HKSAR v. Tong Tak Lee, Danny

DCCC 594/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 594 OF 2012

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Reasons for Verdict

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1.The defendant faces a charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap.374.

2.This prosecution arises from a tragic accident in the early morning of 1 January 2012 which resulted in the death of Samuel So Sum-yue, aged 20, a student at Mcquarie University in Australia who was visiting his family in Hong Kong for the Christmas and New Year vacation. 

3.The deceased had attended a family dinner the previous evening and had then gone into Central to join friends to celebrate the coming of the New Year.  At about 1.20 am he joined an old school friend at a club in Central.  This friend had left the club at about 4 am. 

4.At around 4.45 am the deceased called his friend to say that he too was leaving to go home.  At about 5.50 am as he was crossing the westbound carriageway of King’s Road in North Point on foot, presumably on his way home, he was struck by a Daihatsu vehicle, registration no. FX 3332, driven by the defendant, sustaining injuries from which he died.

5.The force of the impact was such that part of the deceased’s spectacles went through the windscreen and were found inside the defendant’s vehicle.

6.The prosecution alleged that the death of the deceased was caused by the dangerous driving of the defendant in that he was driving far too fast and without keeping a proper lookout. 

7.The accident occurred just beyond two sets of traffic lights on the westbound lane of King’s Road.  Both sets of traffic lights were showing green for westbound traffic at the material time.

8.Prior to the first set of traffic lights, there were four westbound lanes in King’s Road.  The first set of traffic lights marked the junction of King’s Road with Fortress Hill Road.  The first of the four lanes in King’s Road just prior to this junction was for traffic turning left into Fortress Hill Road.  Traffic proceeding through the first set of traffic lights on the remaining three lanes would then pass through a box junction.  The carriageway after the box junction for traffic proceeding in a westerly direction towards Causeway Bay was staggered to the left.  Traffic on these three lanes would then pass through a traffic light controlled pedestrian crossing.  The crossing led from the southern pavement to a tram stop in the middle of the road.

9.The deceased was crossing the road beyond the traffic light controlled pedestrian crossing when the accident occurred.

10.The speed limit on this stretch of King’s Road was 50 kilometres an hour. 

11.The principal evidence for the prosecution came from three eye-witnesses who were in different positions on King’s Road that early morning, coupled with the footage from two CCTV cameras and the evidence of Dr Wong Koon-hung who gave evidence as an expert in accident reconstruction and image comparison. 

12.One of the CCTV cameras was inside the building at No.260 King’s Road, close to the point where the accident occurred.  The camera did not capture images of the deceased prior to or at the point of impact but did show images of the defendant’s vehicle coming to a halt and the body of the deceased rolling from the lower front of the vehicle. 

13.The second camera was on a building at 278-288 King’s Road, further back along King’s Road where there were still four lanes in King’s Road.  The camera only captured images of the first two and part of the third lane carrying westbound traffic.  That camera captured images of a vehicle travelling at a high speed straddling the first and second lanes.  The prosecution alleged that that vehicle was the defendant’s vehicle just prior to the accident. 

14.The first of the eye-witnesses called by the prosecution was an off-duty police inspector, Pang Chi-hang, PW4, who had come out of Fortress Hill MTR Station and was walking along the pavement of King’s Road in an easterly direction.

15.His evidence was that he first noticed the deceased, who was walking in the same direction ahead of him on the pavement, when the deceased was about 4 to 5 metres from a fire hydrant on the edge of the pavement.  There was nothing abnormal in the way the deceased was walking. When the deceased reached the fire hydrant, he had suddenly started to cross the westbound carriageway diagonally towards a point on the tram stop island which the witness marked with a “C” on the plan, Exhibit P2. 

16.His evidence was that the deceased was walking fairly fast.  He described it as faster than normal walking speed but not running.  He admitted that he used the term “jogging” in a statement he made in English after the accident but explained that he did not mean that the deceased was running, his understanding of the term “jogging” was to mean something between running and walking; he meant that the deceased was walking quickly. 

17.He saw the deceased cross the first and the middle lane and then being hit by the defendant’s vehicle as he entered the third lane.  The defendant’s vehicle had then braked.  He had only heard the sound of braking after the impact, not before.  Without being able to give an estimate of the defendant’s speed in kilometres an hour at the time of the collision, he nonetheless said he felt it was relatively fast.

18.The second eye-witness, Mr Tung Po-lee, PW5, did not witness the collision itself.  He was waiting for a tram at the tram stop doing exercises.  His view of the point of impact would have been blocked by the back of the tram stop on which there were advertising hoardings.  He suddenly heard the sound of the impact and then turned and was able to see the defendant’s vehicle come to a halt and the deceased’s body rolling out from the front of the vehicle. 

19.The third eye-witness, Mr Tung Yiu-chung, PW6, was crossing King’s Road in a southerly direction on a pedestrian crossing about 130 to 140 metres before the scene of the accident.  He said that as he reached the traffic island separating the east from the westbound carriageways, a 7-seater vehicle had passed in front of him in the westbound carriageway of King’s Road at a very high speed.  Although not himself a driver, he had been a vehicle attendant for 4 to 5 years which had involved sitting next to the driver, and his impression was that the speed of the vehicle was between 80 and 100 kilometres an hour.

20.He said that the speed of the vehicle was so fast that although he was alone, he had exclaimed, “You bastard, you are driving so fast, beware you hit somebody.”  He said he kept on looking at the vehicle as it continued along King’s Road and about 5 seconds later saw the vehicle hit a shadow-like figure.  He said the sound of the impact was very loud.  He had not heard the sound of braking and said that the vehicle had not seemed to reduce speed, but he admitted that he did not notice whether the brake lights of the vehicle had come on. 

21.As a result of what he had seen, he called the police and walked down to the scene of the accident where he saw the deceased lying on the road.  He said he had angrily remonstrated with the driver, who must have been the defendant, for driving so fast. 

22.Dr Wong Koon-hung’s evidence was simply based on the long skid mark left by the defendant’s vehicle.  The speed of the defendant’s vehicle at the time its wheels were locked would have been 58 kph plus or minus 6 kph.  However, he explained that that speed would be an underestimate of the actual speed that the defendant’s vehicle was travelling because it failed to take into account the fact that there would have been a fraction of a second after the brakes were applied before the wheels were locked, dissipation of energy caused by the vehicle hitting the kerb and the deceased and, in particular, the fact that the vehicle travelled on at least another one and a half vehicle’s length after the end of the skid mark.

23.Regarding this last factor alone, he said that if the brakes were not being applied during that period and the car was simply freewheeling, he would estimate the speed of the vehicle at 3 to 4 kph higher. The speed would be significantly higher if the vehicle had still been braking. He estimated the speed of the vehicle captured by the CCTV camera at 278-288 King’s Road to be 90 kph at that point.

24.Based on his comparison of the images of that vehicle and images of the defendant’s vehicle taken by him as a result of road tests using the defendant’s vehicle FX 3332, he concluded that there were no obvious dissimilarities between FX 3332 and that vehicle.  It was comparable in terms of features, size and general appearance. 

25.The defendant himself gave evidence.  He had also been the subject of a video recorded interview, Exhibit P16, the same morning.  I took into account that that interview started less than 5 hours after the accident when the defendant would have still been suffering emotional distress as a result of the accident and knowing of the death of the deceased.

26.He gave evidence that despite the fact that it was New Year’s Eve, he had gone to bed at around 9 pm the previous evening at his home in Healthy Gardens in North Point.  He had had no alcoholic drinks the previous evening.  He got up at around 5 am and set off to travel to his flower shop in Causeway Bay. 

27.On the stretch of road before the junction with Fortress Hill Road, he was travelling at around 50 kph.  He was in the fourth lane.  This would have meant that his vehicle was not the speeding vehicle captured by the CCTV camera at 278-288 King’s Road which only showed vehicles in the first three lanes.  He said there was no special reason why he was travelling in the fourth lane. 

28.In general, he maintained that he would slow down as he approached traffic lights even if they were green.  He was now very confused as to where exactly he had started to slow down.  Initially, he said it was at the yellow box markings on the road, then he put it further back, at a point almost parallel with the first set of traffic lights. 

29.After the Fortress Hill junction, he had driven in the third lane.  Before reaching the pedestrian crossing, he had suddenly seen a black shadow dashing out from his left.  He immediately braked and tried his best to swerve to the right to avoid it but heard the sound of the impact with his car.  He alighted from his car and realized that he had hit a human being.  He tried to make a call to the police on his mobile phone but his hands were shaking so much, he was unable to do so.  A passer-by informed him that a call had been made to the police.  

30.He could not recall Mr Tung Yiu-chung, PW6, speaking to him, but he said that at that stage he was so scared that he was only concentrating on trying to make a phone call. 

31.I turn now to my assessment of the evidence.

32.I found the prosecution witnesses PW4, PW5 and PW6 to be honest in recounting to the best of their abilities the events that happened that morning.  In assessing their evidence, it has to be borne in mind that this accident was unexpected and happened in a very few seconds.  In those circumstances, memories of details such as at what stage they heard sounds of braking may be unreliable.

33.However, I am satisfied that Pang Chi-hang, PW4’s evidence as to the position on the pavement at which the deceased started to cross the road and the general direction in which he was heading and the point he reached when the accident occurred was reliable.  I accept his evidence that the deceased was not running but walking quickly at that time. 

34.I accepted the evidence of Tung Yiu-chung, PW6, that whether or not he used the term “dashing out” to PC4596 when describing the accident, he was not in a position to see whether or not the deceased had dashed out.  I found Tung Yiu-chung, PW6, to be a down-to-earth and generally reliable witness when it came to matters of significance.  I accepted his evidence that the vehicle which must have been that of the defendant passed in front of him at what seemed to him to be a very high speed as he was crossing King’s Road.  I accepted the speed at which the vehicle was travelling was so fast that it caused him to keep an eye on it as it travelled down King’s Road where he saw the accident occurred albeit at a distance of 130 to 140 metres. 

35.Having been on a site visit to the scene, it was apparent to me that the place where the accident occurred was at a lower level than the place at which he was standing and that there was nothing in the geography of the area which would obstruct his view.  As to his evidence of seeing the deceased thrown into the air, I do not consider that he was necessarily mistaken.

36.Mr Tsang for the defendant has suggested that that could not have occurred because the footage from the CCTV camera at 260 King’s Road allegedly shows the deceased was trapped by a lower part of the defendant’s vehicle and being dragged horizontally before rolling off when the vehicle came to a halt.  I do not find the footage sufficiently clear to indicate whether or not the deceased was trapped in this way. 

37.The damage to the windscreen of the vehicle through which part of the deceased’s spectacles passed into the vehicle makes it not unlikely that the deceased was thrown up by the impact.  Even if the deceased’s body was at that stage depicted in the video footage trapped by a lower part of the defendant’s vehicle, it does not mean that he was trapped in that way from the moment of impact. 

38.I accept the evidence of Dr Wong Koon-hung that the speeding vehicle captured by the CCTV camera at 278-288 King’s Road was travelling at approximately 90 kilometres an hour. 

39.I have gone on to consider whether the only reasonable inference is that that vehicle must have been the defendant’s vehicle.

40.There is no evidence that the times recorded on the footage from the CCTV cameras at 260 and 278 King’s Road were exactly synchronized at that time.  The time recorded on the footage from the camera at 278-288 King’s Road when the speeding vehicle passed was 05:51:56.  The time recorded on the CCTV footage at 260 King’s Road at the time the defendant’s vehicle came into view was 05:52:19.

41.Viewing the images of vehicles passing 278-288 King’s Road which were visible in the three lanes caught by the camera, there was a gap in the traffic followed by four taxis in quick succession and then the speeding vehicle.  Viewing the images of vehicles on the camera at 260 King’s Road, there appears to have been a gap in the traffic followed by four taxis in quick succession and another unknown vehicle followed by the defendant’s vehicle.

42.The two footages are consistent with the defendant’s vehicle being the speeding vehicle in the footage taken at 278-288 King’s Road, on the assumption that the unknown fifth vehicle preceding the defendant’s vehicle on the film taken from 260 King’s Road had been travelling on the fourth lane of King’s Road when it passed 278-288 King’s Road.

43.If, as I accept from Mr Tung Yiu-chung’s (PW6), evidence, that the defendant’s vehicle was travelling very fast when it passed Mr Tung, then it would have to follow that if the speeding vehicle shown in the footage at 278-288 King’s Road was not the defendant’s vehicle, there would have had to have been a second speeding vehicle.  I accepted Mr Tung’s evidence that no other fast vehicle had passed him at that location before the defendant’s vehicle had passed him.

44.What is even more persuasive evidence that the speeding vehicle captured in the footage taken at 278-288 King’s Road was the defendant’s vehicle are, firstly, Dr Wong’s evidence that there were no obvious dissimilarities between the speeding vehicle and the defendant’s Daihatsu vehicle.

45.I accepted Dr Wong’s evidence that any apparent differences in the photographs can be accounted for by the speed at which and the way the light caught the vehicle.

46.Nothing suggested to me by Mr Tsang for the defendant persuaded me that there were obvious dissimilarities between the vehicles.  In particular, I rejected his suggestion that the images showed that the speeding vehicle could not have had a rear windscreen wiper. 

47.Apart from the aspects drawn to the court’s attention by Dr Wong, what struck me as notable similarity was the shape of the rear of the vehicle and the fact that the framework on each side of the rear window appeared dark in colour.

48.Secondly, and, in my view, most significantly was the reaction of the pedestrians visible on the pavement a few seconds after the speeding vehicle had passed.  They stopped and looked back down the road in the direction of where the accident had occurred.

49.I have been left in no doubt that the speeding vehicle visible from 278-288 King’s Road was the defendant’s vehicle.  In reaching that conclusion, I have borne in mind the defendant’s evidence that he was travelling in the fourth lane at approximately 50 kilometres an hour and the fact that when asked to indicate how close the defendant’s vehicle had passed him, Mr Tung Yiu-chung indicated a distance of about 9 foot 2 inches. That latter evidence, however, has to be considered in the light of his other evidence that there were “around three lanes” in King’s Road at that point.  In fact, there were four.  And his evidence that the defendant’s vehicle was in around the second lane; it also has to be borne in mind that the camera at 278-288 King’s Road was showing a part of the road slightly nearer the accident site. 

50.Bearing in mind the fact that almost a year had passed since the accident, one would not expect Mr Tung to have a precise recollection of the distance of the vehicle from him.  His impression is that it was somewhere in the centre of the road which I do not find inconsistent with the location of the speeding vehicle.

51.It follows that I am satisfied that the defendant’s vehicle was travelling at about 90 kilometres an hour outside 278-288 King’s Road where there was a speed limit of 50 kilometres an hour.  I reject the evidence of the defendant that he was travelling in the fourth lane at the speed of about 50 kilometres an hour. 

52.I bear in mind that this was not in the middle of a working day but shortly before 6 am and the traffic in King’s Road was relatively light.  But it is apparent from the CCTV footages that not only was there traffic passing fairly frequently along the road at that time, but also that there were pedestrians on the pavement.  Drivers of other vehicles were driving at a much slower speed.  To drive at that speed posed an obvious danger to other road users. 

53.I reminded myself that it does not necessarily follow simply because of the manner of the defendant’s driving at that stage that his driving was dangerous at the time his vehicle hit the deceased, there must be a connection between any dangerous driving on the part of the defendant and the death of the deceased.

54.It is apparent from Dr Wong’s estimate of the speed of the vehicle that the defendant’s vehicle must have slowed down by the time it reached the point where the skid mark commenced, but at most to about 55 kilometres an hour, adopting circumstances most favourable to the defendant and ignoring features that might have indicated a faster speed.

55.Having been to the scene of the accident on the site visit, I was struck by the proximity between 278-288 King’s Road and the point where the accident occurred.  I am satisfied that this is not a case where the defendant had been adopting a course of travelling at a steady speed slightly over the speed limit prior to the accident.  I am satisfied that at the time he first caught sight of the deceased he must have been in the course of decelerating from a speed that was much too fast.  Although there was a speed limit and the lights were green in his favour, it did not entitle him to approach an area where there were traffic lights and a pedestrian crossing at the speed of the speed limit, still less at a higher speed.  There were, as I have said, pedestrians out and about at that time in the morning. 

56.I have borne in mind that the conduct of the deceased was not without fault.  He had not waited until he reached the pedestrian crossing before starting to cross the road.  He was walking diagonally across three lanes of the westbound carriageway at a quick pace, presumably assuming that if there were any vehicles approaching, they would be driving at a speed slow enough to see him and take steps to avoid him.  This was an error of judgment on his part.  Perhaps the fact that he had consumed alcohol with friends made him less cautious than he should have been.

57.I am satisfied that the manner of the driving of the defendant meant that he could not slow down sufficiently to avoid the deceased.  There is no suggestion that the deceased had suddenly emerged from behind a parked vehicle or other obstruction.  I accept the evidence of the prosecution witnesses that this was a well-lit stretch of road.  I do not accept the defendant’s evidence that it was somehow dimmer after the pedestrian crossing.  There was a street light on the tram stop close to the place that the accident occurred.

58.The deceased had not suddenly rushed into the path of the defendant’s vehicle from the immediate side of the defendant’s vehicle.  He was crossing the road by walking, albeit at a fast pace, at an angle which meant that he was walking in the direction of the defendant’s vehicle.  He had already crossed two lanes by the time he was hit by the defendant’s vehicle and would have been visible when he was crossing the first two lanes.

59.If the defendant had not been driving far too fast shortly before and had not still failed to slow down to a safe speed but had instead proceeded through the first set of traffic lights without keeping a proper lookout, he would have been able to see the defendant and take avoiding action; he did not do so. 

60.I am satisfied that the defendant’s driving fell far below what would have been expected of a competent and careful driver and it would have been obvious to a competent and careful driver that driving in that way was dangerous.  I am satisfied that by reason of that driving the defendant caused the death of the deceased; I find him guilty of the offence as charged.