HKSAR v. SO CHUN MAN

DCCC 960/2022

[2024] HKDC 1144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 960 OF 2022

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REASONS FOR SENTENCE

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1.  The Defendant was convicted after trial of a single charge of causing death by dangerous driving, contrary to section 36(1)  of the Road Traffic Ordinance, Cap 374. He had indicated willingness to plead guilty to careless driving only.

The Facts

2.  The incident occurred at about 0630 hours on the 27^th January 2022 in Tin Ha Road, Yuen Long, New Territories, near lamppost number FB 9079 (hereinafter referred to as the “Lamppost”).  The location in question was a straight section of road, with a single lane carriageway in each direction.  The material section of the road was lit by street lamps.  The weather was fine, and the road surface was dry and in good condition.

3.  The Deceased (Madam Chong), who was 85 years old and in good general physical and mental health for her age before the incident occurred, left her home on the southbound side of Tin Ha Road at about 06:30 am, and was on the way to collect newspaper from a nearby shop when the accident occurred.  At around 0630 hours, a bus with registration number UL 9538 (hereinafter referred to as the “Bus”)  which had travelled along the bus route of Tin Ha Road stopped at a bus stop near the Lamppost to allow passengers to board and alight.

4.  Two vehicles stopped behind the Bus, the first one being a refuse collection vehicle UD 3330 driven by the Defendant (hereinafter referred to as “V1”), and the second being a medium goods vehicle US 627 (hereinafter referred to as “V2”)  driven by Mr. Lee which had stopped closely behind V1.  V1 had stopped at the said location for about 8 seconds.

5.  It has been found by the Court that when the Bus started moving off from the bus stop, V1 started moving forward.  CCTV footage of nearby premises, as analyzed by the Prosecution expert on accident reconstruction, captured the incident, although the exact moment of impact could not be clearly captured by the CCTV camera.  It has however been found by the Court that there has been an impact between the nearside front of V1 with Madam Chong.

6.  Right when V1 was starting to move forward, Madam Chong had reached the off side front corner of V1.  She continued crossing the Northbound carriageway of the relevant road between the Bus’s rear and V1’s front.  When she had reached the nearside front of V1, an impact occurred between her and V1, causing her to fall.  She was moved forward for a short distance by the slow moving V1.

7.  As Madam Chong had fallen onto the carriageway as aforesaid, she was conscious and able to make a weak sound and a slight lifting of her arm.  V2, in the mean time, had also started moving again after V1 had moved forward.  Madam Chong was consequently rolled over by V2, and was found by ambulance crew to be trapped underneath V2.  V2 was lifted sufficiently to allow the ambulance crew to gain access to Madam Chong.  She was confirmed dead on the spot.

8.  After the incident, Mr. Lee remained at the scene, whereas the Defendant had left with V1, and was later on located by the police.  Both the Defendant and Mr. Lee had tested negative of alcohol.

9.  The autopsy report of Madam Chong indicated:-

(a)  gaping laceration to the head with a piece of the scalp detached from the flaying laceration exposing the skull bone;

(b)  the left upper limb was almost completely amputated, and the right forearm had a gaping laceration of 29 cm in length and 22 cm in width extending circumferentially on the whole of the forearm exposing underlying torn muscle;

(c)  there were fractures to the skull, vertebral body of the 5^th cervical vertebrae, breastbone and front and rear ribs, right clavical, left arm bone, right elbow joint, left thigh bone, left knee joint, left ankle joint, right knee joint and right ankle joint and various other parts of the body; and

(d)  blood analysis showed therapeutic levels of chlorpheniramine and paracetamol, neither of which would have likely affected her level of consciousness at the material time.

10.  The Defendant was arrested and cautioned by PC22461 for causing death by dangerous driving.  The Defendant stated under caution that “I had no idea that I had knocked down anyone.”

11.  Both V1 and V2 had been sent to vehicle examination, and no defects were found on either of them.

12.  The Court has accepted the expert’s conclusion, that although the Defendant could not see Madam Chong through the front windscreen during the course of the accident, he could have unobstructed or partially obstructed views of Madam Chong walking towards the gap between V1 and the Bus at or before T-2.0 through the offside window, and from the nearside fisheye mirror between T-1.5 to T.  As V1 started pulling away at T-2.0, and that the speed of V1 had started with 1.4 km/h +/-0.14 between T-2.0 and T-1.5, and accelerated to 5.4 km/hr +/-0.54 from T-1.0 to T.

13.  The Court has earlier found in the Verdict that it is not unduly burdensome and difficult for a driver to turn his head to the right, in order to look through the offside window, to see if anyone was trying to cross the road or approach the vehicle before moving forward.  This is especially important, when the Defendant knew that the particular stretch of road was lined with buildings and residences, that he had stopped near a bus stop, he was aware of the presence of at least one pedestrian, and that people wanting to catch the bus might cross the road in front of V1.

14.  The Defendant had decided at the time that it was not necessary for him to check the offside window of V1 before moving the vehicle, and therefore his omission to check the right offside window was deliberate, and not a momentary lapse of attention.  He had stopped behind the bus for 8 seconds, but had only looked at the right to the southbound pavement before he had completely stopped V1.  I find that his failure to check if anyone was approaching from the right was a flagrant breach of his duty as a driver of a large vehicle with blind spots to the front, to pay attention to the obvious danger of people crossing the road lined with buildings to another side with a bus stopping at a bus stop.

Antecedent Statement and Mitigation

15.  The Antecedent Statement and the mitigation indicate that the Defendant is currently 53 years old.  He was a refuse collection vehicle driver at the time of the offence, and had been unemployed since the accident.  His mother had passed away earlier this year.  He has 5 siblings, and was the closest person to his second elder brother who is quadriplegic.

16.  The Defendant has 2 previous convictions, none of which was similar to the present charge.  The last conviction was in 1995.  He has a clear traffic conviction record.

17.  In mitigation, Defence counsel also submits that Madam Chong’s decision to cross the road in front of V1 at T-2.0, when V1 had just started to move forward, was a “suicidal act”; and that Madam Chong had failed to make use of the pedestrian crossing not far away from the accident location.

18.  The Court holds a different view.  The Defendant had ample opportunity to spot Madam Chong’s presence and obvious intention to cross the road all the way to the northbound pavement, and had failed to take advantage of the opportunity to ensure that it was safe to move ahead, before actually driving forward from a completely stationary condition. I am therefore of the view that Madam Chong’s manner of crossing the road does not assist in the Defendant’s mitigation.

19.  Concerning the failure to cross the road at the pedestrian crossing, the Court notes that it is human nature that some pedestrians will obey the rules, and others not; it is simply a fact that drivers in the Defendant’s circumstances at the material time ought to pay attention to.  Further, from the CCTV footage it appears that at least part of the pedestrian crossing was blocked by V2 which had waited at that location when the bus and V1 were also stationary.  The Defendant might not be aware of the blocking of the pedestrian crossing by V2, but he would be aware that V2 had waited behind him, as he had checked the side mirrors which serves the same purpose as a rear mirror in smaller vehicles.

20.  The Defence also submits in mitigation that the Defendant was subjected to stress during more than 2 years after the accident.  The Court is of the view that, in a case of dangerous driving with the very serious consequences of a pedestrian’s death, any stress associated with being prosecuted for the offence cannot have much weight in mitigation against sentence.

Relevant Legal Principles and Considerations of Sentence

21.  Both Prosecution and Defence submits that R v Cooksley [2003] 3 All ER 40 lists out the factors that the Court ought to consider when dealing with the sentence of a dangerous driving causing death case.

22.  In R v Cooksley, dangerous driving causing death cases have been classified into 4 categories:-

(a)  For cases with no aggravating circumstances, the starting point should be 12 to 18 months’ imprisonment;

(b)  For cases of intermediate culpability, 2 to 3 years’ imprisonment;

(c)  For offences of higher culpability, 4 to 5 years’ imprisonment; and

(d)  For offences of the most serious culpability, 6 years’ imprisonment.

23.  R v Cooksley sets out a list of aggravating features.  Without going into the list, the Court accepts that the present case does not include any of the aggravating factors in the said list.

24.  R v Cooksley also refers to mitigating factors, out of the which the following are applicable to this case:-

(a)  a good driving record; and

(b)  the absence of previous convictions.

25.  The Court does not think that the Defendant’s plea of guilty to careless driving is an indication of remorse when dealing with sentence of dangerous driving causing death.

26.  The Court is of the view that, for dangerous driving causing death, an immediate custodial sentence is the appropriate sentence, and should be followed in the present case.  The special features of this case do not present as sufficient justification for the Court to consider any non custodial sentence such as a community service order.  Although the fact of death having been caused should not be the only consideration in sentencing, it must still be one of the factors to be borne in mind.

27.  I do not believe that the rather special factual scenario of the present case, i.e. that there were 2 consecutive impacts between Madam Chong and 2 vehicles within a short distance of time, should have any corresponding material effect in the sentencing.  In the present case, there is no evidence as to what injuries were directly caused by the impact between V1 and Madam Chong (hereinafter referred to as the “1^st Impact”).  An attempt to find out whether the injuries caused to her from the 1^st Impact, if any, had been the medical cause of death, would be impossible due to the occurrence of the 2^nd Impact.  It shall suffice for the sentencing court to note, that it could sensibly have been anticipated, that when the 1^st Impact occurred, a fatal collision might occur in the circumstances in which the 2^nd Impact did occur.

The Sentence

28.  After considering the facts of the case as found by this Court, the Defendant’s criminal record, all mitigating factors and authorities submitted by both sides, I am satisfied that this case, being a case with a relatively low level of culpability and no aggravating features, the appropriate starting point should be 12 months’ imprisonment.  I do not find any mitigating factors that could further reduce the starting point.  The Defendant is sentenced to 12 months’ imprisonment.