HKSAR v. SO CHUN MAN

DCCC 960/2022

[2024] HKDC 1024

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 960 OF 2022

________________________

________________________

________________________

REASONS FOR VERDICT

________________________

1.  The Defendant has pleaded not guilty to a single charge of causing death by dangerous driving, contrary to section 36(1)  of the Road Traffic Ordinance, Cap. 374. He had indicated willingness to plead guilty to careless driving, but his plea was not accepted by the Prosecution.

The Admitted Facts

2.  Most of the Prosecution evidence had been admitted under s65C of the Criminal Procedure Ordinance.  It is admitted by the parties that, inter alia, at the material time:-

(a)  the location in question was a straight section of road, with a single lane carriageway in each direction;

(b)  the weather was fine, and the road surface was dry and in good condition;

(c)  the material section of the road was lit by street lamps; and

(d)  traffic flow was relatively low.

3.  It is also admitted by the parties that:-

(a)  the incident occurred at about 0630 hours on the 27^th January 2022 in Tin Ha Road, Yuen Long, New Territories, near lamppost number FB 9079 (hereinafter referred to as the “Lamppost”);

(b)  the Deceased (Madam Chong)  left home at 06:29:58 hours, and was on the way to collect newspaper from a nearby shop when the incident occurred;

(c)  she was wearing dark colour upper garment;

(d)  a bus with registration number UL 9538 (hereinafter referred to as the “Bus”)  travelled along the bus route of Tin Ha Road;

(e)  at around 0630 hours, the Bus stopped at a bus stop near the Lamppost to allow passengers to board and alight;

(f)  two vehicles stopped behind the bus, the first one being a refuse collection vehicle UD 3330 driven by the Defendant (hereinafter referred to as “V1”), and the second being a medium goods vehicle US 627 (hereinafter referred to as “V2”)  driven by Mr. Lee which had stopped closely behind V1;

(g)  after the incident, Mr. Lee remained at the scene, whereas the Defendant had left with V1, and was later on located by the police;

(h)  Both the Defendant and Mr. Lee had tested negative of alcohol;

(i)  the ambulance arrived at 0650 hours, and the ambulance crew found Madam Chong to be trapped underneath V2; and

(j)  it was not until 0724 hours that V2 was lifted sufficiently to allow the ambulance crew to gain access to Madam Chong. She was confirmed dead on the spot;

4.  It is also agreed that:-

(a)  Madam Chong was 85 years old on the day of the incident, and was living on the southbound side of Tin Ha Road;

(b)  she was in good general physical and mental health for her age before the incident occurred;

(c)  The autopsy report of Madam Chong indicated:-

(i)  gaping laceration to the head with a piece of the scalp detached from the flaying laceration exposing the skull bone;

(ii)  the left upper limb was almost completely amputated, and the right forearm had a gaping laceration of 29 cm in length and 22 cm in width extending circumferentially on the whole of the forearm exposing underlying torn muscle;

(iii)  there were fractures to the skull, vertebral body of the 5^th cervical vertebrae, breastbone and front and rear ribs, right clavical, left arm bone, right elbow joint, left thigh bone, left knee joint, left ankle joint, right knee joint and right ankle joint and various other parts of the body; and

(iv)  blood analysis showed therapeutic levels of chlorpheniramine and paracetamol, neither of which would have likely affected her level of consciousness at the material time.

5.  The Defendant was arrested and cautioned by PC22461 for causing death by dangerous driving.  The Defendant stated under caution that “I had no idea that I had knocked down anyone.”

6.  It was common ground between the parties that the following footages and 2 photo albums P5(1)-(11)  and P6(1)-(14)  were to be admitted into evidence as showing what happened at the scene, and that:-

(a)  the CCTV system of the vegetable market at Ha Tsuen (Exhibit P3)  relevant to the incident had timestamp from approximately 0638 to 0658 hours, but was in fact about 12 minutes faster than real time (i.e. the relevant parts should be about 0626 to 0646 hours in real time);

(b)  the CCTV system of Tong Fong Tyre and Battery Company at the junction of Tin Ha Road and Ping Ha Road (Exhibit P4)  relevant to the incident had timestamp approximately synchronized to real time; and

(c)  the CCTV footages P3 and P4 had not been tampered with or altered in any way.

7.  Both V1 and V2 had been sent to vehicle examination, and no defects were found on either of them.  There was also no contact evidence found between Madam Chong and V1.

The Prosecution Case

8.  The Prosecution called 4 live witnesses, and PW5’s witness statement was admitted under section 65B of the Criminal Procedure Ordinance.  The evidence of PW1 and PW3 (i.e. the son of Madam Chong and the police officer who had attended the scene)  was unchallenged by cross examination.  Their evidence were in line with the Admitted Facts.

9.  The evidence of PW2, i.e. the cleaner who was on board V1 beside the Defendant at the front passenger seat when the Incident happened, was also not disputed.  She was cross-examined to elicit evidence.  She stated that just after 6:30 am, when it was not yet broad daylight, V1 had just started off, being driven by the Defendant. Before the journey began, she had briefed the Defendant on how to use the refuse compressor when they arrive at the Lam Tei refuse collection point later on in the journey.  There were streetlights along Tin Ha Road, but they were relatively dim. During the journey, there was nothing special about the driving manner of the Defendant, and there was no speeding involved.  She did not have the sensation of V1 having ran over or hit anything along the journey.

10.  PW4 was the traffic accident reconstruction and forensic video analysis expert Dr. Tam Cheok Ning (hereinafter referred to as “Dr. Tam”).  His expertise was not disputed, and he was accepted by this Court as an expert in traffic accident reconstruction.  He adopted his witness statement (Exhibit P7)  as part of his evidence.  He stated that with reference to common events, he had synchronized the 3 footages for which he had based his reconstruction and analysis on: Footage A (Exhibit P4), Footage B (from the entrance of the vegetable distributor, from P3), and Footage C (equivalent to channel 2 in P3).  He had then compiled a table which indicates the events and the corresponding timestamp as shown on the 3 footages.  He had also made an assumption as to the point of impact with reference to Madam Chong appearing to have started to fall from Footage A and marked it as T.  The aforesaid events were listed in the table with reference to the no. of seconds from the time of impact, from T-5.0 to T, and T+5.0 to T+16.4.

11.  Dr. Tam’s evidence on the reconstruction was that by using a mannequin of similar height and wearing similar dark coloured clothing as Madam Chong, and with reference to the footages mentioned in his report, he was able to reach the conclusion that, although the driver of V1 could not see Madam Chong through the front windscreen during the course of the incident, he could have unobstructed or partially obstructed views of Madam Chong walking towards the gap between V1 and the bus at T-4.0, T-3.0, and at or before T-2.0 through the offside window and from the nearside fisheye mirror between T-1.5 and T.  He also stated that in his findings, V1 started pulling away at T-2.0, and that the speed of V1 had started with 1.4 km/h +/-0.14 between T-2.0 and T-1.5, and accelerated to 5.4 km/hr +/-0.54 from T-1.0 to T.

12.  PW5’s two witness statements and the attached sketches and photos were introduced under s65B of the Criminal Procedure Ordinance (Exhibit P8 & P8A, and P9 & P9A)  and he was not called for live evidence.  His evidence indicated that at about 6:28 am on the day in question, he left home as usual and intended to walk to the bus stop on Ping Ha Road Eastbound to take a bus to work.  The weather was dark but there was sufficient lighting from the streetlights.  When he was walking past the corner of the village path and the pavement of the main road, he heard a weak voice calling for help from the road outside, but he could not hear the content.  He took a few steps forward immediately to the kerbside, and looked towards the carriageway of Tin Ha Road bound for Ping Ha Road.  He saw 3 vehicles on the said carriageway, in the sequence of a bus, V1, and V2.  The bus and V1 were stationary, while V2 was moving forward slowly.  He was about 2.1 m from V1.

13.  Thereafter, the bus started moving, and V1 followed.  After V1 had driven past and was about 7.9 m away from him, he saw an old lady (i.e. Madam Chong)  lying supine with legs pointing in the direction of Hung Shui Kiu, on the road very close to the kerb of the pavement, about 1-2 metres away from him.  He was not sure as to the distance between Madam Chong and the kerb, and whether she had been leaning over the kerb.  Madam Chong was conscious and had her eyes opened.  There was no blood on her face, nor was there blood on the ground.  Apart from uttering a sound with a weak voice, Madam Chong made a move with her left hand and slightly raised her left arm. He did not know if Madam Chong had sustained any fractures, as her limbs did not appear to be mangled.

14.  He then heard the sound of a vehicle coming from the right.  When he looked to his right, he saw V2 with headlights turned on with only about one private car’s distance (4.4 m as measured at the scene)  to Madam Chong.  At this point, the distance between V1’s end and V2’s front was 6.7 m as measured at the scene.  He could not walk onto the road to stop V2 as there were metal railings at the kerbside.  He therefore shouted towards V2, but the windows of V2 were closed and the driver did not respond to PW5’s shouting.

15.  Within 1 second thereafter, he realized that Madam Chong was ran over by V2 and dragged under V2 to the nearside front.  He did not witness the running over by V2, as he had been looking at the driver of V2 while signaling for V2 to stop.  The location is as indicated in the 2^nd sketch attached to his 1^st witness statement dated 30^th January 2022.  V2 continued moving and stopped after travelling for a distance of approximately one refuse collection vehicle, when the bus and V1 had stopped at the red traffic light.  At this point, the distance between V1 and V2 was 1.3 m as measured on site, and the distance between PW5 and V2 was 2.2 m as measured on site.  Before V1 and V2 could start moving again, PW5 went forward to a distance of 1.4 m and thereafter of 1.1 m (as measured on site)  from V2, and signaled to the driver of V2 to stop, and pointed at the nearside rear wheels of V2.  After the driver of V2 realized that someone was trapped under his vehicle, he called the police, and PW5 left.  V1 had already left at that point.

Defence Case

16.  The Defendant elected to give evidence but did not call any Defence witnesses.  The Defendant testified that he is 54 years old, and was employed by a cleaning company on the day of the incident as a refuse collection driver.  It was his 4^th day working for this company.  He had taken the same route for all 4 days up to the time of the incident.  He had travelled infrequently along this road before working for this company, and therefore was not very familiar with this section of the road.

17.  He stated that he had started working at about 6 am that day, and had picked up the refuse collection vehicle V1 at the company warehouse at Tin Ha Road.  His colleague PW2 was responsible for assisting in the refuse collection work, and was his passenger on V1.  He drove V1 along Tin Ha Road towards Yuen Long direction.  The sun had not yet risen at the time, and it was still dark.  The road was illuminated by street lights.

18.  At around 6:30 am, V1 arrived at a bus stop.  A bus had stopped at the bus stop.  The Defendant assumed that the bus was picking up and allowing other passengers to alight from the bus, but he could not see if it was in fact true.  He stopped V1 behind the bus by applying the brakes, securing the hand brake, engaging neutral gear and applied the foot brake.

19.  He then paid attention to the pavement on his left, as from his experience, people who intend to cross the road might pass through the gap between the back of the bus and the road after alighting, i.e. from left to right.  He waited for 8 seconds when the bus remained stationary at the bus stop.

20.  During the 8 seconds’ wait, he had not looked towards the right offside window.  There were not many pedestrians or vehicles at that stretch of the road at the material time.  It was also not a pedestrian crossing nor a bus lane.  It therefore did not occur to him that someone might appear onto the carriageway from the right.

20. Subsequently, he saw the bus started to move. Before he started moving V1 again, he looked at the fisheye mirror on the top left hand corner of the front of V1. He was able to see whether anyone was present within 2 m immediately in front of V1. After seeing that no one was moving out in front of V1 from the left, and that was in front of his vehicle by checking on the fisheye mirror, he checked the side mirrors on the left and right of V1 to see if anyone was near the bodywork of V1. He did not find anyone there, therefore he started moving V1, by engaging second gear, releasing the hand brake, and stepping on the accelerator. V1 moved forward for a short distance and stopped at a traffic light after the bus.

21.  Eventually V1 travelled to Long Ping Estate for refuse collection.  The Defendant received a message at that place that V1 was involved in a traffic accident and he had to return to the bus stop.

22.  During all material times, he did not see Madam Chong approaching V1 from the offside window or in front of V1 from the fisheye mirror.  Under cross-examination, he stated that when he looked at the right side mirror, he could see if anything was on the right of V1 by seeing the surroundings of the right side mirror.  Upon further cross-examination, he agreed that the side rear mirror could only allow a partial view of the right side, and that in order to have a full view of the right side, he had to look at the right side window.

23.  The Defendant agreed under cross-examination that there were buildings, including residences along the material stretch of the road, and that the bus stop was a marked bus stop at a main road.  He agreed that he was aware of the possibility that passengers trying to board the bus may cross from the other side of the road, and in front of V1 from its offside to its nearside.  He also agreed that the railings came to an end at the area where the bus stop was, and therefore pedestrians may cross from V1’s offside to the nearside.

24.  The Defendant eventually agreed in the final part of the cross-examination that he should have looked out of the right offside window to ascertain if anyone was crossing the road and approaching V1, and that Madam Chong was visible had he looked from the fisheye mirror.

25.  The Defendant stated in response to the Court‘s clarification, that when V1 almost came to a halt behind the bus at the bus stop, he had checked the pavement to his left, the carriageway as well as to the right on the Southbound pavement.  He only saw 1 pedestrian on the Southbound pavement to his right front.

Case Analysis

Analysis of the Credibility and Reliability of the Prosecution Case

26.  I bear in mind that the Prosecution has the burden of proving all elements of the offence beyond reasonable doubt, and that the Defendant has no burden to prove his innocence.

27.  I have carefully considered the content of the evidence of all Prosecution witnesses, including those who gave live evidence, for which I have in addition considered their demeanour while doing so, and of those whose evidence is contained solely in witness statements submitted under section 65B of the Criminal Procedure Ordinance.  Unless otherwise stated specifically, I have found all Prosecution witnesses to be honest and reliable witnesses in respect of material parts of their evidence. Unless otherwise stated specifically, the material parts of their evidence were reasonable and credible, and there were not any material inconsistencies or material inherent improbability.  I will therefore accord full weight to the material parts of their evidence, except for parts which I will indicate below as expressly excluded.

28.  PW5’s evidence in his 2^nd witness statement concerning the location of himself, V1 and V2, with measurements being made on site on a day after the incident, is considered by this Court to have certain obvious errors.  He had indicated in his 1^st witness statement that after Madam Chong was ran over by V2, he raised his hand to the driver of V2 to make a signal to stop, and that Madam Chong was under the rear wheel of V2.  Photo 25 attached to his 2^nd witness statement indicates the location of himself and V2, where the front of V2 had not even reached the carriageway ground markings of the Chinese character “站” at the final section of the bus station.

29.  A comparison with Photo P5(4)  (with marking of no. 13 in the photo album)  where the rear wheel of V2 with blood stains would reveal that the rear wheel which was on top of Madam Chong was on the Chinese character “巴” which was alongside another Chinese character “士” and ahead of the Chinese character “站”. According to PW5’s witness statements, V2 had already ran over Madam Chong, and that when he raised his hand, V2 had stopped at the traffic light and had not moved further.  Therefore when he raised his hand, he and V2 must have been further ahead to the Northbound direction instead of the location shown in Photo 25 of his 2^nd witness statement.

30.  As can be seen from Photos 4, 7 and 8 of his 2^nd witness statement, he had also indicated the location of Madam Chong when V1 had moved away at an earlier stage of the incident, i.e. when the bus had moved off and V1 followed, and when V1 had driven right past, and Madam Chong was found lying on the carriageway. From these photographs, the mannequin representing Madam Chong was lying on the carriageway, outside the ground marking of the bus station, i.e. some distance away from the end of it.

31.  That does not, however, tally with the CCTV footage of channel 2 of the vegetable stall.  The relevant part of channel 2 has been referred to in the table on page 5 of PW4’s expert report as T+5.0 to T+6.5 in Footage C, and the screen captures are contained on pages 18 to 20 of the same report.

32.  Upon viewing the footage, it can be seen that the camera for channel 2 captured V1 moving past, and immediately after, the dark patch on the carriageway appeared.  There was sufficient distance between V1 that had just passed by the view of the camera, and V2 entering its view, to enable the Court to confirm that this dark patch was not the shadow of the two vehicles, nor of any other discernible object.  This can also be shown from the photos of the expert report of Footage C from T+5.0 to T+6.5.

33.  Further, the Court played the footage of channel 2 from the time before the bus arrived, until V2 left the view of the camera, with the assistance of the magnifying function of the media player.  It can be seen that from that viewing, that before the bus arrived, there were approximately 5 people waiting at the bus stop.  The person on the utmost left of the screen was in dark clothing with light coloured shoes, and carrying something that appears to be a bag or bags with his or her left hand.  The said person was standing on the pavement, next to the carriageway ground marking of bus stop, in between the Chinese characters “巴士” and “站”. As the camera did not move, the ground markings would be useful reference when viewing the footage.

34.  At 064225 the bus stopped at the bus stop and blocked the view of the ground markings.  Most of the bus was seen from the footage, but the last part was outside the camera’s view.  Therefore the impact between Madam Chong and V1, if it did happen, would not appear in this footage.

35.  Shortly after the bus left at 064245, at 064249 V1’s offside vehicle front with its headlight appeared into view.  At this particular moment, there was no dark patch on the left front part of the ground marking Chinese character “站”.

36.  Thereafter V1 continue to move forward, and when it was passing through the bus station, at 064253 to 064254, the dark patch appeared on the left front part of the ground marking Chinese character “站”.  At 064258, V2 stopped.

37.  It is also Dr. Tam’s evidence that if an impact occurred, it would have been in the manner of a push and not a hit, as the speed of V1 was very slow at that time.  He was of the opinion that Madam Chong would be pushed forward along with the movement of V1 along the carriageway to the front.

38.  Considering PW5’s evidence in conjunction with PW4’s expert report and evidence, it can be seen that the dark patch could only have been Madam Chong and not any other object that might have fallen off V1 as it passed by or had by other means got onto the carriageway, since it was PW5’s evidence in his witness statement that after V1 passed by, Madam Chong was lying on the carriageway, before V2 had arrived at the particular spot.

39.  I am therefore of the view that PW5 was mistaken in his observation of the location of Madam Chong on the carriageway, due to the fact that he was observing in night conditions from a distance, after having just entered Tin Ha Road from the village road; and that there were railings beside and ahead of him in between the view from him to V1 and Madam Chong (as seen from Photos 1 and 2 of his 2^nd witness statement).

40.  That would, however, not affect other parts of his evidence, and his honesty as a witness.  The difficulty with the observation had been referred to above, and is entirely understandable.  I therefore find that his evidence concerning the exact location of V1, V2 and Madam Chong, and the relevant distance between different persons and objects to be not sufficiently reliable as to be relied upon by a criminal court.  His evidence on other general aspects of the case, however, will be accepted by this Court.

41.  Defence disputes that the “dark patch” on the ground as captured by the CCTV of the vegetable market (Exhibit P3)  was the Deceased after V1 had just driven off from the location of the alleged impact. It would therefore be convenient for the Court to deal with the factual dispute of what constitutes the “dark patch” mentioned above, as this factual dispute is in my view material, and will affect the consideration of whether the Prosecution can prove the Prosecution case and successfully refute the lines advanced by the Defence.

42.  First of all, the Court notes that this factual dispute has not been brought up by the Defence either in case management stage, nor in the cross-examination of Dr. Tam.  It was first raised in the closing submissions of the Defence.  In that regard, Dr. Tam was not afforded the opportunity to respond to this challenge by the Defence.

43.  But in any event, as stated above, Dr. Tam had indicated in his expert report and his live evidence, that he thinks the dark patch was the Deceased having been pushed forward by V1 after impact.  And due to the above analysis, I accept Dr. Tam’s evidence and find that the dark patch was Madam Chong.

Analysis of the Credibility and Reliability of the Defence Case

44.  I have carefully considered the content of the evidence and demeanour of the Defendant.  His evidence was not seriously contested by the Prosecution in terms of the factual content.  It was the extent of his duty as a driver, and the steps that he should have taken before starting V1, that was the subject matter of dispute.  I therefore do not find it necessary in these circumstances to make a finding as to whether his evidence is factually credible or not, save as the issue of whether the Defendant could see the surroundings on his right side by looking at the right side mirror.

45.  The Defendant’s answer under cross-examination that he could is obviously incredible, as the right side mirror could only allow him to see the right bodywork to the rear of V1, and would not allow him to observe the southbound pavement on his right.  In any event this might not be in dispute, as the Defendant had admitted at the final part of the cross-examination that he should have looked outside of the right offside window to see if anyone was crossing the road and approaching V1.  I shall analyse the Defence case on the basis of the Defendant’s factual evidence, and his aforesaid answer in the final part of the cross-examination.

Case Analysis Based on the Evidence Accepted by the Court

46.  There are three lines of Defence put forward by the Defendant in the present case: (1)  that the Defendant’s driving manner was dangerous; (2)  that the Prosecution has failed beyond reasonable doubt to prove that there was an impact between V1 and Madam Chong; and (3)  that the Defendant’s manner of driving, if dangerous, had caused the death of Madam Chong.

47.  The Prosecution’s response to (1)  and (2), was that there was an impact despite there being no impact evidence.  The Prosecution went on further to submit that, whether or not there was an impact, i.e. whether Madam Chong had fallen to the ground due to an impact with V1 or having lost balance while trying to get away from V1 which was moving slowly forward, the Defendant’s failure to notice Madam Chong’s presence before moving V1 was dangerous.  What the Prosecution is in fact submitting is that it is not necessary to prove an impact in order to support a finding of dangerous driving in this case.

48.  I note that the witness statement of PW5 mentioned that he heard a weak cry for help when he was still on the village road.  He therefore took a few steps onto Tin Ha Road immediately, and saw the bus and V1 remaining stationary on Tin Ha Road, whereas V2 was moving slowing from behind.  It was obvious that at this point, the alleged impact between Madam Chong and V1 had not yet occurred.  It was only after the bus and V1 had moved off, and after V1 had driven past, then PW5 saw Madam Chong lying on the ground.

49.  The Court is of the view that it is not necessary for the Prosecution to prove that Madam Chong had fallen down onto the ground because of an impact with V1.  Even if Madam Chong had fallen onto the ground for whatever reason, the real issue is the Defendant’s failure to notice her presence and her approach towards the front of V1, and starting to move the vehicle regardless.  If he had looked to the right offside window, he would have noticed Madam Chong’s approach and the potential danger of driving forward under those circumstances.  Whether Madam Chong had fallen down of her own accord, or had an impact with V1 and thereafter fell, is not material to this case.  What is relevant is that the Court is of the view that there was an impact one way or the other with V1.

50.  The analysis in the earlier part of this Judgment on the credibility and reliability of the Prosecution case had already discussed the evidence in relation to the CCTV footage depicting the dark patch on the ground, which the Court is of the view represents Madam Chong having remained on the ground after an impact with V1 and having been pushed forward to the location of the dark patch.  I shall not repeat the analysis as aforesaid, but will make a finding that there has been an impact between Madam Chong and V1.  To suggest otherwise would be an affront to the only reasonable and only possible conclusion from the evidence of the CCTV footages and the subsequent photos being taken.

51.  I find that it is not unduly burdensome and difficult for a driver to turn his head 70 to 90 degrees to the right, in order to look through the offside window, to see if anyone was trying to cross the road or approach the vehicle before moving forward.  This is especially important, when the Defendant knew that the particular stretch of road was lined with buildings and residences, that he had stopped near a bus stop, and that people wanting to catch the bus might cross the road in front of V1.  In his cross-examination, he had agreed he should have looked through the offside window for such purposes before moving forward.

52.  I am of the view that the fact that there were not many pedestrians on the southbound pavement at that time does not assist him, as he was actually aware of the presence of at least one pedestrian, and the possibility of pedestrians crossing the road.

53.  I am also of the view that even though the mannequin used by Dr. Tam in the reconstruction turns out to be 10 cm taller than Madam Chong, I am satisfied that Dr. Tam’s response that the difference does not affect his conclusions on the visibility of Madam Chong at the various points of time mentioned in his report carries force, as the mannequin was spotted either on the lower part of the body, which would not be affected by the difference, or had at least the entire head being spotted, and deducting 10 cm height would still give a reasonably large area of the head to be spotted. I therefore accept the adjusted findings of the degree of visibilty of Madam Chong at various points of time made by Dr. Tam under cross-examination.

54.  The Defendant in his evidence also mentioned that the particular location was not a pedestrian crossing.  Defence counsel pointed out from the photos that not far away at the back of the bus stop was a pedestrian crossing.  It is human nature that some pedestrians will obey the rules, and others not.  The Defendant’s evidence that he had paid attention to the left as he was afraid passengers who had alighted from the bus might cross the road in the gap between the bus and V1 is evidence that he was aware that some people might cross the road at places other than the nearby pedestrian crossing.  I am therefore of the view that the location of the pedestrian crossing and Madam Chong’s failure to cross the road at the pedestrian crossing does not assist the Defence.

55.  According to the Defendant’s evidence, he had decided at the time that it was not necessary for him to check the offside window of V1 before moving the vehicle.  I am therefore of the view that his omission to check the right offside window was deliberate, and not a momentary lapse of attention.  He had stopped behind the bus for 8 seconds, but had only looked at the right to the southbound pavement before he had completely stopped V1.  I find that his failure to check if anyone was approaching from the right before moving off again was a flagrant breach of his duty as a driver to pay attention to the obvious danger of people crossing the road lined with buildings to another side with a bus stopping at a bus stop.

56.  Defence counsel also submits that Madam Chong’s decision to cross the road in front of V1 at T-2.0, when V1 had just started to move forward, was a “suicidal act”, which would take the Defendant’s failure outside the area of dangerous driving.  I do not agree with that submission.  It would be another matter if Madam Chong had suddenly appeared out of nowhere, when the Defendant could not have noticed her approach and crossed the road in front of V1 when V1 had just started to move.  It would be entirely different, as in the present case, when the Defendant had ample opportunity to spot Madam Chong’s presence and obvious intention to cross the road all the way to the northbound pavement, to fail to take advantage of the opportunity to ensure it was safe to move ahead, before actually driving forward from a completely stationary condition.

57.  When determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard was made by this Court to all the circumstances of the case, including the nature, condition and use of the road concerned at the material time; the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and the circumstances (including the physical condition of the accused)  of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused)  shown to have been within the knowledge of the accused.

58.  In regard to the above considerations, the Court is aware that the relevant section of the road was lined with buildings, some of which were residential buildings.  The road condition was good, and the road was used by traffic of all kinds including large size vehicles and buses, and pedestrians were seen in the CCTV footages as crossing the road, or walking along both the northbound and southbound pavement.  Quite a number of passengers were waiting at the bus stop before the bus arrived.  From the CCTV footages, it could also be seen that he vehicular traffic was rather busy despite the material time being 6:30 am in the morning.  There was a pedestrian crossing nearby, but from the CCTV it appears that at least part of it was blocked by V2 which had waited at that location when the bus and V1 were also stationary.  The Defendant might not be aware of the blocking of the pedestrian crossing by V2, but he would be aware that V2 had waited behind him, as he had checked the side mirrors which serves the same purpose as a rear mirror in smaller vehicles.

59.  I am therefore of the view that the need to check the right offside window, and the danger involved in not ascertaining that pedestrians were not approaching a large vehicle with blind spots to the front were obvious.  This finding has been made bearing in mind the presence of at least one pedestrian on the right (which was within the Defendant’s knowledge), the presence of a bus that had stopped at the bus stop right in front of V1, the presence of buildings and residences along the road, and the feasibility of turning his head to the right to look through the offside window.  The Defendant’s driving manner had fallen to a level which is far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous.  I therefore find that the Defendant’s manner of driving was dangerous.

Causation

60.  In relation to causation, Defence had indicated after evidence had closed for both sides, that there is no dispute as to the legal principles stated in the Prosecution’s Opening and the authorities attached thereto.  The Defence submits, however, that there is an intervening act of the driver of V2 (Mr. Lee)  in allowing V2 to roll over Madam Chong who was conscious on the carriageway.  Defence says that the legal principle of novus actus interveniens applies to the present situation, and that causation cannot be proved between the Defendant’s manner of driving and Madam Chong’s death.

61.  Further, Defence argues that Madam Chong’s manner of crossing the road as a pedestrian, i.e. to move between the bus and V1, when V1 had started to move at T-2.0, was a “suicidal” act, which made it impossible for the Prosecution to prove causation.

62.  The Prosecution submits that it is not necessary for the Prosecution to prove that the Defendant’s manner of driving was a substantial cause of the death.  According to R v Hennigan [1971] 3 All ER 133 at 135 D-G, Dennis Chiu Tat-shing v R [1985] 2 HKC 487 at paragraph 3, R v Kimsey [1996] Crim L.R. 35, and R v Skelton [1995] Crim L.R. 635, it has been stated that for an offence of dangerous driving causing death, the Prosecution must prove that the accused has caused the death of another person, in the sense that the causal link is more than “de minimus”, and that it does not have to prove that the accused’s dangerous driving was a substantial cause of death.

63.  As for the Defence’s submissions on novus actus interveniens, Defence submitted an authority R v Girdler [2010] R.T.R. 28.  Without going into the details of the said case of Girdler, the Court notes that it is an English Court of Appeal case which has no binding effect on this Court.  It shall suffice for present purposes that the case of Girdler had introduced the concept of foreseeability into the direction to jury of a case of dangerous driving causing death.  The Girdler direction is to the effect that in circumstances where the immediate cause of death was a second collision, the defendant would have caused the death only if the jury were sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the second collision did occur.

64.  Defence agrees that there has not been any Hong Kong authorities which had applied the said legal principle into Hong Kong criminal law.  In fact there is a Hong Kong Court of Appeal authority which had considered Girdler.  In HKSAR v Lam Ying Yu CACC 320/2012, the applicant referred the Court to Girdler.  The Court of Appeal decided that it was unnecessary to decide whether the test in Girdler is one which should be applied in Hong Kong, as the situation in the case is not the same kind of situation for which the English Court of Appeal formulated the Girdler test.  In Lam Ying Yu, it was held that the death of the deceased was not caused by a new, intervening act.  The applicant’s driving caused the taxi driver to be put in harms way, and that in order for him to escape that potential harm, he took evasive action.

65.  In view of the above, the Court will not accept that the de minimus rule should be varied in accordance with the Girdler directions.  The test as it stands in HK law, is in line with the authorities submitted by the Prosecution, and I am satisfied that, by failing to notice Madam Chong’s approach and later presence in front of V1, and driving forward regardless, thereby causing impact with Madam Chong and causing her to fall to the ground and unable to get up, the causation link has been proved beyond the requirement of more than “de minimus”.  The Defendant’s driving had played a part, not simply in creating the occasion of the fatal accident, but in bringing it about.

66.  Even if I am wrong, in that should the Girdler test be applied to the present case, I am satisfied that in the circumstances of the present case, by moving the vehicle forward when Madam Chong was crossing in front, and causing her to come into impact with V1 and falling onto the ground, and being pushed forward by V1, it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the second collision did occur.  The causation would also be proved even if the Girdler test is to be applied.

67.  I therefore find the Defendant guilty of dangerous driving causing death.