HKSAR v. CHEUNG SHU MAN

DCCC 1001/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1001 OF 2013

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Reasons for Sentence

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1. The defendant pleaded guilty to one charge of dangerous driving causing death, contrary to s.36(1) of the Road Traffic Ordinance, Cap.374. Particulars of the charge are that the defendant on 12^th April 2013, at the junction of Hip Wo Street and Tsui Ping Road in Kwon Tong caused the death of Madam Mok Shiu Ling while driving a public light bus JB 7470 dangerously.

Summary of facts

2. The defendant was the driver of public light bus JB7470 (“the minibus”). At 11:35am on 12^th April, the minibus was in the left lane of Hip Wo Street going uphill. When the minibus got near the junction of Hip Wo Street and Tsui Ping Road, madam Mok was seen running across Hip Wo Street from right to left. At that time, the pedestrian lights were red while the traffic lights governing the defendant’s direction of Hip Wo Street was green.

3. The defendant sounded the horn on his minibus but did not slow down. The minibus continued to move along Hip Wo street towards Tsui Ping Road at a speed of between 42 and 52 kmh. Madam Mok somehow did not heed the defendant’s honking and continued to cross the road after seemingly slowing down slightly. When madam Mok continued to walk onto Hip Wo Street despite the defendant’s honking, the defendant realized that he had to brake and did so. It was however too late and the minibus hit madam Mok when she was on the defendant’s side of the pedestrian crossing. The minibus’ right front hit the left side of the body of madam Mok. Madam Mok died as a result of injuries sustained.

Previous convictions

4. The defendant is of previously clear record. He does however have 2 records for careless driving in 2008 and 2009 and some Fixed Penalty offences.

Mitigation

5. The defendant is 67 years old and has been a minibus driver for some 15 years. He lives with his 64 year old wife. Their 2 children are married and the defendant has 3 grandchildren.

6. According to Mr. Yuen for the defendant, the defendant has suffered a big blow as a result of this incident. A letter written by the defendant was submitted and it shows how upset the defendant has been since the accident.

7. Mr. Yuen highlighted some facts of the case. When the defendant got near the white traffic line on Hip Wo Street, he saw the deceased began running from his right on to the yellow pedestrian crossing lines. At that time that, according to expert evidence, the defendant’s slowest speed could have been around 42 kmh.

8. Mr. Yuen submitted that from the time the defendant decided not to slow down but just to sound the horn to warn Madam Mok to the time when the defendant realized that she was not stopping and he had to brake, there was just a time gap of around 1 second. It was this wrong decision not to slow down that resulted in the accident.

9. The defendant is no longer driving since the incident, but has managed to find a job as a caretaker. As disclosed in the defendant’s son-in-law’s letter, the defendant qualifies for CSSA but he had always refused to be a burden to anyone, be it the society or his family. The fact that he had found another job goes to show how determined the defendant is to continue to contribute to society. The defendant is earning $9,600 per month.

Cases

10. Mr. Yuen referred to the cases of HKSAR v Ho Kam Cheong, HCMA 139/2010 and HKSAR v Cheuk Pui Kuen, DCCC 475/2012.

11. In Ho Kam Cheong, the appellant was convicted after trial of one charge of dangerous driving causing death and sentenced to 12 months’ imprisonment. There the appellant was also a public light bus driver. At the time of the incident the bus was not carrying any passenger. When proceeding along the road, in order to avoid a bus that was pulling out from a bus stop, the appellant made a sharp right turn into another street, but in doing so hit an elderly pedestrian who died later from injuries sustained. The gravamen of the prosecution case was that the appellant was driving too fast under the circumstances and that he was not keeping a proper lookout and that in consequence his attempt at evasive action was unsuccessful.

12. There is evidence to suggest that the appellant was driving at 70kmh or possibly faster on a road with a speed limit of 50kmh.

13. The appellant had 2 previous convictions for vice offences but they were considered irrelevant for the purpose of sentence. He had 3 traffic convictions and some Fixed Penalty citations of the type and number ‘that one would expect to be accumulated by a professional driver.’ Beeson J considered the appellant’s record cannot be regarded as a bad record. The sentence of 12 months’ imprisonment was upheld on appeal.

14. In the case of Cheuk Pui Kuen, the defendant was convicted after trial of the same offence and sentenced to 11 months’ imprisonment. There the defendant was the driver of a light goods vehicle and had failed to see the deceased in time although he should have had plenty of time and opportunity to do so. The defendant was not paying a proper lookout and his driving was found to be dangerous.

15. There the defendant was 24 years old and of clear record. The court referred to the case of R v Cooksley [2003] 2 All ER 40 and found that there were no aggravating factors as listed out there and adopted a starting point of 12 months’ imprisonment. A one month discount was given based on the defendant being a young man of clear record with little driving experience.

16. It is Mr. Yuen’s submission that the facts in both cases are similar but relatively more serious than our case and therefore the court should not impose a sentence higher those adopted in the cases.

17. Lastly, Mr. Yuen referred to the statement of Madam Mok’s daughter in the unused material where she stated that Madam Mok had had some hearing problem, which might have caused her not to have heard the horn of the minibus.

Sentence

18. The defendant is 67 years old and of previously clear criminal record. Being a professional driver for around 15 years, his traffic record can be described as very good.

19. The defendant worked hard to support himself and his wife and to make sure that he does not become a burden for his family. He could have applied for CSSA but he chose to earn his own living and not become a possible burden to society.

20. It is clear that the defendant is extremely remorseful about what had happened. Given the facts of the case, it could very well be open to him to contest the case and hope for the best. He chose not to do so but to own up to what he had done.

21. The defendant has a very supportive family. Since the incident, he had given up driving the minibus and had taken up employment as a caretaker. He is still trying his best to stand on his own feet.

22. As highlighted by Mr. Yuen, this is not a case of the defendant not seeing madam Mok crossing the road. The defendant had seen her. It was not the case that the defendant did not do anything in response of seeing her jaywalking. The defendant sounded his horn continuously to try to warn her of his approach. Unfortunately, there is a possibility that because madam Mok had a hearing problem, she did not hear the horn and continued to cross the road. There is evidence put forward in mitigation that Madam Mok was actually running across the road, but that there was sign of her slowing down when she got near the island in the middle of Hip Wo Street. Somehow, Madam Mok then decided to continue to jaywalk and by that time the defendant realized that he had to brake to avoid hitting her but it was too late.

23. The expert evidence is that the defendant could have been going at speed between 42 to 52kmh. There is no evidence that the defendant was speeding or going at an excessive speed under the circumstances.

24. It is the prosecution’s case, and the basis of the defendant’s guilty plea, that to have chosen not to slow down when the defendant first saw Madam Mok running across the road but just to honk to warn her is driving standard that fell far below that expected of a competent and careful driver; and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.

25. A driver must always be alert and be prepared to act accordingly when driving near pedestrians. The fact that pedestrians would run out from the pavement onto the road even when the pedestrian lights are red is not something unusual. If the defendant had started to slow down right after he saw madam Mok running, it is possible that the accident could have been avoided.

26. The maximum sentence for an offence of dangerous driving causing death under s.36(1) is that of imprisonment for 10 years. This is not an excepted offence under Schedule 3 of the Criminal Procedure Ordinance, Cap.221.

27. As a result of the defendant’s dangerous driving a life was lost. The grief and frustration felt by the defendant’s family over his possible imprisonment is nothing compared to madam Mok’s family. When a person is charged with handling a vehicle on the road, he is entrusted with a powerful weapon. Even the slightest misuse could result in very serious consequences. This is the reason why when someone had driven dangerously resulting in loss of life, the court has considered that a custodial sentence is appropriate, both as a punishment and as a deterrent.

28. For the same reason, I find that a custodial sentence is required in the present case.

29. I find that although the defendant’s driving was dangerous, it is definitely not the worst of its kind and in fact can be said to be the least serious of its kind. The defendant had spotted madam Mok from around 65 meters away, he reacted by sounding his horn, but made the wrong decision of not slowing down, expecting madam Mok to stop running across the road. It was, as Mr. Yuen pointed out, literally a matter of 1 second when he realized that she was not stopping and that he had to brake to avoid collision. He was however already too late and the accident happened.

30. I find that a starting point of 12 months’ imprisonment is appropriate. I grant the defendant the full one third discount for his guilty plea, resulting in a sentence of 8 months’ imprisonment.

31. By reason of the defendant’s previously clear criminal record, his relatively good traffic record, his age, the fact that he had given up being a professional driver and had taken up employment as a caretaker and therefore there is a very low risk of him re-offending and that he had shown genuine remorse, I will further reduce this sentence by 1 month. The defendant is therefore sentenced to 7 months’ imprisonment.

Disqualification

32. Pursuant to s.36(2A)(a) of the Road Traffic Ordinance, given that this is a first conviction for a s.36(1) offence, the defendant is disqualified for a period of 5 years.

Driving improvement course

33. Pursuant to the requirement under s.72A(1A) of the Road Traffic Ordinance, there being no special reasons against the making of an order, the defendant is ordered to attend and complete a driving improvement course. Pursuant to s.72A(3B)(b), the defendant must attend and complete the driving improvement course within the last 3 months of the said disqualification period of 5 years.