HKSAR v. CHOW KA SHING

DCCC 245/2019

[2019] HKDC 984

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 245 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap374 (“RTO”).

Summary of facts

2.  The defendant was the driver of a public light bus (minibus) US3840 at the material time.

3.  At around 4:09 pm on 18 August 2018, the defendant was driving along Victoria Road towards the direction of Kennedy Town and was approaching the uncontrolled pedestrian crossing near the junction of Sai Ning Street when 84-year old Madam Lai stepped off the pavement onto the road.

4.  Despite braking and sounding of the horn, the defendant’s vehicle’s left front corner hit Madam Lai almost immediately after she stepped onto the road, causing her to fall and roll towards the edge of the road.  The defendant’s vehicle continued to move forward for about 15 meters before coming to a stop.

5.  Madam Lai suffered multiple injuries and did not survive the incident.

6.  The car camera of the defendant’s vehicle captured the incident:-

(1) At around 16:09:23:98, the vehicle was moving along Victoria Road at a speed of about 51 km/h and drove past a ‘SLOW’ road marking.

(2) At around 16:09:27:25, the vehicle was moving slightly faster at about 57 km/h when it drove past another ‘SLOW’ road marking.

(3) At around 16:09:28:33, the vehicle approached the safety island at about 55 km/h, and Madam Lai started to cross the road.

(4) At around 16;09:29:75, the defendant sounded his horn. At this point, the vehicle was moving at about 55 km/h.

(5) At 16:09:30:18, the vehicle hit Madam Lai.

7.  The Government Forensic Scientist’s expert opinion is that, had the vehicle been at a speed of 40 km/h and had the defendant applied the brake as soon as he perceived the danger of hitting Madam Lai, he would have been able to stop in time and avoided the collision.

8.  According to the defendant, he did immediately apply the brake and sound his horn when he saw Ms Lai walking off the pavement.  Ms Lai was, however, looking to her left and did not see the defendant’s vehicle nor responded to his honking.

Previous convictions

9.  The defendant has 4 convictions from 3 court appearances.  The first conviction was in 1994 when he was 20 years old and fined $500 for possession of dangerous drugs.

10.  The second and third convictions were recorded on the same day in 1996 when he was sentenced to 12 months’ probation for possession of dangerous drugs and a related dangerous drugs smoking equipment offence.

11.  His last conviction was in 1997 when he breached his probation order, which was then ordered to be extended to 18 months.

12.  The defendant has no other convictions and has been on the right side of the law for the past 22 years.

13.  Given the lapse of time and the relatively minor and different nature of the convictions, I find that, for sentencing purpose, the defendant can be regarded as having no previous convictions.

14.  As for traffic records, the defendant has 1 record for speeding in 2015 and one for failing to display a valid licence in 2017 throughout his 26 years as a professional driver.

Mitigation

15.  The defendant is 45 years old, married and with a 3 and a half year old daughter.  His wife works as a makeup artist with unstable working hours and income.  The defendant is the main breadwinner of the family and he also looks after his daughter after work and during holidays.

16.  The defendant’s father had had a stroke a few years ago and is in a care home.  The defendant is responsible for his expenses and visits him frequently.

17.  The defendant’s mother suffers from glaucoma and had an eye operation in March 2019.  She is under post-operation care requiring monthly follow-up sessions.  Since she cannot see very well, the defendant has been accompanying her to these sessions in the past few months.

18.  The defendant himself has been suffering from hypertension for years but is receiving medication and the situation is under control, although requiring regular blood tests and follow-ups.

19.  The defendant, his mother and employer wrote in mitigation.  The contents of their letters support what Ms Chow has stated in her submissions in mitigation about the defendant being a filial son and excellent employee.  It is clear from the defendant’s letter that he and his family suffered from the unfortunate incident as well.

Sentence

20.  The maximum sentence for causing death by dangerous driving on conviction upon indictment is that of a fine at level 5 ($50,000) and imprisonment for 10 years.

21.  There are no sentencing guidelines for the offence, but there is an abundance of case law on how to approach sentencing in dangerous driving cases, in particular those involving pedestrian crossings.

22.  It is not disputed by Ms Chow that if the defendant’s dangerous driving is found to be at the low end of the spectrum of culpability, given that the collision happened at a pedestrian crossing, an immediate custodial sentence in the range of 12 to 18 months’ imprisonment would be appropriate[1] if convicted after trial.

Level of culpability

23.  In the present case, the defendant’s driving fell far below that of a competent driver when he failed to lower his speed and pay proper attention when approaching the pedestrian crossing.

24.  A driver must be prepared to deal with the possibility of pedestrians emerging from the pavement when they are approaching such a crossing.

25.  In the present case, given the facts as itemized in paragraph 5 of Ms Chow’s written submissions, I agree that the defendant’s manner of driving was at the lower end of the range of culpability.

26.  Expert evidence indicate that the defendant could have been travelling at a speed of between 48 to 58 km/h.  He could very well have been driving slightly below the speed limit of 50 km/h.

27.  Based on the figures of the Forensic Scientist’s report, the defendant’s vehicle was gradually decelerating as he approached the crossing, although not enough so as to allow the defendant to avoid the accident.

28.  The defendant did react immediately to try to avoid hitting Madam Lai as soon as he saw her stepping onto the carriageway by braking and sounding his horn.  He was, therefore, not otherwise distracted while driving.

29.  From the video footage, one can see that the defendant’s view of the segment of the road where Madam Lai stepped out would have been affected by a change in lighting condition with the foliage above blocking out the daylight, creating a darker patch of road where Madam Lai was positioned.

30.  Repeated viewing of the footage shows that Madam Lai did not stop before stepping off the pavement and that her attention just before and after stepping off the pavement was entirely to her left.  She appeared not to have been aware of the presence of the defendant’s vehicle at all. 

31.  The dark clothing and small build of Madam Lai and her relatively swift movement from the pavement onto the road must also have contributed to the accident.

32.  Furthermore, none of the aggravating factors referred to in the case of R v Cooksley & others [2003] 3 All ER 40 are present.

33.  In the circumstances, as I said above, I find that the defendant’s culpability in the incident must be at the lower end of the spectrum.

34.  On the basis of my finding that the defendant’s culpability is at the lower end and the lack of any aggravating circumstances, I find that a proper staring point is that of 12 months’ imprisonment.

Mitigating factors

35.  The following mitigating factors referred to in paragraph 39 of the case of Secretary for Justice v Liu Kwok Chun (廖國鎮) are present: a good driving record, absence of previous convictions, timely plea of guilty and genuine shock or remorse.

36.  Additionally, the defendant has been working for the same employer, a large and reputable bus operator in Hong Kong, for the past 5 years and I am told that they are prepared to continue to employ the defendant upon the conclusion of this case and his release from prison.  This is a clear indication of the regard they have for the defendant both as a person and a driver.

37.  To me, this is a very important factor in mitigation because the defendant will be in a good position to continue to be a law abiding citizen and contribute to society.

38.  Having heard from Ms Chow in mitigation, I find that I am convinced that the defendant committed the present offence out of character and that the risk of re-offending is small.

39.  When considered together, I find that the combined effect of these factors should warrant a reduction in sentence by 1 month, leading to a sentence of 11 months’ imprisonment.

40.  The defendant is also entitled to a further one-third discount for his timely plea of guilty.  He is, therefore, sentenced to 7 months’ and 10 days’ imprisonment.

Disqualification

41.  There being no special reasons not to do so, I order the defendant be disqualified from holding or obtaining a driving license for a period of 5 years, in accordance with sections 36(2) and (2A)(a) of the RTO.

Driving improvement course

42.  There being no special reasons not to do so, I order the defendant to attend and complete at his own expense a driving improvement course, in accordance with sections 72A(1A) and (3B)(b) of the RTO.