HKSAR v. NG SIU BUN AND ANOTHER

DCCC 506/2018

[2019] HKDC 644

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 506 OF 2018

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Reasons for Sentence

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1.  I will deal with the 1st defendant first. He has been convicted after trial of causing death by dangerous driving. He did indicate a plea to careless driving at an early stage. I do not propose to rehearse the facts of the case yet again for the purpose of sentencing - they are contained in my original reasons for conviction.

2.  I have obtained a background report on this defendant which sets out his personal background.  He is now aged 42 and would have been working as a taxi driver up to this incident.  He has some responsibilities caring for his mother.  The defendant has worked in a number of fields but was working as a taxi driver for five-odd years.  Obviously this incident has transformed his life.  He has, as far as his driving record is concerned, a few minor convictions and an offence back in the year 2000 for failing to provide a specimen of breath.

3.  In approaching sentencing for cases of causing death by dangerous driving, the court must bear in mind these are serious offences.  The principal harm of the offence is the death of the person in question.  It is an element of the offence and the fact that will primarily determine the starting point for sentence is the culpability of the offender. So the central feature of this exercise should be an evaluation of the quality of the driving involved and the degree of danger that it foreseeably created, and my finding that I set out in my judgment was that the driving of the defendant in this case created a significant risk of danger and was characterised by a speed that was inappropriate for the prevailing conditions. That is my assessment of culpability.

4.  And I refer to the case of HKSAR v Yu Wing Sing which is No 33 of 2012 which involved a case where a person was struck on a pedestrian crossing. The defendant’s culpability was assessed as paying no attention to road conditions with no reckless regard to the safety of others. And the starting point for sentence given that it involved an accident on the pedestrian crossing should be, they said, in the range of 2 to 3 years’ imprisonment.

5.  My assessment of the culpability of the defendant in this case would put the starting point for sentence at the lowest end of that range, which would involve an initial starting point of 2 years’ imprisonment, of 24 months.

6.  However, other factors that need to be taken into calculation of the starting point are the mitigating factors for the defendant.  Firstly, this is a situation where it has been established on the evidence that the actions of the victim contributed significantly to the likelihood of collision.  There is no doubt on the evidence that the deceased walked out against the pedestrian red light.  He was undoubtedly committing an offence himself.

7.  The second factor that I will consider in this case is the actions of the defendant post the accident contributed to giving assistance to the victim.  They were unfortunately not successful in this case, but the deceased was run over by another vehicle.  However, if a vehicle that had positioned itself in front of the deceased had not driven off, and I believe the defendant was trying to prevent that car from moving off, we may have been looking at a very different outcome.  But both of those factors are factors I must take into account in mitigating the original starting point for sentence.

8.  The first of those mitigating factors, clearly the most important, that is the actions of the victim, and I will assign a deduction of 6  months’ imprisonment for that factor.  A further 3 months’ imprisonment for the actions of the defendant in giving assistance and notifying the authorities quickly.  This leads to a final sentence in respect of the 1st charge of 15 months’ imprisonment.  There will be a further 5 years’ disqualification for driving.  The defendant must take and complete a driving improvement course before the completion of the period of disqualification and that period is 3 months as you already said.

9.  The defendant does not have his licence in his possession, it is at home.  Obviously he has difficulty providing it.  I will give him a further 14 days to effect the surrender of the licence.  If that is not enough, he will have to come back to court and ask again.

10.  I turn now to the 2nd defendant.  He is being convicted of the offence of careless driving based on his negligence that evening.  He also failed to stop and report the accident when he should have done so.  The court has a great liberty to approach sentencing in respect of the 2nd defendant.  There is no tariff for this or set of guidelines of sentence for this.

11.  The defendant is aged 51.  He has been a driver for a long time.  He has what I think for a professional driver would be described as a reasonably good driving record.  He has been convicted of careless driving in the past and has attended driving improvement courses in the past.

12.  I obtained a community service suitability report on this defendant.  The outcome is favourable and the report is a good one.  Where a death results from an act of careless driving, I believe it is within the power of the courts to impose a sentence of imprisonment, but the imposition of a community service order is often said to be an alternative to the imposition of a sentence of immediate imprisonment where the defendant would otherwise satisfy the conditions of the imposition of a community service order.

13.  The defendant in this case was convicted on the basis of his carelessness, his negligence.  That is the level of his culpability.  That must be reflected in the sentence.  Given all the factors of this case, I consider that the imposition of a community service order would be an appropriate sentence for this defendant on these three charges that he faces.

14.  My sentence will be as follows: I am going to impose a sentence of 200 hours’ community service on each of the charges to be served concurrently.  I will impose a disqualification for driving.  And as has been observed, this is not the defendant’s first offence of careless driving and a death resulted on this occasion.  I shall impose a 24 months’ disqualification from driving.  The defendant must also take and complete a driving improvement course - another driving improvement course - within 3 months of the expiration of his period of disqualification.  The licence must also be surrendered.