OAKLAND — Was Kevin Mak trying to dole out justice on his own terms when he plowed a minivan into a homeless man in downtown Oakland, allegedly leaving the man to die on a sidewalk over $450 in stolen surveillance equipment?
Or was it all a tragic accident — one that Mak hopelessly tried to avoid with a last-second slam of the brakes?
Those conflicting accounts took center stage Monday as prosecutors opened their case against Mak, who is accused of ramming a van into the homeless man while confronting him over vandalized property in Oakland’s Chinatown neighborhood.
While playing surveillance footage from the March 2022 encounter, prosecutor Alyssa Fielding told jurors to focus on the moment when the minivan Mak had been driving wheeled around to point at Chi Leung, 66. Moments later, she said, Mak tried “turning his 1,000-pound car into a weapon.”
“The defendant decided to take matters into his own hands,” Fielding said during opening statements in Mak’s second-degree murder trial. “He makes the choice to press on the accelerator.”
To Mak’s attorney, it was a tragedy borne out of “fear and panic.” He recounted how discussions between the two men took a violent turn before the fatal collision, when Leung hit Mak’s minivan with a shovel six or seven times on the driver’s window.
“Not to blame the victim, but the chaos was in fact of his own making,” said the attorney, Neil Hallinan.
He added that Mak never intended to hit Leung and repeated over and over in his opening statement, that “this was an accident.”
Leung died several days after being hit by the minivan on March 18, 2022. The impact led him to stumble backward and hit his head on the concrete, causing a fatal traumatic brain injury. He had been living in a black pickup truck just a few feet from where he was hit.
Prosecutors initially charged Mak with assault with a deadly weapon, but those charges were upgraded to murder when Leung later died from his injuries at a hospital.
The case took an unusual turn seven months later, when Mak’s attorneys convinced an Alameda County judge to release Mak from jail on his own recognizance, arguing that the killing was an accident and that Mak had cooperated with investigators. The decision was a rarity in murder cases, where defendants are often held without bail.
Prosecutors say Leung’s death stemmed from a heated confrontation over busted security cameras that had been knocked down with a shovel from a nearby building that Mak had been renting.
Unsatisfied with the response by Oakland police to the vandalism, Mak and a friend appeared to track down Leung and blame him for the vandalism, Fielding said.
Surveillance footage showed Mak and another person in the minivan stepping out to confront Leung on the sidewalk near 8th and Alice streets. Less than two minutes before the encounter turned deadly, Mak could be seen trying to flag down two Oakland police cruisers that had stopped just feet away at a traffic light — both of which continued on without investigating.
Moments later, Leung ran down the street toward his black pickup, while Mak and his friend got back in the vehicle and followed behind him, parking right behind the truck, surveillance footage showed.
Cell phone footage captured by Mak then showed Leung hitting the driver’s window of the minivan six or seven times with a shovel.
Fielding framed Leung’s actions as those of a man who was trying to say “leave me alone.” Simply put, the prosecutors said, Leung “doesn’t want to speak to them, he doesn’t want to interact with them — he’s scared.”
“The defendant won’t take no for an answer,” Fielding added.
Fielding also claimed that Mak could be heard on the cell phone recording uttering the words “that’s what you get” in Cantonese, moments after striking Leung with the minivan.
Yet those words became a source of contention Monday.
Hallinan attributed them to Mak’s friend — suggesting that Mak instead urged his passenger to call 911 after the collision.
The attorney also suggested Mak never intended to hit Leung — calling any suggestion that Mak stared down Leung before hitting him mere “assumptions.” Rather, Mak had been looking over his shoulder when the minivan drove onto the sidewalk, and only noticed him in the way at the last possible moment, Hallinan said.
The attorney also told jurors that he planned to present evidence that Mak had hit his brakes a fraction of a second before the collision.
“He was subject to blind spots, he was subject to poor visibility,” Hallinan said. “This happened so quickly.”
The trial is expected to last through mid-October.
