or bags with his or her left
I hand. The said person was standing on the pavement, next to the I
carriageway ground marking of bus stop, in between the Chinese
J J
characters “巴士” and “站”. As the camera did not move, the ground
K markings would be useful reference when viewing the footage. K
L L
34. At 064225 the bus stopped at the bus stop and blocked the
M view of the ground markings. Most of the bus was seen from the footage, M
but the last part was outside the camera’s view. Therefore the impact
N N
between Madam Chong and V1, if it did happen, would not appear in this
O O
footage.
P P
35. Shortly after the bus left at 064245, at 064249 V1’s offside
Q Q
vehicle front with its headlight appeared into view. At this particular
R
moment, there was no dark patch on the left front part of the ground R
marking Chinese character “站”.
S S
T 36. Thereafter V1 continue to move forward, and when it was T
passing through the bus station, at 064253 to 064254, the dark patch
U U
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A A
B B
appeared on the left front part of the ground marking Chinese character
C “站”. At 064258, V2 stopped. C
D D
37. It is also Dr. Tam’s evidence that if an impact occurred, it
E would have been in the manner of a push and not a hit, as the speed of V1 E
was very slow at that time. He was of the opinion that Madam Chong
F F
would be pushed forward along with the movement of V1 along the
G carriageway to the front. G
H H
38. Considering PW5’s evidence in conjunction with PW4’s
I expert report and evidence, it can be seen that the dark patch could only I
have been Madam Chong and not any other object that might have fallen
J J
off V1 as it passed by or had by other means got onto the carriageway,
K since it was PW5’s evidence in his witness statement that after V1 passed K
by, Madam Chong was lying on the carriageway, before V2 had arrived at
L L
the particular spot.
M M
39. I am therefore of the view that PW5 was mistaken in his
N N
observation of the location of Madam Chong on the carriageway, due to
O O
the fact that he was observing in night conditions from a distance, after
P
having just entered Tin Ha Road from the village road; and that there were P
railings beside and ahead of him in between the view from him to V1 and
Q Q
Madam Chong (as seen from Photos 1 and 2 of his 2 nd witness statement).
R R
40. That would, however, not affect other parts of his evidence,
S S
and his honesty as a witness. The difficulty with the observation had been
T referred to above, and is entirely understandable. I therefore find that his T
evidence concerning the exact location of V1, V2 and Madam Chong, and
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B B
the relevant distance between different persons and objects to be not
C sufficiently reliable as to be relied upon by a criminal court. His evidence C
on other general aspects of the case, however, will be accepted by this
D D
Court.
E E
41. Defence disputes that the “dark patch” on the ground as
F F
captured by the CCTV of the vegetable market (Exhibit P3) was the
G Deceased after V1 had just driven off from the location of the alleged G
impact. It would therefore be convenient for the Court to deal with the
H H
factual dispute of what constitutes the “dark patch” mentioned above, as
I this factual dispute is in my view material, and will affect the consideration I
of whether the Prosecution can prove the Prosecution case and successfully
J J
refute the lines advanced by the Defence.
K K
42. First of all, the Court notes that this factual dispute has not
L L
been brought up by the Defence either in case management stage, nor in
M the cross-examination of Dr. Tam. It was first raised in the closing M
submissions of the Defence. In that regard, Dr. Tam was not afforded the
N N
opportunity to respond to this challenge by the Defence.
O O
43. But in any event, as stated above, Dr. Tam had indicated in
P P
his expert report and his live evidence, that he thinks the dark patch was
Q the Deceased having been pushed forward by V1 after impact. And due to Q
the above analysis, I accept Dr. Tam’s evidence and find that the dark patch
R R
was Madam Chong.
S S
T T
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B B
Analysis of the Credibility and Reliability of the Defence Case
C C
44. I have carefully considered the content of the evidence and
D D
demeanour of the Defendant. His evidence was not seriously contested by
E the Prosecution in terms of the factual content. It was the extent of his duty E
as a driver, and the steps that he should have taken before starting V1, that
F F
was the subject matter of dispute. I therefore do not find it necessary in
G these circumstances to make a finding as to whether his evidence is G
factually credible or not, save as the issue of whether the Defendant could
H H
see the surroundings on his right side by looking at the right side mirror.
I I
45. The Defendant’s answer under cross-examination that he
J J
could is obviously incredible, as the right side mirror could only allow him
K to see the right bodywork to the rear of V1, and would not allow him to K
observe the southbound pavement on his right. In any event this might not
L L
be in dispute, as the Defendant had admitted at the final part of the cross-
M examination that he should have looked outside of the right offside window M
to see if anyone was crossing the road and approaching V1. I shall analyse
N N
the Defence case on the basis of the Defendant’s factual evidence, and his
O aforesaid answer in the final part of the cross-examination. O
P P
Case Analysis Based on the Evidence Accepted by the Court
Q Q
46. There are three lines of Defence put forward by the Defendant
R R
in the present case: (1) that the Defendant’s driving manner was dangerous;
S (2) that the Prosecution has failed beyond reasonable doubt to prove that S
there was an impact between V1 and Madam Chong; and (3) that the
T T
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B B
Defendant’s manner of driving, if dangerous, had caused the death of
C Madam Chong. C
D D
47. The Prosecution’s response to (1) and (2), was that there was
E an impact despite there being no impact evidence. The Prosecution went E
on further to submit that, whether or not there was an impact, i.e. whether
F F
Madam Chong had fallen to the ground due to an impact with V1 or having
G lost balance while trying to get away from V1 which was moving slowly G
forward, the Defendant’s failure to notice Madam Chong’s presence before
H H
moving V1 was dangerous. What the Prosecution is in fact submitting is
I that it is not necessary to prove an impact in order to support a finding of I
dangerous driving in this case.
J J
K 48. I note that the witness statement of PW5 mentioned that he K
heard a weak cry for help when he was still on the village road. He
L L
therefore took a few steps onto Tin Ha Road immediately, and saw the bus
M and V1 remaining stationary on Tin Ha Road, whereas V2 was moving M
slowing from behind. It was obvious that at this point, the alleged impact
N N
between Madam Chong and V1 had not yet occurred. It was only after the
O bus and V1 had moved off, and after V1 had driven past, then PW5 saw O
Madam Chong lying on the ground.
P P
Q 49. The Court is of the view that it is not necessary for the Q
Prosecution to prove that Madam Chong had fallen down onto the ground
R R
because of an impact with V1. Even if Madam Chong had fallen onto the
S ground for whatever reason, the real issue is the Defendant’s failure to S
notice her presence and her approach towards the front of V1, and starting
T T
to move the vehicle regardless. If he had looked to the right offside
U U
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B B
window, he would have noticed Madam Chong’s approach and the
C potential danger of driving forward under those circumstances. Whether C
Madam Chong had fallen down of her own accord, or had an impact with
D D
V1 and thereafter fell, is not material to this case. What is relevant is that
E the Court is of the view that there was an impact one way or the other with E
V1.
F F
G 50. The analysis in the earlier part of this Judgment on the G
credibility and reliability of the Prosecution case had already discussed the
H H
evidence in relation to the CCTV footage depicting the dark patch on the
I ground, which the Court is of the view represents Madam Chong having I
remained on the ground after an impact with V1 and having been pushed
J J
forward to the location of the dark patch. I shall not repeat the analysis as
K aforesaid, but will make a finding that there has been an impact between K
Madam Chong and V1. To suggest otherwise would be an affront to the
L L
only reasonable and only possible conclusion from the evidence of the
M CCTV footages and the subsequent photos being taken. M
N N
51. I find that it is not unduly burdensome and difficult for a
O driver to turn his head 70 to 90 degrees to the right, in order to look through O
the offside window, to see if anyone was trying to cross the road or
P P
approach the vehicle before moving forward. This is especially important,
Q when the Defendant knew that the particular stretch of road was lined with Q
buildings and residences, that he had stopped near a bus stop, and that
R R
people wanting to catch the bus might cross the road in front of V1. In his
S cross-examination, he had agreed he should have looked through the S
offside window for such purposes before moving forward.
T T
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52. I am of the view that the fact that there were not many
C pedestrians on the southbound pavement at that time does not assist him, C
as he was actually aware of the presence of at least one pedestrian, and the
D D
possibility of pedestrians crossing the road.
E E
53. I am also of the view that even though the mannequin used by
F F
Dr. Tam in the reconstruction turns out to be 10 cm taller than Madam
G Chong, I am satisfied that Dr. Tam’s response that the difference does not G
affect his conclusions on the visibility of Madam Chong at the various
H H
points of time mentioned in his report carries force, as the mannequin was
I spotted either on the lower part of the body, which would not be affected I
by the difference, or had at least the entire head being spotted, and
J J
deducting 10 cm height would still give a reasonably large area of the head
K to be spotted. I therefore accept the adjusted findings of the degree of K
visibilty of Madam Chong at various points of time made by Dr. Tam under
L L
cross-examination.
M M
54. The Defendant in his evidence also mentioned that the
N N
particular location was not a pedestrian crossing. Defence counsel pointed
O out from the photos that not far away at the back of the bus stop was a O
pedestrian crossing. It is human nature that some pedestrians will obey the
P P
rules, and others not. The Defendant’s evidence that he had paid attention
Q to the left as he was afraid passengers who had alighted from the bus might Q
cross the road in the gap between the bus and V1 is evidence that he was
R R
aware that some people might cross the road at places other than the nearby
S pedestrian crossing. I am therefore of the view that the location of the S
pedestrian crossing and Madam Chong’s failure to cross the road at the
T T
pedestrian crossing does not assist the Defence.
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B B
C 55. According to the Defendant’s evidence, he had decided at the C
time that it was not necessary for him to check the offside window of V1
D D
before moving the vehicle. I am therefore of the view that his omission to
E check the right offside window was deliberate, and not a momentary lapse E
of attention. He had stopped behind the bus for 8 seconds, but had only
F F
looked at the right to the southbound pavement before he had completely
G stopped V1. I find that his failure to check if anyone was approaching from G
the right before moving off again was a flagrant breach of his duty as a
H H
driver to pay attention to the obvious danger of people crossing the road
I lined with buildings to another side with a bus stopping at a bus stop. I
J J
56. Defence counsel also submits that Madam Chong’s decision
K to cross the road in front of V1 at T-2.0, when V1 had just started to move K
forward, was a “suicidal act”, which would take the Defendant’s failure
L L
outside the area of dangerous driving. I do not agree with that submission.
M It would be another matter if Madam Chong had suddenly appeared out of M
nowhere, when the Defendant could not have noticed her approach and
N N
crossed the road in front of V1 when V1 had just started to move. It would
O be entirely different, as in the present case, when the Defendant had ample O
opportunity to spot Madam Chong’s presence and obvious intention to
P P
cross the road all the way to the northbound pavement, to fail to take
Q advantage of the opportunity to ensure it was safe to move ahead, before Q
actually driving forward from a completely stationary condition.
R R
S 57. When determining what would be expected of, or obvious to, S
a competent and careful driver in a particular case, regard was made by this
T T
Court to all the circumstances of the case, including the nature, condition
U U
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B B
and use of the road concerned at the material time; the amount of traffic
C which is actually on the road concerned at the material time or which might C
reasonably be expected to be on the road concerned at the material time;
D D
and the circumstances (including the physical condition of the accused) of
E which the accused could be expected to be aware and any circumstances E
(including the physical condition of the accused) shown to have been
F F
within the knowledge of the accused.
G G
58. In regard to the above considerations, the Court is aware that
H H
the relevant section of the road was lined with buildings, some of which
I were residential buildings. The road condition was good, and the road was I
used by traffic of all kinds including large size vehicles and buses, and
J J
pedestrians were seen in the CCTV footages as crossing the road, or
K walking along both the northbound and southbound pavement. Quite a K
number of passengers were waiting at the bus stop before the bus arrived.
L L
From the CCTV footages, it could also be seen that he vehicular traffic was
M rather busy despite the material time being 6:30 am in the morning. There M
was a pedestrian crossing nearby, but from the CCTV it appears that at
N N
least part of it was blocked by V2 which had waited at that location when
O the bus and V1 were also stationary. The Defendant might not be aware of O
the blocking of the pedestrian crossing by V2, but he would be aware that
P P
V2 had waited behind him, as he had checked the side mirrors which serves
Q the same purpose as a rear mirror in smaller vehicles. Q
R R
59. I am therefore of the view that the need to check the right
S offside window, and the danger involved in not ascertaining that S
pedestrians were not approaching a large vehicle with blind spots to the
T T
front were obvious. This finding has been made bearing in mind the
U U
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B B
presence of at least one pedestrian on the right (which was within the
C Defendant’s knowledge), the presence of a bus that had stopped at the bus C
stop right in front of V1, the presence of buildings and residences along the
D D
road, and the feasibility of turning his head to the right to look through the
E offside window. The Defendant’s driving manner had fallen to a level E
which is far below what would be expected of a competent and careful
F F
driver; and it would be obvious to a competent and careful driver that
G driving in that way would be dangerous. I therefore find that the G
Defendant’s manner of driving was dangerous.
H H
I Causation I
J J
60. In relation to causation, Defence had indicated after evidence
K had closed for both sides, that there is no dispute as to the legal principles K
stated in the Prosecution’s Opening and the authorities attached thereto.
L L
The Defence submits, however, that there is an intervening act of the driver
M of V2 (Mr. Lee) in allowing V2 to roll over Madam Chong who was M
conscious on the carriageway. Defence says that the legal principle of
N N
novus actus interveniens applies to the present situation, and that causation
O cannot be proved between the Defendant’s manner of driving and Madam O
Chong’s death.
P P
Q 61. Further, Defence argues that Madam Chong’s manner of Q
crossing the road as a pedestrian, i.e. to move between the bus and V1,
R R
when V1 had started to move at T-2.0, was a “suicidal” act, which made it
S impossible for the Prosecution to prove causation. S
T T
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B B
62. The Prosecution submits that it is not necessary for the
C Prosecution to prove that the Defendant’s manner of driving was a C
substantial cause of the death. According to R v Hennigan [1971] 3 All ER
D D
133 at 135 D-G, Dennis Chiu Tat-shing v R [1985] 2 HKC 487 at paragraph
E 3, R v Kimsey [1996] Crim L.R. 35, and R v Skelton [1995] Crim L.R. 635, E
it has been stated that for an offence of dangerous driving causing death,
F F
the Prosecution must prove that the accused has caused the death of another
G person, in the sense that the causal link is more than “de minimus”, and G
that it does not have to prove that the accused’s dangerous driving was a
H H
substantial cause of death.
I I
63. As for the Defence’s submissions on novus actus interveniens,
J J
Defence submitted an authority R v Girdler [2010] R.T.R. 28. Without
K going into the details of the said case of Girdler, the Court notes that it is K
an English Court of Appeal case which has no binding effect on this Court.
L L
It shall suffice for present purposes that the case of Girdler had introduced
M the concept of foreseeability into the direction to jury of a case of M
dangerous driving causing death. The Girdler direction is to the effect that
N N
in circumstances where the immediate cause of death was a second
O collision, the defendant would have caused the death only if the jury were O
sure that it could sensibly have been anticipated that a fatal collision might
P P
occur in the circumstances in which the second collision did occur.
Q Q
64. Defence agrees that there has not been any Hong Kong
R R
authorities which had applied the said legal principle into Hong Kong
S criminal law. In fact there is a Hong Kong Court of Appeal authority which S
had considered Girdler. In HKSAR v Lam Ying Yu CACC 320/2012, the
T T
applicant referred the Court to Girdler. The Court of Appeal decided that
U U
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A A
B B
it was unnecessary to decide whether the test in Girdler is one which should
C be applied in Hong Kong, as the situation in the case is not the same kind C
of situation for which the English Court of Appeal formulated the Girdler
D D
test. In Lam Ying Yu, it was held that the death of the deceased was not
E caused by a new, intervening act. The applicant’s driving caused the taxi E
driver to be put in harms way, and that in order for him to escape that
F F
potential harm, he took evasive action.
G G
65. In view of the above, the Court will not accept that the de
H H
minimus rule should be varied in accordance with the Girdler directions.
I The test as it stands in HK law, is in line with the authorities submitted by I
the Prosecution, and I am satisfied that, by failing to notice Madam
J J
Chong’s approach and later presence in front of V1, and driving forward
K regardless, thereby causing impact with Madam Chong and causing her to K
fall to the ground and unable to get up, the causation link has been proved
L L
beyond the requirement of more than “de minimus”. The Defendant’s
M driving had played a part, not simply in creating the occasion of the fatal M
accident, but in bringing it about.
N N
O 66. Even if I am wrong, in that should the Girdler test be applied O
to the present case, I am satisfied that in the circumstances of the present
P P
case, by moving the vehicle forward when Madam Chong was crossing in
Q front, and causing her to come into impact with V1 and falling onto the Q
ground, and being pushed forward by V1, it could sensibly have been
R R
anticipated that a fatal collision might occur in the circumstances in which
S the second collision did occur. The causation would also be proved even S
if the Girdler test is to be applied.
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67. I therefore find the Defendant guilty of dangerous driving
C causing death. C
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( Peony Wong )
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Deputy District Judge
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