HKSAR v. KWOK TSUN NING

CACC 160/2025, [2025] HKCA 955

On appeal from: [2025] HKDC 740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 160 OF 2025

(ON APPEAL FROM DCCC NO 602 OF 2024)

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BETWEEN

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DECISION

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1.  After a trial before Deputy District Judge Charles J. Chan (“the judge”), on 30 April 2025, the defendant was acquitted of Causing Death by Dangerous Driving but convicted of the lesser offence of Careless Driving[1].

2.  Under the statutory requirement any application to lodge an appeal by way of case stated pursuant to section 84(a) of the District Court Ordinance, Cap 336 should be made within 7 clear days after the order of acquittal. In this case, such application was made by a letter dated 6 June 2025 for an extension of time. The prosecution was out of time by one month.

3.  After the parties filed written submissions, on 21 August 2025, the Court directed that the application be determined on paper.

Background of the case

4.  The defendant was the driver of a taxi. In the morning on the day in question, he dropped off a passenger outside Shek Yat House, Shek Lei (I) Estate. He drove off immediately after he refused hire by another passenger. The fatal accident happened within 3 seconds of his driving off. An 87-year-old woman (“the deceased”), who was crossing in front of the taxi from its right side, was knocked down by the taxi resulting in her death.

5.  Although the defendant elected not to give evidence, the judge found the following facts favourable to him: there is no evidence to show that the defendant drove off at a high speed or rapid acceleration[2]; the taxi only stopped for about 5 seconds, during which the attention of the defendant was very likely to have been distracted by passenger alighting and another passenger who hailed the defendant’s taxi but hire was refused; the fact that three pedestrians had crossed over to the other side of the road might have given him a false impression that there was no longer any pedestrians waiting to cross on his right when he started off; the presence of the deceased could have been obstructed by the A-Pillar[3]. The judge was unable to rule out a momentary lapse of attention by the defendant[4] and accordingly, he found that it was a case of careless instead of dangerous driving.

Prosecution’s position

6.  Mr Man, for the prosecution, explains that the initial view formed by the section-level of Department of Justice (“DoJ”) not to appeal was subsequently overtaken by the division-level to lodge an appeal on 6 June 2025, after a continuous review of all available materials. It is contended that the car dash camera footage “clearly and sufficiently” showed the dangerous manner of the defendant’s driving. It is also argued that the present delay is not inordinate and there is at least a good arguable case against the judge’s acquittal of the charge as being perverse, unreasonable and inconsistent with the Reasons for Sentence and/or Costs dated 23 May 2025.

Defence’s position

7.  Mr Lee, for the defendant, opposes the granting of extension of time on the following grounds:

(1) procedural non-compliance with the requirement of a grounding affidavit;

(2) The change of stance between the section-level and the division-level could not afford justifiable reason for the inordinate delay and there was no reason why initial grounds could not have been settled first should the decision of the judge be so perverse;

(3) The intended appeal does not concern any obvious error of law made by the judge and is effectively an appeal against the fact-finding by the judge;

(4) The judge was entitled to come to the view on the whole of the evidence that the defendant could have had a momentary lapse of attention which did not amount to fallen far below what could be expected of a competent and careful driver. The intended appeal has no or little prospect of success.

Consideration

8.  Extensions of time should not routinely be granted, cogent reasons are required: DPP v Coleman [5]. A balancing exercise has to be taken: HKSAR v Wong Chun Wai [6].

9.  The Defence’s submission of the requirement of a grounding affidavit pursuant to Practice Direction 4.2 paragraph 5(c) is misconceived. Practice Direction 4.2 paragraph 5(c) provides that:

“If leave out of time is sought in respect of either conviction or sentence, a grounding affidavit from the applicant personally should be filed with the application setting out in detail the reasons for it.” (emphasis added)

10.  It is thus clear that the requirement of a grounding affidavit only applies to appeals against conviction or sentence, not to an appeal by the prosecution against an acquittal.

11.  When undertaking the balancing exercise, the fact that the section-level made a decision against taking further action by the end of the 7 days period weighs heavily against other factors. The chronology of events shows that the only instruction then was to oppose costs if sought. Even after the defendant was sentenced (to CSO) and an order of costs was made against the prosecution on 23 May 2025, the differing view at the section-level was only in relation to whether an appeal against the costs order should be made. In relation to the sentence imposed, there was no recommendation of further action[7].

12.  Matters only took a turn after the whole matter was referred to the division-level. It was said that after a consideration of the whole of the matter “as part of its duty to review its decision continuously ”, a decision was made to seek an extension of time to appeal against the acquittal by way of case stated and appeal against the costs order.

13.  Thus, it is apparent that the failure to resist the costs order was the paramount consideration at the divisional-level which led to the present application, since the main concern at the section-level was whether to appeal against the costs order. The focus was never, at that stage, on the acquittal of the original charge or the sentence. Seemingly, the prosecution was content to let those matters lie and not to take further action.

14.  This last minute chance in stance of the prosecution is also indicative of the merits, or the lack of them, on appeal. Had the decision of the judge to acquit been so perverse, that should not have escaped the minds of those decision-makers even at the section-level. Whilst Mr Man submits that the footage clearly showed the presence of the deceased at the right front of the taxi demonstrates the perversity of the acquittal, the judge’s findings that the actual view of the driver was not necessarily the same as that captured in the footage accords with common sense and experience in daily life. The judge’s findings of a momentary lapse of attention on the part of the defendant was based on a consideration of a myriad of factors. With the facts of this case, had the defendant been convicted of causing death by dangerous driving, the likelihood of the conviction being quashed on appeal and replaced by Careless driving cannot be said to be slim.

15.  I am not persuaded on the explanation for the delay and the merits on the intended appeal. The prosecution’s application for an extension of time to appeal by way of case stated is refused.