HKSAR v. Wong Wai Tak Bill

DCCC 887/2023

[2026] HKDC 527

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 887 OF 2023

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REASONS FOR VERDICT

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1.The defendant was charged with one count of “causing death by dangerous driving”[1]. He pleaded not guilty to the charge.

Prosecution’s case

2.The prosecution called 7 prosecution witnesses to give evidence in court.  Parties also submitted a set of Admitted Facts.

3.It was agreed that:

(1) The defendant obtained his driving licence on 14 August 1981.

(2) An occurrence took place at a pedestrian crossing near the junction of Queen’s Road West and Water Street, Sai Ying Pun (“the Junction”) at about 11:40 a.m. on 19 November 2022 (“the Occurrence”).

(3) The relevant part of Queen’s Road West (west bound) was a three-lane carriageway. Only vehicles on the third left lane thereof could turn right into Water Street. The speed limit was 50 km/h. At the material time, the weather was fine with sufficient sunlight. The road surface was dry and the road condition was normal. The traffic flow was light.

(4) The pedestrian crossing at the Junction was governed by traffic lights for vehicles (“the Traffic Light”) and pedestrians (“the Pedestrian Light”).

(5) Under normal circumstances, if the Traffic Light is in “red and amber” or “green” mode, the Pedestrian Light will remain in “red” mode, thereby prohibiting any pedestrians from crossing.

(6) Shortly before the Occurrence, the defendant was driving a light goods vehicle bearing registration mark SL9118 (“Car”) along the third left lane of Queen’s Road West (west bound) and stopped at the Junction in front of the Traffic Light which was in “red” mode. The Car was the first car facing the Traffic Light.

(7) At about 11:48 a.m. on the same day, an ambulance arrived at the scene. Ambulance men treated Ms. Lau Mei Fuk (aged 89 at the material time) (“Ms. Lau”), who was conscious and able to state her name.

(8) Upon being taken to Queen Mary Hospital, at about 1:02 p.m. on 19 November 2022, Ms. Lau was examined at the Department of Accident and Emergency. Ms. Lau was admitted to the Department of Neurosurgery on the same day.

(9) Ms. Lau had medical history of hypertension, paroxysmal, atrial fibrillation and hypertrophic obstructive cardiomyopathy. She was prescribed to be on warfarin at the time of the Occurrence.

(10) Upon examination of the Car, no significant damage was found on the front panel or the nearside front bodywork of the Car, no fresh scratches or dust disturbance marks was found on the nearside front of the Car, and nothing else of significance was found of the Car with respect to recovery of forensic evidence.

(11) Contact evidence in the form of textile fibre transfer from Ms. Lau to the Car could not be established through forensic examination.

(12) The defendant was arrested for “dangerous driving causing grievous bodily harm” on 19 November 2022.

4.PW1 Mr. Yeung Sum Ho and PW2 Ms. Chan Tze Yan Theresa did not witness how and what caused Ms. Lau to fall down during the Occurrence.  Mr. Yeung saw Ms. Lau walking on the pedestrian crossing before the Occurrence.  Ms. Chan only heard sound of “bang” during the Occurrence.

5.PW3 Police Office Lam Chit Lee was the first officer who arrived at the scene after the Occurrence.  He found Ms. Lau lying on the ground and was conscious.  She was able to tell him her name.

6.PW4 Police Officer Cheung Tsz Kin was responsible for coordinating all forensic examination of this case.  PW5 Dr. Cheung Wai Yee gave evidence about her examination of Ms. Lau at the Department of Accident and Emergency of Queen Mary Hospital on 19 November 2022.  Dr. Cheung’s report was produced as exhibit P6.  PW6 Dr. Poon Chun To gave evidence about Ms. Lau’s medical condition and treatment after she was transferred to the Department of Neurosurgery from the Department of Accident and Emergency on 19 November 2022.  Dr. Poon’s report was produced as exhibit P7.  PW7 Dr. Wu Hao, William gave evidence on the autopsy findings of Ms. Lau.  Dr. Wu’s report was produced as exhibit P8. 

7.The video-recorded interview of the defendant on 19 November 2022 was also admitted as evidence (exhibits P2, P2A and P2B).

8.Defence did not have any half time submissions.  After I ruled a case to answer, the defendant elected to give evidence but did not call defence witnesses.

Defence case

9.It was the defendant’s evidence that he was driving along Queen’s Road West and then he stopped the Car at the Junction when the Traffic Light was red.  After the Traffic Light had turned completely green, the defendant gently executed a right turn into Water Street at an approximate speed of 5-8 km/h. 

10.While making this manoeuvre, the defendant first observed the pedestrian crossing for 5-8 seconds to ensure it was clear of pedestrians.  Subsequently, he spent no more than 2 seconds checking the left junction to confirm that no vehicles were jumping or advancing through what he perceived would be a red light.  The defendant then looked back at the pedestrian crossing when Ms. Lau unexpectedly appeared in front of the Car.  He immediately applied the footbrake and halted the Car.  He then alighted from the Car and rushed to Ms. Lau, who was found lying with her feet approximately 1.5 meters from the front of the Car.  The defendant denied any collision with Ms. Lau and did not sense or feel any impact with his Car at the relevant time.

Issues in dispute

11.The issues in dispute are:

(1) whether there was any collision between Ms. Lau and the Car;

(2) whether Ms. Lau’s death was caused by the Occurrence; and

(3) whether the defendant was driving dangerously.

Legal principles

12.The test on dangerous driving is well defined in section 36(4) of the Road Traffic Ordinance, Cap. 374.  A person is 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.

13.Section 36(7) of the Road Traffic Ordinance provides that in determining what would be expected of, or obvious to, a competent and careful driver, regard should be had to all 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 of which the accused could be expected to be aware and any circumstances shown to have been within the knowledge of the accused.

14.In HKSAR v Lam Chi Fat [2012] 1 HKLRD 968, the Court of Appeal suggested a list of factors which may support a charge of dangerous driving[2]:

“(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.”

15.Defence position is that none of the above factors are present in this case.

16.Defence pointed out that the prosecution must set out what specific driving acts or actions of the defendant they allege constitute dangerous driving. The doctrine of res ipsa loquitur is not applicable in proving dangerous driving[3]. Further, the Court must be mindful and critical in carefully differentiating dangerous driving from careless driving[4].

Directions

17.Prosecution has the burden to prove the requisite elements of the offence beyond reasonable doubt.  The defendant has no burden of proof.

18.The defendant elected to give evidence but did not call defence witnesses.   Before reaching the verdict, I must consider his evidence.  If what the defendant said is or may be true, then he must be acquitted. 

19.Even if the evidence of the defendant was rejected, I still have to consider the prosecution’s evidence and decide if the charge has been proved beyond reasonable doubt.

20.I bear in mind the defendant has no criminal conviction record when considering his credibility and propensity.

21.I remind myself that if I am to draw inference, the inference must be drawn from facts proved and that the inference is the only reasonable inference to be drawn from the proved facts. 

Credibility of prosecution witnesses

22.The defence did not challenge the credibility of prosecution witnesses in their closing submissions.  I find all prosecution witnesses honest and reliable.  Their evidence are straightforward and they were not shaken under cross-examination.  I accept the evidence of all prosecution witnesses and attach full weight to their evidence. 

Credibility of the defendant

23.As far as the defendant’s evidence is concerned, I note that:

(1) According to the defendant, he stopped the Car just when the Traffic Light turned red and he only started moving into the Junction when the Traffic Light was green. It is also his evidence that the time lapsed from Red light to Green light is about 20-30 seconds. According to Mr. Yeung, Ms. Lau started walking on the crossing at Red-amber light or Red light. This part of his evidence was not challenged by the defence. Thus, by the time the Car started to move, Ms. Lau would have walked on the crossing for 20-30 seconds. Even if Ms. Lau walked very slowly, she would have stood at some point on the crossing and would be clearly visible, bearing in mind that she was carrying a red bag. Therefore, the defendant’s testimony that before he looked at the left side he had looked at the crossing which was clear could not be true. He must be lying.

(2) According to the defendant’s version, he looked at the crossing for several seconds and it was clear. Then he looked at his left side for 2 seconds. When he turned back to the front (i.e. the crossing), Ms. Lau was already very close to his Car. In other words, his version is that Ms. Lau suddenly appeared on the crossing and was able to walk close to his car within 2 seconds. This version is contradicted by Mr. Yeung’s unchallenged evidence. Further, as pointed out by the prosecution, the defendant’s version that Ms. Lau was able to walk close to the Car within 2 seconds was simply impossible given Ms. Lau was aged 89 and was carrying a tin can and a red bag at the material time. I find the defendant’s version unbelievable.

24.In view of the above, I find the defendant not honest or truthful.  I consider him not an honest or credible witness.  I reject the exculpatory parts of his evidence.

Analysis and Findings

(A) Whether there was any collision between Ms. Lau and the Car

25.The prosecution contended that although there was no CCTV footage capturing or eye witness witnessing the moment of the accident, this Court could draw an irresistible inference that there was a collision between Ms. Lau and the Car based on the fact that (1) Mr. Yeung and Ms. Chan both heard “bang” sound at the time of the accident; (2) the chance of collision was high as the defendant admitted that he noticed Ms. Lau only when she was very close to the Car; and (3) the final position of Ms. Lau from the Car indicated that the force that caused Ms. Lau to fall came from Ms. Lau’s right side and that force pushed her forward. 

26.The defence contended that there was no witness who saw the Car collide with Ms. Lau.  Mr. Yeung and Ms. Chan only heard a noise which they were uncertain as to the origin of it.  The forensic examination of the Car disclosed no evidence consistent with pedestrian impact.  It was submitted that the forensic findings were consistent with Officer Cheung’s observations of the Car on 5 December 2022 where he found no trace of damage related to Ms. Lau on the Car.  The defence further contended that Ms. Lau’s injury pattern lacked any bumper-impact or injuries to the lower limbs or body.  No swelling, deformation or fracture was found on Ms. Lau.  It was submitted that this, coupled with the fact that Ms. Lau was lying 1.5-2 metres from the front of the Car, was consistent with no actual collision taking place. 

27.Having considered both parties’ submissions and the evidence available, I agree with the defence that the absence of eye witness of the accident and forensic and contact evidence, and the lack of injuries common to vehicle-pedestrian collision all support the conclusion that there was no collision between Ms. Lau and the Car.  Thus, I am not satisfied that there was a collision between Ms. Lau and the Car during the Occurrence.  

(B) What causedMs. Lau to fall to the ground

28.The prosecution contended that even if there was no collision between Ms. Lau and the Car, Ms. Lau fell as she was startled by the approach of the Car. The prosecution further contended that Ms. Lau did not fall down due to her pre-existing medical conditions.  Her fall was caused by the Car.

29.The defence pointed out that Ms. Lau had a long medical history of atrial and ventricular fibrillation, and hypertrophic obstructive cardiomyopathy.  She also had history of falling prior to the Occurrence.  It was contended that Ms. Lau might fall due to her pre-existing multiple cardiovascular conditions and challenges.  Further, there was no evidence whether the defibrillator installed in Ms. Lau’s body was functioning properly at the time of the Occurrence.  At the material time, Ms. Lau was carrying a red bag and a tin can while walking just before the Occurrence.  It was submitted that as there was the possibility that physical exertion might trigger cardio-fibrillation, potentially leading to Ms. Lau’s collapse, the possibility of a sudden fall could not be ruled out. 

30.According to Officer Lam, Ms. Lau was conscious and was able to state her name upon inquiry by him at the scene.  According to Dr. Cheung, when Ms. Lau arrived at the Department of Accident and Emergency of the hospital, she was still conscious and complained about coughing for a few days.  Dr. Cheung testified that if Ms. Lau’s defibrillator was activated, Ms. Lau should be able to feel it and would have complained about chest pain.  However, Ms. Lau did not mention about chest pain or shock by the defibrillator.  Further, while Dr. Cheung could not rule out the possibility of atrial fibrillation triggered by strenuous exercise, she commented that as Ms. Lau was seen on CCTV screenshot that she could still walk without any walking aid and companion while carrying the red bag and the tin can, Ms. Lau had good mobility.  Dr. Cheung opined that atrial fibrillation could not be easily triggered by doing exercise as this kind of arrhythmia was unpredictable.  Otherwise, Ms. Lau could not do any exercise at all.  I find the aforesaid evidence supports the only reasonable inference that Ms. Lau did not experience any medical episode at the time of the Occurrence.  I find Ms. Lau’s fall was not the result of any pre-existing medical condition.

31.Evidence of Mr. Yeung and Officer Lam show that Ms. Lau’s body was only about 1.5 metres from the Car after the Occurrence.  Given such close distance, and in the absence of any collision and any medical condition causing her fall, the fact that Ms. Lau was on the ground after the Occurrence supports the only reasonable inference that the Car must be so close to Ms. Lau such that she was startled and lost her balance and therefore fell to the ground.  In fact, the defendant also confirmed that the Car was very close to Ms. Lau when he first noticed Ms. Lau.  I therefore find that Ms. Lau’s fall was caused by the defendant driving too close to her. 

(C) Whether Ms. Lau’s death was caused by the Occurrence

32.On the law of causation, in HKSAR v Lam Ying Yu CACC 320/2012, the Court of Appeal held that[5]:

“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.’”

33.Office Lam who attended the scene saw bleeding from occipital of Ms. Lau’s head.  Dr. Cheung confirmed that Ms. Lau sustained head injury when she examined Ms. Lau at the Department of Accident and Emergency.  Thus, it is clear that Ms. Lau sustained head injury as a result of the fall.  Dr. Wu confirmed the direct cause of death of Ms. Lau was right acute traumatic subdural hemorrhage, essentially caused by a trauma to her head, i.e. Ms. Lau hitting her head after falling down.  According to Dr. Wu, the distant cause of death of Ms. Lau was hypertrophic obstructive cardiomyopathy, which again was related to the head injury sustained by Ms. Lau.  As Ms. Lau’s fall was caused by the defendant driving too close to her thereby startling her causing her to fall, and as a result she sustained head injury which caused her death, I find Ms. Lau’s death was caused by the Occurrence.   

(D) Whether the defendant was driving dangerously

34.As stated above, the test for dangerous driving is whether the driver’s driving manner 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.

35.The prosecution invited this Court to find that the defendant’s driving manner was dangerous:

(1) There is no direct evidence proving whether Ms. Lau was jaywalking or whether Ms. Lau failed to notice the Car. Either way, the pedestrian’s negligence was no excuse for a driver’s careless manner of driving. It is the driver’s driving manner that the Court should assess.

(2) As the defendant admitted under caution and in Court, he did not notice Ms. Lau all along until Ms. Lau appeared on the left side of the Car.

(3) According to the defendant’s evidence, Ms. Lau walked out of the pedestrian crossing within no more than 2 seconds. It was submitted that that was impossible. Thus, the defendant must have observed his left side for a longer period and observing the left side for such a long period while turning right is a driving manner that falls far below what would be expected of a competent and careful driver.

(4) Even though the defendant’s view was not obstructed, he failed to see Ms. Lau.

(5) This Court was invited to refer to HKSAR v Hussain Tahir HCMA 280/2022 in which it was held that in a situation when the driver was not paying enough attention to the road ahead of him especially when the conditions were such that he must have seen the victim crossing the road from the safety island and he either misjudged his speed and her distance or he did not see her. It was held that in either scenario, the magistrate was entitled to find driving in that manner fell far below what would be expected of a competent and careful driver.

36.The prosecution also contended that if this Court was not satisfied that the defendant drove dangerously, the defendant must have driven carelessly.

37.The defence pointed out that it was never the prosecution’s case that the defendant breached any traffic regulations at the material time, nor was any such allegation put in cross‑examination.  There was no evidence of the defendant jumping the light.  There was no skid mark evidence or speeding.  It was submitted that a slow, cautious right turn was inherently consistent with prudence rather than dangerousness. 

38.The defence further submitted that while a green light did not permit driving through a pedestrian, a driver was entitled to assume a level of compliance with signals by others.  Acting on that, absent other indicia of danger, it was submitted the defendant’s driving did not amount to driving falling far below the competent and careful standard[6].

39.As stated above, the defence did not challenge Mr. Yeung’s evidence that Ms. Lau started to walk on the pedestrian crossing while Mr Yeung’s van and the Car stopped at the Junction at the red Traffic Light.  Thus, by the time the defendant started to move into the Junction at Green light, Ms. Lau would have already walked on the pedestrian crossing for 20-30 seconds.  I find the reason why the defendant drove so close to Ms. Lau was due to the fact that he did not observe the pedestrian crossing before he turned and therefore failed to notice Ms. Lau was already on the crossing.  While Ms. Lau would have been jaywalking at that time as the Pedestrian Light should be red at that time under normal circumstances, being a prudent driver, the defendant should have expected that pedestrian may sometimes jaywalk at pedestrian crossing and thus he should keep a proper lookout.  In fact, the defendant agreed it was common for people to jaywalk in Hong Kong.  Under the Road Users’ Code, drivers are reminded to “take proper care to avoid accidents with pedestrians at all times and places – even if the pedestrians are jaywalking.[7]” Based on the evidence available, I find the defendant did not keep a proper lookout by not paying attention to the pedestrian crossing on his right when he was turning right.  While there is no evidence as to the speed of his making the right turn, given the defendant was able to brake his car without hitting Ms. Lau, I accept he must have driven slowly.  In other words, there is no evidence of the defendant jumping traffic light or driving at high speed.  In the circumstances, I do not find his manner of driving dangerous.  The facts of Hussain Tahir are different from our case and can be distinguished.  I therefore find the defendant not guilty of the charge of causing death by dangerous driving.

40.However, given the defendant failed to observe the pedestrian crossing before turning into the crossing, thus driving too close to Ms. Lau causing her to fall, I find the defendant has driven the Car without due care and attention.  I find him driving carelessly at the material time.  Therefore, I find the defendant guilty of careless driving[8], which is a statutory alternative verdict to the charge of causing death by dangerous driving[9]. For the sake of completeness, as stated above, I find the defendant driving too close to Ms. Lau and thereby causing her death, although it is not an element of the offence of careless driving.