HKSAR v. Tang Tai Wai

DCCC 486/2024

[2025] HKDC 1675

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 486 OF 2024

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REASONS FOR VERDICT

INTRODUCTION

1.The Defendant pleaded not guilty to one charge of causing death by dangerous driving, contrary to section 36(1)  of the Road Traffic Ordinance, Cap 374 (“RTO”)  but admitted the lesser offence of careless driving at the outset of the proceedings.  The lesser plea, however, was not accepted by the Prosecution and the trial proceeded as charged. 

THE PROSECUTION CASE

2.A red public light Bus bearing registration mark UX7073 (the “Minibus”), driven by the defendant, collided with Mr Kwok Yuen Muk (the “Deceased”)  on Ngau Tau Kok Road, Kowloon, at around 7:23 pm on 22 May 2023.

3.The location of the incident was near Lamppost No E7948, Ngau Tau Kok Road, Ngau Tau Kok, Kowloon (the “Location”). The incident took place on the eastbound lane of Ngau Tau Kok Road, which was a two-lane road emerging into one lane.  The opposite lane, Ngau Tau Kok Road (westbound), was a one-lane road.At the Location, on both sides of the road, there were pedestrian railings, save for an opening on the Ngau Tau Kok Road (eastbound)  near the Location where there appeared to be Route No. 35 green public light bus stand[1]. Further, a short distance along Ngau Tau Kok Road (westbound), there was also an opening with no pedestrian railings where there was a bus stop in front of Ngau Tau Kwok Road Playground[2].

4.At the time of the incident, the Deceased was crossing Ngau Tau Kok Road from the eastbound lane toward the westbound lane at a slow pace. Upon reaching the second left lane of the eastbound carriageway, the Minibus halted in that lane, which was not immediately adjacent to the pedestrian path, to let passengers alight.The Deceased was one to two meters in front of the Minibus, walking slowly toward the westbound lane. After the passengers got off, the defendant drove forward and collided with the Deceased.

5.The Deceased suffered multiple severe injuries and died at 2204 hours on 23 May 2023, the next day of the incident. He was 84 years old. Autopsy was conducted on the Deceased by Dr Jenny Lik Ka TSE (“Dr Tse”)  who was PW4 in this case, opined that the direct cause of death was Multiple injuries due to road traffic accident (multiple rib fractures with intrapulmonary haemorrhage, pelvic fractures with retroperitoneal haemorrhage and skull fractures with subdural and subarachnoid haemorrhage). Meanwhile, Dr Tse opined that “Coronary artery atherosclerosis” was also a significant condition contributing to the death but it was not related to the direct cause of death.

6.At the material time, the weather was fine, the road was dry, the traffic was moderate, and the road was illuminated by streetlights. Mechanical examination found no defects in the Minibus.

THE DEFENCE CASE

7.Mr Sadhwani represented the defendant. It is uncontested that the defendant was driving the Minibus on Ngau Tau Kok Road (eastbound)  at the material time, and that it struck the Deceased.

8.Nonetheless, the defendant denies the allegation of having halted the Minibus to allow passengers to disembark at the time of the incident. The defence asserts that the Deceased abruptly entered the second left lane from the first left lane of the eastbound carriageway, directly into the path of the Minibus driven by the defendant, who was consequently unable to stop in time, leading to the collision. The defence argues that the manner of his driving fell far below one of a competent and careful driver and denies that the Deceased's death was caused by injuries from the collision.

THE ISSUES

9.The main issues considered during the trial are as follows:-

(a)  Whether the Minibus driven by the defendant stopped to let passengers alight at the Location;

(b)  Whether the Deceased entered the roadway quickly or slowly;

(c)  Whether the defendant’s driving, in the circumstances and evidence presented before the court, amounted to dangerous driving; and

(d)  Whether the Deceased's death resulted from multiple injuries caused by the Minibus collision.

PROSECUTION EVIDENCE

10.The prosecution called four witnesses, Mr Cheung Tak Fai (PW1), Mr Mok Kang Lung (PW2), SPC54001 (PW3)  and Dr Tse (PW4)  who conducted autopsy on the Deceased on 12 June 2023.  

11.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance (“CPO”), Cap 221[3]  including production of a total of 39 photographs and a sketch showing the accident location[4]; medical report of the injuries of the Deceased from A&E department of Queen Elizabeth Hospital (“QEH”)[5]; and medical report of the injuries of the Deceased from the Department of Surgery of QEH[6].

12.It was also admitted that between 2103 and 2306 hours on 22 May 2023 a record of interview was given by the defendant under caution at Kowloon Regional Headquarters[7]. The said record of interview was produced as Exhibit P9 and P9A.  

13.On 24 May 2023 between 1731 hours and 1808 hours, SPC4433 and PC14463, conducted a video record of interview (“VRI”)  under caution with the defendant.  The voluntariness of this VRI under caution was also admitted.  It was accurately recorded on a disc, which was produced and marked as Exhibit P10 and P10A.  It was also played and viewed in the court.

14.Mr Sadhwani did not challenge that the answers in the record of interview and the subsequent VRI were given by the defendant voluntarily and the transcripts were accurate statements of his answers.

15.The statement of Tam Kwan Ho (“Tam”)  was admitted under section 65B of the CPO[8]. He was a Senior Ambulanceman and was in charge of ambulance A217 on the day of incident. Briefly stated, Ambulance A217 reached the traffic accident location at 1930 on 22 May 2023. Tam found the injured person (the Deceased)  lying in the eastbound lane of Ngau Tau Kok Road, about 1 metre from the Minibus's offside front. Tam found the eyes of the Deceased opened naturally, and he was rather confused, making unintelligible sounds, and was not responsive to questions.  At that time, the Deceased was in a semi-conscious state.  His left forehead had a laceration and haematoma of about 3 cm.  Tam treated his wounds and stabilized his spine using a cervical collar and a head immobilizer.

ORAL TESTIMONY

The evidence of PW1 (Cheung Tak Fai)

16.PW1, 48 years old, is employed as a manager at a fire services company and possesses a driving license, with limited driving experience. He resides on Ngau Tau Kok Road and is acquainted with the location.

17.At 7:00 pm on 22 May 2023, PW1 took the company shuttle from Kowloon Bay and got off at Pak Ling House, Ngau Tau Kok Road (eastbound). Around 7:20 pm, PW1 crossed to the westbound side, intending to catch a bus for dinner.

18.When PW1 reached the pedestrian path on the opposite side, he observed an elderly man (later identified as the Deceased)  in the eastbound lane, who also appeared to be preparing to cross towards the pedestrian path where PW1 was located. The Deceased was moving slowly, taking small steps that lasted approximately one to two seconds each. At that moment, the distance between PW1 and the Deceased was estimated to be about 8 to 10 meters.

19.At that time, PW1 stood by the pedestrian railings and observed the Deceased, who was moving slowly in the middle of the road. PW1 noted the potential for an accident, as there was a risk of the Deceased being hit by a vehicle. During this period, PW1 saw several vehicles, including trucks and light goods vehicles, swerve into the opposite lane to avoid the Deceased. The Deceased continued to move forward at a slow pace, did not stop, and was not carrying any items.

20.At this moment, PW1 observed a red public light minibus, later identified as the one driven by the defendant, traveling along the eastbound lane and stopping approximately 1 to 2 meters from the Deceased to allow passengers to alight. PW1 stated that the Minibus did not pull over next to the pedestrian path on the eastbound lane but rather stopped in the outer eastbound lane for passengers to disembark. PW1 said that the Minibus stopped in the outer lane to let passengers off. This may have been because a small private car was parked further ahead in the innermost lane, making it unnecessary for the Minibus to merge back into the outer lane after dropping off passengers.

21.PW1 observed that after passengers got off the Minibus, it moved forward and struck the Deceased, who was crossing the road slowly. PW1 saw the front of the Minibus hit the Deceased but could not identify the exact point of impact.  The Deceased fell to the ground upon impact. PW1 stated that no sound was observed and he was unable to determine the speed of the Minibus at that time.

22.PW1 stated that the distance between the Minibus and himself was roughly equivalent to the width of two and a half traffic lanes, estimated at around seven to eight meters. He had an unobstructed view throughout the observation. Following the incident, PW1 called the police before leaving the scene.

23.PW1 marked his observation position on Exhibit P11 with a red cross in a circle, indicating where he was watching the Deceased from the pedestrian railings on westbound lane at the time of the incident.  He drew a triangle to represent the Deceased’s location before being struck by the Minibus and used an arrow to show the direction in which the Deceased was crossing the road.  PW1 said before the Minibus appeared, the Deceased had almost walked to the middle of the two eastbound traffic lanes. PW1 confirmed that exhibit P3(3)  and P3(9)  show the location where the Minibus stopped after colliding with the Deceased.

24.During cross-examination, PW1 stated that it was already dark at the time of the incident. Although it was not as bright as during daylight hours, there was enough light at the scene for him to observe what happened. When he first saw the Deceased, they were approximately 8 to 10 meters apart. A few vehicles passed in front of PW1 during this period, but traffic was not considered heavy.Thus, his view remained largely unobstructed.

25.PW1 said at the time of the incident, all vehicles, including the Minibus, had their headlights on, but PW1 could not distinguish whether they were on high or low beam.  He did not check if the Deceased walked straight but observed that the Deceased moved forward slowly without changing direction.

26.PW1 stated that he remained on the pavement while observing the Deceased, primarily due to the risks associated with walking at a slow pace on the road. He focused on the Deceased’s actions. The Deceased crossed the road without looking around and walked at a slow, steady pace, without accelerating or stopping. He could not recall the exact duration of his observation but estimated it lasted slightly over a minute. PW1 admitted that he did not consider helping the Deceased at that time.

27.PW1 stated that only the small private car was stationary in the leftmost eastbound lane at the location, approximately 35 metres from his position. The small private car was parked at a greater distance from the point of impact. PW1 indicated the position of the small private car on exhibit P13 using a red rectangle.

28.PW1 did not observe any tall or large container trucks parked in the leftmost eastbound lane. PW1 denied that a large truck was travelling in that lane at the time of the incident. In response to the defence claim that the Deceased was crossing the road quickly, PW1 disagreed and affirmed that, based on his observation, the Deceased moved at a slow pace throughout.

29.PW1 said he observed a female passenger, aged around 50 to 60 years of age, get off the Minibus. The Minibus stopped for approximately 10 seconds to allow passengers to disembark.  The defence asked how he could have seen a passenger getting off the minibus if he was continuously observing the Deceased. PW1 responded that while observing the passenger getting off, his attention was not solely on the Deceased; however, because the Minibus was near the Deceased, he was able to observe both simultaneously.  PW1 further said that the Minibus had large windows, and the interior lights were on, providing sufficient lighting for him to clearly observe the passenger alighting.

30.Under cross-examination, PW1 denied that no passengers got off at the time of the incident.  He also disagreed that the Minibus did not stop to let passengers off at the Location.  PW1 said that the Minibus halted and the passenger disembarked at the location indicated in exhibit D1(2), where the individual in green was positioned, which corresponds to the scene of the incident and not any other location (refer also to exhibit P5(4)).

31.During cross-examination, PW1 stated he was unable to verify whether the Minibus was traveling at approximately 10 km/h before the collision. He admitted, however, that his witness statement recorded the Minibus moving forward about 1.5 meters at roughly 10 km/h after dropping off a passenger, after which it struck the Deceased.

32.At that time, the Deceased was seen lying on the ground, still moving his limbs.  Based on the angle of observation, PW1 was able to ascertain only that the front of the Minibus made contact with the Deceased.  PW1 further estimated that approximately 11 to 12 seconds passed between the Minibus halting to allow a passenger to disembark and its subsequent movement forward.

33.PW1 agreed that if the Deceased had not been knocked down and kept moving forward in a straight line without changing direction, he would have reached the pedestrian path with the railings without any open passage.

The evidence of PW2 (Mok Kang Lung)

34.PW2, who is around 37 years old, has possessed a driver's license for a period of time.  At approximately 7:23 pm on 22 May 2023, he was driving his private vehicle with the registration XK8867. Upon arriving at the intersection of Ngau Tau Kok Road and Elegance Road, he stopped at a red light.  Once the traffic light turned green, he continued westbound on Ngau Tau Kok Road in the right lane, preparing to make a right turn at the upcoming traffic lights.

35.While driving, PW2 observed an object ahead that was illuminated by headlights from behind. Upon approaching, PW2 identified the object as an elderly person (later identified to be the Deceased)  standing in the eastbound lane opposite his direction of travel.  In his recollection, the Deceased was wearing dark-colored clothing.  He was standing about 1.5 feet from the dividing line between the eastbound and westbound lanes.  Simultaneously, PW2 observed a minibus (the one driven by the defendant)stopped in the second lane from the left on the eastbound side, near the dividing line separating the eastbound and westbound lanes, while PW2 was traveling in the far right lane of the westbound carriageway.  

36.PW2 did not know why the Minibus stopped there. At that time, the deceased was standing in front of the Minibus.  The Minibus suddenly began to move, resulting in its right front colliding with the right side of the Deceased.  PW2 immediately turned left to avoid contact with the Deceased.As his vehicle continued forward, he was unable to observe subsequent events involving the Deceased following the impact with the Minibus. PW2 later went back to the location and informed the police about the events he observed.  

37.PW2 testified that, at the time of the incident, the Deceased was standing rather than walking or running.  He also observed a stationary tall container truck parked in the leftmost lane of the eastbound side near the pedestrian path.  He marked on exhibit P14 the position where he first saw the Deceased.  At that time, the Deceased was standing to the right front of the Minibus, near the divider between the eastbound and westbound lanes, and was facing the westbound lane.

38.During cross-examination, PW2 said when he first saw the Deceased, he was standing in the second lane from the left on the eastbound side and was not moving.  From the moment he realized the object was actually the Deceased until his vehicle passed by him, the time was very short, only a few seconds.  During these few seconds, PW2 observed that the Deceased remained standing.  PW2 estimated the entire period to be no more than 10 seconds.

39.PW2 stated that once he noticed the Deceased, he watched him closely without any visual obstruction. He saw the Deceased in front of the Minibus about five seconds before the collision.  While observing the Deceased, PW2 was also paying attention to the traffic ahead and his vehicle’s speed.

40.Under cross-examination, PW2 denied that the Deceased was walking quickly in the traffic lane before the collision, affirming instead that the Deceased remained stationary and did not exhibit any movement before the collision.  PW2 confirmed in his witness statement to the police that the events transpired rapidly; he recalled only that the Deceased was dressed in a dark top, but could not recall the type of pants worn or whether any bags were carried. PW2 further reiterated that the whole incident happened very abruptly, lasting only a few seconds.

41.PW2 said that at the time of the incident, there were streetlights on Ngau Tau Kok Road, and the vehicles traveling on the road, including PW2 and the Minibus, had their headlights on.  There were no vehicles on the road with dazzling headlights at that time.  PW2 agreed that the incident occurred at 7:20 pm, it was already dark and that he could not observe objects at a greater distance.  He disagreed that he had difficulty observing objects close to him, but agreed that visibility was not as clear as during daylight.  He was able to simultaneously observe the actions of both the Minibus and the Deceased.  

42.PW2 stated that upon observation, he simultaneously noticed the Deceased, the minibus, and the tall container truck. The tall container truck was stationary, parked in the eastbound lane, to the left of the Minibus and parallel to it.  He had already noticed its presence after passing the traffic lights the intersection of Ngau Tau Kok Road and Elegance Road, roughly about five seconds before the collision.  PW2 denied that the tall container truck was moving, stating it was stationary but uncertain if its headlights were on.

43.Under cross-examination, PW2 denied that the Deceased crossed in front of the moving tall container truck and subsequently entered the lane of the approaching Minibus, resulting in the collision.  

The evidence of PW3 (Sergeant 54001)

44.PW3 is Sergeant 54001.  On 22 May 2023 at 7:24 pm, he received instructions from the control center to go to Ngau Tau Kok Road to handle a suspected traffic accident in which a red minibus had struck a pedestrian, causing injuries.

45.PW3 arrived at the scene at around 7:33 pm, by which time the injured person (the Deceased)  had already been placed in an ambulance for treatment.  He observed damage and bloodstains on the right front of the Minibus, giving him a reasonable ground to suspect that the Minibus driver had committed a criminal offence.

46.Noticing there was no driver in the red minibus UX7073, PW3 asked at the scene who its driver was.  The defendant then approached PW3, claiming to be the driver of the red minibus.  Once the Minibus driver was identified, and prior to any further inquiry, the defendant promptly stated, “While driving toward Kwun Tong, I suddenly saw him appear in the middle of the road then the collision happened”.  PW3 said he did not have the opportunity to caution the defendant.

The evidence of PW4 (Dr TSE)

47.Basically, PW4 was tendered for cross-examination.  She is a qualified pathologist currently working at Queen Elizabeth Hospital's Department of Pathology.  On 12 June 2023, PW4 was working in that department.  She confirmed that she wrote an autopsy report on 6 November 2023[9], which accurately recorded the autopsy she performed on the Deceased.  Exhibit P15 is her report, later revised in wording by a senior colleague without altering its meaning or PW4’s conclusion on the cause of death. She required time to prepare the report and followed several procedures, including examining pathological specimens under a microscope.

48.PW4 said the date of the Deceased’s death was 23 May 2023, but the autopsy was performed on 12 June 2023.  When asked if conducting the autopsy on the day of death would have changed the results, she stated she believed it would not have made a difference.

49.PW4 reported on page 2 that the abdominal aorta had severe atherosclerosis with calcification and ulceration.  She confirmed these conditions can cause complications like stroke or heart attack, depending on the affected vessel’s location. PW4 stated that pre-existing heart disease in the Deceased could not be excluded, but there was no direct link between the abdominal aorta and the heart in this context.

50.When questioned about the possibility of the Deceased experiencing a heart attack prior to sustaining injuries, PW4 stated that this could not be entirely excluded.  Nevertheless, the autopsy findings and results from various pathological examinations did not provide any evidence indicating that the Deceased had suffered a myocardial infarction (heart attack).

51.PW4 stated that “coronary artery atherosclerosis” was recorded under Roman numeral II below the immediate cause of death because there was 90% luminal stenosis in the left anterior descending artery at 0.5 cm away from its aortic origin for 0.5 cm.  According to PW4, this condition affected the Deceased’s overall health but was not considered an immediate or direct cause of death based on her autopsy findings.

52.When asked about whether the injuries sustained by the Deceased would have been non-fatal for a healthy individual, PW4 indicated that it is not possible to generalize, making it difficult to provide a definitive answer.  These injuries are considered severe and can potentially be fatal.  PW4 said that the age of the Deceased was also factored into the assessment.

Defendant’s Record of Interview

53.On 22 May 2023 between 2103 and 2306 at Kowloon Regional Headquarters, the defendant was interviewed by PC5469.  Under caution, the defendant made the following statements[10]:-

(1)  At the time of the incident, he was driving the Minibus UX7073;

(2)  The weather was gloomy, the road surface was dry, the streetlights were on, and there was heavy traffic with many vehicles[11];

(3)  The Minibus departed from Castle Peak Road in Cheung Sha Wan, with the destination being Yue Man Square in Kwun Tong[12];

(4)  As he approached the scene of the incident, vehicles in the opposite lane had their high beams on, which affected his visibility[13];

(5)  He was driving in the fast lane of the eastbound Ngau Tau Kok Road, while a tall vehicle was traveling in front of him in the slow lane to his left. The Minibus was positioned behind about half the length of the tall vehicle[14];

(6)  He was traveling at around 20 something kilometers per hour when suddenly an elderly man ran out from the front of the vehicle in what he described as a suicidal manner[15];

(7)  The elderly man ran very quickly, and the defendant had no way to avoid him[16];

(8)  At that time, his speed was not fast. In fact, he had already slowed down considerably out of concern that someone might run out, but he had not expected it to actually happen[17];

(9)  At first, he thought he had hit an “object”, but later realized he had hit a person[18];

(10)  When asked when he first saw the injured, he said he only realized the injured after getting out of the Minibus following the collision[19];

(11)  When he first saw the “object” it was about half a car length in front of the Minibus[20];

(12)  After dropping off passengers at Ngau Tau Kok Market, he did not make any further stops before collision[21];

(13)  There were around 8 to 10 passengers on board at the time of the accident[22]; and

(14)  He suspected the elderly man committed suicide[23].

Defendant’s VRI

54.Later the VRI was conducted[24]. Under caution, the defendant said, inter alia, the following statements:-

(1)  At approximately 7:23 pm on 22 May 2023, at the location near lamp post E7948 on Ngau Tau Kok Road, Kwun Tong, Kowloon, he was driving a red and yellow public light bus with licence plate UX7073[25].

(2)  He has over thirty years of experience driving minibuses, and the vehicle he drove that day was mechanically sound and operating normally[26].

(3)  He started work at 7:00 am, took a one-hour break from noon to 1:00 pm, and then continued driving until the end of his shift. That day, he completed about five to six trips. The incident occurred near the end of his workday[27].

(4)  The route he drove started from Cheung Sha Wan Medical Bureau West Street, passed through Castle Peak Road, and ended at Grand Central and Yue Man Square, Kwun Tong[28].

(5)  Prior to the incident, he stopped to let passengers off near the intersection of Ngau Tau Kok Road and Ding On Street, then drove along Ngau Tau Kok Road toward Kwun Tong, passing the Kwun Tong MTR station and heading towards Yue Man Square. After letting passengers off, the journey was smooth with no further stops; both road and weather conditions were good until the place where the accident happened, where he stopped[29].

(6)  He did not know the Deceased[30].

(7)  The road consisted of four lanes, with two lanes for each direction. He was driving in the lane designated for faster traffic. His visibility was limited by the tall truck ahead, which obstructed his view and hindered his ability to observe the Deceased abruptly entering the roadway. As a result, he could not stop the Minibus in time and unfortunately struck the Deceased. The tall truck was not parked in the slow lane but was traveling in the same direction as the Minibus. The tall truck was in the slow lane, slightly ahead and parallel to the Minibus while the defendant was in the fast lane. The Deceased suddenly ran from the front of the tall truck into the second lane, directly in front of his Minibus[31].

(8)  The height and width of the tall truck were greater than the Minibus and completely blocked his view to the left front. The Deceased crossed in front of the tall truck and then dashed into the path of the Minibus, leaving him no time to react, resulting in the collision[32].

(9)  His speed was very slow, around twenty kilometers per hour, due to heavy traffic at the scene. He emphasized that even if he had not hit the Deceased, he might have been struck by an oncoming vehicle. The defendant described the Deceased’s behaviour as a “suicidal dash” onto the road, as there was no way to reach the pedestrian path to the opposite side due to railings. Additionally, vehicles in the opposite lane had their headlights on, which affected the defendant’s visibility[33].

(10)  He stressed that the Deceased suddenly and quickly dashed into the road, and even braking immediately could not avoid the collision. He believed his mental state was good and his reaction was reasonably quick at the time of the incident. There were no brake marks at the scene, indicating his speed was slow[34].

(11)  When asked about the position where he first saw the Deceased, he stated that the Deceased appeared on his left side, extremely close to the Minibus, leaving him with almost no time to react, even braking immediately could not prevent the collision. The Deceased suddenly and quickly dashed out from a gap in the roadside railings on the left side. The Deceased was in a hurry[35].

(12)  The Deceased rushed across the road with his head down, without looking left or right, in a manner described as “suicidal”[36].

(13)  Despite the Deceased being about eighty years old, he crossed at a very fast pace. The defendant stressed that his view was blocked by the tall truck, and the distance was too close to stop in time[37].

(14)  The defendant explained that he chose to drive in the fast lane for safety reasons and anticipated that someone might suddenly dash onto the road; therefore, he kept his speed at around twenty kilometers per hour, which was not fast. Nonetheless, the Deceased suddenly appeared, leaving him no time to react or brake, ultimately resulting in the collision[38].

(15)  When asked when he first saw the Deceased, the defendant said he only saw the Deceased when he hit him. The collision happened so suddenly that he could not react or brake in time. When he first saw the Deceased at the left front corner of the Minibus, he initially thought it was an “object” before realizing it was a person[39].

(16)  After the collision, the Minibus’s windshield shattered, and the glass fell to the ground. There were about eight to ten passengers still on board[40].

(17)  The tall truck in the leftmost lane was traveling faster, while his own minibus was slower, following about half a vehicle length behind. If he had been driving parallel to the tall truck, the accident might not have occurred. Since the tall truck was in the slow lane, its driver is likely to have a clearer view of pedestrians, but his view in the fast lane was more obstructed, making it harder to see pedestrians crossing[41].

(18)  The lighting was adequate at the time, streetlights were reasonably bright, but the vehicles in the opposite lane had high beams on, which interfered with his visibility, though not severely[42].

(19)  The Deceased wore all-black clothing - long sleeves and black trousers. He had a medium-slim build, stood about 5 feet 7 or 8 inches (approximately 170-173 cm), and was taller than the defendant[43].

HALF-WAY SUBMISSION

55.At the close of the prosecution’s case, there was no half-way submission in respect of the charge, and I then found there was a prima facie case in respect of the charge against the defendant.

DEFENCE EVIDENCE

56.As of his right, the defendant elected not to give evidence.  Nor did he call any witness to testify on his behalf.

GENERAL DIRECTIONS

57.I remind myself that the prosecution has the duty to prove the elements of the charge against the defendant beyond reasonable doubt.  The defendant has anything to prove.  If the court is to draw any inferences adverse to the defendant, such inferences have to be the only reasonable inferences to be drawn from the evidence.  The court must look at the circumstances of the case before deciding if an inference can be properly drawn.

58.The defendant elected not to give evidence and no witnesses were called on his behalf.  No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.

59.The defendant had given the cautioned statement and VRI, all of which have been adduced by way of admitted facts.  The reply given by the defendant under caution and the answers contained in his cautioned statement and VRI are “mixed statements”.  Both the inculpatory and exculpatory parts of the interview are evidence for the purpose of determining where the truth lies[44]. It is trite law, however, that the court, as the tribunal of fact, is entitled to attach different weights to different parts of the defendant’s out of court statements[45].

60.Admitted in evidence is that the defendant has a clear criminal record.  Therefore, I give myself the good character direction in favour of the defendant in relation to both propensity and credibility[46], which means that he is less likely to commit an offence and is more credible in what he has said in the record of interview and VRI.

61.Even though the defendant indicated before the trial that he was willing to plead guilty to careless driving, the court must still consider whether the prosecution’s evidence meets the required standard.  I bear in mind that careless driving does not become dangerous driving simply because someone has been killed.  It is necessary for the court to focus on the standard of the defendant’s driving and make an assessment as to whether it fell far below the standard which would be expected of a competent and careful driver, and it would be obvious to such a driver that driving in that way would be dangerous.

THE LAW

62.A person is to be regarded as driving dangerously if the way he drives falls 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[47].

63.Section 36(7)  of RTO sets out the circumstances that should be taken into account 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 which 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.

64.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.  Yeung VP, giving the judgment of the court in HKSAR v Lam Chi Fat, [2012] 1 HKLRD 968, said:-

“33. Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way of driving. Evidence that supports the charge of dangerous driving may include:

(1)  Excessive speeding, particularly when it is raining and the road is slippery.

(2)  Non-compliance with traffic signs, such as driving through a police road block; “jumping a red light”; failure to stop in front of a “zebra crossing” to give way to pedestrians; ignoring pedestrian stud crossing and driving past at high speed; driving into a “No entry” section of road; speeding at double white lines, etc.

(3)  Ignoring road safety regulations, such as intentionally driving a vehicle that is not maintained in good condition; driving a goods vehicle that is greatly overloaded; going against traffic directions and driving a heavy goods vehicle down a very steep slope illegal car racing, etc.

(4)  Disregarding the danger and going on driving, while knowing full well that one’s physical condition is not good and hence not suitable to drive, such as being under the influence of alcohol or drugs or being generally ill.

34. Of course the above examples are just factors to be considered in dealing with acts of dangerous driving and they by no means represent an exhaustive list of all relevant factors.

35. If the above or similar way of driving falls 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, then the driver concerned would be guilty of dangerous driving.”

65.In deciding whether the defendant is guilty of dangerous driving, the court must base its consideration on his way of driving rather than the consequences of the accident[48].

EVALUATION OF EVIDENCE

66.I have carefully considered all the evidence and the submissions of Mr Sadhwani.  The absence of reference to any specific piece of evidence or argument in my verdict should not be interpreted as an oversight or lack of consideration.

67.In his written closing submissions, Mr. Sadhwani mainly criticized the testimony of PW1 and PW2 as follows: -

(1)  When PW1 was observing the Deceased from the pedestrian path on the westbound side, he was not facing the Deceased directly but looking at him at an angle. During this time, vehicles traveling on the westbound lane passed between PW1 and the Deceased. Therefore, PW1 did not have a clear and direct view of the accident, and thus his observations should not be given significant weight.

(2)  PW1 described the Deceased as taking small, slow steps before the accident, while PW2 stated that the Deceased stood still for about 10 seconds and did not move.

(3)  PW1 did not notice a tall container truck in the inner lane near the Minibus, mentioning only a small stationary private car roughly 35 meters away. Conversely, PW2 was able to identify the said truck positioned beside the Minibus at the time of the Accident.

(4)  While PW1 was paying attention to the movement of the Deceased, he was also observing passengers getting off the minibus. Therefore, there may be a certain degree of inaccuracy in his observations.

(5)  As a driver, PW2 was focused on driving and paying attention to the traffic ahead, while also noticing the Deceased and the movement of the Minibus, as well as the tall container truck parked in the leftmost eastbound lane. Under these circumstances, it is possible that PW2’s observations became inaccurate.

(6)  PW1 claimed to have seen the Minibus letting off a female passenger. However, according to PW2, the tall container truck was positioned in such a way that it would have blocked the passenger door, making it impossible for anyone to alight.

(7)  At the time of the incident, it was already dark, which may have affected the reliability of observations made by both PW1 and PW2.

68.I have the advantage of seeing and hearing both PW1 and PW2 giving evidence in court, I do not find them to be evasive when answering questions.  I am satisfied that they all gave an accurate account of their knowledge.  They impressed me as a witness of the truth.  I find their evidence credible, reliable, clear and straightforward.

69.The defence argued that it was impossible for PW1 and PW2 to observe different things at the same time, thereby questioning the accuracy of their observations.  I do not agree. Given that the Deceased, the Minibus, the tall container truck, and the small private car were all in close proximity to one another, it is reasonable and plausible that both witnesses could have observed different things at the same time.

70.Mr. Sadhwani criticized that PW1 stated the Deceased was walking very slowly at the time of the incident, taking about one step every 1 to 2 seconds, while PW2 said he observed the Deceased standing still.  After careful consideration, I find there is no contradiction between their accounts. First of all, the times and distances referred to by both witnesses were only approximate estimates.PW1 remained on the pedestrian path on the westbound side to observe the Deceased, concerning that walking slowly on the road could present safety risks.  This consideration led him to direct attention toward the Deceased. Therefore, I find PW1 was able to clearly recount the Deceased’s every movement.  Although there was traffic on Ngau Tau Kok Road during the observation period, I accept that his view was mostly unobstructed.

71.In contrast, PW2 only became aware of the situation when he was driving along the westbound lane of Ngau Tau Kok Road and noticed an “object” (the Deceased)  ahead in his field of vision, prompting him to pay attention to the circumstances.  At the time of the incident, PW2 was driving, so while observing the movements of the Deceased, he also had to pay attention to the traffic conditions ahead.  It is worth noting that, according to PW2’s testimony, he only observed the Deceased for a few seconds, whereas PW1 observed him for at least one minute.  It is understandable that PW2 believed the Deceased was standing still, since PW1 noted the Deceased was moving slowly and taking small steps lasting one to two seconds each.

72.The defence argued that PW1 observed a small private car stopped at the front of the leftmost eastbound lane, which PW2 did not mention.  Conversely PW2 observed a tall container truck parked next to the defendant’s minibus, whereas PW1 did not notice its presence. I find this may be attributed to PW1 and PW2 having viewed the Deceased from different angles and each focusing on various surroundings.  I am of the view that there is, in fact, no contradiction or unreasonable aspect in their testimony.

73.Although the incident happened at night, PW1 said that the lighting was sufficient for him to see things clearly.  When asked which part of the minibus struck the Deceased, PW1 said that he could only confirm that it was the front of the minibus that struck him, but PW1 was unsure exactly which part of the front made contact.  I find PW1 undoubtedly gave a truthful and accurate account to the court of what he saw and heard, without any speculation.

74.Despite the fact that both witnesses indicated that the lighting was less bright than daytime, there was no indication that it was completely dark or the visibility was seriously impaired for walking or driving.  Even the defendant also stated in the VRI that the streetlights at the scene were sufficient[49]. I am sure that at the time of the incident, the streetlights were sufficient enough for both witnesses to clearly observe a relatively large red minibus stopped on the roadway.  I accept PW1’s evidence that the Minibus stopped in the outer eastbound lane to allow passengers to alight and the interior lights of the Minibus were illuminated at the time.  

75.Overall, I come to the view that the testimony of PW1 and PW2 are mutually supportive and consistent, and I find their testimony to be straightforward and truthful, without exaggeration. Both witnesses, under cross-examination, unequivocally denied the defence allegations that:-

(1)  At the time of the incident, the Deceased was crossing the road at a rapid pace; and

(2)  The Minibus driven by the defendant was not stationary in the second lane from the left on the eastbound carriageway of Ngau Tau Kok Road.

76.Mr. Sadhwani further submitted that PW3 questioned the defendant at the scene without caution.  I accept PW3’s testimony that, upon arriving at the location and discovering that there was no driver in the Minibus, it was necessary to first identify the Minibus driver at the scene.  In response to PW3, the defendant stepped forward, identified himself as the Minibus driver, and said, “I suddenly saw him in the middle of the road, then the collision happened.”

77.In fact, during cross-examination, Mr Sadhwani did not suggest to PW3 that the defendant's statement was made involuntarily, nor did he point out to PW3 that the defendant had never actually made such a statement.  I am of the view that the defendant only provided a concise summary of the incident that aligned with the statements given in both his cautioned statement and VRI. I find nothing improper in PW3 giving evidence relating to the defendant's initial response at the scene to the court.

78.Mr. Sadhwani also argued that even if the Deceased managed to cross the road, he could not have accessed the pedestrian path on the opposite side due to the presence of railings, and therefore should not have been on that section of the road.  I do not agree.  It is to be noted that the pedestrian paths on both sides of the road at the location of the incident were not fully enclosed, allowing pedestrians the possibility to access the pedestrian path.  Exhibit P5 (2)-(5)  shows that some traffic lanes on both sides are unfenced, leaving gaps where pedestrians can cross the road and reach the pedestrian path.

79.I find that if the Deceased successfully crossed the road to the westbound lane, there was actually a gap near the railings close to the bus stop that enabled him to return to the pedestrian path.  This situation was the same as that of PW1, who had previously taken the same crossing route, crossing Ngau Tau Kok Road from the eastbound to the westbound lane before observing the Deceased.

80.After carefully considering the assertions made by the defendant in both the cautioned interview record and VRI, I find that they were unreasonable, exaggerated, and illogical.  My reasons are as follows:-

(1)  At the beginning, the defendant believed he had collided with an “object” and only realized after getting out of the Minibus that he had struck a person. The defendant also claimed that the tall truck ahead on the left blocked his view. If that were the case, it would not be logical for him to have seen the Deceased rushing out from the gap at the left-side railing[50].

(2)  If he only realized after getting out of the Minibus that he had hit someone, it makes little sense that he could describe the Deceased’s actions in such specific details, such as crossing the road with his head lowered, not looking to either side, and appearing to run into the roadway in a suicidal manner[51].

(3)  The defendant stated that there was a tall truck in the left lane, about half a vehicle length ahead on his left, moving faster than his Minibus. If this account is accurate, it would be expected that the tall truck rather than the Minibus, would have been the first to collide with the Deceased.

(4)  Due to heavy traffic and concerns about pedestrians suddenly crossing, the defendant said he deliberately reduced his speed to slightly more than 20 kilometers per hour at the time of the incident. If his account were true, the defendant should have been able to stop the Minibus in time, and theoretically would not have collided with the Deceased, or at most only caused a minor collision, rather than the severe damage to the right front windshield of the Minibus[52].

81.After carefully considered all the evidence before me, I find his accounts were inconsistent, lacked credibility, and defied logic.  I attach full weight to the inculpatory parts of his cautioned record of interview and VRI and reject those exculpatory parts and attached no weight to them.  His denial was unreasonable and illogical.  In particular, I reject his assertion that he did not stop in the second left lane of the eastbound carriageway to let passengers off.  I also do not accept his assertion that the tall truck in the first left lane was moving rather than stationary, nor do I accept his assertion that the Deceased suddenly dashed toward the lane where the Minibus was traveling. His version of events appears to be a fabrication designed to conceal the fact that he was not paying attention to the traffic ahead, and he deliberately constructed a narrative portraying the Deceased as recklessly and suicidally running into the road.

82.I am fully alive that even though that I do not accept the defence case, it does not mean that I have to accept the prosecution case.  The prosecution still bears the burden of proof beyond reasonable doubt.

MY FINDINGS

83.Having considered all the evidence adduced by the prosecution, I make, inter alia, the following findings of fact which I am satisfied beyond reasonable doubt:-

(1)  At the time of the incident, the streetlights and all vehicle headlights, including those of the Minibus, were illuminated.

(2)  The eastbound carriageway originally consisted of two lanes. At the point of collision, the lane markings separating the first and second left lanes were no longer visible on the road surface. However, the carriageway at that location was still wide enough to allow two vehicles to pass through[53].

(3)  Not all sections along both the eastbound and westbound sides of Ngau Tau Kok Road are fully fenced; some areas do not have railings installed. Pedestrians can return to the pedestrian path from the roadway through these gaps.

(4)  Before the Minibus arrived, the Deceased was already walking slowly along the eastbound lanes of Ngau Tau Kok Road, moving from the innermost left lane toward the pedestrian path on the opposite westbound lane.

(5)  There was a stationary tall container truck in the innermost left eastbound lane at the Location.

(6)  There was also a small private car in the innermost eastbound lane, which was parked further away from the point of impact.

(7)  When the Deceased was slowly walking to the dividing line between the inner and outer lanes of the eastbound carriageway, the Minibus appeared and stopped in the outer eastbound lane, which is not the lane adjacent to the pedestrian path.

(8)  After the Defendant stopped the Minibus, a female passenger was observed alighting from the Minibus while the Deceased was directly in front of the Minibus, slowly walking in the direction of the westbound lane.

(9)  The front of the Minibus was approximately 1 to 2 meters away from the Deceased's right side.

(10)  Approximately ten seconds passed between halting to allow passengers to disembark and restarting the Minibus.

(11)  After dropping off the passengers, the defendant immediately started driving forward. During this time, the front right side of the Minibus struck the right side of the Deceased, causing the Deceased to fall to the ground.

ASSESSMENT OF THE DEFENDANT’S DRIVING MANNER

84.In determining whether the defendant's manner of driving met the criteria for dangerous driving, consideration has been given to the fact that the Deceased was crossing the road slowly at a non-designated pedestrian crossing at the time of the incident.  I firmly bear in mind that as a reasonable driver, he 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[54].

85.With this factor considered, it is of my view that the defendant's overall manner of driving was dangerous, based on the following reasons:-

(1)  The defendant has over 30 years of experience driving minibuses. He was the minibus driver on the section of road where the incident occurred. On the day of the incident, he had already completed about five or six round trips on that route. He ought to have been well acquainted with the minibus route and the surrounding conditions.

(2)  Even in his VRI, the defendant asserted that when passing through the Location, he anticipated that pedestrians might suddenly cross the road[55]. This demonstrates that he foresaw the possibility of pedestrians crossing there. I attach full weight to this assertion.

(3)  As shown in Exhibit P5 (2)-(6), both sides of Ngau Tau Kok Road have a bus stop, green minibus stop, school, public housing estate, and Ngau Tau Kok Road Playground. These features collectively indicate that the incident took place in a densely populated public area, rather than in an isolated rural area or on a highway. The defendant should have foreseen the likelihood of pedestrians crossing the road at the Location.

(4)  While certain sections of the pedestrian pathway on each side are fenced, there are also areas with gaps where railings are absent, permitting pedestrians to access the pathway from the roadway in either direction. The defendant, who was assigned as the driver for that minibus route, was anticipated to have knowledge of the route, as well as the traffic and pedestrian conditions in the area.

(5)  Prior to the arrival of the Minibus, the Deceased had proceeded to the dividing line separating the two eastbound lanes. He was under PW1’s observation for a minimum duration of one minute.

(6)  The Deceased had clearly been visible on the eastbound roadway for some time, slowly walking from the first lane to the second lane, and then slowly proceeding from the second lane toward the westbound lanes.

(7)  Subsequently, the Minibus arrived at the location of the incident and stopped in the second left lane, approximately 1 to 2 meters in front of the Deceased, to allow passengers to disembark.

(8)  It is important to note that the defendant did not choose to stop the Minibus at the leftmost eastbound lane near the pedestrian path to let passengers off. Instead, he wrongly stopped the Minibus in the outer eastbound lane, for passengers to disembark. It is apparent that vehicles or motorcycles could pass through the leftmost eastbound lane at any time, posing a safety threat to Minibus passengers or other road users.

(9)  When the defendant stopped the Minibus, he must have noticed that the Deceased was walking on the roadway, especially when the Minibus headlights were on, visibility was clear, there were no obstacles blocking his view and the Minibus was only 1 to 2 meters in front of the Deceased.

(10)  Given the pace at which the Deceased was walking, the defendant should have had ample time and opportunity to observe his presence. Even though there was a tall truck parked in the leftmost eastbound lane, it was stationary and not moving. I find its presence did not obstruct the defendant’s line of sight in any way.

(11)  The Deceased was directly in front of the Minibus and was by no means in the defendant's blind spot. The point of impact was at the right front of the Minibus[56], which was sufficient to show that the Deceased had already crossed almost the entire front of the Minibus and reached the central dividing line between the eastbound and westbound lanes.

(12)  During the approximately 10 seconds when the Deceased was walking in front of the Minibus while the defendant was letting passengers off, how did the defendant fail to notice the presence of the Deceased?

(13)  At the time of the incident, the lighting was sufficient, and all vehicles on the road, including the Minibus, had their headlights on. Even though the Deceased was wearing dark clothing, this did not prevent the defendant from clearly seeing the traffic conditions ahead.

(14)  The visible crack on the right front windshield of the Minibus and the bloodstains left by the Deceased on the ground and his sustaining multiple fractures indicated that there was a considerable force of impact when the Minibus struck the Deceased during the incident.

86.From the entirety of the evidence, I have no difficulty in drawing the only reasonable and irresistible inference that the defendant stopped the Minibus at an unsuitable location to let passengers off to save time and for convenience, as the tall container truck and small private car were already parked in the leftmost eastbound lane. He stopped the Minibus in a lane that was not adjacent to the pedestrian path to allow passengers to disembark. During this time, his attention was directed toward assisting passengers with fare payment, resulting in a failure to adequately observe the road conditions ahead before proceeding forward and substantially overlooking the presence of the Deceased. Had the defendant paid a proper lookout, exercised due concentration, and remained attentive to the road conditions ahead, he should have observed the presence of the Deceased in sufficient time to apply his brakes, thereby avoiding the collision.

87.Considering the overall circumstances of the case, the defendant’s series of driving actions were sufficient to constitute dangerous driving, rather than merely a momentary lapse in attention.  His driving fell 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 have carefully considered everything said by Mr. Sadhwani both individually and collectively.  Nothing said by him caused me to doubt the findings I have made.

CAUSE OF DEATH

88.In HKSAR v Lam Ying Yu [2014] 2 HKLRD 895, Hon McWalters J stated the following in paragraph 77 of the judgment:-

“The law relating to causation in respect of this offence is that an accused’s dangerous driving has to be a cause of the deceased’s death. It does not have to be the only or even the substantial or major cause of the death, as long as it is something more than de minimus then it qualifies as a cause. (See R v Chiu Tat Shing Dennis [1985] 2 HKC 487, following R v Hennigan [1971] 3 All ER 133.)  “De Minimus” simply means that the dangerous driving was a cause of the accident and “something more than a slight or trifling link.” See R v Kimsey [1996] Crim LR 35 ”

89.According to my findings, the Deceased was slowly crossing the road in a normal manner before being struck by the Minibus.  Even considering the defendant’s account in the VRI, which suggested that the Deceased suddenly rushed onto the road in a manner akin to suicide (which was not accepted by the court), I find the defence assertion that the Deceased may have died from a heart attack rather than as a result of the defendant’s driving to be entirely unfounded and without any merit.

90.Based on the Medical and Autopsy Reports[57], and taking into account the evidence before me, I have no trouble in finding that the death of the Deceased was caused by him being struck by the offside front of the Minibus, which caused the Deceased to fall down, which tragically resulted in multiple injuries, from which the Deceased could not recover. In other words, it was the defendant’s driving that caused the death of the Deceased.  I give full weight to the contents of the Autopsy Report prepared by PW4. I accept her evidence that the autopsy and pathological tests showed no signs of myocardial infarction (heart attack)  in the Deceased.

91.I am satisfied that the direct cause of death of the Deceased was from multiple injuries resulting from the collision made by the defendant.

CONCLUSION

92.I am satisfied on all the evidence before me that the prosecution has proved each of the ingredients of the offence beyond reasonable doubt the defendant drove dangerously causing death of the deceased and I convict the defendant accordingly.