HKSAR v. TANG TAI WAI

DCCC 486/2024

[2025] HKDC 2075

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 486 OF 2024

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REASONS FOR SENTENCE

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Introduction

1.  The defendant was charged with one count of dangerous driving causing death, contrary to section 36 of the Road Traffic Ordinance (Cap 374), arising from a fatal traffic incident on 22 May 2023 on Ngau Tau Kok Road, Kowloon.

2.  The defendant pleaded not guilty to the charge but admitted the lesser offence of careless driving. However, the prosecution did not accept this plea proposal. The trial proceeded as charged and the defendant was found guilty after trial. 

Findings of Fact

3.  The full finding of facts are set out in the reasons for verdict and I will not repeat all the facts here.

4.  To put it shortly, at approximately 7:23pm on the date of the incident, Mr Kwok Yuen Muk (“the Deceased”), aged 84, was crossing Ngau Tau Kok Road near Lamppost No E7948. The location was a two-lane eastbound carriageway narrowing into one lane, with pedestrian railings on both sides except for gaps near a green minibus stop and a bus stop adjacent to Ngau Tau Kok Road Playground.

5.  The Deceased was walking slowly from the eastbound side toward the westbound lane of Ngau Tau Kok Road. Upon reaching the second left lane of the eastbound carriageway (the outer lane), a red public light bus bearing registration mark UX7073 (“the Minibus”), driven by the defendant stopped in that lane, which was not immediately adjacent to the pedestrian path, to let passengers alight. The Deceased, one to two meters ahead of the Minibus, continued walking as passengers got off.

6.  After approximately ten seconds to let passengers alight, the defendant drove forward without checking the road ahead, and the front right side of the Minibus struck the Deceased’s right side, causing him to fall. The Deceased sustained multiple injuries and was pronounced dead at 10:04 p.m. on 23 May 2023, the next day after the incident.

7.  Considering the overall circumstances of the case, the defendant’s series of driving actions were sufficient to constitute dangerous driving, rather than merely a momentary lapse in attention. His driving fell far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

Personal Background and Criminal Record

8.  The defendant is currently 72 years old and was born in mainland China. He has been married several times and is now living with his fourth wife, with whom he has two sons; his wife and sons reside in mainland China. At present, he lives with his 18-year-old son from his second marriage. From around the age of 20 to 54, he worked as a driver for various types of vehicles, mainly serving as a minibus driver. Since 2008, he has been the primary caregiver for the son he lives with, relying on social welfare for his livelihood and occasionally working part-time as a minibus driver. In addition, he also takes care of his elderly and mobility-impaired 96-year-old mother, accompanying her to medical appointments and outings. His youngest sister has emigrated overseas, and the other siblings in the family are unable to share the responsibility of caring for their mother due to their own families and busy work schedules.

9.  The defendant has no previous criminal record. In terms of traffic records, the defendant has one prior traffic conviction: on 14 November, 2023, he was fined $1,200 by the court for careless driving (KCS026633/2023). It is noted that the offence date for this careless driving conviction was 16 March 2023, while the conviction date (14 November 2023)  fell after the present case. As a result, at the time of this incident, the defendant had no previous traffic convictions. However, it is worth noting that the present case occurred on 22 May, 2023. This shows that the defendant was charged with causing death by dangerous driving only two months after a careless driving charge in March 2023.

10.  Additionally, the defendant has received two fixed penalty tickets: one on 19 October 2022 for “driver not taking all reasonable precautions to ensure safety of passengers of a public light bus” for which he was fined $320, and another on 31 March, 2023 (only about 2 months before the current incident), for “using a mobile telephone or other telecommunications equipment or an accessory to such telephone or equipment while the vehicle is in motion” for which he was fined $450.

Background Report

11.  The defendant said in the background report that he felt deep remorse and guilt over the victim’s death. Although he considered that the victim also bore some responsibility, he conceded that it was very unfortunate for the Deceased and acknowledged his responsibility for being involved and for hitting the victim.  Subsequent to the incident, he reported experiencing persistent insomnia, recurrent flashbacks, and symptoms of depression. He indicated that he had performed a Taoist ritual to bring peace to the victim’s soul, incurring significant personal expense. He now recognizes his legal responsibility and has expressed his readiness to accept any resulting consequences. Knowing a custodial sentence was inevitable, he pleaded for the shortest possible term so he could care for his son and aged mother sooner.

Mitigation

12.  Mr Sadhwani, Counsel for the Defendant, has provided me with his brief written submission for mitigation. He said the defendant is an experienced driver for more than 30 years. In respect of a deterrent effect, Mr Sadhwani submitted that this offence nor any other driving offence will never take place again as the defendant has voluntarily cancelled his licence by his own volition. This happened just over a month after the death of the Deceased.

13.  The defendant was deeply moved by the death of the Deceased which caused him much anxiety and sorrow. He felt deep remorse and guilt over the victim's death. He has also suffered much stress and anxiety in relation to the outcome of this case.

14.  In relation to the circumstances of this case, it was submitted that the accident did not take place at a pedestrian crossing. The Deceased was walking on the part of the road where he should have not been. This also goes to the level of culpability. In addition, the defendant was not under the influence of any alcohol nor was he driving at excessive speed. The Minibus had just started driving after passenger had disembarked when the accident occurred.

15.  Mr Sadhwani also said in mitigation that a custodial sentence is inevitable but a long sentence would serve no purpose as a deterrence is not needed in this case, especially taking into account that the defendant is 72 years old and is a care giver to his mother who is 96 years old. It was submitted that the defendant’s culpability is at the low end of R v Cooksley & others [2003] 3 All ER 40.

16.  Mr Sadhwani referred me to the case of HKSAR v Chan Shu Kan, [2020] 1 HKLRD 421. However, as this is a District Court case, it is not binding on this Court, see Secretary of Justice v Wan Tat Yeung (溫達揚)[2022] HKCA 1328. Therefore, the sentence will vary depending on the circumstances of each case.

17.  Mr Sadhwani also submitted several letters of mitigation for the court’s consideration, including those from Mr Chan, the Indigenous Inhabitant Representative of Tseung Kwan O Village (將軍澳村原居民村); the Chairman of the Hong Kong Public Light Bus Owner & Driver Association (香港公共小巴車主司機協進總會); the defendant’s sister; and the Chairman of the Li Cheng Uk Estate KaFong Welfare Association Limited (李鄭屋邨街坊福利會). I do not intend to recite the content of each letter individually. In summary, the mitigation letters show that the defendant is conscientious and compassionate, has been responsible for his 96-year-old mother's care over many years, and supports his youngest son financially while living with him. The defendant is helpful to others, participates in voluntary work during his spare time, is courteous to passengers, and pays special attention to the safety of elderly passengers when they board and alight.

Sentencing considerations

18.  I have taken into account everything urged in mitigation by Mr Sadhwani on behalf of the defendant. Causing death by dangerous driving is a serious offence. Upon conviction on indictment, it carries a maximum penalty of a level 5 fine and imprisonment for up to 10 years. The sentence also includes mandatory disqualification from driving for at least five years and compulsory attendance and completion of a driving improvement course.

19.  The Court of Appeal has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.When dangerous driving causes the death of another person, it is clear that the victim’s family will experience deep grief, and no sentence can bring the Deceased back to life. The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished, see paragraph 17 and 19 of the judgment in HKSAR v Lei Tin Seng (李天生) [2011] 1 HKLRD 341.

20.  In HKSAR v Liu Kwok Chun(廖國鎮) [2011] 1 HKC 70, the Court of Appeal in paragraph 35 referred to Secretary for Justice v Poon Wing Kay (潘永基) [2007] 1 HKLRD 660, which adopted the sentencing approach outlined in Cooksley for dangerous driving causing death. The principle that emerged from Poon Wing Kay and the subsequent cases is that a deterrent sentence is called for because of the grave consequences flowing from this offence. At the same time the Court recognizes that culpability of the defendant is the dominant factor in the sentencing exercise.

21.  In paragraph 37 of the judgment in Liu Kwok Chun, the Court of Appeal further said that in assessing the degree of culpability there are two extreme situations. The first is where the event occurred because of a momentary error of judgment. The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness.  In between these two extremes, there are varying degrees of culpability depending on the presence of the aggravating factors which were referred to in Cooksley at paragraph 15. The Court of Appeal also referred to the four levels of culpability described in Cooksley as guidelines for sentencing. It should be noted, however, that the sentencing ranges established in Cooksley were not adopted as the sentencing standard in Hong Kong by the Poon Wing Kay decision. This was mainly because, at the time, the maximum sentence in the United Kingdom was 10 years (now 14 years), whereas in Hong Kong the maximum sentence was only 5 years (now revised to 10 years). Nevertheless, several of the general principles put forward in Cooksley remain applicable in Hong Kong.

22.  In Poon Wing Kay, the Court of Appeal confirmed in paragraph 10 that the general principles established in Cooksley also apply to Hong Kong and further elaborated on those principles, including: -

(1)  while certain traffic violations may not amount to true criminal offences, dangerous driving causing death should not be treated with leniency;

(2)  Where death results 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;

(3)  The Court must send a clear message that dangerous driving can have extremely serious consequences. Sentences must be deterrent in nature, reminding drivers that failure to meet legal standards can result in the loss or impairment of life. The standards required by the law for motorists is to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians)  are safe and that their lives are not endangered;

(4)  While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor. 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; and

(5)  Where a driver selfishly disregards the safety of passengers, pedestrians, or other road users, or drives with a degree of recklessness, such conduct constitutes aggravating factors that support the imposition of a heavier sentence.

23.  Given all the sentencing considerations mentioned above, I am of the view that Mr Sadhwani has clearly overlooked the sentencing principles that the court must strictly adhere to when dealing with cases of dangerous driving causing death. In sentencing for this offence, the Court’s primary consideration is the severity of the defendant’s dangerous driving manner and the consequences it has caused. The sentencing exercise must reflect the principles of retribution, deterrence, and denunciation, and send a clear message that dangerous driving will lead to serious consequences, also see HKSAR v Lee Yau Wing (李有榮）CACC282/2012. Therefore, I do not agree with Mr Sadhwani’s submission that imposing a lengthy sentence would serve no purpose as a deterrence is unnecessary in this case. The Court of Appeal has frequently stressed, such as in the Poon Wing Kay case, that sentences for dangerous driving causing death should have a deterrent effect.

24.  Further, I also do not accept Mr Sadhwani’s submission that the defendant’s culpability in this case is at the lower end as described in Cooksley, because the defendant was driving a public transport vehicle carrying passengers at the time of the incident. His driving not only posed a fatal risk to the Deceased but also endangered the safety of his passengers. This factor alone adds to the gravity of the situation in this case.

25.  In determining the defendant’s culpability, I have considered the following factors: -

(1)  The defendant has over 30 years of experience driving minibuses. On the day of the incident, he had already completed five to six round trips on the same route and was expected to be thoroughly familiar with the traffic and pedestrian conditions along the way. As the assigned driver for this route, the defendant should have anticipated the possibility of pedestrians crossing the road at that location;

(2)  Although the defendant expressed regret in the background report, he also sought to attribute partial blame to the Deceased who had violated traffic rules by crossing at an inappropriate time and place, stepping onto the car road from the left side. However, it must be noted that the incident occurred on Ngau Tau Kok Road, a densely populated area surrounded by bus stop, green minibus stop, school, public housing estates, and a public playground. Although certain sections of the pedestrian paths were fenced, there were visible gaps that allowed pedestrians to enter the roadway;

(3)  Even if the Deceased was not crossing at a designated pedestrian crossing, it is important to emphasize that sentencing for causing death by dangerous driving focuses mainly on the defendant’s driving manner. It must not be forgotten that two prosecution witnesses independently testified that the Minibus was stopped in the second lane from the left (the outer lane), and both denied the defence’s suggestion that the Deceased had suddenly dashed into the road. PW1 further observed that the defendant had stopped the Minibus to let passengers alight, contrary to the defendant’s claim during his video recorded interview that he had not stopped at all. In my view, the defendant deliberately concealed the fact that he had stopped in an improper lane to let passengers off, and then drove forward without checking the road ahead, ultimately striking the Deceased, who was only one to two metres in front of the Minibus;

(4)  I have not overlooked the fact that the Deceased was crossing the road slowly. However, according to PW1, before the defendant’s Minibus arrived, other vehicles had successfully avoided the Deceased. For this reason, I cannot see how the defendant was entirely unaware that the Deceased was crossing the road. The defendant stated he realized he had hit a person only after getting off the Minibus, even describing the Deceased as having "irrationally dashed out in a suicidal manner." I am of the view that such assertion not only contradicts the observations of the prosecution witnesses but also reflects the defendant’s attempt to shift full responsibility onto the Deceased and downplay his own culpability; and

(5)  The defendant’s actions, including stopping in an improper lane for his own convenience, failing to pay attention to the road ahead before moving, and remaining wholly unaware of the Deceased’s presence, collectively demonstrate a manner of driving marked by selfishness and significant irresponsibility. His conduct not only endangered the safety of other road users but also exposed the passengers on board the Minibus to serious risks.

26.  In HKSAR v Hui Wang Chin (許宏展) CACC158/2012, the applicant was convicted after trial in the District Court of causing death by dangerous driving and sentenced to 3 years’ imprisonment. On the evening of 23 May 2011, shortly before 7:00pm, the applicant was driving a public light bus with passengers along Lai Shun Road in Tsuen Wan. As he turned right into Hoi On Road, he struck a 77-year-old man who was crossing at the pedestrian crossing. The man was rendered unconscious and later pronounced dead at the hospital. The trial judge concluded that the public light bus entered the junction after the traffic light had turned red, without slowing down or stopping. Although the vehicle was traveling at 47 km/h, which did not exceed the speed limit, the trial judge nevertheless found that the applicant approached the intersection at too great a speed for the circumstances. The trial judge also concluded that the Deceased had crossed the pedestrian crossing against a red pedestrian crossing light. That said, the applicant must at all material times have had an unobstructed view of the pedestrian crossing and of the Deceased standing on its island preparing to cross. The trial judge considered the applicant's attitude to be one of wilful disregard for the traffic situation and described his driving as selfish, showing no concern for the safety of other road users. While the applicant cannot be said to have a wholly unblemished record, his only prior conviction was for theft in 1984, when he was fined $2,500 or given five months’ imprisonment. For the purpose of sentence, the trial judge nonetheless treated him as a man of clear record. The applicant also had a clear driving record. After trial, the applicant was sentenced to three years' imprisonment.

27.  In paragraph 9 of the judgment in Hui Wang Chin, the Court of Appeal stated that the trial judge was right to highlight the importance of deterring bus drivers because, although it is true that no passenger was injured, a bus that crosses a red light necessarily puts its passengers at risk and there is in any event an imperative to bring home to those who drive each day for a living the need to do so responsibly. Given that the maximum penalty for this offence is 10 years' imprisonment, the Court of Appeal did not consider the three-year sentence imposed after trial to be manifestly excessive.

28.  By way of comparison, in Hui Wang Chin, the deceased was crossing the pedestrian crossing against a red pedestrian signal when he was struck by the applicant’s public light bus. In the present case, although the Deceased was crossing at a point not designated as a pedestrian crossing, the circumstances are not dissimilar. The location was flanked on both sides by a bus stop and a green minibus stop, and there was a gap in the roadside railings which naturally facilitated pedestrian movement across the road. These features made it foreseeable that pedestrians would attempt to cross at that point, just as in Hui Wang Chin it was foreseeable that a pedestrian might cross against the red signal.  

29.  Accordingly, the seriousness of the present case is no less than that in Hui Wang Chin. Both cases involved a public light bus driver who, despite having an unobstructed view, failed to take proper care and thereby caused the death of a pedestrian.

30.  I bear in mind the Court of Appeal’s emphasis in the case of HKSAR v Leung Chiu Yu (梁朝宇) [2012] 2 HKLRD 313 at paragraph 33 that the primary consideration in driving offences is the culpability of the impugned course of driving does not derogate from the fact that the consequences of that driving are relevant for sentencing purposes.

31.  I must also keep in mind what was stated by the Court of Appeal in Secretary for Justice v Sze Sum (施森) [2014] 5 HKLRD 645 at paragraph 26, that this Court must not overlook that in this incident, the Deceased sustained serious injuries from which he died. This is definitely a factor to be taken into account when sentencing.  The hardships caused to the Deceased’s family as a result of the incident, their grievances and resentments are not to be disregarded too.  If the sentence passed on the offender is too lenient, they have the right to question the Court whether their feeling of injustice constituted by the incident had been taken into consideration.  

32.  After considering all the circumstances and factors relevant to the case, I am of the view that the defendant’s culpability lies in his selfish disregard for the safety of other road users and passengers. This case does not involve factors such as speeding, drink driving, drug influence, poor vehicle maintenance, or illegal street racing. However, as stated by the Court of Appeal, even the presence of some aggravating factors alone is sufficient to categorize such cases as very serious offences, as seen in paragraph 10(4)  of the judgment in the case of Poon Wing Kay.

Sentence

33.  In all the circumstances, I am of the view that an imprisonment term is warranted. The defendant, despite his many years of driving experience, has in recent times demonstrated a disturbing pattern of disregard for road safety. His traffic record reveals that within the short span of two months, between March and May 2023, he committed successive offences of careless driving, the use of a mobile telephone or other telecommunications equipment while the vehicle was in motion, and, most gravely, dangerous driving causing death. The close succession of these offences demonstrates a continuing pattern of offending behaviour, underscoring the defendant’s disregard for traffic regulations and the safety of other road users.

34.  After taking into account the whole circumstances of the offence, including the level of culpability, the severity of its consequences, the mitigation put forward on the defendant’s behalf by way of mitigation, the defendant’s personal background and driving history, as well as the letters in mitigation submitted for consideration, I consider the defendant’s manner of driving to fall within the higher end of medium culpability as defined in the Cooksley case. In my view, the appropriate starting point for sentence is 36 months’ imprisonment. Because the defendant pleaded not guilty and was found guilty at trial, he is not entitled to the usual one-third reduction in sentence given for a guilty plea.

35.  I have also taken into consideration two letters of mitigation, one from the Chairman of Indigenous Inhabitant Representative of Tseung Kwan O Village and another from the Li Cheng Uk Estate KaFong Welfare Association Limited, both highlighting that the defendant previously participated in volunteer work. At my discretion, I grant the defendant a reduction of 1 months from the sentence, reducing the term from 36 months to 35 months. Beyond this, I see no further grounds for a reduction in sentence. Therefore, the defendant is sentenced to 35 months’ imprisonment.

Disqualification Order

36.  Mr Sadhwani has made no special submissions in this regard. Therefore, I disqualify the defendant from driving any class of vehicle for a period of 5 years starting from today and during that period he is not to drive any vehicle.

Driving Improvement Course

37.  According to the law, the defendant must at his own expense attend and complete a driving improvement course within the last 3 months of the period of disqualification. If he fails to comply with this order without reasonable excuse, he will be subject to further prosecution under section 72A of the Road Traffic Ordinance.