HKSAR v. YIU CHI KUEN

DCCC 588/2023

[2024] HKDC 298

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 588 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to Summary of Facts to a charge of dangerous driving causing death, contrary to section 36(1)  of the Road Traffic Ordinance, Cap 374.

Facts

2.  On 28 October 2022, at about 1343 hours, the defendant was driving a light goods vehicle bearing registration number WF7415 (“LGV”).  When he drove past the junction of Wong Chuk Street and about to enter Tai Nan Street, the nearside front of the LGV knocked down a cleaning worker (“the Deceased”), who was wearing reflective vest and pushing a trolley across Tai Nan Street from LGV’s right in front.  The Deceased fell onto the ground.  At the time of the accident, traffic flow was moderate and the weather was fine.  The road surface was dry and in normal condition.  The speed limit was 50 km/h.

3.  The Deceased was later sent to hospital for treatment.  She died on 3 November 2022.

4.  The defendant was arrested on 1 November 2022 for dangerous driving causing grievous bodily harm.

5.  CCTV footage of 157 Tai Nan Street captured the Deceased pushing the trolley to cross Tai Nan Street when the defendant started to drive the LGV across Wong Chuk Street.  Then, the LGV hit the Deceased.

6.  Autopsy report revealed that the direct cause of death of the Deceased was skull fracture and intracranial haemorrhage, complicated by pneumonia.  The intervening antecedent cause was due to the traumatic head injury.

Criminal Record

7.  The defendant has a clear record.

Mitigation

8.  The defendant is aged 63, married with 3 adult children.  He is currently living with his wife and his younger son.  He received education up to primary 4 and he came to Hong Kong in 1980.  He worked as a delivery driver and later as a self-employed delivery driver for the last 30-odd years.  He used to earn $12,000 per month before his arrest and his children would also contribute monthly to him.

9.  The defendant claimed his attention was drawn to the traffic coming from Wong Chuk Street (which is a four-lane carriageway)  on his right side when he entered the junction of Tai Nan Street and Wong Chuk Street.  Unfortunately, his attention was focused on his right and he failed to have a proper lookout of the road in front when the Deceased started crossing Tai Nan Street while he was entering the junction.  He then hit the Deceased and causing her death.  Defence counsel submitted that the momentary inattention was the main cause in this fatal accident.

10.  Initially defence counsel submitted that following the accident, the defendant sold his vehicle and he was determined not to drive again.  Yet in court, defence counsel said that the defendant had applied for the issue of a duplicate copy of his driving licence and would keep it as a souvenir.

11.  Defence counsel also submitted that there is no sentencing tariff for this offence.  He referred this court to the case of R v Cooksley [2003] 3 All ER 40, Secretary for Justice v Poon Wing Kay and Another [2007] 1 HKLRD 660 and HKSAR v Lam Ying Yu [2014] 2 HKLRD 895.

12.  Defence counsel submitted that in the present case, there is no evidence of aggressive driving or a period of prolonged driving by the defendant with no regard for the safety of others.  The duration of dangerous driving was short and he was not under the influence of drugs or alcohol.  It was also said that the defendant did not violate any traffic signs and/or road markings and that there was no aggravating factor in the present case.  It is submitted that the present case fell within the least culpability level in accordance with the Cooksley case.

13.  It is submitted that the main mitigating factor is the defendant’s own guilty plea, for which he is entitled to a full one-third sentencing discount. It is also submitted that the defendant is well aware of the seriousness of the offence and that he will be penalised with a deterrent sentence.  Defence counsel urged this court for leniency in view of the defendant’s guilty plea and the low chance of reoffending.

Discussion

14.  Before sentencing, this court has considered all mitigation submissions as well as mitigation letters from the defendant, the defendant’s wife, children and employer. 

15.  A person convicted of this charge upon indictment is liable to a fine of level 5 and 10 years’ imprisonment.

16.  In the case of Secretary for Justice v Poon Wing Kay, the Court of Appeal affirmed that deterrent sentence is called for in sentencing a defendant convicted of this charge because of the grave consequence flowing from the offence.  At the same time, the Court of Appeal recognised that culpability of the defendant is the dominant factor in the sentencing exercise.

17.  In the case of HKSAR v Lee Yau Wing, CACC 282/2012, the Court of Appeal emphasised that, in sentencing, the focus is on the culpability of the defendant’s driving and therefore his clear record and general good character carries little weight.  The dominant sentencing principle is general deterrence with principles of retribution and denunciation.

18.  Again, in the case of Secretary for Justice v Lam Siu Tong, [2009] 5 HKLRD 601, the Court of Appeal was of the view that there was no acceptable excuse for dangerous driving and nothing could justify the loss of a life or lives consequent upon it.  Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine.  The courts would not show leniency to any driver who had endangered the lives and safety of other road users.  It is said therefore that good character and remorse must not be given the undue prominence in sentencing for this offence.  This counted very little or not at all, for the family and all those connected with the victim who died as a result of an act or omission that could have been avoided.

19.  In the case of Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70, the Court of Appeal said for offences of dangerous driving causing death a deterrent sentence was called for because of the grave consequence flowing from the offence.  Again, the court said that the culpability of the defendant was the dominant factor in the sentencing exercise following the approach in the case of Poon Wing Kay. 

20.  It is said that the court must also take into account mitigating factors such as good driving record, absence of previous convictions, a timely guilty plea, genuine shock or remorse, the offender’s age in cases where a lack of driving experience had contributed to the commission of the offence, the fact that the offender had also been seriously injured as a result of the accident.

21.  There were two extreme situations in assessing the degree of culpability.  The first was where the event occurred because of a momentary error of judgment and the other was the most serious one where the driver drove with selfish disregard for the safety of others or with a degree of recklessness.

22.  The Cooksley range of sentence in respect of the four categories of culpability.  For the one with the least culpability, the sentence would be within 12 to 18 months’ imprisonment. 

23.  Here the defendant have a perfect driving record, especially in view that he was a professional driver for the last 30-odd years before the accident.  He has no driving conviction, not even a fixed penalty ticket.

24.  From the CCTV footage, one could see that the Deceased was within sight of the defendant when she started to walk from the right top corner of the road junction before the black van (going from right to left of the defendant’s LGV)  appeared.  The Deceased had stopped when she saw the black van.  The defendant also stopped.  After the black car went past the defendant’s LGV, the Deceased and the defendant were at a short distance from each other.  There was unobstructed view and both should be able to see each other.  Both however proceeded to go forward.  It is clear that whilst the Deceased noticed the oncoming the defendant’s LGV, chose to proceed and later did run faster, intending obviously to go past the car front of the defendant’s LGV.  At the same time, the defendant proceeded his car forward, thus hitting the Deceased. Whilst the defendant is obviously culpable in this fatal accident, the Deceased was also partly responsible.

25.  The accident occurred 3 seconds after the black van went past the front of the defendant’s LGV, when the Deceased was in full view and at a short distance from the defendant’s LGV.  There was obviously a momentary lapse of attention on the part of the defendant, but the assessment of his culpability must be coupled with the fact that the defendant should have noticed the presence of the Deceased even before the black car came from his right.

26.  The appropriate sentencing starting point in this case would be 21 months’ imprisonment.  The defendant has pleaded guilty and is therefore entitled to a full one-third sentencing discount. 

27.  This court is impressed with his unblemished traffic record and would therefore consider this a valid mitigating factor which would further reduce his sentence down to 13 months’ imprisonment. 

28.  As for the defendant’s remorse, that has been subsumed in the one-third sentencing discount and he is not entitled to a further discount in that respect.

29.  Accordingly, the defendant is sentenced to 13 months’ imprisonment in this case.

30.  As for the disqualification period, under the law it is mandatory that on the first conviction of this charge, the defendant should be disqualified from holding or applying for a driving licence of all classes of vehicles for 5 years from today.  This court sees no special reason why the defendant should not be disqualified by reason of the conviction of this charge.

31.  The defendant is further ordered to attend and complete a driving improvement course pursuant to section 72A(1)  of the Road Traffic Ordinance at his own cost, the same to be completed within the last 3 months of the disqualification period. 

32.  This court warns the defendant that if he fails to complete the course within the specified period, he might have breached section 72A(9)  of the Road Traffic Ordinance and is liable to a fine of level 2 and imprisonment for 1 month, and that even on the expiry of the disqualification period, he will not be allowed to apply for or hold any driving licence of any class of vehicle until he has completed the driving improvement course.