HKSAR v. NGAI HON FAI

DCCC 499/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 499 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to a charge of causing death by dangerous driving.

2.  The Summary of Facts states that at about 5.30 in the early hours of the morning of 15 November 2012, the deceased in this case, Madam Li Hang-lan, a 75-year-old lady, was knocked down by a taxi driven by the defendant.  This tragic accident happened on the left lane of Ap Lei Chau Bridge Road, a two-lane carriageway.

3.  The first officer to arrive at the scene conducted an investigation about 10 minutes after the accident had occurred. He found the deceased lying unconscious about 2.5 metres in front of the taxi. He also found a handcart, scrap metals and other debris in the vicinity of the deceased.

4.  The location of the accident was a long, straight, two‑lane, single-way carriageway.  At the time of the accident, the weather was fine, the road surface was dry, and the lighting conditions were sufficient.  The traffic was light.  The speed limit governing that stretch of road is 50 kilometres per hour.  The officer was not able to find any skid marks on the road surface immediately prior to the accident.

5.  The deceased was taken to Queen Mary Hospital and certified dead at 6.09 hours.  An autopsy confirmed that the deceased died as a result of multiple injuries sustained during the accident.

6.  A screening breath test on the defendant was conducted at 0600 hours, and it was discovered that no alcohol was found in the breath specimen provided by the defendant.

7.  An inspection of the taxi showed that the nearside front of the taxi was damaged.  Another officer seized from the taxi a vehicle camera with video-recording function which was attached to the rear-view mirror near the front windscreen of the taxi.

8.  The SD memory card was retrieved from the camera, and it was found to contain video footage of the accident.  The video footage showed that the front windscreen of the taxi reflected images of objects resembling touch screen devices situated about the dashboard of the taxi, and this showed that there were changes of illuminated icons operated by human fingers whilst the taxi was moving, and the last such manipulation occurred about four seconds before the taxi hit the deceased. 

9.  The video footage also showed that prior to the accident, the taxi did not slow down; it did not swerve or engage in any other kind of manoeuvre to avoid the deceased.  The footage also showed that the deceased could be observed via the camera for more than five seconds before the collision took place.  During that period of time, the deceased was pushing the handcart about one-third into the lane and walking in the same direction as the taxi.

10.  An accident reconstruction was conducted on 8 April 2013.  It showed that the speed of the taxi at the time of the collision was approximately 47 kilometres per hour.  The forensic scientist conducting the reconstruction opined that the defendant would have been able to perceive the deceased just over 60 metres away had he been driving at 50 kilometres per hour in a prudent manner, and that the defendant should have had over four seconds to react to the situation before he hit the deceased.  

11.  The defendant was found in possession of three sets of mobile phones at the time of his arrest.  A holder for the mobile phone was found affixed to somewhere above the dashboard of the taxi near the steering wheel.

12.  The defendant was arrested and cautioned at 0655 hours and under caution, he said he understood.  He said that immediately prior to the accident, he saw that there was an old lady pushing a handcart.  He said she was moving out from the kerb of the pavement on the left-hand side into the front of his lane.  He said he swerved to the right but failed to do so in time and eventually he hit the old lady.

13.  Later that morning, a video interview was conducted at the police station.  He said that according to his estimate, the deceased was at a distance of about 10 taxis away from him when he saw her.  He said he slowed down the taxi and checked the offside mirror, intending to change to the offside lane.  He said that there was no vehicle on the offside at that time but when he looked back to the direction of the deceased, his taxi had already hit her. 

14.  The taxi driven by the defendant was subsequently taken to the Quarry Bay Vehicle Detention Pound for examination. Examination confirmed that the taxi was free from any mechanical defect.

15.  The defendant does have a criminal record but all the matters recorded there were some considerable time ago.  The last conviction was in 1996 for a charge of reckless driving.  He was fined $3,500. I note notwithstanding the usual sentence imposed for offences of that kind that that matter was dealt with by way of fine, and there was no disqualification imposed.  

16.  The traffic record of the defendant’s fixed penalty record shows that he has not been the subject of any fixed penalty fines since 2011 when he was dealt with for parking a taxi at a taxi stand otherwise unpermitted.  The other matters recorded are in 2009 and before.

17.  I was told in mitigation that the defendant was born in 1970, is now 43 years of age.  His father passed away in 2008 and his mother, who is 65, lives with him.  He has two elder sisters and a younger sister.  He was married in 1993 but his wife left him in 2007.  There are two children from that relationship.  The eldest is aged 20 and his son aged 18. 

18.  I am told that the breakdown in the relationship occurred because of his ex-wife’s affair with another man, and the two children have since that time been in his custody.  I am told that in 2012, the defendant remarried to a lady from the mainland who is now three months’ pregnant.  I am told that she came to Hong Kong on a two-way permit.  The family lives in private property since 1997 and there is a mortgage outstanding on that property for which 5,000 a month has to be paid.  I am told that arrangements have been made for other members of the family to take care of that responsibility and also for the care of his mother.

19.  I was told on the last occasion that since the accident, the defendant has had psychiatric problems, and I adjourned the case for a psychiatric report.  And the report confirms much of what was said to the court by defence counsel in mitigation.  The defendant had been working as a taxi driver for 16 years on the nightshift prior to the offence.  Since the incident, he has had insomnia and he has ruminated a lot about the offence.  Prior to the seeing of the psychiatrist, he had sought medical assistance himself and seen a general practitioner who prescribed hypnotic for a period of time.  The psychiatrist said that the defendant is having adjustment reaction after the offence, but he has no formal psychiatric illness.

20.  I have placed before the court a letter from the defendant himself and from his son and daughter.  The defendant himself has described the devastating effect that this incident has had on him.  He is unable to sleep and worries about it constantly.  He is also very concerned about the effect that this has had on the family of the deceased and expresses his remorse for the suffering which they are undergoing, and he is particularly concerned about the predicament in which his family now find themselves, particularly his pregnant wife. 

21.  His son and daughter have written a very moving letter to the court, describing the defendant as being an extremely responsible father and describing how he has taken care of them not only before but after his wife left the family.  They also describe the affects this accident has had upon their father’s well-being, confirming much of what has been said in the psychiatric report, and they say that they fear that this is a matter which their father will have to live with for the rest of his life.

22.  I have a medical report from a Mr Ngai Hon-fai who saw the defendant in March of 2013 and said he was suffering from lethargy and tiredness.  He opined that the defendant was suffering from post-traumatic stress disorder and depression.

23.  I am told that since this accident, the defendant has not driven again and he has resorted to his former occupation working in a restaurant in the barbecue department.  He has alerted his employers to his situation as regards this prosecution, and they have indicated that they would be glad to continue employing him subsequently.

24.  I am told that immediately before the accident, the defendant did have a device on his windscreen which responded to incoming information.  I am told the device is a mobile phone but it has an updating device which means that when it receives information, there is a screen change, and the defendant is in the habit of tapping on the screen so that it goes back to the original display.  I am told that there was no question of the defendant using the phone at the time for conversation, of engaging in any text correspondence at the time of this incident. 

25.  The maximum sentence for this offence as provided in section 36(1)(a) of the Road Traffic Ordinance is a fine at level 5 and imprisonment for a term of 10 years.  It is further provided in section 36(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 years in the case of a first conviction unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

26.  The counsel for the defendant in this case has not sought to advance any special reasons why disqualification should not be imposed.  In fact, he accepts that this is a case where disqualification should be imposed.

27.  I note that the maximum imprisonment term was increased in July of 2008 from 5 years to 10 years.  Where the legislature increases the maximum penalty for an offence, the courts treat that as an indication of the legislative view that the offence is regarded as more serious than it used to be regarded, and the courts will reflect that view by passing sentences more severe than the sentences that used to be passed previously. 

28.  Road accidents can cause immense human suffering.  Vehicles are potentially lethal machines.  Persons in charge of vehicles must bear in mind the duty they owe to other road users.  In the Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, the Court of Appeal said that since sometimes there might be extremely grave consequences flowing from the acts of dangerous driving, it is necessary to have in mind a deterrent effect.  The standards required by the law for motorists are there to ensure that all who come into contact with motor vehicles, including other drivers, passengers in the defendant’s car and pedestrians, etc are safe. Whilst it might be right in some cases not to treat violators of traffic laws as true criminals, for offences such as dangerous driving causing death, the offender might not necessarily be seen in quite such a benevolent light and particularly where it should be obvious to the offender himself that his driving was dangerous.  

29.  In deciding the appropriate sentence, the court should take care not to be overwhelmed by the outcome.  It is the culpability of the defendant which is the dominant factor.  Whilst the impact on the deceased’s family is a relevant sentencing consideration, it must be remembered that the defendant in the present case did not intend to cause death or serious injury. 

30.  I am told that the defendant is now very remorseful.  I have no reason not to accept this.  Indeed, all drivers who have a conscience will feel extreme regret and remorse where their driving causes a tragic consequence such as this.  In this particular case, the regret shown by the defendant is reinforced by the psychiatric and medical reports which have been presented to the court.  They demonstrate quite clearly the dramatic effect which this accident has had upon the defendant.

31.  Learned counsel for the defence has urged upon me that this was not the most serious case of this type.  He is justified in saying so.  The manner of driving, though dangerous, was at the lower end of the spectrum of seriousness.  There is no evidence of aggressive driving on the part of the defendant.  It was not a case of excessive speeding.  There is no evidence of any prolonged driving of the defendant with no regard for the safety of others.  The duration of the dangerous driving was short; in this case, it was a matter of seconds.  The defendant was not under the influence of drugs or alcohol.  There is no indication that the vehicle was not properly maintained.

32.  I appreciate that when a person starts to drive his vehicle, he would not contemplate that the driving will result in an imprisonment term.  Drivers must bear firmly in mind their duty to other road users.

33.  I am satisfied in this case that at the relevant time, the defendant’s judgment was seriously flawed.  I am satisfied that for a number of seconds, the defendant was not concentrating on what was ahead of him in the roadway. 

34.  The offence of dangerous driving simpliciter carries a much lower sentence than the offence of dangerous driving causing death as indicating that the legislature regards the consequence of dangerous driving as being a relevant sentencing consideration.  The fact that death results can in itself justify a heavier sentence than could be imposed where death has not occurred.

The Authorities

35.  I have considered the following authorities in relation to this matter.  The leading case on sentencing for offences of this kind is the case of R v Cooksley & Others [2004] 1 Cr App R(S) 1.  In that case, the English Court of Appeal identified a non-exhaustive list of 11 aggravating factors which they indicate would lead to a conclusion of a person’s highly culpable standard of driving at the time of the offence.  I do not propose to go through all those features.

36.  The relevant aggravating factor in this case is that the defendant drove whilst his attention was avoidably distracted by a mobile device.  The court in Cooksley went on to state that it was important to appreciate that the significance of the factors could differ.  It stated that there could be a case with three or more aggravating factors which were not as serious as a case providing a bad example of one factor.

37.  The dicta of the English Court of Appeal was adopted in Hong Kong in the case of the Secretary for Justice v Poon Wing Kay & Another [2007] 1 HKC 289.

Determination

38.  I have considered most carefully all the circumstances of the case and the submissions made by defence counsel.  I have also taken into account the letters submitted to the court, the various reports that have been submitted.  I have also considered the sentencing considerations set out in the case of Cooksley.

39.  I accept that this is not a bad case of its type.  However, it is a case of dangerous driving resulting in the loss of human life.  The defendant had three mobile phones in his possession at the time of his arrest.  A holder for a mobile phone was affixed above the dashboard of the taxi near the steering wheel.  Video footage of the front windscreen to the taxi reflected images of objects resembling touch screen devices about the dashboard of the taxi.  The objects showed changes of illuminated icons operated by human fingers whilst the taxi was moving.  The last occasion of such manipulation of the objects took place about four seconds before the taxi hit the deceased.

40.  Mobile phones are avoidable distractions for car drivers, and drivers who have mobile phones with them must ensure that such devices cannot distract them whilst they are driving.  Even momentary lapses of concentration on their driving can have fatal consequences for drivers and other road users.

41.  I note that the Road Users’ Code states that drivers should avoid using a handheld car mobile telephone while driving.  It states that the driver would not have proper control of the vehicle and the conversation may distract the driver.  If you wish to make a call or answer the phone, either stop in a safe place or ask a passenger to make or take the call for you.

42.  I accept in this case that the defendant was not holding the phone in his hand, and there is no evidence of any conversation being conducted by the defendant at the time the accident occurred.  In fact, the evidence is to the contrary.  He was not speaking on the telephone.  What happened in this case was that the defendant had a number of mobile devices and he reacted to the screen changes in respect of one of those phones, and it was this that caused him to lose his concentration on the road ahead.

43.  The defendant lied to the police both at the scene and in his subsequent video-recorded interview about what happened immediately before the accident.  At the scene, he claimed that the old lady pushed the handcart out from the kerb of the pavement on the left-hand side into the front of his lane.  He claimed that he swerved to the right but failed to do so in time.  In the subsequent video-recorded interview, he claimed that when he saw the deceased, he slowed down to check his offside mirror and when he looked back, he had already hit her. 

44.  The accident took place on a long, straight, two-lane, single‑way carriageway.  The weather was fine, the road surface dry, and the road lighting was sufficient, and the traffic was light.  The video footage from the defendant’s camera makes it clear that neither of the defendant’s versions of what happened is correct.  He did not slow down.  He did not swerve.  Nor did he engage in any other manoeuvre to avoid the deceased who was in view of the camera for more than five seconds before the collision.  It seems clear that he was concentrating on his mobile devices rather than on his driving.  And I note from the psychiatric report that the defendant now acknowledges that he looked at his electronic device once whilst driving and then knocked down the victim.

45.  Although the defendant did not have a clear record, I noted that his last criminal conviction was a number of years ago when he was fined for an offence of reckless driving.

46.  Having considered all the circumstances, I have decided that a starting point of 3 years’ imprisonment is appropriate in this case.  Taking into account his guilty plea, I impose a sentence of 2 years’ imprisonment.

47.  I disqualify the defendant from driving for a period of 3 years as any shorter term would be meaningless in view of the custodial sentence imposed. 

48.  I also order that under the provisions of section 7(2)(a) of the Road Traffic Ordinance, Cap 374 that if the defendant intends to drive in the future, he must at his own expense attend and complete a driving improvement course.

49.  Mr Ngai, I am required to explain the effect of the disqualification.  If you were to drive whilst disqualified, you would commit a criminal offence, and conviction for such an offence almost automatically leads to the imposition of a custodial sentence.