HKSAR v. KOON CHI KONG, JACKY

DCCC 701/2017

[2018] HKDC 738

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 701 OF 2017

---------------------------

----------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.  The defendant was originally facing one charge of causing death by dangerous driving. He pleaded not guilty to the charge but pleaded guilty to careless driving. The prosecution accepted the plea, quite fairly and properly in my view. The defendant was therefore found guilty of careless driving and not guilty of dangerous driving.

2.  I adjourned this case to call for a suitability report for a community service order (“CSO”) which is available today.  The investigating probation officer recommends that the defendant is a suitable person to perform work under a CSO.

3.  The unfortunate fatal accident occurred at around 5:25 am on 13 November 2016 at a “Green Man” crossing (“the crossing”) on Pui To Road (“the road”) in Tuen Mun, New Territories, which has five lanes consisting of two eastbound lanes and three westbound lanes.  There is a safety island in the middle of the crossing between the eastbound and westbound lanes.  The speed limit of the road was 50 kilometres per hour.  At the material time, the weather was fine and the sky was dark but there was sufficient lighting from street lamps.  The road surface was dry and traffic flow was light.

4.  The facts admitted by the defendant reveal that at the material time, the defendant was driving a taxi.  A Mr Chan, aged 87, the deceased, was alone in an electric wheelchair and was crossing the road via the crossing when the pedestrian light was red and the traffic light regulating the vehicular traffic was green.  The CCTV outside Tuen Mun MTR Station captured the incident.  It can be seen that the deceased was moving along the crossing towards the MTR station.  The taxi travelled at the same speed and hit the deceased when he moved out from the safety island to the westbound carriageway.   

5.  Upon inquiry by police officers at the scene, the defendant stated that he was driving the taxi along the second lane of the road at a constant speed of around 40 to 50 kilometres per hour.  When he had just passed the traffic lights, a wheelchair suddenly appeared from his right to left.  He steered to the left and braked but still collided with the wheelchair and the deceased was thrown onto the ground.

6.  Ambulancemen arrived at the scene at 5:30 am and the deceased was then sent to Tuen Mun Hospital.  X-ray revealed swelling over the left hip and pubic rami fracture.  Later, he developed various episodes of cardiac arrest and was certified dead at 2.04 pm of the same day.

7.  The defendant was arrested for causing death by dangerous driving on 15 November 2016.  Both the taxi and the wheelchair were examined and found to have no mechanical defects.  A line-of-vision test was conducted at the scene by the police on 20 December 2016 at about 5 am which shows that the defendant travelling along the second lane would have a clear and unobstructed view of eastbound and westbound Pui To Road and the safety island from 50 metres away.

8.  Dr Tam Yiu-yan examined the CCTV footage of the MTR and estimated the taxi’s average speed to be 46 kilometres per hour prior to the impact.

9.  The defendant is aged 62 but he looks much older.  He is married with a 10-year-old daughter.  He has no criminal record.  As far as his traffic record is concerned, he obtained his driving licence in 1977. 

10.  The defendant’s counsel, Miss Chong, tells the court that the defendant has been a taxi driver since 1984.  Save a few fixed penalty tickets, the defendant has no conviction record for traffic offences.  As revealed in the CSO report, the defendant is too worried about the consequence of the present case.  He also feels guilty that a person has lost his life in the traffic accident.  The defendant has been unable to sleep well since the accident in November 2016.  He has no mood to resume employment and is living on compensation under the Traffic Accident Victims Assistance Scheme and his own savings.  He plans to resume employment when this case is settled. 

11.  As reported by his wife, the defendant lost his energy and motivation after the accident.  He has become an old man all in a sudden.  While the defendant asks the court to consider a fine, his wife expressed her support for the defendant to be placed under CSO which will give the defendant a chance to keep in touch with other people while performing community work. 

12.  Because of the mood problem of the defendant, the investigating probation officer has referred the defendant to a professional organisation for assistance.  A case worker of the organisation reports that the defendant appears to be in low mood with substantial worry about the sentence of the case.  However, the attitude of the defendant towards intervention and assistance is positive.  The case worker will continue her support to the defendant and his family.

13.  Miss Chong today confirms that the defendant is willing to accept CSO, asking the court to adopt the recommendation of the probation officer.  As I indicate that I am considering whether to impose a disqualification, Miss Chong reminds me that the defendant has an impeccable traffic record and the defendant very much wants to resume experiment as a taxi driver as soon as possible.

14.  This was indeed a very sad accident in which a precious life was taken. While the primary consideration is the culpability of the manner of driving of the defendant, the tragic outcome of the accident cannot be ignored for sentencing purpose.  In the present case, the defendant was not solely at fault when he did not give due attention and proper reaction to the appearance of the deceased.  Indeed, the deceased chose to cross the road against the red pedestrian light.  In my judgment, the fault of the defendant is far from the bracket of the worst of its kind and does not call for a sentence of immediate custodial sentence.  In my view, a short-duration CSO would sufficiently reflect the gravity of the offence.

15.  I have considered whether a disqualification order should be imposed on the defendant.  Having considered the mitigation of Miss Chong, I am persuaded that a disqualification order is unnecessary in the circumstances of this case.  The defendant has worked as a taxi driver for more than 30 years. Save a few fixed penalty tickets, the defendant has no conviction for any traffic offences.  He has an almost impeccable traffic record.  The present offence should be regarded as an isolated incident.  I accept the submission of Miss Chong that the likelihood of the defendant’s re-offending is very low.

16.  On the other hand, a disqualification order would seriously jeopardise the likelihood of the defendant who has no other trade skill except working as a taxi driver.  He has to support his wife and daughter financially.  He has not driven as a taxi driver since the accident which occurred more than one and a half years ago.  I accept that the defendant is genuinely remorseful and he has been mentally disturbed by his sense of guilt.  He needs assistance to deal with his mood problem.  Resuming employment might be of some help to treat his mood disorder.

17.  In the result, I sentence the defendant by a CSO for 80 hours.