HKSAR v. WONG KWOK WING

DCCC 1154/2018

[2019] HKDC 728

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1154 OF 2018

---------------------------

----------------------------

-----------------------------------------

REASONS FOR VERDICT

-----------------------------------------

1.  The defendant pleaded not guilty to one charge of dangerous driving causing death.

Background

2.  The defendant was the driver of a medium goods vehicle and had stopped behind some vehicles in front of a red traffic light.

3.  The defendant drove forward when the cars in front of his started to move upon the lights turning green.

4.  Almost as soon as the vehicle had started moving forward, it ran over something and the defendant immediately applied the brake and stopped his vehicle.

5.  As it turned out, the defendant’s vehicle had run over a bicycle and the cyclist, Mr Ho Ming.  Mr Ho suffered multiple blunt force injuries and did not survive the incident.

Prosecution’s case

6.  It is the prosecution’s case that the defendant’s failure to notice the presence of Mr Ho and his bicycle prior to running over him was dangerous driving.

Defendant’s case

7.  It is the defendant’s case that he drove with due care and proper attention prior to the incident.  The prosecution is unable to prove conclusively that the bicycle was hit by the lorry before it fell and was run over since one possible cause of the accident was Mr Ho losing his balance when he was near the front of the defendant’s vehicle and falling down and in front of the defendant’s vehicle.  There was nothing else that the defendant could have reasonably done to avoid the running over of Mr Ho and the bicycle in the circumstances and his driving was not dangerous, nor careless.

Issues

8.  The only issue in the case is whether the defendant’s driving was dangerous according to the definition under section 36(4) of the Road Traffic Ordinance, Cap 374:

“(4)A person is to be regarded as driving dangerously within the meaning of subsection (1) if—

(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.”

9.  If this court finds that the defendant’s driving was not dangerous, pursuant to s 36(10), the issue then becomes whether the defendant’s driving was careless as defined under s 38(2) of the same Ordinance:

“(2)A person drives carelessly within the meaning of this section if on a road he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road.”

10.  Much of the evidence was admitted into evidence by way of admitted facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221.

11.  The prosecution called 4 live witnesses.  The defendant elected to give evidence in his own defence.

A summary of the evidence of the prosecution witnesses

PW1 Mr Man Hin

12.  Mr Man was waiting for a bus at the bus stop that was located just before where the incident had happened at around 4:58pm on 24 May 2018.  The bus stop is as shown in photo 25 of photo album P-7C.

13.  Mr Man stood near the left end of the canopy of the bus stop, leaning against the side of the canopy and playing on his mobile phone while waiting for the route 41A bus to go to Mongkok and occasionally checking to see if the bus was arriving.

14.  Since the direction of traffic on the road was from his right to left, his attention would by inference be mainly to his right.

15.  While waiting, Mr Man suddenly heard two people to his left shouting very loudly a few times “Hey! Hey! Hey!” (“喂喂喂”).  Hearing that, he turned his head and looked to his left and saw two men kept shouting.  The two men were not in the queue for buses but were standing near the front left passenger door of the lorry as shown in photo 22 of album P-7A.

16.  At that moment, the cyclist was on the road near the kerb of the pavement, but the bicycle was still on the road.  Both the cyclist and the bicycle were about half a meter from the kerb.

17.  Mr Man then said he saw that the cyclist had his left foot on the ground, and his right leg was moving over to the other side of the bicycle as if mounting the bicycle.

18.  Mr Man then said that, “in that few seconds, the truck drove forward”. The lorry came up from behind the cyclist and hit the person from behind.  It is his evidence that the cyclist had already mounted the bicycle completely before he was hit.  It is also his evidence that the lorry was stationary when he first saw it.

19.  When asked how the lorry hit the cyclist, Mr Man said this:

“The lorry hit the back of that man from behind, then the man together with the bicycle rolled underneath the vehicle. Then the lorry’s left front wheel ran over the man and the bicycle. Under the circumstances, the men on the side continued to shout. He only stopped after the man had been run over. I mean the shouting man stopped.”

20.  Mr Man was then asked if he saw the lorry hit the bicycle or the actual cyclist on the bicycle, and he repeated his answer of “the lorry hit the back of that man from behind, then the man together with the bicycle rolled underneath the vehicle.”

21.  Later on, Mr Man was asked if he saw the lorry hit the bicycle at all, to which Mr Man answered, “The lorry did not hit the bicycle, the lorry hit the back of the cyclist.”

22.  The evidence of Mr Man in-chief is, therefore, that the lorry had hit the back of the person from behind, with the front left bumper, near the amber colored indicator light.

23.  Mr Man was asked in-chief where the bicycle was in relation to the gap between the lorry and the kerb as shown in photo 4 of album P-7A, before the lorry had hit the cyclist. Mr Man said “The bicycle was slightly in front of the front left bumper of the lorry before the man was hit.”

24.  In cross-examination, Mr Man said that when he looked up when he heard the loud shouts, the end of the lorry should be to his left and in front of him. The lorry was stationary and the bicycle was not moving either.

25.  With the help of the court, Mr Man clarified that the back of the vehicle was approximately in front of where he was standing at the bus stop, and he was able to see the lorry out of the corner of his eyes, with his right eye being level with the left rear end of the lorry.

26.  It was pointed out to Mr Man that, if the bicycle was positioned in front of the lorry just before the collision as shown in photos 49 and 50 and as agreed by Mr Man, then the first point of contact between the lorry and the bicycle must have been the rear wheel and not the back of the cyclist.  After some clarification, Mr Man eventually agreed with Mr Khosa’s observation.

27.  It was then suggested to Mr Man that he might have been wrong about the point of collision.  Mr Man disagreed and said this, “because I watched the person leaning to the side and fell over with the bicycle after hitting, his whole body fell forward before the bicycle and both fell on the ground. The person fell forward, if the lorry hit the wheel, he would have chance to fall to either side.”

28.  It was then pointed out that the bicycle was actually in motion just before the collision between the bicycle and the lorry.  Again, Mr Man disagreed.  He said that from the time he started to look over to his left, the bicycle was stationary, “because I saw his left foot on the ground and then put his right leg on to the bicycle to mount it, I watch him do this action”.

29.  Strangely, when it was then put to Mr Man that the cyclist was cycling he was wobbling from side to side, he agreed with counsel, but he disagreed that the cyclist had lost balance or fallen slightly to his right just before the collision.

30.  Given the discrepancy in his evidence, Mr Mitchell in re-examination asked Mr Man at what point he saw the cyclist wobbling from side to side, to which Mr Man answered, “When I saw him, he was mounting the bicycle and not riding the bicycle, not cycling.”

31.  Mr Man insisted that when he looked, the cyclist was just mounting the bicycle and the bicycle did not have any forward motion.

32.  Further probing prompted this answer from Mr Man, “What I meant was he would be wobbling from side to side if he was cycling, but what I saw was that he was mounting the bicycle.”

33.  Mr Man repeated that the lorry hit the back of the cyclist, who then fell forward with his face down.

PW2 Ms Liu Wing Yan

34.  Ms Liu was a passerby who saw the incident from an angle opposite to that of PW1.  Using photos 25 and 26 in album P-7C as reference, Ms Liu was walking from right to left towards the bus station, about half a body’s distance from the stone wall on her right.

35.  When she was almost passing the phone box, she saw an old man riding on a bicycle on her left on the road in the lane closest to the pavement.  The bicycle was moving along very near the kerb, “almost touching”.

36.  Ms. Liu then saw the lorry that was behind the bicycle started to show sign of starting to move.  Ms Liu cannot remember if the lorry was stationary or had been moving before that.

37.  She then saw the cyclist’s face looking frightened and suddenly panicked.  The cyclist looked behind him once and then looked back to the front.  The cyclist then opened his mouth and his hands that were holding the handle bar started to wobble (搖).

38.  Ms Liu felt that because of this wobbling, the cyclist would have lost his balance.

39.  With reference to photo 34 of the album, Ms Liu said the bicycle was not in the gap between the lorry and the kerb, but was in front of the left front headlight of the lorry at this point, with a distance of about one to one and half body’s distance (身位) between the rear wheel of the bicycle and the front of the lorry.

40.  Ms Liu then looked to the lorry driver and saw that he was looking to his right, and that, because of his right hand being on the 11 o’clock position, she was sure that he was intending to turn right.

41.  It must be noted that Ms Liu does not hold a driver’s license and that according to the road design, in order for the lorry to be in the lane next to the pavement, it had to deliberately cut left into that lane because there are only two lanes prior to that.

42.  In any event, the lorry then started to move and hit the old man cyclist.  It is Ms Liu’s evidence that the front left area below the left indicator light of the lorry hit the rear wheel of the bicycle first.

43.  Then the bicycle started to wobble and then fell on its side, and the old man also fell.  Ms Liu said in court that she did not see and could not remember this part clearly, but she saw the cyclist lying on the ground face down, and then the left front wheel of the lorry ran over the cyclist and the bicycle.

44.  It is Ms Liu’s evidence that the same part of the lorry had hit the back of the cyclist.  She was about 2 to 3 meters from them at this time with nothing blocking her view.

45.  After the lorry ran over the cyclist, someone came out to bang on the door of the lorry saying that the driver had hit someone, whereupon the lorry stopped.  The driver alighted to check on the situation and immediately made a phone call.

46.  In cross-examination, Ms Liu changed her evidence slightly and said that she did not know whether there had already been contact between the lorry and the bicycle when she saw the cyclist panicked and his bicycle started to wobble.

47.  According to the witness statement of Ms Liu taken near the day of the incident, not only did the bicycle started to wobble when the cyclist started to panic, it nearly fell down to the ground. Up to this point, Ms Liu had not seen any collision between lorry and bicycle.  Ms Liu confirmed in court what she said in the witness statement as correct.

48.  Also in her witness statement, Ms Liu said that the first contact between the lorry and the bicycle was after the cyclist had fallen forward and while still in the air, his back was hit by the left of the lorry, which then caused him to fall to the ground.  Ms Liu confirmed this as correct.

49.  It was then pointed out that Ms Liu had never mentioned that the lorry had hit the rear wheel of the bicycle at all in her witness statement, and that the first contact between the lorry and the cyclist was to the back of the cyclist and not the wheel of the bicycle.

50.  Mr Khosa then summarized what Ms Liu said in her statement as follows: “In fact, if we try to understand the narrative and summarize into one sentence how this accident occurred, it appears that what you told the police, that for whatever reason the cyclist got frightened, it was because he got frightened, he lost control of the bicycle, became wobbly, he fell and while he was falling, the vehicle hit his back, will that be correct?”

51.  Ms Liu answered, “You can put it that way.”

52.  Mr Khosa further suggested that the initial falling of the cyclist was not in any way caused by any contact between the lorry and the cyclist or the bicycle, to which Ms Liu answered, “I don’t know.”

53.  In re-examination, Ms Liu was also not able to remember at what angle to the ground the cyclist was falling when his back was about to be hit by the lorry.

54.  Ms Liu was asked in cross-examination about question and answer 6 of her statement.  There, Ms Liu was asked if she felt the wobbling of the bicycle was normal, and she said she thought that “it was normal when he wobbled at the beginning, because at that time the speed of the bicycle was not very high, and also it was an uphill road, and adding to that there was a lorry behind him so close.”

55.  Ms Liu confirmed that she was talking there about the time when she first saw the cyclist, and that was before the cyclist had turned his head to look back.  She confirmed that there was a second stage of wobbling which was after the cyclist had turned to look back.

56.  Ms Liu confirmed her answer in question 8, where she says that after she had looked at the lorry driver and looked back to the cyclist, he had already fallen forward, so she did not see whether the lorry did hit the bicycle, but she is sure that while the cyclist was falling, the lorry did hit the back of the cyclist.

57.  Ms Liu stood in the same place in the 2 to 3 seconds that she estimated she had observed the incident.  She very fairly mentioned that the railings on the edge of the pavement might have obstructed her view in a way that caused her not to be able to see whether the lorry hit the wheel of the bicycle or the cyclist first.

PW3 Police Officer 4825 Mr Ng Siu Lung

58.  Officer 4825 Mr Ng was called to deal with the exhibits.  He was not cross-examined.

PW4 Expert witness Dr Poon Ka Chun

59.  By agreement, Dr Poon gave evidence as a traffic accident reconstruction expert.  His witness statement was read out in court and adopted as part of his evidence in-chief.

60.  In gist, the reliance placed on Dr Poon’s evidence by the prosecution is on how the driver of the lorry should have been able to see the presence of the bicycle both prior to an immediately before their collision.

61.  It is Dr Poon’s evidence that there are blind spots to the left and front of the lorry, but that with the help of various mirrors, the driver would still have been able to see the presence of at least part of a bicycle similar in size and build to the one that was used by Mr Ho.

62.  It is part of the prosecution’s case that the defendant’s failure to properly make use of the mirrors to check around the lorry would amount to driving manner that is dangerous.

Summary of the defendant’s evidence

63.  The defendant has been a driver for about 8 to 10 years.  He has always been driving the same type of medium goods vehicle. KT9661 is owned by himself and he has been driving it for 6 years odd.

64.  The defendant delivers goods with this vehicle and would drive pass the location where the incident happened very often.

65.  On the day of the incident, the defendant stopped his vehicle about 1 meter behind a private car in the left lane of the road because the traffic lights were showing red.  There were vehicles in the lane to his right.

66.  When the lights changed, the cars in front started to move off.  Seeing that, the defendant did what he would do every time he starts driving, which was to check in sequence the left, center and right mirrors to make sure that everything was clear before moving his vehicle forward.

67.  The defendant would look at the top, middle and bottom mirrors on the front left of the vehicle, as can be seen in photo 4 of album P-7A.

68.  On that day, when he checked those mirrors, he saw a cyclist on his bicycle moving forward near the middle of his lorry, cycling in the gap between the left side of his lorry and the kerb of the pavement in photo 4.  The defendant saw the cyclist mainly through the middle mirror on the left of his lorry.

69.  The defendant then continued his starting off routine and checked his center and right mirrors.  At this point, his lorry was still stationary.

70.  Having checked all the mirrors and found that there was no problem and no obstacles, he started to drive off.  At this point, his eyes were back to looking ahead of his lorry and he did not see the cyclist in front.

71.  It did not occur to the defendant to look again to see where the cyclist had gotten to.  He assumed the cyclist would still be continuing to travel on the side.

72.  It is the defendant’s evidence that when he saw the bicycle in the left mirror, he saw that “there was a long and wide distance between me and him.”

73.  The defendant was previously talking to his work partner about work on his mobile phone with the use of a Bluetooth headset before he had stopped at the traffic lights but he had hung up just before he started to drive off.  The headset and how the defendant was wearing it that day is shown in photos 47 and 48 of album P-7B.

74.  After the defendant had moved off for about 2 seconds, he felt the front wheels had rolled over something, so he immediately stopped the lorry.

75.  The defendant got out of his lorry to see a bicycle and the cyclist underneath the front of his lorry and he immediately called emergency services.

76.  It is his evidence that he did not see the cyclist in front of his vehicle at all just before he moved off.

77.  In cross-examination, the defendant said he did not turn his steering wheel to the right when he moved off.  He explained how lorries are required to move in the left most lane whenever possible, and that the design of that particular section of the road is such that, before he arrived at the bus stop stopping point, he had to cut left from the middle lane since the road widened from 2 into 3 lanes before the bus stop, as can be seen in photo 29 of album P-7C.  The defendant had no intention of changing to the right middle lane when he started to move off.  If he had wanted to move in the middle lane, he would have gone straight when approaching the bus stop.

78.  The defendant agreed in cross-examination that he had been on the phone with his work partner shortly before the incident.  It is his evidence that the call had already ended when he started to check his mirrors before moving off.

79.  The defendant was referred to the call record (exhibit P-6) entry which shows that the call began at 16:57:54 and lasted 120 seconds, meaning that it ended at 16:59:54, and agreed with the record.

80.  It must be pointed out that according to the admitted facts, the defendant made a call to the emergency service at 17:00:15, which is 21 seconds after the defendant had ended the previous call.  This 21 seconds gap is relevant later on in relation to the finding of whether the defendant was on his phone at the time of his moving off.

CCTV footages

81.  Two cameras of two different closed circuit television systems recorded the incident from two different angles, the footages are produced into evidence by agreement.

82.  Neither of the cameras captured the actual running over of the bicycle and the cyclist because of the angle of their placement.

Fire station footage (exhibit P-12 DVD)

83.  The fire station footage from 17:00:28 shows the lorry’s left front bumper appearing for the first time from behind the tree leaves at the top of the screen.  About 6 seconds later at 17:00:34 its blue goods compartment disappears behind the traffic in the right most lane.  The vehicles in front were all stationary at this time.

84.  The bicycle can then be seen emerging from behind the leaves at the top of the screen at 17:00:37, and then disappearing behind the traffic at 17:00:40.

85.  1 second later, the first vehicle at the front of the traffic light started to move off at 17:00:41.  7 seconds after that at 17:00:48, the right rear side of the blue goods compartment of the defendant’s lorry became visible again once the coach in the right most lane had moved forward.  At that moment, the lorry was already moving forward.

86.  About 3 seconds after the lorry had become visible again and is seen to be moving forward, there appears to be a slight jolt of the front compartment at 17:00:51.  The lorry then came to a complete stop at 17:00:52.  The lorry driver door began to open at 17:00:59, the driver’s feet were on the ground at 17:01:01.  He was standing at the front left of his vehicle by 17:01:04.

Vigor Industrial Building footage (exhibit P-13 DVD)

87.  The footage from the industrial building shows the same incident, looking back at the front of the lorry from beyond the traffic lights.  It does not show the bicycle at all.  It is admitted fact that the time shown on the footage is about 2 minutes behind the actual time.

88.  In this footage, the lorry can be seen coming to a complete stop after moving forward rather slowly up to the vehicles in front at the traffic light at 16:57:47.  The vehicle at the front of the traffic light started to move at 16:57:51, and the lorry began moving forward at 16:57:58.

89.  The front compartment jolted slightly at 16:58:02 as if having run over something.  The lorry came to a complete stop 1 second later at 16:58:03.  The time duration from the lorry starting to move to when it came to a complete stop is, therefore, 5 seconds.  This time duration tallies with the timing in the fire station footage.

The admitted facts versus the court’s viewing of the footage

90.  Paragraph 19(f) of the admitted facts states that “The vehicle had travelled for 1.72 seconds after moving off before coming to a stop”. This time duration differs with the court’s deduction from viewing of the footages.

91.  This maybe a relevant difference because if the defendant only had 1.72 seconds after moving off before he stopped again, he would have had much less time to see in front of his vehicle after he had finished checking his mirrors before moving off, which may affect the finding on whether his manner of driving was dangerous, or careless.

92.  I raised this issue with parties before the delivery of my verdict and they agreed to withdraw, with my leave, the above sentence in paragraph 19(f) of the admitted facts, pursuant to s 65C(4) of the Criminal Procedure Ordinance.

Dealing with the issue

The civilian eye witnesses

93.  I find Mr Man and Ms Liu honest witnesses.  There is no question that they tried their utmost best to tell the court the truth as they perceived it to be.

94.  Unfortunately, both the eye witnesses to the incident were unable to recall reliably what they saw.  They were also unable to relate clearly and accurately when giving evidence as to what happened on that day.

95.  This is not meant to be a criticism of the witnesses.  On the contrary, the court fully appreciates and is grateful for their effort, and sympathize with the difficulties they face when trying to recall matters that happened some time ago and within a matter of seconds.  To be so near to a fatal accident must have been quite traumatic and would probably have affected their perception of what was going on.

96.  However, the end result of the unreliability of the eye witnesses is that there is no clear picture of how the defendant’s vehicle came to run over the cyclist Mr Ho and his bicycle.

The defendant as a witness

97.  Subject to one exception, which I deal with below, I find the defendant an honest and reliable witness.

98.  I accept his evidence of how he had checked the 3 mirrors on the left of his vehicle, the centre rear view mirror, and the right door mirror before he started to move his lorry forward.

Was the defendant on the phone when his lorry began to move?

99.  In relation to whether the defendant was on the phone when he started to move off, I make the following finding.

100.  As pointed out earlier on, there is a 21-second gap between the ending of the defendant’s call with his work partner and his calling 112.

101.  It is the defendant’s evidence that he called 112 after he had gotten out of the lorry and went over to the front to see what had happened.

102.  According to the fire station video footage, the defendant was standing at the front of his lorry by 17:01:04, which would be the earliest time he made the 112 call.

103.  Counting back 21 seconds from that time would take us to 17:00:43, at which time the lorry was still stationary.  Based on the footage, the time when the lorry became visible again was 17:00:48 when it can be seen moving forward.

104.  If the defendant made the call earlier than 17:01:04, then the time he had ended the work partner call would be even earlier.

105.  Even if the defendant made the 112 call 5 seconds later than 17:01:04, he would still have ended the call just before he started to move off.

106.  Based on the available evidence and for the above reasons, I find that I can accept the defendant’s evidence that he did end his work partner call before he started to move his lorry forward.

107.  I also accept the defendant’s evidence about how when he checked the left 3 mirrors, he did see, mainly through the middle one, Mr Ho Ming on his bicycle moving towards the front of the lorry in the gap between the left side of the lorry and the kerb.

The the defendant’s evidence on the gap

108.  The exception I mentioned above is this.  I do not accept the defendant’s evidence that the gap that he saw the bicycle was moving in was wide and that there was “a long distance” between the cyclist and his lorry.

109.  It is clear from the photos that the gap barely allowed the cyclist to pass without coming into contact with the side of the lorry.  It was in no sense “wide” and the distance between them was not “long”.

110.  Having said that, I must point out that the defendant’s lorry had arrived at the stopping position first and that the bicycle had come from behind.

111.  It was Mr Ho Ming’s decision to continue to cycle into the narrow gap between the lorry and the kerb.  The defendant’s role in the positioning of the bicycle and the lorry after he had stopped and before he moved forward again was entirely passive.

What really happened?

112.  According to PW1 Mr Man, after he heard people shouting, he turned his head and saw the cyclist in a position as if he was mounting the bicycle.  This part of his evidence contradicts the evidence of PW2 Ms Liu, who never mentioned anything about the cyclist in such a “mounting” position.

113.  Ms Liu, however, did talk about how the cyclist appeared very frightened and that there was wobbling of the handle bars, and hence the bicycle, at least after the cyclist had turned back to look behind.

114.  It is possible then that the mounting motion that PW1 saw was in fact the moment when the cyclist had lost his balance, causing his upper body to be swaying and he had to put his left foot down on to the ground, perhaps touching the ground, and his right leg to be extended as if he was trying to get on to the bicycle.

115.  As to what caused Mr Ho Ming to be frightened as witnessed by Ms Liu, there is no direct evidence.

116.  It could have been because Mr Ho turned his head and saw the defendant’s sizable lorry moving behind him and he got frightened.

117.  It could have been because the rear wheel of the bicycle had already been in contact with the lorry, causing Mr Ho to be frightened.

118.  Or it could have been this.  Mr Ho the cyclist had somehow lost his balance while trying to negotiate the narrow passage between the left side of the lorry and the kerb, and became frightened when he realized that he could no longer control his bicycle and that he was going to fall.

119.  One piece of evidence which tend to support the scenario of Mr Ho losing his balance before there was any collision between the lorry and the bicycle is Ms Liu’s evidence.

120.  Ms Liu had agreed in cross-examination that it was possible that the cyclist had gotten frightened, lost control of his bicycle, became wobbly and fell before there was any contact between the lorry and the bicycle or the cyclist.  It was while the cyclist was falling that the lorry hit his back.

121.  This must be considered with her qualification about her own evidence later on that she is in fact not sure whether there was any such contact before the wobbling she saw.

122.  Another piece of evidence which tend to support Mr Ho losing his balance is Mr Man’s insistence that the front bumper of the lorry had hit the back of the cyclist and not the rear wheel of the bicycle.

123.  It is admitted fact that the height of the front bumper of the lorry was close in height to the rear wheel of the bicycle.  It is also admitted fact that the seat of the bicycle was 0.8 meter above the ground.  Since the seat is above the top of the rear wheel, while the cyclist was sitting upright on the bicycle’s saddle, it would have been physically impossible for the front bumper to hit the cyclist’s back.

124.  The only way that the front bumper can come into contact with the back of the cyclist is if the cyclist had fallen to his right, which is entirely possible for a cyclist who had lost his balance on an uphill gradient.

125.  A third piece of evidence which tend to support the scenario that the lorry might have run over Mr Ho and his bicycle after they had fallen is the admitted fact that no mark or transfer of material has been found on the front bumper of the lorry.

126.  If the lorry had moved forward and hit the wheel, it is likely that a mark would have been left on the white bumper by the black rubber tyre of the rear wheel of the bicycle.  Yet again, this is a piece of circumstantial evidence.

Drawing of inferences

127.  I find that based on the circumstantial evidence referred to above, in particular the evidence of the eye witnesses of how the lorry had hit the back of Mr Ho and how the bicycle was seen to have been wobbling, possibly before there was contact between the lorry and the bicycle, one reasonable inference must be that Mr Ho had already begun to fall to his right when the lorry moved forward and ran him and his bicycle over, and this is in fact the inference that I draw.

Was the defendant’s driving dangerous?

128.  The defendant’s lorry was stationary when Mr Ho chose to ride his bicycle into the narrow gap on the lorry’s left-hand side.  There is nothing dangerous in the defendant’s driving up to this point.

129.  The defendant checked his mirrors before moving off.  He saw Mr Ho moving in the narrow gap.  He checked his other two mirrors and then decided to move forward, assuming that the cyclist would have continued to move forward in the gap, and that there was sufficient space there for the bicycle to move along.

130.  When the defendant finished checking his right door mirror, he turned his attention back to the front of his lorry.  I find that there is nothing dangerous in this action given the fact that the defendant was going to move into a busy junction and the traffic was quite heavy at that time with lots of other large vehicles moving in the other lanes.  It was right and necessary for him to focus his attention to the front of the lorry.

131.  In the case of HKSAR v Yeung Yiu Kin, CACC 198/2016, the appellant was also the driver of a medium goods vehicle, facing a charge of dangerous driving causing grievous bodily harm.

132.  Prior to the accident, the appellant’s vehicle was stationary behind a taxi in a traffic jam.  When the taxi in front started to move, the appellant followed but almost immediately ran into an 86-year-old lady, running over her right arm and only stopping after moving forward for about 2 meters.

133.  The old lady was using a walking stick and she walked out from a place where pedestrians were not expected to emerge, intending to walk right across the front of the appellant’s vehicle to the opposite side of the road.  She had already walked across a large part of the front of the vehicle by the time it hit her.

134.  The appellant did not see from where the old lady walked onto the road, but did see her walking slowly across the road from left to right in front of his vehicle.  She was hit by the middle section of the front of the vehicle, not quite reaching the right headlights.

135.  Subsequent field of vision tests suggest that, had the appellant checked the fish eye mirror that was installed in the front of his vehicle, he would have been able to see the old lady even if she was just 1 or 2 feet directly in front of the driver’s compartment of the lorry.

136.  The prosecution at trial proved to the judge’s satisfaction that the appellant’s failure to pay attention to the road condition in front of his vehicle, including his failure to carefully check the fish eye mirror before moving off amounted to dangerous driving.

137.  On appeal, the Court of Appeal disagreed with this finding.  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.

138.  The Court also noted that the speed of the lorry was not high before the accident, the pedestrian was of very small build and her movement was slow.  She would have been in the blind spot of the appellant.

139.  While accepting that if the appellant had carefully checked the fisheye mirror he would have been able to see the old lady in the blind spot, even taking into consideration her small build and slow movement, the Court found that the appellant would have to pay attention to the rest of the road condition and not just the few feet directly in front of his vehicle through the fish eye mirror, which may also show a not very clear image of the old lady in any event.

140.  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.

141.  The Court allowed the appeal and found the appellant’s driving to be careless, but not dangerous.

142.  In our present case, it was Mr Ho who had chosen to enter the narrow gap next to the lorry. Just as in Yeung Yiu Kin, the defendant’s lorry was stationary before the collision and was moving at a very slow speed when it ran over the bicycle and Mr Ho.

143.  The defendant had every right to move his vehicle forward at the time.  The only mistake in his driving was not to have spent slightly more time checking for the whereabout of the bicycle that he had seen earlier.

144.  Based on my finding that it was likely that Mr Ho was already falling when he was hit on his back by the front bumper of the lorry, the defendant’s lorry did not cause the fall by coming into contact with the bicycle.

145.  To find that the defendant's driving was dangerous in the given circumstances would, in my view, be too harsh.

146.  I, therefore, find that the defendant’s failure to ascertain the whereabout of the bicycle that he had seen moments earlier in his left door mirror before he moved forward his lorry should not be regarded as driving manner falling far below that expected of a competent driver.

147.  As such, I find the defendant not guilty of the charge of dangerous driving causing death.

Was the defendant’s driving careless?

148.  Having found the defendant’s driving to not be dangerous, I will proceed to decide whether it was careless driving pursuant to section 36(10) of the Road Traffic Ordinance.

149.  I find that the driver of such a large lorry as the defendant’s, having seen a cyclist moving in the narrow gap between his lorry and the kerb just before moving off, should be more careful when starting off to see where the cyclist had gotten to.

150.  It is not the case that the defendant had never known about the existence of the bicycle, he did, he just failed to continue to pay attention to its presence before moving off.

151.  Having seen the cyclist, the defendant just assumed he had continued to travel on without incident.

152.  Given the slightly uphill gradient, the busy road condition, the size of the defendant's lorry, the narrowness of the gap that the bicycle was moving through when the defendant saw it, this was a careless assumption to make.

153.  According to the evidence of the expert witness, at least part of the bicycle would always be visible to the driver of the lorry through the mirrors on the left side of the lorry, whether it be behind or immediately in front of the lorry.

154.  If the defendant had taken the time to check his left mirrors again, he would have seen where the bicycle was and adjusted his action accordingly.

155.  If he did not see the bicycle in any of the mirrors, given that he had seen the bicycle just moments before, the defendant would then be alerted to the possibility of the bicycle being in front of the lorry.  He then ought to have checked the front of his lorry more carefully to make sure that the bicycle was not in the path of the lorry should he start to move it forward.

156.  If the bicycle was moving too closely to the lorry, or was wobbling, a prudent driver would have remained stationary to avoid any possible collision with the bicycle, and allowed time for the cyclist to recover and to move to a safer place.

157.  The prudent driver would also sound his horn to alert the cyclist of his presence and hopefully for the cyclist to draw attention to his own presence and announce his whereabouts.

158.  Under the circumstances, I find that the defendant’s driving was without due care and attention in that he had failed to check again to ascertain the exact whereabout of the bicycle before moving his lorry forward, having seen the bicycle moving in the narrow gap on the left of the lorry just moments before.

159.  By this failure, the defendant had deprived himself of the opportunity to see the bicycle and to avoid running over the bicycle and the cyclist.

160.  I, therefore, find the defendant guilty of careless driving.