HKSAR v. KONG WAI MING

DCCC 325/2022

[2023] HKDC 804

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 325 OF 2022

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REASONS FOR VERDICT

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Introduction

1.  The Defendant was charged with one count of causing death by dangerous driving, contrary to s.36(1)  of the Road Traffic Ordinance, Cap. 374, in that he, on 10 September 2021, near the junction of Shu Kuk Street and Marble Road (the “Junction”), North Point, in Hong Kong, caused the death of CHEUNG Woon-tong (the “Deceased”), by driving a motor vehicle, namely, a medium goods vehicle bearing registration mark TC5382 (the “MGV”), on a road dangerously.

2.  He pleaded not guilty to the charge but admitted the lesser offence of careless driving at the outset of the proceedings.  The lesser plea, however, was not accepted by the Prosecution and the trial proceeded as charged.

The Prosecution Case

3.  The present case was a fatal traffic accident which took place at around 14:36 hours on 10 September 2021, wherein the Defendant was driving the MGV.

4.  The scene of the accident is at the Junction, whereas Shu Kuk Street is a two-lane single-directional carriageway heading North, whilst Marble Road is a single-lane single-directional carriageway heading West.  All vehicles from Marble Road must turn right into Shu Kuk Street.

5.  At the time of the accident, there was sufficient sunlight, and the sight was clear.  The traffic conditions were busy, the weather was good, and the road surface was dry.

6.  It is not disputed that there was a “Stop” sign and double white lines painted on the road at the approach of the Junction from Marble Road, and a yellow cross-hatched box marking (the “Cross-Hatched Marking”)  was painted on the road at the Junction, which according to the Road User Code is designed specifically to prohibit traffic from crossing onto it unless the exit is clear. 

7.  The MGV did not stop at the “Stop” sign and double white lines, and entered the Junction despite knowing that it was not clear for him to exit.  This necessitated him stopping behind a blue lorry (the “Lorry”)  on the Cross-Hatched Marking.

8.  After the Defendant had stopped the MGV at the Junction, the Deceased was pushing a trolley across Shu Kuk Street at the Junction. The Deceased walked slowly and steadily from the left-hand side to the right hand side in front of the MGV.

9.  Just when the Defendant started moving the MGV forward again intending to complete the right turn, he steered slightly to the right as the Junction required, and the offside front tyre of the MGV caught the heel of the Deceased as he was then next to the driver’s door of the MGV.  The collision with the Deceased caused him to topple backward and fall under one of the rear offside wheels of the MGV. 

10.  The Prosecution case is that the Defendant did have a clear view of the Deceased, or would have had a clear view of him, had the Defendant looked towards his left-hand side as the Deceased approached and crossed the Junction in front of the MGV.  The Defendant had either failed to see the Deceased at all or had seen him and anticipated that the Deceased having walked in front was sufficiently clear of the MGV to enable the Defendant to proceed forward.

11.  For these reasons, it is alleged that the Defendant’s driving manner was dangerous and fell far below the manner of a competent and careful driver and it would have been obvious to such a competent and careful driver that the Defendant’s manner of driving was dangerous.

The Defence Case

12.  At the time of the accident, the Defendant worked as a lorry driver, and he had had over 30 years of experience driving medium goods vehicles and heavy goods vehicles.

13.  It is the defence case that he could not notice the Deceased before he started moving the MGV.  He admitted he was careless in that he did not stop at the “Stop” sign and the double white lines, and instead, proceeded onto the Cross-Hatched Marking due to his error of judgement, as he believed that the ongoing traffic would allow him to cross the Junction, though he eventually had to halt behind the Lorry at the Junction on the Cross-Hatched Marking. 

14.  When the Lorry in front of the MGV started driving off the Cross-Hatched Marking, the Defendant had again checked at the traffic condition to see if his path was clear of pedestrians, vehicles or any obstacles, before he started moving the MGV.  Having assessed his surroundings in full, and not having seen the Deceased at all, the Defendant moved forward until nearby pedestrians signalled to him to stop, following which the Defendant got out of the MGV to check and by then finally caught his first view of the Deceased, who was already trapped under the MGV.

Issues

15.  By agreement, the medical report and autopsy report were admitted by the parties.  The Defence does not dispute the death of the Deceased was caused by multiple injuries resulted from the collision between the MGV and the Deceased.

16.  Therefore, the only issue at trial was whether the Defendant were driving dangerously at the material time.

The Prosecution’s Evidence

17.  On 10 September 2021, the Defendant was voluntarily interviewed by PC12024 and PC12251 from 18:39 to 18:54 hours in North Point Police Station (the “VRI”)  (Exhibit P1). 

18.  I bore in mind the principles in R v Sharp[1], in considering the statements made by the Defendant in the VRI (P1, P1A, and P1B), which involved “mixed statements,” i.e. they contain both admissions and exculpatory statements.  In short, the whole of such mixed statements ought to be taken into account, as the admissions and exculpatory statements must be taken in context of each other, as they form one whole story.

19.  During the VRI, the Defendant stated that he had had more than 30 years’ experience of driving medium goods vehicles.  He confirmed that the weather condition was good with sufficient light on the road, and that there was heavy traffic and pedestrian flow on Marble Road and Shu Kuk Street at the material time.  He stated that he was driving the MGV from North Point to Kornhill to deliver some construction materials.  He also noted that he checked in the morning on the day of the accident that there was no problem with the mechanical parts or braking system of his MGV.

20.  The Defendant further claimed in the VRI that before he started driving off the Junction, he looked towards Shu Kuk Street on both sides (both in the directions of King’s Road and Java Road), but saw “nothing special” and no vehicles, so he started moving.

21.  The Defendant also mentioned in the VRI that his first sight of the Deceased was when the Deceased was “already at the rear wheel” of the MGV.  When being questioned about what happened when he drove the MGV and reached the Junction, whether he saw the Deceased crossing or having crossed the road, and whether he felt that the vehicle drove over any object, he declined to answer (Counters 65-68, 79-80).

22.  An extract of CCTV footage taken from a heavy goods vehicle (registration mark VM 8230)  which was at the junction on the left-hand side of the Lorry at the time of the accident (Exhibit P2).  The footage captures the traffic condition of the Northbound of Shu Kuk Street at the time of the accident.  P2 shows that prior to the appearance of the MGV, the Lorry approached from right to left and stopped at the Junction.  The rear part of the Lorry was on the Cross-Hatched Marking.  The position where the Lorry stopped at the Junction was actually blocking an uncontrolled cautionary crossing on Shu Kuk Street.  Meanwhile, it can be seen that there were a number of pedestrians walking across Shu Kuk Street on the Cross-Hatched Marking at the Junction, some of them were crossing diagonally, namely outside the uncontrolled cautionary cross area.

23.  When the playtime of P2 was between 02:21 and 02:46, it shows that the Defendant was approaching from Marble Road to Shu Kuk Street.  It did not stop at the “Stop” sign on Marble Road, and drove onto the Cross-Hatched Marking at the Junction and then stopped behind the Lorry.

24.  P2 shows that whilst the MGV was stopped inside the Cross-Hatched Marking, a school girl in white uniform crossed Shu Kuk Street from right to left in front of the MGV; and the Deceased crossed along the path but in the opposite direction of the school girl.  Apart from the school girl and the Deceased, there was no other pedestrian crossing the Junction after the MGV had stopped.

25.  P2 also shows that when the Lorry started moving forward, the Defendant almost immediately started moving his MGV, albeit slowly.  At that time, the Deceased and his trolley were still at the right front near the corner of the MGV, hence it started moving before its path was completely clear.

26.  An extract of CCTV footage taken from a UPS vehicle (registration mark UZ 8660)  which was immediately behind the MGV at the time of the accident (Exhibit P3).  P3 shows the movement of the MGV from behind. 

27.  When the Defendant was approaching the Junction, it can be seen from P3 that the left braking light of MGV was switched on while the right one was switched off (however, it is an admitted fact that the MGV has no mechanical defect, hence the status of the braking lights would not be taken into consideration in determining the Defendant’s driving manner.  In any event, braking lights failure is irrelevant in this case).  It likewise shows that the Defendant did not stop at the Stop sign and double white lines before entering Shu Kuk Street, and that it then stopped at some distance behind the Lorry. The footage also shows a double decker bus stopping behind the Cross-Hatched Marking along the first left lane of Shu Kuk Street.

28.  Subsequently, when the Lorry started moving forward, the footage shows that the braking light of the MGV went off very soon thereafter and it started moving slowly.   

29.  Dr. Tao Chi Hang (“Dr. Tao”)  gave evidence for the Prosecution as an expert on road traffic crash reconstruction.  He conducted an examination of the footages in P2 and P3, and undertook a reconstruction exercise on 7 January 2022.  An expert report was produced (Exhibit P4).  P4 was adduced as evidence by agreement between parties.

30.  In the Expert Report, Dr. Tao broke down the footages of P2 and P3 into frames, and based on those images he carried out the reconstruction exercise so as to demonstrate the position of the MGV and the Deceased (with the trolley)  at different stages of the accident; and based on such positions, he demonstrated what could be seen by the Defendant in the driver’s seat of the MGV, either through direct eyesight or from the reflection of the 3 mirrors installed at the left front of the MGV.  The relevant period is between T-15.7 (i.e. 15.7 seconds before the time of collision)  and T (i.e. the time of contact of the MGV and the Deceased).

31.  From the still photographs in Appendix I of the Expert Report, Dr. Tao tried to synchronise the two footages of P2 and P3, which assisted him to carry out the reconstruction.  Dr. Tao’s findings are as follows:

Time stamp (hh:mm:ss)  [P2/P3]	Position	Description
14:36:37/02:31:43	T-15.7	The MGV was stationary.  From P2, the Deceased was situated near the edge of the yellow hatch box of accident Junction.
14:36:43/02:31:49	T-10.1	The MGV remained stationary.  From P2, the Deceased was situated near a crossing point by the edge of the yellow hatch box.
14:36:46/02:31:52	T-7.1	The MGV remained stationary.  From P2, the front of the trolley of the Deceased was situated near a crossing point with white lane line.
14:36:50/02:31:55	T-3.4	The MGV remained stationary.  From P2, the Deceased was situated near the crossing point with a white lane line.
14:36:51/02:31:57	T-2.1	The MGV moved forward.  From P2, the Deceased was situated near the crossing point by a manhole.
14:36:52/02:31:57	T-1.2	The MGV kept moving forward.  From P2, the Deceased was situated near the edge of the yellow hatch box.
14:36:53/02:31:59	T	From P3, the MGV kept moving forward.  The offside front wheel of the MGV came close to the left heel of the Deceased. This was taken to be the moment of impact/contact.

32.  According to Dr. Tao, the time that the Defendant started moving his MGV should be somewhere between T-3.1 to T-2.9.  See also P9, a series of screen captures from frame to frame, that could show the micro movement of the MGV at this stage, indicating when the MGV started moving again.

33.  Dr. Tao conducted the reconstruction exercise on 7 January 2022 at about 10:00 hours.  The weather was fine with sufficient light.  Dr. Tao used a mannequin, putting on it a dark top, a pair of dark pants and adjusted to 1.6m, to play the role of the Deceased for the reconstruction, with an orange traffic cone being put on the trolley to imitate the orange bucket on the trolley at the material time.  Also, in conducting the reconstruction, Dr. Tao noted the difference in height between him and the Defendant.  He took pictures from the driver seat of the MGV with an upright driving posture that corresponded to the driver’s view of the mannequin as appeared in the image frames from T-15.7 to T, so as to represent the Defendant’s view of the Deceased at the material time. 

34.  Dr. Tao made the following observations of the mannequin from the driver seat, which summarizes the photos taken by him as shown in Appendix II of the Expert Report:

Position	Dr. Tao’s observation from the driver seat
T-15.7	The upper body of the mannequin could be observed.  The lower body of the mannequin and the trolley were obstructed by the dashboard of the MGV while the head of the mannequin was obstructed by its nearside wing mirrors.
T-10.1	The body of the mannequin and trolley were obstructed by the dashboard of the MGV.  The head and shoulders of the mannequin were partially obstructed by the wiper and the metal frames mounting the nearside wing mirrors.  The mannequin and the trolley could be observed near the bottom left edge of the fisheye mirror.
T-7.1	The mannequin and the trolley were completely obstructed by the dashboard of the MGV.  The mannequin and the trolley could be observed through the fisheye mirror.
T-3.4	The mannequin and the trolley were completely obstructed by the dashboard of the MGV.  The mannequin and the trolley could be observed near the right side of the fisheye mirror.
T-2.1	The mannequin and the trolley were completely obstructed by the dashboard of the MGV.  The Mannequin and the trolley could be observed near the right edge of the fisheye mirror.
T-1.2	Dr. Tao has an unobstructed view of the head of the mannequin through the driver side window.  The other parts of the mannequin and the trolley were obstructed by the driver’s door.
T	Dr. Tao’s direct view of the mannequin and the trolley were mostly obstructed by the driver’s door.  The mannequin and the trolley were also out of the view of the offside wing mirror.

35.  Dr. Tao further explained how he conducted the reconstruction exercise, and frankly noted several factors that may differentiate the reconstruction to what actually happened on the day of the accident.  He again noted the height difference between him, being 1.75m tall, and the Defendant, being 1.65m tall. Also, he stated that he tried his best to put his camera at his eye-level when taking the photos, and tried not to distort the angle for the zoomed photos, so as to provide as clear a view of the angle of the relevant mirrors on the MGV as possible.  Having noted these factors in mind when conducting the reconstruction exercise, Dr. Tao opined that such differences would result in a margin of error, but such a margin of error did not have a significant effect on his findings.

36.  The Medical Report conducted by Dr. Wong Ka Ying dated 5 October 2021 was produced and marked as evidence “P5”.  The Deceased was certified dead at 15:44 hours on 10 September 2021, soon after the accident.

37.  The Autopsy Report of Dr. Ying Ho Wan (“Dr. Ying”), dated 31 October 2021, was produced and marked as evidence “P6”.  Dr. Ying explained in §§3-5 of the Autopsy Report the Deceased’s cause of death.  In short, the cause of death was multiple injuries, consistent with blunt force trauma being inflicted by bumping against and trapping beneath a large vehicle.

38.  An album (P7)  of 118 photographs including photos of the MGV at the scene of the incident, various parts of the MGV both external and internal, and the Deceased’s belongings, was taken by the Police. 

The Defence’s Evidence

39.  The Defendant elected to give evidence and called no other witness.

40.  He is 52 years old and worked as a lorry driver earning approximately $20,000 to $22,000 per month.  At the time of the accident, he had had over 30 years of experience driving medium goods vehicles and heavy goods vehicles.

41.  The Defendant confirmed that he is an experienced driver of medium goods vehicles and used to drive at the Junction.  He acknowledged that he knew the pedestrian flow at the Junction was heavy at the material time, and claimed that he had had a clear view of the road and checked there was no pedestrian, vehicle or obstacles on the road when he stopped the MGV at the Junction and before he started moving it again.

42.  When being shown P2, the Defendant admitted that he saw a young school girl wearing a white uniform who had crossed the Junction diagonally, taking a path that extended from the offside and passed through the nearside of the MGV.  He saw the school girl by direct line of sight.

43.  The Defendant insisted that he checked both the rearview and the fisheye mirrors on the left and saw that the coast was clear.  However, he did not see the Deceased walking past in front of the MGV but only first caught sight of the Deceased when he was already trapped under the MGV. 

44.  Whilst acknowledging that there was sufficient space between the Lorry and his MGV for pedestrians to walk past, as can be seen from the footages, the Defendant denied that he deliberately left such a gap.  He further repeated that he had assessed the situation around the MGV regarding nearby pedestrians, vehicles, and obstacles, before starting his own movement out of the Junction.

Relevant Legal Principles/ The Law

45.  The Prosecution bears the burden of proof, the relevant standard is beyond reasonable doubt.

46.  In considering the issues in this case, I have considered the principles as set out in R v Conteh (Kondeh)[2]. In short, there is a high threshold to surmount.  As stated in paragraph 17 of the judgment of Conteh, “ ‘[…] a person is to be regarded as driving dangerously if, any only if…’.  […] the way he drives fall far below what would be expected of a competent and careful driver […] that ‘it would be obvious to a competent and careful driver that driving in that way would be dangerous’.  So courts are not just concerned with what ought to have been anticipated, a feature of charges of driving without due care.  It is a high threshold and courts should not forget that threshold on a charge of dangerous driving or of causing death by dangerous driving.”  (emphasis on the original passage)

47.  The above statement echoes with the provision under section 36 (4)  of the Road Traffic Ordinance.

48.  Sections 36(6)  - (7)  of the Road Traffic Ordinance also provide that:

“(6)  For the purposes of subsections (4)  and (5), dangerous refers to danger either of injury to any person or of serious damage to property.

(7)  In determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including—

(a)  the nature, condition and use of the road concerned at the material time;

(b)  the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c)  the circumstances (including the physical condition of the accused)  of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused)  shown to have been within the knowledge of the accused.”

49.  The nature of the test is objective.  In HKSAR v Lam Chi Fat[3], the Court of Appeal at §31 cited Attorney General's Reference No. 4 of 2000: 

"31. Whether a person's way of driving is dangerous is a matter to be decided objectively, but the elements of the offence of dangerous driving do not include any specific intent to drive dangerously. Lord Woolf CJ, in R v GC [2001] RTR 415, 425, made the following comments:

As is pointed out by the Attorney General, there are two limbs to the definition of "dangerous driving": first, that the driving fell far below that of a careful and competent driver; and secondly, that it would be obvious to a careful and competent driver that driving in such a way would be dangerous.

The essential limbs, as is common ground, do not require any specific intent to drive dangerously. The section [sic] sets out a wholly objective test. The concept of what is obvious to a careful driver places the question of what constitutes dangerous driving within the province of the jury. It is the jury who should set the standard as to what is or what is not dangerous driving.” (emphasis added)

50.  With these legal principles in mind, I now turn to the analysis of the evidence and submissions made by parties.

Analysis of Evidence and My Findings

51.  I would begin by dealing with the evidence of the Defendant.

52.  When the Defendant was asked whether he deliberately left a space between the MGV and the Lorry so as to allow pedestrians to pass, he denied it.  The Defendant even went on to say that the pedestrians should not have crossed the road through that space.  He attempted to exonerate himself by laying blame on the pedestrians who did not cross at the right place. 

53.  Against this, I note that it is more than apparent that the school girl and the Deceased were able to cross the road in the space created without any difficulty. 

54.  As rightly pointed out by the Prosecution, as display by the braking light of the MGV when it approached the Junction, the Defendant decided not to stop at the sign, and decided to stop in the Cross-Hatched Marking at a distance behind the Lorry.  By stopping at such a distance, he must have done it with a high degree of control and hence consciously and intentionally. Given his familiarity with the Junction and knowledge that it was a busy junction, I infer that he must have decided to leave sufficient space for pedestrians to cross the road.

55.  Thus, his denial was unreasonable and illogical, it was significant enough for me not to rely on the Defendant’s live evidence.

56.  Further, the Defendant claimed that he did look into the fisheye mirror, but did not notice the Deceased.  First, the Defendant told the Court that the fisheye mirror had already been with the MGV after it was manufactured. According to the photos taken by the police at scene, the mirrors were fixed at such positions which could be cross-checked by the photos taken during the traffic reconstruction.  More importantly, the Defendant knew full well the function of the fisheye mirror was to enable the driver to take notice of the space in front of the MGV, including the bumper area.  The Defendant did not complain that the fisheye mirror could not show the front of the MGV.  There is no evidence that the Defendant was driving with knowledge that the fisheye mirror was not functioning.

57.  Therefore, I find that had the Defendant looked at the fisheye mirror when the Deceased was walking in front of the MGV, the Defendant should be able to see the Deceased and/or the trolley.  I also find that the Defendant did not notice the Deceased.

58.  Hence, the Defendant’s claim that he did look into the fisheye mirror cannot be sustained.  I consider this another instance that justifies the finding that he is not a reliable witness.

59.  Despite my finding that the Defendant is not a reliable witness, given it is the Prosecution that bears the burden to prove its case beyond reasonable doubt against the Defendant, and such a standard is a high standard.  I remind myself repeatedly that I shall look at the other evidence and assess such evidence independently and carefully.  The rejection of the Defendant’s evidence does not in any way prove his guilt at all.

60.  I then turn to the assessment of the Prosecution evidence. 

61.  Firstly, based on the Medical and Autopsy Reports (P5 and P6 respectively), as well as the CCTV footage (P2 and P3), and taking into account the Admitted Facts, I have no trouble in finding that the death of the Deceased was caused by him being caught by the offside front wheel of the MGV, which caused the Deceased to fall down, thereby being trapped underneath the MGV, which tragically resulted in multiple injuries, from which the Deceased could not recover.  In other words, it was the Defendant’s driving that caused the death of the Deceased.

62.  Secondly, at the time of the accident, there was sufficient sunlight and the sight was clear, the traffic conditions were busy, there was heavy pedestrian flow, the weather was good, and the road surface was dry.  The accident took place at the Junction between Shu Kuk Street and Marble Road, which was designed as a yellow cross-hatched area.  There was an uncontrolled cautionary crossing adjacent to the north of the Cross-Hatched Marking, such that pedestrians could cross Shu Kuk Street.

63.  Thirdly, when the MGV was approaching the Junction, the Defendant did apply the brakes.  Nonetheless, he did not stop the MGV before the “Stop” sign and the double white lines, instead, he drove the MGV forward with a right bend, and onto the Cross-Hatched Marking.  The MGV was stopped at a distance behind the Lorry, with a space that was sufficient for pedestrians to walk pass in order to cross Shu Kuk Street.

64.  The Prosecution submitted that the Defendant’s failure to stop before the “Stop” sign and proceeding into the Cross-Hatched Marking formed part of his driving manner for this Court to determine.  I am not entirely in agreement with this submission.  The Defendant’s failure to stop before entering into the Junction and the MGV started moving again before it caught the Deceased were two events being severed by a period of time of about 15 seconds.  In other words, the two events could not be considered as a series of continuous acts. Hence, it should not be considered in combination with the Defendant’s driving manner that is the subject of this trial. 

65.  On the contrary, in considering the main issues in this case, I took into account the fact that the Defendant positioned the MGV within the Cross-Hatched Marking with such a space behind the Lorry as described above. In other words, what concerns me is the position at which he placed the MGV, instead of him not stopping before entering into the Junction.

66.  The Prosecution sought to argue that, first, the Defendant took a calculated risk having seen the Deceased and was aware that he had to keep clear of him.  Hence the Defendant started to move forward extremely slowly as the Lorry moved away more quickly.  The Defendant anticipated that the Deceased would pass across him safely by the narrowest of margins, which created a dangerous situation far below what a careful and competent driver would do.  They said the impact was minimal is largely if not wholly irrelevant.

67.  Whilst it is correct to say that minimal impact is largely if not wholly irrelevant as to the degree of care taken by a driver, one must look carefully into the driving manner of the accused.

68.  Based upon the footages, it is my finding that when the MGV was about to stop in the Cross-Hatched Marking, the Deceased appeared near the (west-side)  pavement of Shu Kuk Street.  The Deceased walked at a slow pace.  The Lorry had already blocked the uncontrolled cautionary crossing.  The Deceased was pushing a trolley, which had a stack of 3 buckets (counting from the bottom orange to red to green, see P7(24)).  Whilst the said school girl and the Deceased did choose to cross Shu Kuk Street, they were the only pedestrians who crossed Shu Kuk Street after the MGV had stopped.  Thus when the MGV was stopped, the pedestrian flow over the Junction was low.

69.  Just as reconstructed by Dr. Tao, the Deceased was situated near the edge of the Cross-Hatched Marking at T-15.7.  The MGV remained stationary from then until around T-3.1 or T-2.9, namely for about 12 seconds.  In that time, the Deceased crossed Shu Kuk Street from the nearside to the offside of the MGV.  The Deceased had not completely crossed the street before the MGV began to move.  Unfortunately, the heel of the Deceased was caught by the offside front wheel of the MGV which then led to the collision by or trapping of the Deceased underneath the MGV.

70.  As shown in the footages, at T-3.4, the Lorry has begun to move.  Hence, the MGV began to move, micro-slowly, by around half a second or one second after the Lorry had begun to move.  At this juncture, I do not accept the Prosecution’s argument that the Defendant was in a hurry or was anxiously wanting to start the MGV, whilst he was able to see the Deceased and was prevented by the presence of the Deceased from moving.  Further, I am not satisfied beyond reasonable doubt that the Defendant did see the Deceased shortly prior to and at the time of the MGV beginning to move.  I came to this finding by reading the way the MGV began moving.  There was no sign of the Defendant driving with a calculated risk.  In other words, the way it moved was not consistent with the scenario that the Defendant was minded to accelerate pending the clearance of the Deceased. 

71.  I also came to a finding that the Defendant knew he could start moving as a result of the changes in the traffic signal or the motion of the Lorry. In other words, the Defendant did pay attention to the traffic in front.

72.  The Defendant claimed at the cautioned interview that he did not see the Deceased until he was trapped underneath the MGV.  I accept this statement. This statement is consistent with the way the MGV moved.  On the other hand, I am not satisfied that the Defendant did see the Deceased throughout T-15.7 to T.  There is no evidence to show that the Defendant intentionally manoeuvred the MGV when he knew that the Deceased had not cleared the pathway of the MGV. I do not accept the “calculated risk” case presented by the Prosecution.

73.  The next question is, what was capable to be seen or noticed by the Defendant (i.e. the “failed to see” case presented by the Prosecution)?  In this respect, I am assisted by the photos (ordinary and zoomed)  taken by Dr. Tao.  I refer to the table above as to what was displayed by these photos. Nonetheless, as fairly accepted by Dr. Tao, despite his effort to reduce the errors caused by differences between him and the Defendant, in terms of their body height/built; the sitting position/posture; and the position of the camera, there is a margin of error between the images of the photos and what could be seen by the Defendant at the time of the accident, even though in his view such a margin was insignificant (my emphasis).  Such a margin exists in respect of the direct eye sight as well as the reflection by the fisheye mirror.  Therefore, I am of the view that it would not be safe to rely on the images and to prove the Defendant must be able to see things as precise as the images (my emphasis).

74.  However, it was agreed between the parties that the MGV was mechanically sound.  There was no complaint that the fisheye mirror was not functioning properly (if there was such a complaint and the Defendant still chose to drive under such condition, it may become a factor that support the Prosecution case of dangerous driving). 

75.  As per the footages and the photos (P7), the 3 mirrors of the MGV appeared to be in the same position at the time of the accident and at the time of the reconstruction.  As fairly accepted by the Defendant in his testimony and by Mr. Ng during his closing speech, had the Defendant looked at the fisheye mirror, he would be able to see what was right in front of the MGV. From the images taken by Dr. Tao, the fisheye mirror could reflect the Deceased and the trolley when he was walking in front of the MGV.  Given the closeness of the Deceased to the MGV, I find that there was a chance the Defendant could not see directly the Deceased when he was right in front of the MGV, unless he stood up in the driving cabin.  However, I find beyond reasonable doubt that the Deceased and the trolley were visible to the Defendant through the fisheye mirror.  As I have found that the Defendant did not notice the Deceased at that stage, that means the Defendant did not look at the fisheye mirror; or even if he did, he did it hastily and hence failed to realise the presence of the Deceased.

76.  I came to the above view without losing sight of the admission by the Defendant that he did see the school girl.  From the footages, the school girl, insignificantly though, was in white uniform, which stood out more than the outfit of the Deceased.  More importantly, the school girl was walking in front of the MGV farther away from the MGV than the Deceased from the MGV, namely at such an angle that would not be blocked by the dashboard of the MGV.  In other words, the school girl made herself more visible than the Deceased/the trolley to the Defendant by her position and distance from the MGV.

77.  Further, from T-3.1 or T-2.9 onwards, until just before T-2.1, the Deceased was still visible via the fisheye mirror but not by direct eye sight. It was only until at T-1.2 that the head of the Deceased could be seen by the Defendant through the driver side window.  In light of the margin of error as stated above, I find that as per the photograph at page 17 of P4, the head of the Deceased was not completely invisible to the Defendant.  As such, the Defendant did not look to his right and hence failed to notice the Deceased at T-1.2.

78.  Nonetheless, at that time, the Defendant was in attempt to pull straight the MGV into Shu Kuk Street.  As stated above, a bus had stopped behind the Lorry when the traffic was on halt, I am of the view that when the MGV was moving at around T-1.2, it was reasonable for the Defendant to pay more attention to the left hand side and hence his lack of attention to the right hand side (i.e. where the Deceased then was)  did not render the Defendant’s driving standard far below that of a competent and careful driver.

79.  Needless to say, and without further assistance from Dr. Tao, I cannot come to any finding that the Deceased was visible to the Defendant between T-1.2 and T.  I can, however, infer that the Deceased had become invisible to the Defendant as the Deceased’s head could have been blocked by the door panel of the MGV (see photograph on page 17 of P4).

80.  Therefore, the failure on the part of the Defendant essentially covers the time between around T-3.4 and T-1.2, namely about 2.2 seconds.

81.  The question that follows the above finding is, whether the Defendant’s failure amounts to dangerous driving.  I was provided with an authority (HKSAR v. Wong Kwok Wing[4])  by Mr. Delaney for the Prosecution, and was greatly assisted by him.  In that case, HH Judge Douglas Yau referred to a case of the Court of Appeal, namely HKSAR v. Yeung Yiu Kin[5]). The factual scenario in Yeung Yiu Kin is highly similar to the facts of this case.  As summarized by the learned Judge[6], that in determining the driving manner of the appellant, the Court of Appeal was of the view that “while agreeing that the appellant ought to have carefully observed the road condition in front before moving off, including checking the fish eye mirror, to ensure that there was no pedestrian in front of the vehicle, the Court found that as a reasonable driver, the appellant would have to try his best to pay attention to the road conditions, but that does not mean he has to always be prepared for pedestrians who might be crossing the road at the wrong places.  A reasonable driver is also entitled to presume that the pedestrians would, for their own safety, not cross the road at unsuitable places and when it would be dangerous to do so.” 

82.  The learned Judge went on to state, in light of Yeung Yiu Kin, that “[to] find that the driver was driving dangerously when he did not check the fisheye mirror every time the driver has to move and stop his vehicle in a traffic jam is overly strict.”  At the end, the Court of Appeal found the appellant’s driving to be careless, but not dangerous.

83.  In light of the wisdom of the statement of the Court of Appeal, and in view of the whole of the circumstances of this case, I also consider the facts as found above independently.  I am not satisfied beyond reasonable doubt that the Defendant drove dangerously at the material time.  More precisely, his failure to notice the Deceased was not far below what a careful and competent driver was expected to do.

84.  However, for the same reason, I find beyond reasonable doubt that the Defendant was driving without due care and attention, in that he failed to check whether it was clear for the MGV to move forward so as to avoid hitting any pedestrian or obstacles.

Conclusion

85.  In light of the above, the Defendant is acquitted of the charge of dangerous driving causing death.  Alternatively, irrespective of his plea, I find that the Defendant was driving carelessly, hence he is guilty of careless driving, contrary to s. 38 of the Road Traffic Ordinance, Cap. 374.