Secretary for Justice v. Ko Kin Ming

CACC 47/2025 [2025] HKCA 674

On appeal from [2025] HKDC 220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 47 OF 2025

(ON APPEAL FROM DCCC NO 1134 OF 2023)

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J U D G M E N T

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1.The Secretary for Justice applies for an extension of time to appeal by way of case stated the acquittal of the respondent in the District Court for the offence of dangerous driving causing death pursuant to section 84 of the District Court Ordinance (Cap 336).

2.Section 84 provides that the Secretary for Justice can appeal by way of case stated to the Court of Appeal against a verdict or order of acquittal on a question of law only. It is stipulated under section 84(a) that “within 7 clear days after the reasons for a verdict have been recorded or after the order of acquittal, or within such further period as a judge of the High Court may, whether before or after the expiration of such period, allow, an application may be made in writing to the judge to state a case setting forth the facts and the grounds on which the verdict or order was arrived at or made and the grounds on which the proceeding is questioned for the opinion of the Court of Appeal …”. (Emphasis added)

3.The respondent faced trial in the District Court before Deputy District Judge M H Tsui (the judge) for the offence of dangerous driving causing death. The offence alleged that the respondent, a driver of a public light bus, at around 9:47 pm on 13 April 2023 while executing a right-hand turn at the traffic light junction on Lai Chi Kok Road, entered the pedestrian crossing resulting in the bus’s offside front striking the deceased, who was using the pedestrian crossing at the time. The respondent was following the traffic control signal, which was green for vehicular traffic, while the deceased was facing a red light for the pedestrian crossing. There was little dispute between the parties as to what took place that evening, as most of the evidence was admitted. The respondent’s defence was that as he was making his right hand turn, he was keeping a lookout for vehicles to his left and did not look to his right. The offside front of the respondent’s vehicle knocked down the deceased, who was crossing the pedestrian crossing against a red light. The deceased was a few steps away from the pedestrian island in the centre of the roadway. There was another pedestrian who was using the crossing at the time in front of the deceased, and at the time of the collision he was already located at the pedestrian island. The respondent neither testified nor called evidence on his behalf, but relied on the out-of-court statements that he had made to the police at the time of the incident.

4.On 6 February 2025, the judge handed down her reasons for verdict. She found that the evidence did not support the allegation that the respondent’s manner of driving was dangerous. She stated that the respondent approached a pedestrian crossing but failed to look to his right. Although this was careless, it did not fall to the degree that his manner of driving fell far below what would be expected of a competent and careful driver. She stated this was a momentary lapse of concentration that involved seconds in terms of duration. She acquitted the respondent of the charge of dangerous driving causing death but found him guilty of the offence of careless driving.

5.Section 84 mandates the time period for the Secretary for Justice to appeal by way of case stated an acquittal within 7 clear days after the reasons for a verdict have been recorded or after the order of acquittal.

6.The application by the Secretary for Justice to appeal by way of case stated the order of acquittal was filed on 6 March 2025, which was 17 days out of time.

7.As directed under section 84, the basis for an appeal by way of case stated of an order of acquittal is on a question of law only. The Secretary for Justice advances this appeal on the basis that no reasonable tribunal of fact, applying its mind to the proper considerations and giving itself the proper directions, could have come to the finding that the respondent’s driving manner was only careless, not dangerous in the circumstances of the present case. Essentially, it is submitted that the respondent’s vehicle was making a right-hand turn approaching a pedestrian crossing, and therefore the respondent should have paid particular attention to pedestrians and traffic conditions when approaching a traffic light controlled pedestrian crossing: HKSAR v Cheung Kwok Leung [1]. The intended appeal on the basis that the judge’s finding as to the respondent’s manner of driving was irrational and no reasonable judge would have reached such a conclusion is a high hurdle to overcome. However, there are reasonable grounds supporting the case stated application.

8.The prosecution case was handled by fiat counsel who did not notify the Prosecution Division immediately after the respondent was acquitted of the offence of dangerous driving causing death. After obtaining the case report on 3 March 2025, the Prosecution Division reviewed the evidence, particularly the CCTV footage and the expert report as well as the relevant case authorities and came to the view to appeal by way of case stated the acquittal of the respondent for the offence of dangerous driving causing death.

9.Under section 84, the court has a discretion to extend time for the Secretary for Justice to appeal against an acquittal by way of case stated. It involves the court conducting a balancing exercise, taking into account all the circumstances, including the length of and reason for the delay, the merits and importance of the intended appeal and any prejudice to the acquitted accused. There is a public interest in bringing the prosecution of a serious offence to a proper and lawful conclusion through the trial and appeal processes. There is also an expectation by an acquitted accused that the proceedings against him or her have come to an end upon the expiry of the appeal period. See HKSAR v Wong Chun Wai[2].

10.Mr David Boyton, for the respondent, contends that the basis of the intended appeal is not a question of law but a disagreement with the judge’s findings of fact. He points out that the facts and circumstances of the accident did not involve the respondent driving in a dangerous manner. He contends the authorities cited by the Secretary for Justice involving dangerous driving are not comparable to the facts and circumstances of the present case. He also relies on the authorities that a successful defendant who has been acquitted of an offence should expect that the matter has come to an end, especially when the challenge of the acquittal is based on the ground of irrationality: DPP v Coleman[3].

11.I agree with the Secretary for Justice’s submission that the length of delay of 17 days was not substantial and that there is a point of law involved in the intended appeal, which would not prejudice the respondent to an extent that would require the court to refuse to grant an extension of time.

12.The Secretary for Justice is granted an extension of time to file the case stated application out of time.

13.I am informed by Mr Boyton that the respondent is currently unemployed, and in order for him to be legally represented in the case stated proceedings, I request the Director of Legal Aid to grant him legal assistance.

Ms Cherry Ho, SPP, of Department of Justice, for the applicant

Mr David Boyton, instructed by Francis Kong & Co, for the respondent