HKSAR v. CHAN WAI LUN

DCCC 771/2024

[2025] HKDC 1329

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 771 OF 2024

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REASONS FOR VERDICT

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1.  The defendant faces one charge of dangerous driving causing death.  On 21 November 2023, a traffic accident occurred at the loading and unloading bay area of Kwai Shing West Estate Carpark.  The defendant’s light goods vehicle ran over a pedestrian whilst reversing.  As a result of this accident the pedestrian died.

2.  The defendant admits that his driving amounted to careless driving, being that he drove without due care and attention.  He denies, however, that his driving amounted to dangerous driving and that his driving did not fall far below that of a competent and careful driver.  The court is required to resolve this issue of whether the defendant’s driving did or did not fall far below that of a competent, careful driver in the circumstances.

3.  The evidence of the prosecution was agreed.  The time, date, location and the way in which the accident unfolded was all agreed.  It was agreed also that the victim died as a result of the accident.  The agreements reached evidenced that the accident occurred as follows:

4.  The location is the loading and unloading bay area of the Kwai Shing Estate Carpark.  At the location there is a residential building, a shopping centre and a bus terminal.  There is also a pedestrian crossing.  The speed limit of that area of road was 50 kilometres per hour.  The width of the road at the accident location was 7.7 metres.  The weather was fine.  It was 9:42 am, there was normal daylight and visibility was good.  The road surface was dry.  At about 9:41 am, the defendant arrived at the location.  The defendant made the decision to reverse into the loading and unloading area which required that he reversed his light goods vehicle down the road.  In the course of that action, he had to reverse over a pedestrian crossing.  It would appear the reversal decision appears to be the usual way of accessing the loading and unloading bay from the roadway. 

5.  At about the same time as the defendant started his course of reversing, the deceased arrived in the area.  The deceased apparently was an elderly man aged 85 years old.  The deceased walked from behind a van that was parked illegally on the pedestrian crossing in the location.  The deceased walked down the roadway.  The defendant reversed his vehicle through the pedestrian crossing and over the speed bumps that accompanied it.  The deceased moved further into the roadway behind the defendant’s light goods vehicle.  Shortly after as the defendant continued reversing, he ran over the man who was directly behind his vehicle.  The deceased was found to be dead shortly after that collision.

6.  The defendant on enquiry at the scene admitted he drove the light goods vehicle and struck the deceased whilst reversing.

7.  The court was able to view CCTV footage from both a public light bus which was in the area and also the CCTV camera on the estate carpark which showed the entire incident in some detail.  The traffic investigation showed that the defendant’s light goods vehicle had wing mirrors and a reversing camera.  The vehicle also sounded a beeping alarm on reversing which was operating at the material time.  The traffic examiner, Dr Ng, estimated that the average speed of the reversing of the light goods vehicle to be around about 8 kilometres per hour, the speed being in the range of 5 to 8 kilometres per hour throughout the reversing operation.  The defendant had reversed for a period of some 33 seconds over a distance of 31.3 metres.  The defendant did not use or employ a banksman to assist him in this reversing manouvre.  The examiner also opined in evidence that prior to reversing over the pedestrian crossing the defendant should have been able to see the deceased in his left rear view mirror.

8.  The defendant himself gave evidence to describe his driving at the material time.  On arriving at the location and before reversing he assessed the situation.  He saw an illegally parked van on the pedestrian crossing and was aware that this could block his view of pedestrians emerging onto the crossing and was aware that he had to give priority to the reversing camera view to maintain a proper view of the crossing as he reversed.  He said he checked his mirrors before entering the crossing but to manouvre over the pedestrian crossing he used his reversing camera. After safely negotiating the crossing, the defendant then looked at his left-hand mirror.  He did not see the deceased.  The defendant thereafter primarily relied upon the wing mirrors whilst reversing and before impacting with the deceased.

9.  My resolution of this issue will be as follows: 

The prosecution must prove beyond reasonable doubt the defendant’s driving was dangerous, namely that a) the way he drives falls far below what would be expected of a competent and careful driver and b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

10.  The defendant admits his driving was careless, namely that he drove without due care and attention but without reasonable consideration for other persons using the road.

11.  The prosecution say the defendant undertook a lengthy reversing manouvre on a busy road in a housing estate and near to a pedestrian crossing, that pedestrians were to be expected and drivers must be very vigilant in such areas.  The defendant failed to employ a banksman for this manouvre and did not keep proper attention on his surroundings.  He said that the deceased was there to be seen near the pedestrian crossing and was clearly visible at times.

12.  I note the following evidence: 

The reversing into the loading and unloading bay is the usual means of access, this facilitates a safe exit from that area; that the accident occurred on the road some way away from the pedestrian crossing and not at it; pedestrians would be expected normally to cross at that crossing. The deceased’s path took him away from the pedestrian crossing and into the road. He appears to be jaywalking. He also appears to be possibly endangering his own safety and the safety of other road users. His path onto the road and behind the lorry is difficult to explain. He walks directly into the path of a vehicle that is reversing with a reversing beeper apparently oblivious to its presence. There is no concept of contributing negligence in this offence, however, it is a fact to be considered when resolving the issue of the defendant’s driving competence and culpability.

13.  Furthermore, the presence of an illegally parked vehicle not only masked the deceased’s presence initially but also meant that the defendant was obliged to rely to a greater extent on the reversing camera to be sure that no pedestrians were crossing on that crossing at the time when he negotiated it.

14.  It is I have said earlier required that the court be sure beyond reasonable doubt of all elements of the offence.  The court must be sure beyond reasonable doubt the defendant’s driving fell far below that of a competent and careful driver given the surrounding circumstances of the accident.  There are none of the usual indicia of a dangerous driving case here.  There is no speeding, no ignoring of traffic signs, no decision to ignore or take an obvious risk.  There is substantial contributing factor by way of the defendant’s own actions.  Given all the circumstances of this case, the threshold of dangerous driving is not reached to a criminal standard.  It is, however, proved to a criminal standard the defendant’s driving was careless and he will be convicted of the offence of careless driving as a result of the evidence and his own admission.