區域法院（刑事）Deputy District Judge M.H. Tsui5/2/2025[2025] HKDC 220
DCCC1134/2023
A A
B B
DCCC 1134/2023
C [2025] HKDC 220 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1134 OF 2023
F F
G ---------------------------------------- G
HKSAR
H H
v
I I
KO Kin-ming
J J
----------------------------------------
K K
Before: Deputy District Judge M.H. Tsui
L L
Date: 6 February 2025
M Present: Mr Trevor Beel, Counsel on Fiat, for HKSAR M
Mr David Boyton, instructed by Messrs Francis Kong & Co,
N N
for the defendant
O O
Offence: Causing death by dangerous driving（危險駕駛引致他人死
P 亡） P
Q Q
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R REASONS FOR VERDICT R
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S S
T T
U U
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A A
B B
Introduction
C C
1. The defendant was charged with one count of causing death
D D
by dangerous driving, contrary to section 36(1) of the Road Traffic
E Ordinance, Cap. 374, Laws of Hong Kong1. E
F F
2. The defendant pleaded not guilty to the charge, but offered a
G guilty plea to the offence of careless driving. G
H H
Evidence
I I
3. The prosecution and the defence admitted, inter alia, the
J J
following facts stated in the admitted facts pursuant to Section 65C of the
K Criminal Procedure Ordinance, Cap. 221: - K
L L
(a) On the evening of 13 April 2023, the defendant was
M driving a red public light bus (hereinafter referred to as M
‘PLB’) bearing the registration number WH6768 in
N N
Mong Kok, Kowloon. At approximately 2147 hours
O the defendant, driving the PLB without any passengers O
onboard along Prince Edward Road West in an easterly
P P
direction, made a right turn at the traffic light junction
Q Q
onto Lai Chi Kok Road. At the time the traffic lights
R
were green in the defendant’s favour permitting him to R
make the right turn into Lai Chi Kok Road.
S S
1
T Particulars of offence: The defendant, on the 13th day of April 2023, at the signal-controlled pedestrian T
crossing, junction of Prince Edward Road West and Lai Chi Kok Road, Mong Kok, Kowloon, in Hong
Kong, caused the death of LI Hon-lam, by driving a motor vehicle, namely, a public light bus bearing
U registration mark WH6768, on a road dangerously. U
V V
-3-
A A
B B
C (b) As the defendant started to make his right turn into Lai C
Chi Kok Road, Mr Li Hon Lam (“hereinafter referred
D D
to as “the deceased”) was at the same time using the
E pedestrian crossing on Lai Chi Kok Road at the E
junction of Prince Edward Road West, walking slowly
F F
in a westerly direction. At the time the pedestrian
G crossing was displaying a red-light, prohibiting G
pedestrians from crossing the road.
H H
I (c) The defendant’s PLB struck the deceased on the front I
offside of the vehicle, that is the driver’s side just as the
J J
deceased had nearly finished crossing the road,
K knocking him to the ground. K
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(d) At about 2156 hours on the same evening, Senior
M Ambulanceman Tsui Wing Ho who was in charge of M
Ambulance A277 arrived at the location and found the
N N
deceased lying on the ground, bleeding from the back
O of his head. At the time the deceased was conscious O
and was able to speak but on being conveyed to Queen
P P
Elizabeth Hospital his consciousness began to decline
Q Q
and he started to vomit.
R R
(e) The deceased was handed over to the medical officers
S S
at the Accident and Emergency Department of Queen
T
Elizabeth Hospital. After initial treatment the deceased T
U U
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A A
B B
was transferred to the Department of Neurosurgery
C where on 24 April 2023 at about 1901 hours he died. C
D D
(f) On 5 May 2023 Dr Jenny Tse, Pathologist at the
E Department of Pathology of the Queen Elizabeth E
Hospital conducted an autopsy on the deceased. The
F F
cause of death was from “traumatic head injury”. The
G medical report for the deceased prepared on 14 June G
2023 by Dr Lam Shek Ching from the Department of
H H
Neurosurgery and the autopsy report prepared by Dr
I Jenny Tse on 2 August 2023 were produced as I
prosecution exhibit P1 and P2.
J J
K (g) At about 0015 hours on 14 April 2023 the PLB was K
taken to the Kowloon Bay Vehicle Detention and
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Examination Centre. Upon examination, the PLB was
M found to be operating normally with no mechanical M
defects. It had incurred damage to the front panel, the
N N
front bumper was deformed and the offside headlamp
O was damaged. O
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The Prosecution Case
Q Q
R
4. The prosecution called 3 prosecution witnesses. R
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T T
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A A
B B
Prosecution Witness 1 – PC 19450
C C
5. PW1 arrived at that scene of the accident at 2208 hours.
D D
According to PW1, the injured person was already in an ambulance and
E was subsequently conveyed to the hospital. He confirmed that the photo E
(prosecution exhibit P7(3)) reflected where the PLB stopped after hitting
F F
the deceased, and photo P7(9) showed where he believed the deceased fell
G after being hit by the PLB. G
H H
6. PW1 agreed that at the scene, the defendant claimed that he
I was paying attention to the oncoming vehicle on the left and did not notice I
the traffic condition at the front. The defendant further claimed that the
J J
accident was not caused by any mechanical part of the PLB. He explained
K that the front dash car camera was not operating at the time because the K
camera card had been submitted to another police officer for the
L L
investigation of another traffic accident involving object being thrown at
M the PLB. M
N N
7. PW1 declared arrest on the defendant at 2345 hours for the
O offence of dangerous driving causing grievous bodily harm. In reply, the O
defendant said he was paying attention to the left side for oncoming vehicle
P P
and did not see “someone ahead”.
Q Q
R
Prosecution Witness 2 – WPC 23431 R
S S
8. PW2 gave evidence that the deceased person passed away on
T
24 April and the case was referred to the special investigation team for T
U U
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A A
B B
investigation. PW2 informed the defendant of the death of the deceased.
C She conducted a video recorded interview with the defendant on 2 May. C
D D
9. PW2 agreed that at the time when the defendant was turning
E right, traffic lights governing vehicles at the PLB’s 12 o’clock position E
should indicate a red light. PW2 also agreed that there was a possibility
F F
that vehicles failing to comply with traffic light signal might approach the
G PLB from the left as the PLB was turning right. G
H H
Prosecution Witness 3 – Dr Ng Ka Ho
I I
10. PW3 gave evidence as an expert in forensic accident
J J
investigation. He produced a traffic accident investigation report2 on 27
K July 2023. K
L L
11. PW3 agreed that when the defendant accelerated from a
M stopping position, he could have been driving at a speed as slow as 31 km M
per hour or as fast as 40 km per hour. The different driving speed would
N N
require different braking times and Dr Ng took the average in his report.
O Dr Ng also agreed that the mannequin used in the reconstruction exercise O
was stationary while the deceased was in motion at the time of the accident.
P P
Q Q
CCTV Evidence
R R
12. CCTV recordings were obtained by investigating officers
S S
from the Metropark Hotel Mongkok located at 22 Lai Chi Kok Road at the
T T
2
U Prosecution exhibit P15. U
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A A
B B
junction of Prince Edward Road West. Prosecution exhibit P13 contained
C CCTV recordings captured by the security camera situated outside the C
hotel on Lai Chi Kok Road facing towards the junction (Channel 8).
D D
Prosecution exhibit P14 contained CCTV recordings captured by the
E security camera situated outside the hotel on Prince Edward Road West E
facing towards the junction of Lai Chi Kok Road (Channel 9).
F F
G 13. It was agreed by the prosecution and the defence that the G
CCTV recordings were subsequently burnt onto two computer discs. The
H H
two discs had not been altered or modified, and the date and time depicted
I on CCTV recordings of P13 and P14 were accurate3. I
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14. Channel 8 captured two pedestrians crossing the pedestrian
K crossing at 21:47:17 hours. At the same time traffic from Prince Edward K
Road West were turning right approaching the pedestrian crossing. At
L L
21:47:18 hours the first pedestrian had reached the pedestrian island
M located between the north and south bound Lai Chi Kok Road. The second M
pedestrian, later identified as the deceased was at the pedestrian crossing
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in front of the second traffic lane from the left. At 21:47:18 hours the PLB
O made a slight sharp right turn when approaching the pedestrian crossing. O
The PLB aligned itself towards the third traffic lane from the left. The
P P
deceased could be seen at the front nearside of the PLB. At 21:47:19 hours
Q Q
the PLB continued to complete its right turn into Lai Chi Kok Road, the
R
front part of the bus had reached the border of the pedestrian crossing R
marking. The deceased could be seen in an upright position at the right
S S
side of the PLB.
T T
3
U Admitted facts paragraphs 16 and 17. U
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A A
B B
C 15. At 21:47:19 hours the PLB continued its right turn driving C
onto the pedestrian crossing. The deceased was blocked by the body of the
D D
PLB and could not be seen from the CCTV recording. Immediately after
E a figure could be seen propelling forward onto the pedestrian island area. E
At 21:47:20 hours the PLB drove past the pedestrian crossing into the
F F
second and third traffic lane from the left where it stopped and stayed
G stationary. Other vehicles that were previously located behind the PLB G
turned into the first traffic lane from the left and overtook the PLB.
H H
I Expert Report I
J J
16. According to Dr Ng’s reconstruction result: -
K K
(a) The driver’s views of the deceased at an upright posture
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or with the head shifted to the nearside could have been
M unobstructed through the front windscreen at T-4.0 - T- M
0.74.
N N
O (b) The driver’s views of the deceased with the head O
shifted to the offside could also have been unobstructed
P P
5
through the front windscreen at T-4.0 - T-1.0 .
Q Q
R
(c) At the time position T-0.7, if the driver had his head R
shifted to the offside, the view of the deceased could
S S
T T
4
Prosecution exhibit P15, paragraph 15.
5
U Prosecution exhibit P15, paragraph 15. U
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A A
B B
have been partially obstructed by the accessory
C attached to the offside structural column of the PLB. C
D D
(d) The view of the deceased could have been unobstructed
E through the front windscreen at an upright posture / E
with the head shifted to the nearside or the offside
F F
between T-4.0 and T-1.06.
G G
17. Dr Ng took the reaction time of 0.9 seconds as inferred in the
H H
“Road Users’ Code” issued by the Transport Department and a typical
I tyre/road coefficient of friction of 0.6 for a PLB travelling on dry road I
surface, and estimated that the stopping time for a PLB travelling at a speed
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of 35 km per hour was 2.55 seconds7.
K K
18. According to Dr Ng, the defendant could have perceived the
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danger of hitting the deceased at time position T-1.33. If the defendant
M perceived the danger of hitting the deceased before time position T-2.6, the M
accident could have been avoided8.
N N
O Defendant’s Video Recorded Interview “VRI” O
P P
19. Prosecution relied on the video recorded interview of the
Q Q
defendant conducted under caution on 2 May 2023 from 1143 hours to
R
1211 hours by PW2 9 . The defence agreed that the defendant gave the R
interview voluntarily.
S S
6
T Prosecution exhibit P15, paragraph 16. T
7
Prosecution exhibit P15, paragraph 16.
8
Prosecution exhibit P15, paragraph 16.
9
U Prosecution exhibits P5, P6 and P6A. U
V V
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A A
B B
C 20. In the video recorded interview the defendant claimed that he C
started working on the material day at 1330 hours and his shift was
D D
scheduled to finish at 0300 hours10. He had been driving minibuses for
E around 13 to 14 years, and had been driving the PLB involved in the E
accident for 3 to 4 months11. He was aware that blind spots such as “A
F F
Pillar” that might cause obstruction to the driver’s view existed in the
G PLB12. G
H H
21. At the time of the accident, he was driving the PLB from
I Mong Kok to Tsuen Wan. The traffic light at Prince Edward Road West I
turned green and he started to turn the PLB into Lai Chi Kok Road13. The
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light governing the pedestrian crossing at Lai Chi Kok Road was a red light
K at the time14. K
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22. He looked to his left to ascertain if there were any vehicles
M that might collide with his PLB. When he straightened the course of the M
PLB at Lai Chi Kok Road and looked ahead, he saw a pedestrian walking
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slowly. The pedestrian was crossing from left to right and was at about
O “four people’s” distance from his PLB15. He could not brake in time and O
within 2 seconds the offside headlight of the PLB collided with the
P P
16
pedestrian . The pedestrian fell to the ground and was unresponsive after
Q Q
R R
10
S Prosecution exhibit P6A, answers 48 and 56. S
11
Prosecution exhibit P6A, answers 286 and 282.
12
Prosecution exhibit P6A, answers 322, 334, 340 and 342.
13
T Prosecution exhibit P6A, answer 66. T
14
Prosecution exhibit P6A, answers 367 - 370.
15
Prosecution exhibit P6A, answers 194 and 196.
16
U Prosecution exhibit P6A, answer 230. U
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A A
B B
the collision. The defendant saw him bleeding but did not know the source
C of the bleeding17. C
D D
23. At the material time he was driving at a speed of 30 km per
E hour. He did not see any pedestrian as he concentrated on looking to his E
left to check for any vehicles making a turn18.
F F
G The Defence Case G
H H
24. The defendant elected not to give evidence and did not call
I any defence witness. I
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25. I directed myself that the burden rests throughout with the
K prosecution to prove the charge, and the standard of proof is one of beyond K
reasonable doubt. The defendant need not prove anything. The charge
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must be proved to my satisfaction so that I am sure of the defendant’s guilt
M before I can convict. Otherwise I must acquit the defendant. M
N N
26. The defendant elected not to give evidence. The defendant
O elected to exercise his right, no adverse inference shall be made against O
him.
P P
Q Q
27. I remind myself that should inferences be made, they should
R
be the only reasonable and irresistible inference. R
S S
T T
17
Prosecution exhibit P6A, answers 91 and 95.
18
U Prosecution exhibit P6A, answers 72 and 77. U
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A A
B B
28. I consider the video recorded interview of the defendant to be
C a mixed statement. I may give full weight to inculpatory statements C
contained therein and not give weight to exculpatory statements.
D D
E Analysis of Evidence E
F F
29. The prosecution case indicated that the driving act of the
G defendant that constituted dangerous driving was his failure to keep a G
proper lookout on entering Lai Chi Kok Road, thereby the defendant’s
H H
driving fell far below what would be expected of a competent and careful
I driver. I
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30. The defence agreed to the events leading up to the accident as
K alleged by the prosecution. According to the defence, the only issue in K
dispute was whether the driving manner of the defendant at the material
L L
time was dangerous or careless.
M M
31. Section 36(4) of the Road Traffic Ordinance, Cap. 374
N N
provides that: -
O O
“A person is to be regarded as driving dangerously within the
meaning of subsection (1) if -
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(a) the way he drives falls far below what would be expected of
Q a competent and careful driver; and Q
(b) it would be obvious to a competent and careful driver that
R driving in that way would be dangerous.” R
S 32. The authority of HKSAR v Lam Chi Fat [2012] 1 HKLRD 968 S
T
indicated that: - T
U U
V V
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A A
B “30. Sections 36(6) and 37(7) set out what constitutes B
“dangerous” driving as follows:
C C
(6) For the purposes of subsections (4) and (5), “dangerous”
refers to danger either of injury to any person or of serious
D damage to property. D
(7) For the purposes of subsections (4) and (5), in
E determining what would be expected of, or obvious to, a E
competent and careful driver in a particular case, regard shall
F be had to all the circumstances of the case including - F
(a) the nature, condition and use of the road concerned at
G the material time; G
(b) the amount of traffic which is actually on the road
H concerned at the material time or what might reasonably H
be expected to be on the road concerned at the material
I time; and I
(c) the circumstances (including the physical condition
J of the accused) of which the accused could be expected J
to be aware and any circumstances (including the
physical condition of the accused) shown to have been
K K
within the knowledge of the accused.
L 31. Whether a person’s way of driving is dangerous is a matter L
to be decided objectively, but the elements of the offence of
dangerous driving do not include any specific intent to drive
M dangerously.” M
N N
The Defendant’s Evidence
O O
33. The defendant gave consistent accounts of the accident at the
P P
scene to PW1 which was post recorded in prosecution exhibit P3A, in his
Q record of interview in prosecution exhibit P4A and in his video recorded Q
interview in prosecution exhibit P6A.
R R
S 34. The defendant explained that he was making a right turn into S
Lai Chi Kok Road from Prince Edward Road West. He was all along
T T
concentrating on keeping a lookout for vehicles to his left. He did not look
U U
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A A
B B
to his right. He only noticed the deceased in front of his PLB when he
C aligned his vehicle after completing the right turn. His PLB hit the C
deceased within 2 seconds upon seeing the deceased.
D D
E 35. I have considered the circumstances of the accident. The E
material location as observed from the CCTV footages involved a junction
F F
with five exits. At the time of the accident the junction had considerable
G traffic. G
H H
36. The defendant claimed he was looking to his left for
I oncoming traffic. PW2 agreed that there was a possibility that vehicles I
could have approached the defendant’s PLB from the left. This was not a
J J
case where the defendant did not keep a lookout, he did when he entered a
K vast junction with numerous exits, it would be reasonable for the defendant K
to keep a lookout on all directions. CCTV footages from prosecution
L L
exhibit P14 (Channel 9) also showed bright lights emitting from vehicles
M from the opposite direction. M
N N
37. When the defendant negotiated the right turn into Lai Chi Kok
O Road, it showed that the third lane from the left which the defendant was O
turning into was partly obstructed by the pedestrian island. The
P P
encroachment of part of the pedestrian island into the third lane from the
Q Q
left caused vehicles turning right into the lane to have to occupy part of the
R
second lane from the left in order to safely negotiate the right turn and align R
the vehicle. It meant the defendant had to keep a lookout of vehicles to his
S S
left even as he approached the pedestrian crossing.
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U U
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A A
B B
38. Photo evidence showed the PLB’s position after the accident.
C The PLB straddled between the second and third lane from the left, and C
19
was very close in proximity to the pedestrian crossing on its right .
D D
E 39. I have analysed the explanation given by the defendant in his E
various statements. I find the defendant’s reason for concentrating on
F F
keeping a lookout to his left as he turned into Lai Chi Kok Road to be
G reasonable and inherently probable. I accept the evidence of the defendant G
including his oral statement given at the scene to PW1, that was
H H
subsequently post recorded in P3A, his record of interview in P4A and his
I video recorded interview in P6A. I
J J
40. According to Dr Ng’s report the defendant’s view was
K obstructed at different times 20 , although he did indicate that if the K
defendant’s head had tilted offside or nearside at different times he would
L L
obtain an unobstructed view of the deceased. However, the court must not
M ignore the fact that when the defendant negotiated the right turn into Lai M
Chi Kok Road, the lane that the defendant had intended to drive into was
N N
partly obstructed by the pedestrian island. It would be expected from a
O prudent driver that he would need to pay attention to vehicles on his left. O
P P
41. At the time of the accident the deceased had almost completed
Q Q
his crossing from left to the right and had almost reached the pedestrian
R
island. It was not disputed that the deceased crossed the pedestrian R
crossing against the indication of the red light prohibiting pedestrian
S S
crossing the road.
T T
19
Prosecution exhibit P7(3) and (4).
20
U Prosecution exhibit P15, paragraph 14 at T-0.7. U
V V
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A A
B B
C 42. The defence cited the authority of HKSAR v Ng Siu Bun21. C
D D
43. I have considered the circumstances of the accident. There
E was no evidence to suggest that the defendant had infringed any traffic E
regulation or provisions of the Road Traffic Ordinance. It was not disputed
F F
that at the time when the defendant turned right into Lai Chi Kok Road, the
G traffic light had already turned green. By contrast, the pedestrian crossing G
at Lai Chi Kok Road was displaying a red light prohibiting pedestrians
H H
from crossing the road.
I I
44. According to Dr Ng’s findings as to the estimated driving
J J
speed, there was no evidence to suggest that the defendant was not driving
K at a speed within the speed limit of the material location. K
L L
45. The court considered the authority of HKSAR v Cheung Kwok
M Leung [2014] 3 HKLRD 712 submitted by the prosecution. While the court M
agrees that drivers should exercise caution when approaching pedestrian
N N
crossings, however there existed special circumstances in the present case,
O including: - O
P P
(a) the particular road involved an encroachment into the
Q Q
third traffic lane from the left;
R R
(b) the deceased was crossing the pedestrian crossing
S S
against the pedestrian red-light;
T T
21
U [2020] 1 HKLRD 553 U
V V
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A A
B B
C (c) there was no evidence to suggest contravention of any C
traffic regulations or provisions; and
D D
E (d) there was no evidence that the defendant was driving at E
excessive speed at the time.
F F
G 46. I do not find evidence that indicate the defendant’s manner of G
driving was dangerous. The fact that he approached a pedestrian crossing
H H
but failed to look to his right was careless, but not to the degree where his
I manner of driving fell far below what would be expected of a competent I
and careful driver.
J J
K 47. It was a momentary lapse of concentration that involved K
seconds in terms of duration22. I find that it did not constitute dangerous
L L
driving.
M M
48. Based on the analysis of the evidence, I find that the
N N
prosecution has failed to prove beyond reasonable doubt all elements of the
O charge. I acquit the defendant of the charge of dangerous driving causing O
death.
P P
Q Q
49. However, I find that the evidence supported beyond
R
reasonable doubt that the defendant’s manner of driving at the material R
time was careless. The defence has indicated to the court at the outset that
S S
T T
22
U Prosecution exhibit P13, 21:47:17 hours to 21:47:19 hours U
V V
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A A
B B
the defendant would plead guilty to the offence of careless driving. I find
C the defendant guilty of the charge of careless driving. C
D D
E E
F F
G G
( M.H. Tsui )
H H
Deputy District Judge
I I
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K K
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M M
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O O
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A A
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DCCC 1134/2023
C [2025] HKDC 220 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1134 OF 2023
F F
G ---------------------------------------- G
HKSAR
H H
v
I I
KO Kin-ming
J J
----------------------------------------
K K
Before: Deputy District Judge M.H. Tsui
L L
Date: 6 February 2025
M Present: Mr Trevor Beel, Counsel on Fiat, for HKSAR M
Mr David Boyton, instructed by Messrs Francis Kong & Co,
N N
for the defendant
O O
Offence: Causing death by dangerous driving（危險駕駛引致他人死
P 亡） P
Q Q
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R REASONS FOR VERDICT R
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S S
T T
U U
V V
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A A
B B
Introduction
C C
1. The defendant was charged with one count of causing death
D D
by dangerous driving, contrary to section 36(1) of the Road Traffic
E Ordinance, Cap. 374, Laws of Hong Kong1. E
F F
2. The defendant pleaded not guilty to the charge, but offered a
G guilty plea to the offence of careless driving. G
H H
Evidence
I I
3. The prosecution and the defence admitted, inter alia, the
J J
following facts stated in the admitted facts pursuant to Section 65C of the
K Criminal Procedure Ordinance, Cap. 221: - K
L L
(a) On the evening of 13 April 2023, the defendant was
M driving a red public light bus (hereinafter referred to as M
‘PLB’) bearing the registration number WH6768 in
N N
Mong Kok, Kowloon. At approximately 2147 hours
O the defendant, driving the PLB without any passengers O
onboard along Prince Edward Road West in an easterly
P P
direction, made a right turn at the traffic light junction
Q Q
onto Lai Chi Kok Road. At the time the traffic lights
R
were green in the defendant’s favour permitting him to R
make the right turn into Lai Chi Kok Road.
S S
1
T Particulars of offence: The defendant, on the 13th day of April 2023, at the signal-controlled pedestrian T
crossing, junction of Prince Edward Road West and Lai Chi Kok Road, Mong Kok, Kowloon, in Hong
Kong, caused the death of LI Hon-lam, by driving a motor vehicle, namely, a public light bus bearing
U registration mark WH6768, on a road dangerously. U
V V
-3-
A A
B B
C (b) As the defendant started to make his right turn into Lai C
Chi Kok Road, Mr Li Hon Lam (“hereinafter referred
D D
to as “the deceased”) was at the same time using the
E pedestrian crossing on Lai Chi Kok Road at the E
junction of Prince Edward Road West, walking slowly
F F
in a westerly direction. At the time the pedestrian
G crossing was displaying a red-light, prohibiting G
pedestrians from crossing the road.
H H
I (c) The defendant’s PLB struck the deceased on the front I
offside of the vehicle, that is the driver’s side just as the
J J
deceased had nearly finished crossing the road,
K knocking him to the ground. K
L L
(d) At about 2156 hours on the same evening, Senior
M Ambulanceman Tsui Wing Ho who was in charge of M
Ambulance A277 arrived at the location and found the
N N
deceased lying on the ground, bleeding from the back
O of his head. At the time the deceased was conscious O
and was able to speak but on being conveyed to Queen
P P
Elizabeth Hospital his consciousness began to decline
Q Q
and he started to vomit.
R R
(e) The deceased was handed over to the medical officers
S S
at the Accident and Emergency Department of Queen
T
Elizabeth Hospital. After initial treatment the deceased T
U U
V V
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A A
B B
was transferred to the Department of Neurosurgery
C where on 24 April 2023 at about 1901 hours he died. C
D D
(f) On 5 May 2023 Dr Jenny Tse, Pathologist at the
E Department of Pathology of the Queen Elizabeth E
Hospital conducted an autopsy on the deceased. The
F F
cause of death was from “traumatic head injury”. The
G medical report for the deceased prepared on 14 June G
2023 by Dr Lam Shek Ching from the Department of
H H
Neurosurgery and the autopsy report prepared by Dr
I Jenny Tse on 2 August 2023 were produced as I
prosecution exhibit P1 and P2.
J J
K (g) At about 0015 hours on 14 April 2023 the PLB was K
taken to the Kowloon Bay Vehicle Detention and
L L
Examination Centre. Upon examination, the PLB was
M found to be operating normally with no mechanical M
defects. It had incurred damage to the front panel, the
N N
front bumper was deformed and the offside headlamp
O was damaged. O
P P
The Prosecution Case
Q Q
R
4. The prosecution called 3 prosecution witnesses. R
S S
T T
U U
V V
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A A
B B
Prosecution Witness 1 – PC 19450
C C
5. PW1 arrived at that scene of the accident at 2208 hours.
D D
According to PW1, the injured person was already in an ambulance and
E was subsequently conveyed to the hospital. He confirmed that the photo E
(prosecution exhibit P7(3)) reflected where the PLB stopped after hitting
F F
the deceased, and photo P7(9) showed where he believed the deceased fell
G after being hit by the PLB. G
H H
6. PW1 agreed that at the scene, the defendant claimed that he
I was paying attention to the oncoming vehicle on the left and did not notice I
the traffic condition at the front. The defendant further claimed that the
J J
accident was not caused by any mechanical part of the PLB. He explained
K that the front dash car camera was not operating at the time because the K
camera card had been submitted to another police officer for the
L L
investigation of another traffic accident involving object being thrown at
M the PLB. M
N N
7. PW1 declared arrest on the defendant at 2345 hours for the
O offence of dangerous driving causing grievous bodily harm. In reply, the O
defendant said he was paying attention to the left side for oncoming vehicle
P P
and did not see “someone ahead”.
Q Q
R
Prosecution Witness 2 – WPC 23431 R
S S
8. PW2 gave evidence that the deceased person passed away on
T
24 April and the case was referred to the special investigation team for T
U U
V V
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A A
B B
investigation. PW2 informed the defendant of the death of the deceased.
C She conducted a video recorded interview with the defendant on 2 May. C
D D
9. PW2 agreed that at the time when the defendant was turning
E right, traffic lights governing vehicles at the PLB’s 12 o’clock position E
should indicate a red light. PW2 also agreed that there was a possibility
F F
that vehicles failing to comply with traffic light signal might approach the
G PLB from the left as the PLB was turning right. G
H H
Prosecution Witness 3 – Dr Ng Ka Ho
I I
10. PW3 gave evidence as an expert in forensic accident
J J
investigation. He produced a traffic accident investigation report2 on 27
K July 2023. K
L L
11. PW3 agreed that when the defendant accelerated from a
M stopping position, he could have been driving at a speed as slow as 31 km M
per hour or as fast as 40 km per hour. The different driving speed would
N N
require different braking times and Dr Ng took the average in his report.
O Dr Ng also agreed that the mannequin used in the reconstruction exercise O
was stationary while the deceased was in motion at the time of the accident.
P P
Q Q
CCTV Evidence
R R
12. CCTV recordings were obtained by investigating officers
S S
from the Metropark Hotel Mongkok located at 22 Lai Chi Kok Road at the
T T
2
U Prosecution exhibit P15. U
V V
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A A
B B
junction of Prince Edward Road West. Prosecution exhibit P13 contained
C CCTV recordings captured by the security camera situated outside the C
hotel on Lai Chi Kok Road facing towards the junction (Channel 8).
D D
Prosecution exhibit P14 contained CCTV recordings captured by the
E security camera situated outside the hotel on Prince Edward Road West E
facing towards the junction of Lai Chi Kok Road (Channel 9).
F F
G 13. It was agreed by the prosecution and the defence that the G
CCTV recordings were subsequently burnt onto two computer discs. The
H H
two discs had not been altered or modified, and the date and time depicted
I on CCTV recordings of P13 and P14 were accurate3. I
J J
14. Channel 8 captured two pedestrians crossing the pedestrian
K crossing at 21:47:17 hours. At the same time traffic from Prince Edward K
Road West were turning right approaching the pedestrian crossing. At
L L
21:47:18 hours the first pedestrian had reached the pedestrian island
M located between the north and south bound Lai Chi Kok Road. The second M
pedestrian, later identified as the deceased was at the pedestrian crossing
N N
in front of the second traffic lane from the left. At 21:47:18 hours the PLB
O made a slight sharp right turn when approaching the pedestrian crossing. O
The PLB aligned itself towards the third traffic lane from the left. The
P P
deceased could be seen at the front nearside of the PLB. At 21:47:19 hours
Q Q
the PLB continued to complete its right turn into Lai Chi Kok Road, the
R
front part of the bus had reached the border of the pedestrian crossing R
marking. The deceased could be seen in an upright position at the right
S S
side of the PLB.
T T
3
U Admitted facts paragraphs 16 and 17. U
V V
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A A
B B
C 15. At 21:47:19 hours the PLB continued its right turn driving C
onto the pedestrian crossing. The deceased was blocked by the body of the
D D
PLB and could not be seen from the CCTV recording. Immediately after
E a figure could be seen propelling forward onto the pedestrian island area. E
At 21:47:20 hours the PLB drove past the pedestrian crossing into the
F F
second and third traffic lane from the left where it stopped and stayed
G stationary. Other vehicles that were previously located behind the PLB G
turned into the first traffic lane from the left and overtook the PLB.
H H
I Expert Report I
J J
16. According to Dr Ng’s reconstruction result: -
K K
(a) The driver’s views of the deceased at an upright posture
L L
or with the head shifted to the nearside could have been
M unobstructed through the front windscreen at T-4.0 - T- M
0.74.
N N
O (b) The driver’s views of the deceased with the head O
shifted to the offside could also have been unobstructed
P P
5
through the front windscreen at T-4.0 - T-1.0 .
Q Q
R
(c) At the time position T-0.7, if the driver had his head R
shifted to the offside, the view of the deceased could
S S
T T
4
Prosecution exhibit P15, paragraph 15.
5
U Prosecution exhibit P15, paragraph 15. U
V V
-9-
A A
B B
have been partially obstructed by the accessory
C attached to the offside structural column of the PLB. C
D D
(d) The view of the deceased could have been unobstructed
E through the front windscreen at an upright posture / E
with the head shifted to the nearside or the offside
F F
between T-4.0 and T-1.06.
G G
17. Dr Ng took the reaction time of 0.9 seconds as inferred in the
H H
“Road Users’ Code” issued by the Transport Department and a typical
I tyre/road coefficient of friction of 0.6 for a PLB travelling on dry road I
surface, and estimated that the stopping time for a PLB travelling at a speed
J J
of 35 km per hour was 2.55 seconds7.
K K
18. According to Dr Ng, the defendant could have perceived the
L L
danger of hitting the deceased at time position T-1.33. If the defendant
M perceived the danger of hitting the deceased before time position T-2.6, the M
accident could have been avoided8.
N N
O Defendant’s Video Recorded Interview “VRI” O
P P
19. Prosecution relied on the video recorded interview of the
Q Q
defendant conducted under caution on 2 May 2023 from 1143 hours to
R
1211 hours by PW2 9 . The defence agreed that the defendant gave the R
interview voluntarily.
S S
6
T Prosecution exhibit P15, paragraph 16. T
7
Prosecution exhibit P15, paragraph 16.
8
Prosecution exhibit P15, paragraph 16.
9
U Prosecution exhibits P5, P6 and P6A. U
V V
- 10 -
A A
B B
C 20. In the video recorded interview the defendant claimed that he C
started working on the material day at 1330 hours and his shift was
D D
scheduled to finish at 0300 hours10. He had been driving minibuses for
E around 13 to 14 years, and had been driving the PLB involved in the E
accident for 3 to 4 months11. He was aware that blind spots such as “A
F F
Pillar” that might cause obstruction to the driver’s view existed in the
G PLB12. G
H H
21. At the time of the accident, he was driving the PLB from
I Mong Kok to Tsuen Wan. The traffic light at Prince Edward Road West I
turned green and he started to turn the PLB into Lai Chi Kok Road13. The
J J
light governing the pedestrian crossing at Lai Chi Kok Road was a red light
K at the time14. K
L L
22. He looked to his left to ascertain if there were any vehicles
M that might collide with his PLB. When he straightened the course of the M
PLB at Lai Chi Kok Road and looked ahead, he saw a pedestrian walking
N N
slowly. The pedestrian was crossing from left to right and was at about
O “four people’s” distance from his PLB15. He could not brake in time and O
within 2 seconds the offside headlight of the PLB collided with the
P P
16
pedestrian . The pedestrian fell to the ground and was unresponsive after
Q Q
R R
10
S Prosecution exhibit P6A, answers 48 and 56. S
11
Prosecution exhibit P6A, answers 286 and 282.
12
Prosecution exhibit P6A, answers 322, 334, 340 and 342.
13
T Prosecution exhibit P6A, answer 66. T
14
Prosecution exhibit P6A, answers 367 - 370.
15
Prosecution exhibit P6A, answers 194 and 196.
16
U Prosecution exhibit P6A, answer 230. U
V V
- 11 -
A A
B B
the collision. The defendant saw him bleeding but did not know the source
C of the bleeding17. C
D D
23. At the material time he was driving at a speed of 30 km per
E hour. He did not see any pedestrian as he concentrated on looking to his E
left to check for any vehicles making a turn18.
F F
G The Defence Case G
H H
24. The defendant elected not to give evidence and did not call
I any defence witness. I
J J
25. I directed myself that the burden rests throughout with the
K prosecution to prove the charge, and the standard of proof is one of beyond K
reasonable doubt. The defendant need not prove anything. The charge
L L
must be proved to my satisfaction so that I am sure of the defendant’s guilt
M before I can convict. Otherwise I must acquit the defendant. M
N N
26. The defendant elected not to give evidence. The defendant
O elected to exercise his right, no adverse inference shall be made against O
him.
P P
Q Q
27. I remind myself that should inferences be made, they should
R
be the only reasonable and irresistible inference. R
S S
T T
17
Prosecution exhibit P6A, answers 91 and 95.
18
U Prosecution exhibit P6A, answers 72 and 77. U
V V
- 12 -
A A
B B
28. I consider the video recorded interview of the defendant to be
C a mixed statement. I may give full weight to inculpatory statements C
contained therein and not give weight to exculpatory statements.
D D
E Analysis of Evidence E
F F
29. The prosecution case indicated that the driving act of the
G defendant that constituted dangerous driving was his failure to keep a G
proper lookout on entering Lai Chi Kok Road, thereby the defendant’s
H H
driving fell far below what would be expected of a competent and careful
I driver. I
J J
30. The defence agreed to the events leading up to the accident as
K alleged by the prosecution. According to the defence, the only issue in K
dispute was whether the driving manner of the defendant at the material
L L
time was dangerous or careless.
M M
31. Section 36(4) of the Road Traffic Ordinance, Cap. 374
N N
provides that: -
O O
“A person is to be regarded as driving dangerously within the
meaning of subsection (1) if -
P P
(a) the way he drives falls far below what would be expected of
Q a competent and careful driver; and Q
(b) it would be obvious to a competent and careful driver that
R driving in that way would be dangerous.” R
S 32. The authority of HKSAR v Lam Chi Fat [2012] 1 HKLRD 968 S
T
indicated that: - T
U U
V V
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A A
B “30. Sections 36(6) and 37(7) set out what constitutes B
“dangerous” driving as follows:
C C
(6) For the purposes of subsections (4) and (5), “dangerous”
refers to danger either of injury to any person or of serious
D damage to property. D
(7) For the purposes of subsections (4) and (5), in
E determining what would be expected of, or obvious to, a E
competent and careful driver in a particular case, regard shall
F be had to all the circumstances of the case including - F
(a) the nature, condition and use of the road concerned at
G the material time; G
(b) the amount of traffic which is actually on the road
H concerned at the material time or what might reasonably H
be expected to be on the road concerned at the material
I time; and I
(c) the circumstances (including the physical condition
J of the accused) of which the accused could be expected J
to be aware and any circumstances (including the
physical condition of the accused) shown to have been
K K
within the knowledge of the accused.
L 31. Whether a person’s way of driving is dangerous is a matter L
to be decided objectively, but the elements of the offence of
dangerous driving do not include any specific intent to drive
M dangerously.” M
N N
The Defendant’s Evidence
O O
33. The defendant gave consistent accounts of the accident at the
P P
scene to PW1 which was post recorded in prosecution exhibit P3A, in his
Q record of interview in prosecution exhibit P4A and in his video recorded Q
interview in prosecution exhibit P6A.
R R
S 34. The defendant explained that he was making a right turn into S
Lai Chi Kok Road from Prince Edward Road West. He was all along
T T
concentrating on keeping a lookout for vehicles to his left. He did not look
U U
V V
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A A
B B
to his right. He only noticed the deceased in front of his PLB when he
C aligned his vehicle after completing the right turn. His PLB hit the C
deceased within 2 seconds upon seeing the deceased.
D D
E 35. I have considered the circumstances of the accident. The E
material location as observed from the CCTV footages involved a junction
F F
with five exits. At the time of the accident the junction had considerable
G traffic. G
H H
36. The defendant claimed he was looking to his left for
I oncoming traffic. PW2 agreed that there was a possibility that vehicles I
could have approached the defendant’s PLB from the left. This was not a
J J
case where the defendant did not keep a lookout, he did when he entered a
K vast junction with numerous exits, it would be reasonable for the defendant K
to keep a lookout on all directions. CCTV footages from prosecution
L L
exhibit P14 (Channel 9) also showed bright lights emitting from vehicles
M from the opposite direction. M
N N
37. When the defendant negotiated the right turn into Lai Chi Kok
O Road, it showed that the third lane from the left which the defendant was O
turning into was partly obstructed by the pedestrian island. The
P P
encroachment of part of the pedestrian island into the third lane from the
Q Q
left caused vehicles turning right into the lane to have to occupy part of the
R
second lane from the left in order to safely negotiate the right turn and align R
the vehicle. It meant the defendant had to keep a lookout of vehicles to his
S S
left even as he approached the pedestrian crossing.
T T
U U
V V
- 15 -
A A
B B
38. Photo evidence showed the PLB’s position after the accident.
C The PLB straddled between the second and third lane from the left, and C
19
was very close in proximity to the pedestrian crossing on its right .
D D
E 39. I have analysed the explanation given by the defendant in his E
various statements. I find the defendant’s reason for concentrating on
F F
keeping a lookout to his left as he turned into Lai Chi Kok Road to be
G reasonable and inherently probable. I accept the evidence of the defendant G
including his oral statement given at the scene to PW1, that was
H H
subsequently post recorded in P3A, his record of interview in P4A and his
I video recorded interview in P6A. I
J J
40. According to Dr Ng’s report the defendant’s view was
K obstructed at different times 20 , although he did indicate that if the K
defendant’s head had tilted offside or nearside at different times he would
L L
obtain an unobstructed view of the deceased. However, the court must not
M ignore the fact that when the defendant negotiated the right turn into Lai M
Chi Kok Road, the lane that the defendant had intended to drive into was
N N
partly obstructed by the pedestrian island. It would be expected from a
O prudent driver that he would need to pay attention to vehicles on his left. O
P P
41. At the time of the accident the deceased had almost completed
Q Q
his crossing from left to the right and had almost reached the pedestrian
R
island. It was not disputed that the deceased crossed the pedestrian R
crossing against the indication of the red light prohibiting pedestrian
S S
crossing the road.
T T
19
Prosecution exhibit P7(3) and (4).
20
U Prosecution exhibit P15, paragraph 14 at T-0.7. U
V V
- 16 -
A A
B B
C 42. The defence cited the authority of HKSAR v Ng Siu Bun21. C
D D
43. I have considered the circumstances of the accident. There
E was no evidence to suggest that the defendant had infringed any traffic E
regulation or provisions of the Road Traffic Ordinance. It was not disputed
F F
that at the time when the defendant turned right into Lai Chi Kok Road, the
G traffic light had already turned green. By contrast, the pedestrian crossing G
at Lai Chi Kok Road was displaying a red light prohibiting pedestrians
H H
from crossing the road.
I I
44. According to Dr Ng’s findings as to the estimated driving
J J
speed, there was no evidence to suggest that the defendant was not driving
K at a speed within the speed limit of the material location. K
L L
45. The court considered the authority of HKSAR v Cheung Kwok
M Leung [2014] 3 HKLRD 712 submitted by the prosecution. While the court M
agrees that drivers should exercise caution when approaching pedestrian
N N
crossings, however there existed special circumstances in the present case,
O including: - O
P P
(a) the particular road involved an encroachment into the
Q Q
third traffic lane from the left;
R R
(b) the deceased was crossing the pedestrian crossing
S S
against the pedestrian red-light;
T T
21
U [2020] 1 HKLRD 553 U
V V
- 17 -
A A
B B
C (c) there was no evidence to suggest contravention of any C
traffic regulations or provisions; and
D D
E (d) there was no evidence that the defendant was driving at E
excessive speed at the time.
F F
G 46. I do not find evidence that indicate the defendant’s manner of G
driving was dangerous. The fact that he approached a pedestrian crossing
H H
but failed to look to his right was careless, but not to the degree where his
I manner of driving fell far below what would be expected of a competent I
and careful driver.
J J
K 47. It was a momentary lapse of concentration that involved K
seconds in terms of duration22. I find that it did not constitute dangerous
L L
driving.
M M
48. Based on the analysis of the evidence, I find that the
N N
prosecution has failed to prove beyond reasonable doubt all elements of the
O charge. I acquit the defendant of the charge of dangerous driving causing O
death.
P P
Q Q
49. However, I find that the evidence supported beyond
R
reasonable doubt that the defendant’s manner of driving at the material R
time was careless. The defence has indicated to the court at the outset that
S S
T T
22
U Prosecution exhibit P13, 21:47:17 hours to 21:47:19 hours U
V V
- 18 -
A A
B B
the defendant would plead guilty to the offence of careless driving. I find
C the defendant guilty of the charge of careless driving. C
D D
E E
F F
G G
( M.H. Tsui )
H H
Deputy District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V