HKSAR v. Ko Kin Ming

DCCC 1134/2023

[2025] HKDC 220

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1134 OF 2023

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REASONS FOR VERDICT

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Introduction

1.The defendant was charged with one count of causing death by dangerous driving, contrary to section 36(1)  of the Road Traffic Ordinance, Cap. 374, Laws of Hong Kong[1].

2.The defendant pleaded not guilty to the charge, but offered a guilty plea to the offence of careless driving.

Evidence

3.The prosecution and the defence admitted, inter alia, the following facts stated in the admitted facts pursuant to Section 65C of the Criminal Procedure Ordinance, Cap. 221: -

(a)  On the evening of 13 April 2023, the defendant was driving a red public light bus (hereinafter referred to as ‘PLB’)  bearing the registration number WH6768 in Mong Kok, Kowloon. At approximately 2147 hours the defendant, driving the PLB without any passengers onboard along Prince Edward Road West in an easterly direction, made a right turn at the traffic light junction onto Lai Chi Kok Road. At the time the traffic lights were green in the defendant’s favour permitting him to make the right turn into Lai Chi Kok Road.

(b)  As the defendant started to make his right turn into Lai Chi Kok Road, Mr Li Hon Lam (“hereinafter referred to as “the deceased”)  was at the same time using the pedestrian crossing on Lai Chi Kok Road at the junction of Prince Edward Road West, walking slowly in a westerly direction. At the time the pedestrian crossing was displaying a red-light, prohibiting pedestrians from crossing the road.

(c)  The defendant’s PLB struck the deceased on the front offside of the vehicle, that is the driver’s side just as the deceased had nearly finished crossing the road, knocking him to the ground.

(d)  At about 2156 hours on the same evening, Senior Ambulanceman Tsui Wing Ho who was in charge of Ambulance A277 arrived at the location and found the deceased lying on the ground, bleeding from the back of his head. At the time the deceased was conscious and was able to speak but on being conveyed to Queen Elizabeth Hospital his consciousness began to decline and he started to vomit.

(e)  The deceased was handed over to the medical officers at the Accident and Emergency Department of Queen Elizabeth Hospital. After initial treatment the deceased was transferred to the Department of Neurosurgery where on 24 April 2023 at about 1901 hours he died.

(f)  On 5 May 2023 Dr Jenny Tse, Pathologist at the Department of Pathology of the Queen Elizabeth Hospital conducted an autopsy on the deceased. The cause of death was from “traumatic head injury”. The medical report for the deceased prepared on 14 June 2023 by Dr Lam Shek Ching from the Department of Neurosurgery and the autopsy report prepared by Dr Jenny Tse on 2 August 2023 were produced as prosecution exhibit P1 and P2.

(g)  At about 0015 hours on 14 April 2023 the PLB was taken to the Kowloon Bay Vehicle Detention and Examination Centre. Upon examination, the PLB was found to be operating normally with no mechanical defects. It had incurred damage to the front panel, the front bumper was deformed and the offside headlamp was damaged.

The Prosecution Case

4.The prosecution called 3 prosecution witnesses.

Prosecution Witness 1 – PC 19450

5.PW1 arrived at that scene of the accident at 2208 hours.  According to PW1, the injured person was already in an ambulance and was subsequently conveyed to the hospital.  He confirmed that the photo (prosecution exhibit P7(3))  reflected where the PLB stopped after hitting the deceased, and photo P7(9)  showed where he believed the deceased fell after being hit by the PLB.

6.PW1 agreed that at the scene, the defendant claimed that he was paying attention to the oncoming vehicle on the left and did not notice the traffic condition at the front.  The defendant further claimed that the accident was not caused by any mechanical part of the PLB.  He explained that the front dash car camera was not operating at the time because the camera card had been submitted to another police officer for the investigation of another traffic accident involving object being thrown at the PLB.

7.PW1 declared arrest on the defendant at 2345 hours for the offence of dangerous driving causing grievous bodily harm.  In reply, the defendant said he was paying attention to the left side for oncoming vehicle and did not see “someone ahead”.

Prosecution Witness 2 – WPC 23431

8.PW2 gave evidence that the deceased person passed away on 24 April and the case was referred to the special investigation team for investigation.  PW2 informed the defendant of the death of the deceased.  She conducted a video recorded interview with the defendant on 2 May.

9.PW2 agreed that at the time when the defendant was turning right, traffic lights governing vehicles at the PLB’s 12 o’clock position should indicate a red light.  PW2 also agreed that there was a possibility that vehicles failing to comply with traffic light signal might approach the PLB from the left as the PLB was turning right.

Prosecution Witness 3 – Dr Ng Ka Ho

10.PW3 gave evidence as an expert in forensic accident investigation.  He produced a traffic accident investigation report[2] on 27 July 2023.

11.PW3 agreed that when the defendant accelerated from a stopping position, he could have been driving at a speed as slow as 31 km per hour or as fast as 40 km per hour.  The different driving speed would require different braking times and Dr Ng took the average in his report.  Dr Ng also agreed that the mannequin used in the reconstruction exercise was stationary while the deceased was in motion at the time of the accident.

CCTV Evidence

12.CCTV recordings were obtained by investigating officers from the Metropark Hotel Mongkok located at 22 Lai Chi Kok Road at the junction of Prince Edward Road West.  Prosecution exhibit P13 contained CCTV recordings captured by the security camera situated outside the hotel on Lai Chi Kok Road facing towards the junction (Channel 8).  Prosecution exhibit P14 contained CCTV recordings captured by the security camera situated outside the hotel on Prince Edward Road West facing towards the junction of Lai Chi Kok Road (Channel 9). 

13.It was agreed by the prosecution and the defence that the CCTV recordings were subsequently burnt onto two computer discs.  The two discs had not been altered or modified, and the date and time depicted on CCTV recordings of P13 and P14 were accurate[3].

14.Channel 8 captured two pedestrians crossing the pedestrian crossing at 21:47:17 hours.  At the same time traffic from Prince Edward Road West were turning right approaching the pedestrian crossing.  At 21:47:18 hours the first pedestrian had reached the pedestrian island located between the north and south bound Lai Chi Kok Road.  The second pedestrian, later identified as the deceased was at the pedestrian crossing in front of the second traffic lane from the left.  At 21:47:18 hours the PLB made a slight sharp right turn when approaching the pedestrian crossing.  The PLB aligned itself towards the third traffic lane from the left.  The deceased could be seen at the front nearside of the PLB.  At 21:47:19 hours the PLB continued to complete its right turn into Lai Chi Kok Road, the front part of the bus had reached the border of the pedestrian crossing marking.  The deceased could be seen in an upright position at the right side of the PLB.

15.At 21:47:19 hours the PLB continued its right turn driving onto the pedestrian crossing.  The deceased was blocked by the body of the PLB and could not be seen from the CCTV recording.  Immediately after a figure could be seen propelling forward onto the pedestrian island area.  At 21:47:20 hours the PLB drove past the pedestrian crossing into the second and third traffic lane from the left where it stopped and stayed stationary.  Other vehicles that were previously located behind the PLB turned into the first traffic lane from the left and overtook the PLB.

Expert Report

16.According to Dr Ng’s reconstruction result: -

(a)  The driver’s views of the deceased at an upright posture or with the head shifted to the nearside could have been unobstructed through the front windscreen at T-4.0 - T-0.7[4].

(b)  The driver’s views of the deceased with the head shifted to the offside could also have been unobstructed through the front windscreen at T-4.0 - T-1.0[5].

(c)  At the time position T-0.7, if the driver had his head shifted to the offside, the view of the deceased could have been partially obstructed by the accessory attached to the offside structural column of the PLB.

(d)  The view of the deceased could have been unobstructed through the front windscreen at an upright posture / with the head shifted to the nearside or the offside between T-4.0 and T-1.0[6].

17.Dr Ng took the reaction time of 0.9 seconds as inferred in the “Road Users’ Code” issued by the Transport Department and a typical tyre/road coefficient of friction of 0.6 for a PLB travelling on dry road surface, and estimated that the stopping time for a PLB travelling at a speed of 35 km per hour was 2.55 seconds[7].

18.According to Dr Ng, the defendant could have perceived the danger of hitting the deceased at time position T-1.33.  If the defendant perceived the danger of hitting the deceased before time position T-2.6, the accident could have been avoided[8].

Defendant’s Video Recorded Interview “VRI”

19.Prosecution relied on the video recorded interview of the defendant conducted under caution on 2 May 2023 from 1143 hours to 1211 hours by PW2[9].  The defence agreed that the defendant gave the interview voluntarily.

20.In the video recorded interview the defendant claimed that he started working on the material day at 1330 hours and his shift was scheduled to finish at 0300 hours[10]. He had been driving minibuses for around 13 to 14 years, and had been driving the PLB involved in the accident for 3 to 4 months[11].  He was aware that blind spots such as “A Pillar” that might cause obstruction to the driver’s view existed in the PLB[12].

21.At the time of the accident, he was driving the PLB from Mong Kok to Tsuen Wan.  The traffic light at Prince Edward Road West turned green and he started to turn the PLB into Lai Chi Kok Road[13]. The light governing the pedestrian crossing at Lai Chi Kok Road was a red light at the time[14].

22.He looked to his left to ascertain if there were any vehicles that might collide with his PLB.  When he straightened the course of the PLB at Lai Chi Kok Road and looked ahead, he saw a pedestrian walking slowly.  The pedestrian was crossing from left to right and was at about “four people’s” distance from his PLB[15]. He could not brake in time and within 2 seconds the offside headlight of the PLB collided with the pedestrian[16]. The pedestrian fell to the ground and was unresponsive after the collision. The defendant saw him bleeding but did not know the source of the bleeding[17].

23.At the material time he was driving at a speed of 30 km per hour.  He did not see any pedestrian as he concentrated on looking to his left to check for any vehicles making a turn[18].

The Defence Case

24.The defendant elected not to give evidence and did not call any defence witness.

25.I directed myself that the burden rests throughout with the prosecution to prove the charge, and the standard of proof is one of beyond reasonable doubt.  The defendant need not prove anything.  The charge must be proved to my satisfaction so that I am sure of the defendant’s guilt before I can convict. Otherwise I must acquit the defendant.

26.The defendant elected not to give evidence.  The defendant elected to exercise his right, no adverse inference shall be made against him.

27.I remind myself that should inferences be made, they should be the only reasonable and irresistible inference.

28.I consider the video recorded interview of the defendant to be a mixed statement.  I may give full weight to inculpatory statements contained therein and not give weight to exculpatory statements.

Analysis of Evidence

29.The prosecution case indicated that the driving act of the defendant that constituted dangerous driving was his failure to keep a proper lookout on entering Lai Chi Kok Road, thereby the defendant’s driving fell far below what would be expected of a competent and careful driver.

30.The defence agreed to the events leading up to the accident as alleged by the prosecution.  According to the defence, the only issue in dispute was whether the driving manner of the defendant at the material time was dangerous or careless.

31.Section 36(4)  of the Road Traffic Ordinance, Cap. 374 provides that: -

“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.”

32.The authority of HKSAR v Lam Chi Fat [2012] 1 HKLRD 968 indicated that: -

“30. Sections 36(6)  and 37(7)  set out what constitutes “dangerous” driving as follows:

(6)  For the purposes of subsections (4)  and (5), “dangerous” refers to danger either of injury to any person or of serious damage to property.

(7)  For the purposes of subsections (4)  and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including -

(a)  the nature, condition and use of the road concerned at the material time;

(b)  the amount of traffic which is actually on the road concerned at the material time or what might reasonably be expected to be on the road concerned at the material time; and

(c)  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.

31. Whether a person’s way of driving is dangerous is a matter to be decided objectively, but the elements of the offence of dangerous driving do not include any specific intent to drive dangerously.”

The Defendant’s Evidence

33.The defendant gave consistent accounts of the accident at the scene to PW1 which was post recorded in prosecution exhibit P3A, in his record of interview in prosecution exhibit P4A and in his video recorded interview in prosecution exhibit P6A.

34.The defendant explained that he was making a right turn into Lai Chi Kok Road from Prince Edward Road West.  He was all along concentrating on keeping a lookout for vehicles to his left.  He did not look to his right.  He only noticed the deceased in front of his PLB when he aligned his vehicle after completing the right turn.  His PLB hit the deceased within 2 seconds upon seeing the deceased.

35.I have considered the circumstances of the accident.  The material location as observed from the CCTV footages involved a junction with five exits.  At the time of the accident the junction had considerable traffic.

36.The defendant claimed he was looking to his left for oncoming traffic. PW2 agreed that there was a possibility that vehicles could have approached the defendant’s PLB from the left.  This was not a case where the defendant did not keep a lookout, he did when he entered a vast junction with numerous exits, it would be reasonable for the defendant to keep a lookout on all directions.  CCTV footages from prosecution exhibit P14 (Channel 9)  also showed bright lights emitting from vehicles from the opposite direction.

37.When the defendant negotiated the right turn into Lai Chi Kok Road, it showed that the third lane from the left which the defendant was turning into was partly obstructed by the pedestrian island.  The encroachment of part of the pedestrian island into the third lane from the left caused vehicles turning right into the lane to have to occupy part of the second lane from the left in order to safely negotiate the right turn and align the vehicle.  It meant the defendant had to keep a lookout of vehicles to his left even as he approached the pedestrian crossing.

38.Photo evidence showed the PLB’s position after the accident.  The PLB straddled between the second and third lane from the left, and was very close in proximity to the pedestrian crossing on its right[19].

39.I have analysed the explanation given by the defendant in his various statements.  I find the defendant’s reason for concentrating on keeping a lookout to his left as he turned into Lai Chi Kok Road to be reasonable and inherently probable.  I accept the evidence of the defendant including his oral statement given at the scene to PW1, that was subsequently post recorded in P3A, his record of interview in P4A and his video recorded interview in P6A.

40.According to Dr Ng’s report the defendant’s view was obstructed at different times[20], although he did indicate that if the defendant’s head had tilted offside or nearside at different times he would obtain an unobstructed view of the deceased.  However, the court must not ignore the fact that when the defendant negotiated the right turn into Lai Chi Kok Road, the lane that the defendant had intended to drive into was partly obstructed by the pedestrian island.  It would be expected from a prudent driver that he would need to pay attention to vehicles on his left.

41.At the time of the accident the deceased had almost completed his crossing from left to the right and had almost reached the pedestrian island.  It was not disputed that the deceased crossed the pedestrian crossing against the indication of the red light prohibiting pedestrian crossing the road.

42.The defence cited the authority of HKSAR v Ng Siu Bun[21].

43.I have considered the circumstances of the accident.  There was no evidence to suggest that the defendant had infringed any traffic regulation or provisions of the Road Traffic Ordinance.  It was not disputed that at the time when the defendant turned right into Lai Chi Kok Road, the traffic light had already turned green.  By contrast, the pedestrian crossing at Lai Chi Kok Road was displaying a red light prohibiting pedestrians from crossing the road.

44.According to Dr Ng’s findings as to the estimated driving speed, there was no evidence to suggest that the defendant was not driving at a speed within the speed limit of the material location.

45.The court considered the authority of HKSAR v Cheung Kwok Leung [2014] 3 HKLRD 712 submitted by the prosecution.  While the court agrees that drivers should exercise caution when approaching pedestrian crossings, however there existed special circumstances in the present case, including: -

(a)  the particular road involved an encroachment into the third traffic lane from the left;

(b)  the deceased was crossing the pedestrian crossing against the pedestrian red-light;

(c)  there was no evidence to suggest contravention of any traffic regulations or provisions; and

(d)  there was no evidence that the defendant was driving at excessive speed at the time.

46.I do not find evidence that indicate the defendant’s manner of driving was dangerous.  The fact that he approached a pedestrian crossing but failed to look to his right was careless, but not to the degree where his manner of driving fell far below what would be expected of a competent and careful driver.

47.It was a momentary lapse of concentration that involved seconds in terms of duration[22]. I find that it did not constitute dangerous driving.

48.Based on the analysis of the evidence, I find that the prosecution has failed to prove beyond reasonable doubt all elements of the charge.  I acquit the defendant of the charge of dangerous driving causing death.

49.However, I find that the evidence supported beyond reasonable doubt that the defendant’s manner of driving at the material time was careless.  The defence has indicated to the court at the outset that the defendant would plead guilty to the offence of careless driving.  I find the defendant guilty of the charge of careless driving.

[1] Particulars of offence: The defendant, on the 13th day of April 2023, at the signal-controlled pedestrian crossing, junction of Prince Edward Road West and Lai Chi Kok Road, Mong Kok, Kowloon, in Hong Kong, caused the death of LI Hon-lam, by driving a motor vehicle, namely, a public light bus bearing registration mark WH6768, on a road dangerously.

[2]  Prosecution exhibit P15.

[3]  Admitted facts paragraphs 16 and 17.

[4]  Prosecution exhibit P15, paragraph 15.

[5]  Prosecution exhibit P15, paragraph 15.

[6]  Prosecution exhibit P15, paragraph 16.

[7]  Prosecution exhibit P15, paragraph 16.

[8]  Prosecution exhibit P15, paragraph 16.

[9]  Prosecution exhibits P5, P6 and P6A.

[10] Prosecution exhibit P6A, answers 48 and 56.

[11] Prosecution exhibit P6A, answers 286 and 282.

[12] Prosecution exhibit P6A, answers 322, 334, 340 and 342.

[13] Prosecution exhibit P6A, answer 66.

[14] Prosecution exhibit P6A, answers 367 - 370.

[15] Prosecution exhibit P6A, answers 194 and 196.

[16] Prosecution exhibit P6A, answer 230.

[17] Prosecution exhibit P6A, answers 91 and 95.

[18] Prosecution exhibit P6A, answers 72 and 77.

[19] Prosecution exhibit P7(3)  and (4).

[20] Prosecution exhibit P15, paragraph 14 at T-0.7.

[21] [2020] 1 HKLRD 553

[22] Prosecution exhibit P13, 21:47:17 hours to 21:47:19 hours