HKSAR v. CHEUK PUI KUEN

DCCC475/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 475 OF 2012

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Reasons for Sentence

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1.  Defendant, I convicted you after trial of an offence of dangerous driving causing death, contrary to section 36(1) of the Road Traffic Ordinance, Chapter 374. You admitted to careless driving and causing the death but had denied dangerous driving. A video recording showing the collision with the deceased and the events leading up to the collision was captured on a car camera installed in your light goods vehicle (LGV).

2.  At about 1835 hours on 27 October 2011, you were driving the light goods vehicle along the dual carriageway in the outer lane of Tsing King Road, Tsing Yi southbound.  After a mild right bend, the deceased was walking across the dual carriageway ahead of you from an embankment on the left from the slow lane near a yellow lit-up bollard towards the outer lane to which you were travelling upon.  When the deceased reached the outer lane, your light goods vehicle knocked him down on the offside front.  You had failed to stop your light goods vehicle in sufficient time and collided with the deceased who was at that time aged 72.  Although you had sounded your horn and slammed on your brakes before knocking into the deceased, it was far too late.

3.  I have found that you had seen the deceased far too late.  According to your evidence, you had only seen the deceased at some 10 or 34 metres away.  PW1, an investigation officer, the expert in this case, was of the view that you should have been able to see the deceased crossing the road at least from 71 metres away and had a clear perception of the deceased at 57 metres away.

4.  I found that your having seen the deceased at only 34 or 10 metres away fell far short of the 71 and 57 metres when you should have seen the deceased.  And if you had seen the deceased within 71 or 57 metres away, you could have applied your brakes to stop in time so that the collision with the deceased could have been avoided, whether you were travelling at 45, 50 or 54 kilometres an hour.

5.  You were not paying a proper lookout and/or attention and/or concentration on the road ahead.  Your 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 manner would be dangerous.  Your belated reactions of braking and applying your horn were too late, this again fell far below what was expected of a competent and careful driver, and it would have been obvious to a competent and careful driver that you were driving dangerously.

6.  I have taken into account all the mitigation put forward by Mr Ma on your behalf and also of the glowing letters written by your parents and your family, your employer, a friend, a teacher and your colleagues.  You are aged 24 and are of clear criminal and traffic record.  You have two fixed penalty tickets of failing to comply with traffic signals in August 2011, to which you were fined $1,200; and driving in excess of a speed limit by not more than 30 kilometres, to which you were fined $450, that offence was committed on 17 February 2012.

7.  You are single and live with your parents and younger sister and brother and have been working as an assistant cable‑jointing worker earning a monthly salary of about $7,000, to which you contributed 4,000 to your mother as family expenses. 

8.  Mr Ma has urged me to take into account that this offence was committed in a very short time, over a few seconds as can be seen by the video footage.  He points out and I accept in this case that there are no aggravating factors as listed in the case of R v Cooksley, and that at the very commencement of this hearing you were prepared to plead guilty to careless driving.  You accepted your driving was below the standard but not substantially below the standard.

9.  The courts in Hong Kong have guided by the case of R v Cooksley [2003] 2 All ER 40 as to the factors to be taken into account for sentencing in dangerous driving causing death and the appropriate range of sentence.  It is laid down that in these cases of dangerous driving causing death, an immediate custodial sentence will generally be necessary.  The mitigation factors are matters such as a guilty plea, previous good character, an impeccable driving record and the fact that the offender displayed genuine shock and remorse.  It is also recognised by the courts that most cases where death is caused by dangerous driving, it is never intended that the driver intended to kill the person.  The public, however, are entitled to require the courts to reflect the loss of life and to demonstrate that dangerous driving is a serious social evil which, if death results, would lead to a custodial sentence.

10.  In this case, Defendant, I found that you should have anticipated and prepared for that pedestrian to cross the road ahead of you.  Even though the deceased was jaywalking, you had a legal and moral responsibility to take proper care to avoid accidents with pedestrians and try to give way to pedestrians on the road.  You did not keep a proper lookout and did not keep your speed down and were not prepared to stop until it was far, far too late.  This was a short period of bad driving.  I accept that this case does not display any of the aggravating features listed in Cooksley.

11.  The starting point for causing death by dangerous driving should be a short custodial sentence of perhaps 12 to 18 months. I take as a starting point 12 months’ imprisonment.  You are a young man aged 24 of clear record with little driving experience.  On those factors, I am prepared to reduce the sentence to one of 11 months’ imprisonment, to which you are so sentenced.  You are also disqualified for driving for 5 years.