HKSAR v. CHAN WING TAK

 DCCC58/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 58 OF 2009

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Reasons for Sentence

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1.  Defendant, I found you guilty of a charge of dangerous driving causing death. 

2.  I found that on 2 August 2008, you drove your taxi dangerously and caused the death of the road worker in the middle lane of the Princess Margaret Road, going northbound near the Hung Hom Police Station whilst that road worker was carrying out works on the repair of the road. 

3.  At that time it was about 12.30 am you were travelling about 70 kilometres an hour.  You drove straight into the rear of the road work truck which was parked without braking.  You had knocked down the traffic signs, cones and crushed the deceased between your taxi and the truck.  300 metres before the road works truck were road work signs stating that road works were being carried out in the middle lane and these signs were placed thereafter every 100 metres. 

4.  At the material time the weather was fine, the road was dry and the traffic was light.  I rejected your account that you effectively suffered from a “feeling of floating” and physical weakness which caused you to freeze so that you were unable to do anything to manoeuvre your taxi to avoid the collision with the truck.  I found that you failed to pay a proper lookout at all to the conditions of the road including any road work signs; failed to notice the road works; failed to notice the parked road work truck; failed to slow down; failed to brake, steer or manoeuvre your taxi so as to avoid the collision.

5.  I accept that the speed limit of the road was 70 kilometres per hour but knowing that there were road works being carried out on the road that you should have slowed down. 

6.  The offence was committed on 1 August 2008.  The maximum penalty therefore in your case is one of 5 years imprisonment. 

7.  Mr Wu, your counsel has mitigated on your behalf.  I have taken into account all that he has had to say.  You are 48 years of age and of clear record.  You are a professional driver of a taxi for more than 18 years.  You have, since 2004, had committed various driving offences to which you were fined.  Those offences include speeding; careless driving; crossing continuous double white lines; failing to comply with traffic signals; and picking up and setting down passengers in a restricted zone.

8.  Mr Wu has submitted various letters of good character by the Pastor of the Committee of the Assembly of God Chinese Federation of Staff Unions; your wife; from Reverend Yung, from the Association of Chinese Evangelical Ministry; from Chief Pastor of the Christian Church of Chinese Ministry.  I have also been handed in appreciation of thanks from the same Pastor Wu and also a Red Cross blood donation card saying that you have donated blood 51 times at least until 2001. 

9.  I have also had Mr Wu refer me to two medical reports dated 24 June and 2 July 2009 stating that you had suffered from Post Traumatic Stress Disorder after the accident.  After the accident you complained of a worsened mood and broken sleep and that you felt guilty after the accident.  You had even thought of committing suicide.  You were prescribed psychotropic medicine and after your follow-up in February it was noted by Dr Chan that your Post Traumatic Stress Disorder had improved after medication and you no longer experienced flashbacks and nightmares about the accident.  You have denied any suicidal ideation.  However, you claim that you are distressed and anxious about your future and ability of taking care of your family. 

10.  Mr Wu has rightly pointed out that for the offence of causing death by dangerous driving, it is an inevitable custodial sentence.  The only question in this case is as to the length of that custodial sentence.  Mr Wu has said that you have been working your whole career life as a professional driver and over that long period of time, your traffic record is not exemplary but it is certainly not bad.  From the record one can see that you had convictions commencing from 2004. 

11.  You are married in your second marriage with a son aged 2 and have a son aged 12 from your previous marriage.  Since the date of the accident you had stopped driving and have been living off public assistance until today.

12.  Your wife is from the Mainland.  She is here on a two-way permit looking after your young son of 2 years old who has been granted residency.  She is unable to work.  You were and are the sole breadwinner of the family.  Mr Wu has urged me to consider your public service and your service to the church. 

13.  He has referred me to the case of Secretary for Justice v Lam Siu Tong CAAR 2 [2009] and Wong Tong Fan CAAR 4 [2009].  In that case the chief judge of the High Court, Ma CJHC referred to the principles which should be taken into account when sentencing a defendant for dangerous driving causing death.  He also referred to a decision which the courts are guided by in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD660.  It is noted that:

“Where death result from dangerous driving it is obvious that grave distress will be caused to the family of the deceased.  The impact on people’s lives ought to be taken into account when sentencing.” 

In this case the deceased, I am told by the prosecution, was married with three children.  They are aged between 7 and 15 years old.  They have, of course, now lost their father and husband. 

14.  It is clear that in dangerous driving cases in assessing the overall seriousness of the crime culpability is often the dominant factor.  Ma CJHC went on to say:-  

“While a list can be drawn up of aggravating and mitigating factors … it is not a case of counting the number of aggravating or mitigating factors and then arriving, by mechanical means, at the relevant sentence.  Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence.  

One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or his passengers … ”

15. In mitigation the court of course can take into account the good character and the deep remorse.  One fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided.  In these circumstances good character and remorse may count very little.  Ma CJHC said:-

“This is not to say that remorse or good character are not relevant considerations in terms of sentencing, they must be but in the context of this offence which we are concerned, they must not be given undue prominence.”

16. In this case, the overall standard of driving as displayed by the defendant who was a professional driver, in my view, was wholly irresponsible.  There was a passenger in his taxi.  He was driving along a road, which had a 70-kilometre speed limit.  Although he was not over the speed limit, he should have slowed down as there were road works being carried out ahead of him in the middle lane.  He failed to pay a proper look out at all to the conditions of the road, including any road work signs.  He did not slow down at all.  He failed to brake.  He failed to steer or manoeuvre his taxi.  Had he been paying a proper look out he would have known that road works were being carried out on the road.  He would have known that there would have been workers working on the road. 

17. This, in my view, can be distinguished from a pedestrian crossing where it may be anticipated there would be pedestrians.  In this case one knows that road works are being carried out.  Had he paid a proper look out, he would have known some 300 metres ahead that there were road works ahead of him.  As I mentioned in my verdict, I am not here to speculate what he was doing but clearly he was either distracted and certainly failed to pay any proper look out.

18. This accident was clearly avoidable.  There was light traffic, dry roads and good conditions.  The fact that the accident took place as a result of the defendant’s complete failure to pay a proper lookout being a professional taxi driver carrying a passenger, in my view, is an aggravating feature. 

19.  I take guidance from the case of Lam Sui Tong and consider that the appropriate sentence to be 24 months’ imprisonment. 

20. I have taken into account that the defendant has made good service to the community by donating blood on the 51 occasions and that he had used his holiday time to work in the disaster area for the Tsunami disaster victims in Indonesia and also for his service to the church and, of course, his clear record. 

21. In those circumstances I am prepared to reduce the term of 24 months’ and give him credit for that.  Defendant is sentenced to 21 months’ imprisonment.  I disqualify the defendant from driving for a period of 3 years.