HKSAR v. TAM TAK KWAN

HCMA 315/2024

[2025] HKCFI 1058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 315 OF 2024

(ON APPEAL FROM KCCC 913 OF 2024)

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BETWEEN

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J U D G M E N T

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1.  The Appellant was convicted after trial by the Magistrate for one count of “dangerous driving causing grievous bodily harm”, contrary to section 36A(1) of the Road Traffic Ordinance, Cap 374. The Appellant was sentenced to 4 months’ imprisonment and disqualified from driving for 2 years. The Appellant now appeal against his conviction and sentence.

The Prosecution Case

2.  As briefly summarised by the Respondent, the prosecution alleges that the Appellant on 8 October 2023 at Nathan Road, near the junction of Man Ming Lane, caused grievous bodily harm to Cai Jien (13 years old, the boy victim), by driving his taxi WF1641 dangerously.

3.  It was admitted that the offence took place on the northbound Nathan Road, near the junction with Man Ming Lane, Kowloon. That section of Nathan Road is a triple carriageway. There is a traffic light controlled pedestrian crossing before the junction with traffic lights to the right and left. The speed limit is 50 km/h.

4.  At the time of the offence, typhoon signal number 3 was hoisted. It was drizzling and the road surface was in good repair but slightly wet. It was in broad daylight. Traffic was light and the travel lights were working properly.

5.  The victim was 13 years old and he only came to Hong Kong two months prior to the accident. He claimed when he was crossing the road, he speeded up as it was drizzling. He was hit by the taxi at the 3^rd lane. The taxi dragged him for distance and he fell on the ground. He was not sure if he was rolled over. He was later taken to hospital and spent 2 days in the ICU. Operation was done and he spent another 3 to 4 days in hospital in total.

6.  The taxi and another private vehicle’s cameras capturing the incident were admitted into evidence as P5 and P8 respectively. The prosecution’s case is that the Appellant drove the taxi to knock down the victim at the traffic light controlled pedestrian crossing at the 3^rd lane. The victim rushed out from the pavement into the crossing when the vehicle traffic light was turned amber-red. There was a taxi in the 1^st lane and there was no vehicle at the 3^rd lane. The Appellant’s dangerous manner of driving is that he did not keep a proper look out for a pedestrian in a pedestrian crossing. He failed to apply the brake timely.

Defence Case

7.  The Appellant stated that when he was about to start off, the traffic lights were amber-red. He was travelling at a speed of about 10 km/h. He only noticed the victim when the victim came to his left side, but not earlier as he was focusing on his front and did not expect someone to come out.

8.  He turned left after the collision as he wanted to avoid further hitting the victim. He was very scared and therefore took more than 2 seconds to react and brake.

Magistrate Findings

9.  The Magistrate found the victim’s evidence was in line with the video evidence, P5 and P8, full weight was given on the evidence. The Magistrate considered the Appellant’s evidence which was materially different from P5 and P8 and therefore gave no weight to his evidence.

10.  The Magistrate found that the victim was crossing a traffic light controlled pedestrian crossing from the Appellant’s left side to the right side. The Appellant started the taxi and travelled forward to allow part of his vehicle went beyond the “stop” line when the traffic signal was in amber-red.

11.  The Appellant was not aware of the presence of the victim at the time of collision when there was nothing preventing him from doing so. He could only apply the brake at least 3 seconds after colliding with the victim.

12.  The Magistrate, therefore found the above driving manner fell far below what would be expected of a competent and careful driver. It is obvious to a competent and careful driver that driving in that way is dangerous. The injuries sustained by the victim qualifies as grievous bodily harm. The Appellant was convicted accordingly.

13.  For sentence, the Magistrate having considered the overall driving manner of the Appellant, his personal background and mitigation letters adopted a starting point of 3 months’ imprisonment. However, as there were 2 aggravating features, including that the Appellant violated the traffic light, and that the incident happened at the pedestrian crossing. The Magistrate adjusted the sentence upward for 1 month to which the final sentence of 4 months’ imprisonment. The Appellant was also disqualified from driving for 2 years and to complete driving improvement course.

Grounds of Appeal

14.  Ms Zahir put forward the following grounds of appeal against conviction:

(1) The Magistrate took an unbalanced, unfair approach in assessing evidence.

(2) The Magistrate failed to take into account the conduct of PW2, the victim.

(3) The Magistrate erred in considering that the Appellant did not brake quickly enough.

(4) The Magistrate erred in equating driving past an amber with red traffic light as a red traffic light.

(5) The Magistrate failed to adequately consider defence’s submissions.

(6) Convictions were unsafe and unsatisfactory.

15.  For grounds of appeal against sentence:

(1) The sentence were manifestly excessive and wrong in principle.

(2) Insufficient consideration were given to several factors.

(3) The Magistrate failed to consider a suspended sentence or community service order.

16.  Ms Zahir in her very detailed written submissions stated the following, on ground two, about the conduct of the victim, the PW2. PW2 agreed that at the time of crossing the road, he was wearing earphones. The traffic light governing the pedestrian crossing was red and the victim understood that meant he could not cross on a red light and he should not have crossed the road. He also agreed that when he ran out, he was looking straight ahead and did not pay attention to the road condition and vehicular traffic. But the Respondent simply argued that PW2’s jaywalking did not “really help” the Appellant. It seems to have a suggestion that the pedestrian’s right being absolute, even if jaywalking.

17.  Concerning the Court of Appeal case of HKSAR v Cheung Kwok Leung, CACC 287/2013, the facts of that case were different from the present one, and that should not be applicable.

18.  The Appellant also relied on the case of HKSAR v Yeung Yiu Kin, CACC 198/2016. It was held that a reasonable driver, a road user, would need to pay attention to road conditions, but does not mean that he or she has to be prepared at any time for pedestrian who jaywalk.

19.  While for the Respondent referring to the case of SJ v Wong Cheung Kit, CAAR 9/2020 quoting paragraph 29:

“Although the traffic light governing the vehicular traffic was green, that does not mean the Respondent could drive past the pedestrian crossing at high speed without hesitation. He should have reduced his speed and carefully observed the road conditions before continuing to drive forward.”

20.  The Appellant is also saying the facts of that case was different from the present one and was also inapplicable to this case.

21.  Now, the Appellant is referring to the Magistrate’s statement of finding, saying that: “Much emphasis was placed on PW2 as a jaywalker, yet this is clearly not the focus of this trial, as this court is not to find out whether PW2 should share the blame of some consequences. All along, the only issue is about the driving manner of the defendant.” The Appellant is saying that that statement will be wrong in so finding because any contention of whether the Appellant was driving dangerously has to be assessed in the context of all the circumstances at the time of the incident.

22.  To assess the defendant’s conduct without taking into account the victim’s conduct would be placing an onerous burden on the defence to disprove that any manner of driving were not dangerous.

23.  On ground three, the Magistrate erred in considering that the Appellant did not brake quickly enough. The Magistrate specifically found that the brake light was only almost 4 seconds after PW2 was hit, and there was no way an experienced driver would react like that after hitting someone like PW2, and the footage clearly showed the driver did not realise the presence of PW2 who was directly in front of the taxi.

24.  Ms Zahir stated that the Appellant had given evidence, saying that at that time he was in shock when the collision happened, which is not unreasonable. If the court analyse how quickly the Appellant braked after the collision, this in fact is assessing his conduct based on his reaction time which is not a fair assessment of his driving manner at the time in question.

25.  Concerning whether the Appellant was aware of the victim’s presence, the conduct of the victim which he had running out suddenly from the road, crossing the pedestrian should be taken into account.

26.  The Appellant also criticised that the Court took into account the post-collision timing instead of what he actually did before the accident occurred. It was clear from the footage how quickly PW2 ran out. P8 also saw how abruptly the taxi in the 1^st lane had to stop to avoid collision.

27.  Further, concerning P5, the Appellant would also like to mention that the car camera footage would provide a wider coverage of the road, which is different from the width of the human eye, so it is perfectly understandable why the Appellant at the time could not see the boy in the circumstances.

28.  There was further comment that the Magistrate is saying that he did not take into consideration that there was nothing stopping the Appellant from moving his body or turning his head in order to observe. The Appellant would say that it is not incredible that the Appellant did not see PW2 running out at that time. But the court erred in finding culpability in the context of the circumstances. That could not have been within the Appellant’s knowledge at that time and could not have taken further steps to stop the vehicle and to avoid the collision.

29.  The Appellant is saying that in any event 4 seconds was simply based on observation of when the brake lights turned on after the collision of PW2, but it is not to say that the moment the collision happened was the exact moment that the Appellant first saw PW2. So the Appellant was unaware of the victim’s presence, and the Appellant did not brake would only support his conduct being one of careless driving instead of dangerous driving.

30.  On ground four, concerning the Magistrate erred in equating driving cars in amber with red traffic light as driving pass a red traffic light. Particularly in the Magistrate comment during mitigation, saying that: “… I see at least 2 aggravating factors, which is jumping the right light, red, amber-red light, okay. To me, I think it is the same. ...” It seems the Magistrate equating the situation of red light and red amber light the same.

31.  But according to the Road Users’ Code 2020, page 107, there is a clear distinction between the red light and the amber with red light, particularly as to what to do if stationary. When it was the red light, the driver shall stay behind the “Stop” line. But when it was amber with red light, the driver shall remain stationary but may prepare to move off. So it is clear and apparent that the amber with red light is treated as being less stringent than the amber light. There is latitude when facing the amber with red light, as the driver may prepare to move off.

32.  And the Appellant also referring to the case of HKSAR v Lam Chi Fat, CACC 89/2011, the court identified scenarios that could constitute dangerous driving. With regards to conduct that fell within “non-compliance with traffic signs”, the court gave examples such as “jumping a red light” and saying that it is not a non-exhaustive list. But “amber with red light” was not included there.

33.  So even if there is a contravention of the Road Users’ Code, it could not be said that the Appellant’s conduct must have fell far below what is expected of a careful and competent driver.

34.  The Appellant is pointing out that the Magistrate failed to take into account that at the time of the collision, the traffic light had already turned green. It was not the case of when the light was switching from amber to red, but from amber with red light to green. So it was therefore logical for the culpability in the varying lights to be distinctly assessed. That also show the unbalanced analysis of the Magistrate in the circumstances.

35.  The Magistrate also sought the defence’s confirmation that before the point of impact in the trial, the Appellant’s taxi did not slow down. The Appellant say that this is irrelevant. The prosecution’s case were not that the Appellant was driving dangerously because he did not slow down.

36.  Now, concerning the Magistrate’s finding that the Appellant was not aware of the victim’s presence, it will be inconsistent to place any weight on the fact that the Appellant did not slow down because it was implied that he was conscious of victim’s presence, but that he elected to proceed regardless. So the Appellant says that the Magistrate was inconsistent in his analysis.

37.  And also if the Appellant’s taxi was stationary at the beginning for the Appellant to proceed forward, of course it would be more than 0 km/h. By definition, accelerating is increasing the driving speed from its original driving speed. If there was no driving speed at all to begin with, then it is not accelerating. The situation would be different because the Appellant was just starting off the car.

38.  On ground five, saying that the Magistrate failed to adequately consider the defence submissions. After the conclusion of the defence’s closing submissions, the Magistrate immediately delivered a verdict, reading out from a written document after just a pause without any adjournment. It showed the court had in fact had already decided the case without considering thoroughly about the defence’s submissions.

39.  And lastly, on ground one of unbalance approach and ground six of unsafe and unsatisfactory verdict, the Appellant claimed that the Magistrate did not adequately consider the Appellant’s conduct and failed to apply a balanced approach in assessing the evidence. The court was not just concerned with what ought to have been anticipated. For dangerous driving, it must show that the Appellant’s driving fell far below what would be expected of a competent and careful driver. The Appellant will say that his driving manner cannot satisfy this test to constitute dangerous driving.

40.  For the grounds of appeal against sentence, one of the ground is about manifestly excessive, as the Appellant have a clear criminal record. Driving for over 40 years, he only had two traffic convictions with other records being fines. It was not the worst of its kind of case, so the Appellant would ask for a non-custodial sentence.

41.  And on the circumstances of the case, there must be a distinction between jumping a red light and jumping a red with amber light. Even if the collision happened at pedestrian crossing, the degree of seriousness will depend on the precise circumstances. In this case, the degree of injury is not one of its worst case.

42.  The Magistrate also failed to take into account that the Appellant had at the outset accepted his conduct as careless driving, so for the first conviction immediate custodial sentence was manifestly excessive and wrong in principle. And there was insufficient consideration by the Magistrate concerning the Appellant’s clear record, positive good character, family circumstances, only jumping at an amber with red light instead of red light, and the dangerous driving at the most at the lowest end of the scale. And it was not a case of wilful bad driving and not causing very serious injuries. The risk was limited and the speed was also limited. There was no intoxication nor aggressive driving, nor racing at all.

43.  So taking into all these circumstances, a 4 months’ imprisonment and immediate custodial sentence could be replaced by a suspended sentence or community service order.

Respondent’s Reply

44.  On ground two concerning the conduct of PW2, the Respondent would say that it was indisputable that P5 and P8 captured the incident. It captured that the victim did jaywalk yet Respondent submitted that the Magistrate had correctly pointed out the focus of the trial. It is not to determine whether the victim was a jaywalker, but the driving manner of the Appellant. Respondent relied on the Court of Appeal case in HKSAR v Cheung Kwok Leung [2014] 3 HKLRD 712 at paragraph 18, saying that:

“It is plainly irrelevant whether the deceased crossed the road at the pedestrian crossing or whether he was in breach of traffic light signals when doing so. The thrust of this case is whether the applicant’s manner and way of driving fell far below what would be expected of a competent and careful driver... a cautious and careful driver should pay particular attention to pedestrians and traffic condition when reaching a traffic lights controlled pedestrian crossing. He should also be aware of the possibility that the pedestrians might cross the road without complying with regulations.”

45.  Respondent is saying that particular caution required by the driver when approaching a pedestrian is indeed repeatedly emphasised by other cases such as SJ v Lam Siu Tong [2009] 5 HKLRD 601. And in the present case, P5 shows that the victim did jaywalk, he was running from left to right, and the taxi was stationed as the first vehicle on the 3^rd lane before starting off. There was no vehicle on the 2^nd lane. So in order for the Appellant to hit the victim, the Appellant must be completely disregarding the road condition on the pedestrian road before starting off, so as to drive in a dangerous manner.

46.  On ground three, the Respondent is saying that the reason why the Magistrate mentioned the brake was only applied at least 3 seconds after colliding with the victim was to show that the Appellant was unaware of the presence of the victim at the time of the collision.

47.  The Magistrate’s concern was the Appellant’s driving manner before the impact, namely he was unaware of the victim at all when there is nothing blocking his sight.

48.  On ground four, the Magistrate did not mix up amber-red and red traffic light. Magistrate clearly knew that when the taxi was starting off, the traffic lights were in amber-red. According to the Road Users’ Code, a stationary vehicle must remain stationary when the traffic light is amber with red.

49.  On ground five, Respondent is saying that according to the trial transcript, when the prosecution completed his closing submissions, the Magistrate proposed to hear the defence’s closing submissions the other day at 2:30pm and a verdict will be delivered about 3:30pm. At that time, both parties agreed and no objection had been raised. The Magistrate further remarked that he did not expect anything written from the defence counsel. So the Respondent is of the view that it would be unfair to raise it as a ground of appeal at this stage because there seems to be a lengthy pause before the Magistrate delivered his verdict for the Magistrate to consider all the submissions from the defence counsel.

50.  It is not uncommon that the Magistrate would deliver a verdict right after hearing submissions from both parties. And there is no evidence to suggest the Magistrate did not consider the submissions from both parties at all.

51.  By way of rehearing, the Respondent would say that P5 and P8 clearly captured the incident showing that the Appellant’s complete disregard of the road conditions before starting off, where the driver must exercise the utmost caution of care as pedestrians are expected to cross the road there. So it would constitute a dangerous manner of driving at that material time, falling far below of what would be expected from a competent and careful driver.

52.  Concerning the Respondent’s reply on sentence, the Respondent referring to the case of HKSAR v Wong Cheong Kit [2020] HKCA 809, where the Court of Appeal was of the view that a 4 months’ imprisonment sentence was inadequate for a defendant that hit a pedestrian at a pedestrian crossing, even when the pedestrian jaywalked and the vehicle traffic light was green at the material time. The Court of Appeal opined that the appropriate starting point would be 18 months’ imprisonment instead.

53.  Respondent would say that Magistrate also correctly pointed out the aggravating features of the present case, that the Appellant violated the traffic light and failed to notice the pedestrians.

54.  So concerning the background and lack of criminal record, the Respondent stated that these were not strong mitigating factors, that the court should pass a non-custodial sentence for dangerous driving offence, referring to the case of HKSAR v Kwan Wan Ki [2020] 5 HKLRD 433.

Consideration

55.  In the Court of Final Appeal case HKSAR v Hui Lai Ki [2024] HKCFA 7, it was stated that:

“The magistracy appeal is conducted by way of rehearing. The judge must be satisfied that the Appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justify appellate intervention to reverse the decision of the magistrate to convict.

The court recognised that the appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.”

56.  First, I had carefully and repeatedly gone through the respective camera images, P5 and P8.

Image No.(s)	Time	Observation
P5	09:00:24	Taxi stopped before the traffic light showing red light, pedestrian crossing the road, taxi was on the 3rd lane among three lanes in the same direction.
P5A(1)(2)	09:00:46	Red and amber light was on. Victim appeared on left road side about to enter the pedestrian crossing.
P5A(3)	09:00:47	Red and amber light on, victim already stepped in pedestrian crossing appearing on left side of taxi and the taxi started moving forward.
P5A(3)	09:00:48	Traffic light just turned green. Victim already ran in the pedestrian crossing about 4-5 feet for the road side and approaching to the left front corner of the taxi.
P5A(4)	09:00:49	Victim already ran to the front part of the taxi then taxi hit on him.
P5A(5)	09:00:51	Taxi continued moving forward and the victim was seen rolled down and disappear from taxi right front side.
P5A(7)	09:00:53	Taxi swerved to left side before stopping. It is apparent from above that the taxi already started moving forward when red and amber light was on, while the victim by then already stepped in the pedestrian crossing at 09:00:47.
P8	09:22:20	Showing the taxi stopped before the traffic light with its braking light on until 09:22:29 where the rear part of the taxi was outside the camera angle.
P8A(1)	09:22:30	The red and amber light was on, the victim appeared on the left side of another taxi at the 1st lane. Victim was about to cross the road.
P8A(2)	09:22:31	Taxi started to move forward when the red and amber light was on, which the victim has already reached to the 2nd lane of the road.
P8A(3)	09:22:33	Taxi hit on the victim and the braking light was not on.
P8A(4)	09:22:35	Taxi went forward in his lane before starting to swerve left without braking light on.
P8A(5)	09:22:37	Taxi stopped between the 2nd and 3rd lane and the braking light was on, victim lying down on the taxi right rear side.

57.  Now, firstly on ground two where the Appellant emphasised that the Magistrate failed to consider the conduct of the victim, PW2, namely he had jaywalked and did not pay attention to the road condition at all. However, as pointed out by the Respondent, it was undisputed from the video images, P5 and P8, that the victim had jaywalked. It was not the case that the Magistrate did not know about it, particularly Ms Zahir had already put much emphasis on it during the trial. The Magistrate had rightly pointed out that the issue of the case was about the driving manner of the Appellant.

58.  And also as shown in the case of Cheung Kwok Leung stated above, it is plainly irrelevant whether the pedestrian was in breach of traffic signal, and a cautious driver should be aware of the possibility that the pedestrian might cross the road without complying with the regulation. Therefore this ground must fail.

59.  For ground three, where the Appellant stated that the Magistrate erred in considering the Appellant did not brake quickly enough, particularly given that the Appellant was unaware of the presence of the victim. And it was not a fair assessment for saying that the Appellant did not brake quickly enough. However, from the statement of findings, it was also apparent that the Magistrate’s focus was on the Appellant’s failure to notice the victim, and it took at least three seconds before he applied the brake after the collision, obviously the Appellant had indeed proceeded too soon before the traffic light was turning green. And it was also fair to say that the Appellant in that circumstances did not brake quickly enough. So this ground was clearly without merit.

60.  On ground four, about equating red light and red amber light. Firstly, the Appellant referred to the comment of the Magistrate during mitigation, but that only concerned the degree of culpability on sentence where the Magistrate made such comment. It was clearly not the case where the Magistrate mistakenly took it as simply jumping the red light instead of red amber light. In fact, as quoted by the Appellant on the Road Users’ Code, when it was amber with red, the stationary vehicle should remain stationary. He may prepare to move forward, instead of already starting off like what the Appellant did. So this ground also fails.

61.  On ground five, about the instant delivery of verdict upon finishing hearing closing submissions. Now as pointed out by the Respondent, the evidence and the prosecution’s closing submissions finished on the first day and it was adjourned to the second day afternoon for the defence to make closing submissions. The Magistrate clearly had sufficient time to consider all the evidence and more importantly, the Magistrate had indeed seemingly dealt with all the issues and its weight. Therefore there was nothing in this ground.

62.  On ground one and six of the unbalanced approach in assessing evidence and that the Appellant’s conduct did not fall far below a confident and careful driver. However, as shown in the camera images P5 and P8 as described above, the Appellant had clearly starting off too soon before the traffic light was turning green, while he shall remain stationary and wait. Further, he was also unaware of the presence of the victim, where there had been quite some pedestrians crossing previously, and there was drizzling as admitted and typhoon number 3 was hoisted at the material time, the circumstance were that the Appellant shall be cautious and be aware of any pedestrian that might cross the road, breaching the traffic signal.

63.  So on rehearing, I am also satisfied that the driving manner of the Appellant did fall far below what to be expected of a careful and competent driver. The Appellant’s guilt had been proven beyond all reasonable doubt. The conviction shall stand. Appeal against conviction be dismissed accordingly.

64.  On sentence, as quoted above of Wong Cheong Kit, 4 months’ imprisonment was deemed inadequate for hitting a pedestrian at pedestrian crossing, even when the pedestrian was jaywalking. The Court of Appeal considered 18 months should be an appropriate starting point.

65.  For the present case, the Magistrate had rightly stated that the Appellant had disregarded the traffic signal, and the offence took place at the pedestrian crossing, where the culpability shall be enhanced. The facts were serious and the 13-year-old boy was also injured seriously. Immediate term of imprisonment is warranted, and 4 months’ imprisonment was appropriate and not excessive at all. Therefore, the sentence shall also stand and the appeal against sentence is dismissed accordingly. The Appellant shall serve the sentence immediately.