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DCCC 900/2023
[2025] HKDC 358
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 900 OF 2023
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| Before: |
H.H. Judge G. Lam |
| Hearing Dates: |
22 to 24 January 2025 |
| Date of Verdict: |
27 February 2025 |
| Present: |
Ms. Nisha Mohamed, counsel on fiat, for HKSAR. |
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Mr. William Allan instructed by M/s Mohani & Associates, for the defendant. |
| Offences: |
(1) Causing death by dangerous driving（危險駕駛引致他人死亡） |
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(2) Driving an unlicensed vehicle（駕駛未領牌車輛） |
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(3) Failing to display a valid vehicle licence （沒有展示有效車輛牌照） |
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REASONS FOR VERDICT
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The defendant faces a charge of "Causing death by dangerous driving" (Charge 1) and 2 minor traffic-related offences (Charges 2 and 3).
2. He pleaded guilty to Charges 2 and 3. Regarding Charge 1, the defendant pleaded guilty to "Careless driving", but the prosecution decided to proceed with the original charge.
3. This trial concerns Charge 1 only. In gist, in the evening on 14 December 2022, the defendant rode his motorcycle WD5012 ("the Motorcycle") and hit a pedestrian at a crossing regulated by traffic lights.
The Prosecution Case
4. The accident location was a pedestrian crossing at the junction between Nathan Road (southbound) and Hamilton Street ("the Crossing"). Nathan Road (southbound) is a 3-lane road. The Crossing was regulated by both vehicular and pedestrian traffic lights. There was a pedestrian waiting area ("the Island") between the southbound and northbound lanes of Nathan Road. The speed limit of the relevant road segment was 50 km/h.
5. The accident was captured by CCTV cameras installed nearby the Crossing and by the dash cam of a private car VN157 travelling directly behind the Motorcycle.
6. I shall describe what I saw in the various footage. As shown in the dash cam footage of VN157 (Exhibit P1[1]), right before the accident, from time marker 08:54:48 to time marker 08:55:00 (i.e. time of impact), the defendant was riding the Motorcycle along the 3rd left lane of southbound Nathan Road. The weather appeared to be fine; road surface was dry; and the traffic flow was smooth. There was no vehicle in front of the Motorcycle for some distance. In other words, the defendant should have had an unobstructed view of any objects or people ahead of him[2].
7. According to the CCTV footage of No.562 Nathan Road (Exhibit P12[3]), at time marker 20:54:14, Mr. Cheng (aged 73; the deceased), who was pulling a small suitcase with wheels with his left hand, began to cross the northbound lanes of Nathan Road at the Crossing (against a red pedestrian traffic light). He reached the Island at time marker 20:54:21. At time marker 20:54:26, the deceased was stepping on the 1st yellow stripe (the one closest to the Island) at the Crossing on southbound Nathan Road (also against a red pedestrian traffic light). At time marker 20:54:28, the deceased was between the 1st and 2nd yellow stripes at the Crossing and he suddenly took a step backward. He was then hit by the Motorcycle.
8. The vehicular traffic light for southbound Nathan Road did not turn amber from green until time marker 20:54:37; and red, at 20:54:41. The pedestrian traffic light at the Crossing for southbound Nathan Road turned green from red at time marker 20:54:43.
9. As shown in the CCTV footage of No.560 Nathan Road (Exhibit P11[4]), from time marker 20:56:01 to time marker 20:56:02, the Motorcycle pushed the deceased forward for a short distance. Upon hitting the bollard light erected at the end of the Island, the Motorcycle collapsed and stopped.
10. In addition to the Admitted Facts[5], the prosecution called a total of 3 witnesses, namely Ambulanceman Sun (PW1), Pathologist Dr. Wong (PW2) and Government Chemist Dr. Wong (PW3).
11. PW2 attended the deceased at the A&E Department of Queen Elizabeth Hospital at 9:26 p.m. on 14 December 2022. Despite active resuscitation, he certified death of the deceased at 10:38 in the same evening. PW3 conducted an autopsy on the deceased. He concluded that the medical cause of death was chest injuries with ischaemic heart disease as a significant contributing condition.
The Defence Case
12. The defendant elected not to give evidence or call any defence witness. This is his right; I drew no adverse inference against him in this regard.
Assessment and Analysis of Evidence
13. The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt. The defendant has a clear record; I have directed myself on his good character.
14. The evidence is clear that the deceased had disobeyed one (if not 2) red pedestrian traffic light. According to the footage in Exhibit P1, the Motorcycle's brake light went on at time marker 08:54:57. Bearing in mind that the impact took place at time marker 08:55:00, the court can safely assume that the defendant noticed the presence of the deceased as late as 3 seconds before impact. It is unfortunate that PW3 did not (or was unable to) comment in his reports/evidence whether or not the defendant reacted too late in braking or what manoeuvres he could have taken to avoid the accident. There is, however, a piece of evidence favourable to the defendant – he was not speeding[6]. Defence counsel Mr. Allan has also asked PW3 a crucial question – If the deceased had continued walking forward [at the Crossing] (instead of taking a step back or hesitating), the accident could have been avoided. PW3's answer was "Probably".
15. Yeung V-P in HKSAR v Lam Chi Fat [2012] 1 HKLRD 968 held "…in deciding whether the applicant was guilty of dangerous driving, the court must base its consideration on his way of driving rather than the consequences of the accident[7]."
16. It is common sense that drivers must look out for and anticipate pedestrians when approaching a crossing; whereas pedestrians also have the responsibility to cross the road when it is safe to do so. In HKSAR v Yeung Yiu Kin CACC 198/2016 (unreported Chinese judgment), Yeung V-P held "As a reasonable driver, the appellant should of course try to pay attention to the circumstances on the road, but this does not mean that he should be prepared for pedestrians crossing the road at their freewill at any time. A reasonable driver is also entitled to assume that pedestrians will not cross the road recklessly and dangerously for their own safety[8]."
17. It is plain that the accident occurred because the defendant was unable to avoid the deceased. Although the defendant had a green light, he was still expected to proceed through the Crossing with caution. On the other hand, the deceased was jaywalking, which, of course, put himself in danger. In my view, the defendant's driving did not fall far below what would be expected of a competent and careful driver. I find him not guilty of Charge 1.
18. Based on the evidence before me, I am satisfied beyond reasonable doubt that the defendant did not proceed through the Crossing with caution. It may not seem fair, but it is a fact of life that drivers of motor vehicles are expected to carry a heavier burden in most situations when pedestrians or cyclists are involved because their lives are more vulnerable if hit by any type of motor vehicle (including motorcycles). Even he had a green light, the defendant rode the Motorcycle without due care and attention or without reasonable consideration for other persons using the road[9]. On this basis, I find him guilty of "Careless driving".
[1] File name: 2022-12-14 20_54_48.951 ( 前方鏡頭 ).
[2] Up to a considerable distance.
[3] File name: 192.168.1.108_ch4_20221214204550_20221214211553.
[4] File name: IP Camera4_NVR-1_NVR-1_20221214202959_20221214213000_746233165.
[5] Exhibit P16.
[6] See expert reports (Exhibits P9 and P10) written by PW3.
[7] p.974, paragraph 32.
[8] Paragraph 27. Original text in Chinese: 作為合理的駕駛者，上訴人當然要盡量關注路面上的情況，但這不表示他要隨時準備會有行人胡亂過馬路。一名合理的駕駛者亦有權假設行人會為了自身的安全，不會胡亂及在有危險的情況下亂過馬路。
[9] In HKSAR v Wong Ka Fai [2017] 1 HKLRD 742, by citing R v Hazeltine [1967] 2 QB 857, Lunn V-P held "That statutory provision did not get rid of the rule that there can be but one plea to one count should the trial proceed on that count. Accordingly if an accused pleads not guilty to wounding with intent but guilty to unlawful wounding and counsel for the prosecution or the judge takes the view that the plea ought not to be accepted and the trial proceeds, the plea of guilty to unlawful wounding is deemed to be withdrawn and the only plea is the plea of not guilty to wounding with intent." (paragraphs 40 to 49)
Following the above legal principle, I disregarded the defendant's admission of "Careless driving" and reconsidered the evidence in this case to see whether it supports other statutory alternative charges. (See section 36(10) of Cap.374 and section 51(2) of Cap.221)
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