HKSAR v. DUCUSIN ROLAND MENDOZA

DCCC 303/2022

[2022] HKDC 1384

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 303 OF 2022

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a charge of causing death by dangerous driving, contrary to section 36(1)  of the Road Traffic Ordinance, Cap 374.

SUMMARY OF FACTS

The Location

2.  The accident took place at the junction of Amoy Street and Queen’s Road East.  At the junction of Amoy Street, there are road markings of “Give way” and “Turn left only”.  There are also traffic signs of “Give way” and “Turn left only” on both sides of the Amoy Street junction. The Amoy Street is a one-way one-lane carriageway carrying the vehicular traffic only to the left into Queen’s Road East eastbound.  The eastbound Queen’s Road East consists of two lanes.  The westbound Queen’s Road East consists of one lane.

The Accident

3.  At around 0811 hours on 28 July 2021, the Defendant was driving a private car (“the vehicle”)  along the Amoy Street with a passenger on board.  The Defendant drove against the “Turn left only” traffic sign and road marking from Amoy Street into Queen’s Road East westbound by making a right turn.  The offside front of Defendant’s vehicle knocked down a male pedestrian (aged 69)  (“the Deceased”)  who was crossing Queen’s Road East northerly. The Deceased was then further rolled over by the offside wheels of Defendant’s vehicle.  Defendant continued to drive his vehicle forward for about 5 metres before it came to a halt.

4.  Subsequently, police officers arrived at the scene. During inquiry, Defendant stated that he was driving the vehicle along southbound Amoy Street, and then turned right into eastbound Queen’s Road East at the speed of around 10 to 15 km/h. As the vehicle turned right, the Deceased suddenly crossed Queen’s Road East northerly outside the construction site on Queen’s Road East No. 153. He did not apply the brake in time and hit the Deceased.

5.  The accident was captured by Defendant’s dash camera and partly witnessed by a passer-by.

The arrest of the Defendant

6.  Upon arrest and in the two video-recorded interviews, Defendant remained silent.

Police Investigation

7.  According to the Motor Vehicle Examination Accident Report, Defendant’s vehicle was free from any mechanical defects.  Forensic examination revealed that DNA taken from the surface of Defendant’s vehicle could have originated from the Deceased.

8.  According to the Traffic Accident Investigation Report:

(a)  Defendant’s view of the Deceased could have been partially obstructed by the offside front structural column of Defendant’s vehicle 4-5 seconds before the accident.

(b)  Upon Defendant swerving his vehicle further to the right towards the point of the impact, he could have an unobstructed view of the lower body of the Deceased through the offside quarter window momentarily 2 seconds before the accident and the upper body of the Deceased through the front windscreen 1 second before the accident.

(c)  If Defendant had checked the traffic conditions ahead of the offside front by switching his head or body around the offside front structural column between the front windscreen and the driver side window, he may be able to be aware of the presence of the Deceased between 2-5 seconds before the accident. The upper body of the deceased could have been visible to him between 1-4 seconds before the accident.

(d)  Had Defendant perceived the Deceased as a danger 1 second before the accident and responded to the dangerous situation with a reaction time of 0.9 second and applied emergency brake to avert hitting the Deceased, Defendant’s vehicle could have been brought to rest before reaching the point of the impact and the accident could therefore have been avoidable.

Medical Findings

The Deceased

9.  According to the medical report, the Deceased suffered from cardiac arrest, fixed and dilated pupils, bruise over nose and upper lip, about 4cm occiput hematoma, fracture right ribs, fracture right tibia, fracture left ankle, and minor abrasion over right elbow and hand.

10.  At 0951 hours on the same day, the Deceased was certified dead. According to the autopsy report, the cause of death appears to be “multiple injuries” with the following remark:

“The autopsy revealed multiple blunt force injuries on the body. The pattern of injuries was in keeping with the available circumstances suggesting that the deceased had been knocked down and rolled over by a vehicle. […]”

CONCLUSION

11.  At all material times,

(a)  The road condition was not particularly busy and complicated, giving Defendant ample opportunities to keep a proper lookout. Further, it was daytime. There was sufficient lighting and Defendant’s view from the windscreen of his vehicle was clear.

(b)  Defendant ignored the road marking. He commenced the journey at Amoy Street seconds before the incident. It was a single lane. There was no vehicle or obstacle ahead blocking the road marking that clearly indicate “turn left only” but Defendant still turned right.

(c)  Defendant failed to maintain a proper lookout on the road condition ahead:

(i)  According to the Traffic Accident Investigation Report, when Defendant’s vehicle had just pulled out from Amoy Street and turned right into Queen’s Road East westbound, Defendant could have a partially obstructed view of the Deceased 4- 5 second before the accident.

(ii)  Before Defendant made a right turn, whilst he briefly stopped at the junction of Amoy Street and Queens Road East before he made the right turn against the traffic sign, he failed to tilt his head or body to compensate for his blind-spot caused by the offside front structural column. If he had done so, he could have an unobstructed view of the Deceased momentarily at 5 seconds before the accident. The upper body of the Deceased could have been visible to him between 1 to 4 second before the accident. That is, he would be aware of the presence of the Deceased and stop his vehicle in time to avoid the accident.

(iii)  From the car camera and CCTV footages, it can be seen that the Deceased had started crossing the road about 5 seconds before the accident and he was not walking in a fast pace.

12.  As such, the way the Defendant drove 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. 

CRIMINAL AND ROAD TRAFFIC CONVICTION RECORD

13.  The Defendant has no previous conviction record.

14.  He was first issued with a driving licence in 2010.  In respect of his traffic record, he has no previous traffic convictions.  He has 1 fixed penalty ticket of unauthorized stopping at bus stop and was fined $400 in 2021.

BACKGROUND OF DEFENDANT

15.  The Defendant is now 41 years of age. He is a Pilipino. He is married with 2 daughters, aged 3 and 12. His wife is unemployed and looks after the children in the Philippines.  The Defendant is the sole breadwinner of the family. He is educated up to college level.

16.  The Defendant came to Hong Kong in early 2009 while his mother had been working in Hong Kong since 1992.  They both worked with the same employer as domestic helpers.  After having obtained the driving licence in 2010, the Defendant was employed by the same employer as a family driver.

MITIGATION

17.  Mr Yuen, representing the Defendant, submitted that Defendant has a good driving record as he has no conviction record of any traffic offence.

18.  On the day of the accident, the Defendant was taking his mother from the market in Wanchai back to their employer’s home in the mid-level.

19.  The Defendant was deeply remorseful to the death caused to the victim. So when he was first arraigned in the Magistrates’ courts, he immediately pleaded guilty to the charge and so far he did not make any application for bail because he felt he should be fully responsible for the accident.

20.  Mr Yuen submitted that it is unlikely for the Defendant to continue with his occupation as a driver in Hong Kong as he would be inevitably disqualified from driving for a long period of time. The strongest mitigating factor is the Defendant’s timely guilty plea to the present charge thus saved a lot of court’s time and saved the attendance of witnesses from testifying in court.

21.  Mitigation letters from the Defendant and his employer were submitted for the court’s consideration. The Defendant has not seen his wife and his children for a long time, he requested the court to impose a lenient sentence to his charge so that he could go back to the Philippines to see his family as soon as possible.

22.  Mr Yuen referred the court to R v Cooksley [2003] 3 ALL ER 40 which identified a number of aggravating factors and mitigating facts for this kind of offence and that was considered by the Court of Appeal in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660. Cooksley also classified the 4 categories of culpability with suggested range of sentence. Mr Yuen also referred the court to the case of Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70.

SENTENCE

23.  I have carefully considered the facts admitted by the Defendant, all that has been put forward in mitigation by Mr Yuen on behalf of the Defendant, as well as the content of the letters seeking leniency on behalf of the Defendant.

24.  The maximum penalty for the offence of dangerous driving causing death is 10 years’ imprisonment and a fine at level 5[1].

25.  Three video clips capturing the accident were played in court before sentence:

Footage 1 - (07:41:12 - 07:42:00, collision at 07:41:19)  Footage from the Defendant’s dash camera;

Footage 2[2] - (08:04:47 - 08:05:00, collision at 08:04:57)  taken from CCTV camera installed at the construction site of Queens Road East eastbound No. 153; and

Footage 3[3] - (08:04:33 - 08:05:39, the Deceased was hit and then fell on ground at 08:05:02)  taken from CCTV camera installed at the construction site of Queens Road East westbound No. 153.

26.  The prosecution had also handed up to court a scale sketch of the road in question and photographs[4] which were taken after the incident showing the location scene and Defendant’s vehicle.

27.  For offences of dangerous driving causing death a deterrent sentence was called for because of the grave consequences flowing from the offence.  The culpability of the Defendant was the dominant fact in the sentencing exercise. Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70 (para 35).

28.  In Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70, the Court of Appeal listed the aggravating and mitigating factors[5] that the sentencing court must take into account for the offence of dangerous driving causing death.  I have considered the list of aggravating and mitigating factors set out in the case.

29.  I have reminded myself of the sentencing principle set out by the Court of Appeal in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, in particular paragraph 10(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. In some cases, the fact that only some aggravating factors exist, but not others (such as in the present case), may still bring the case into a very serious category.”

30.  Having considered the facts of the case, I am of the view that the relevant aggravating factor in the present case is the Defendant failed to comply with the road marking and traffic signs of “Turn left only” on Amoy Street.  In addition, the Amoy Street junction also had “Give Way” road marking and “Give Way” traffic signs.  The photographs clearly showed that the junction of Amoy Street was wide and the road markings of “Give Way” and “Turn left only” on the Street were clear.  Furthermore, there were two traffic signs on both sides of the junction of Amoy Street indicating “Give Way” and “Turn left only”.  Under such circumstance of road condition, Defendant still failed to comply with the road marking and traffic signs of “Turn left only” by turning right.

31.  The accident happened under a broad daylight and the weather was fine and lighting was sufficient.

32.  It was also clearly shown in the footage that the Deceased, aged 69, stepped onto the carriageway towards the direction of the Defendant’s vehicle at a normal pace until collision happened on the dividing line of Queen’s Road East.  The footage showed that the Deceased could be observed via the camera for almost six[6] seconds before the collision took place.  It could also be noted from the footage that the Defendant kept on moving and turning right against the road marking and traffic signs of “Turn left only” whilst the Deceased was crossing the road facing towards Defendant’s direction. The Defendant did not do anything to avoid the collision. The Defendant simply failed to see the Deceased walking cross the road in front of him until the Deceased was knocked down.  The Defendant did not keep a proper lookout and were not prepared to stop until it was too late to do so.  

33.  Nevertheless, I also note it was not a case of excessive speeding and the Defendant was not under the influence of drugs or alcohol.

34.  In Cooksley, it classified dangerous driving causing death cases into four categories:

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

(2)  Two to three years’ imprisonment for offences of intermediate culpability;

(3)  Four to five years’ imprisonment for offences of higher culpability; and

(4)  Six years’ imprisonment or over for offences of the most serious culpability.

35.  I consider that this case falls within the lower end of the intermediate culpability category in Cooksley. It was accepted by the Defence. The Prosecution also agreed with the observation and submitted HKSAR v Lam Ying Yu [2014] 2 HKLRD 895 for the court’s consideration. In that case, the Defendant drove through stop sign into junction and collided with a taxi, forcing the taxi into road workers causing the death of one worker as a result. The sentence was substituted with an imprisonment of 18 months after appeal. The Prosecution submitted that the culpability of the present case is higher than that in Lam Ying Yu, as the present accident could have been avoidable had Defendant stopped his vehicle in time.  It could be noticed in the footage that the Deceased could have been perceived by the Defendant long before he stepped onto the carriageway.

36.  I have also considered the submission put forward by the Defence that Defendant was a man of good record and was deeply remorseful.

37.  In Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, the Court of Appeal held that:

“13. We wish to make the following additional observations: ‑

(1)  Almost invariably in mitigation for the offence of dangerous driving causing death, the sentencing court is provided with details going to the good character of the accused. The court is also usually informed of the deep remorse that is expressed. The present cases provided no exception.

(2)  And yet the one fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided. Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine. There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it. As Yeung JA remarked in 香港特別行政區 訴 歐陽國堅 (HKSAR v Au Yeung Kwok Kin), unreported, CACC 21/2008, 25 August 2008, the courts will not show leniency to any driver who has endangered the lives and safety of other road users.

(3)  In these circumstances, good character and remorse may count very little. These certainly count very little, or not at all, for the family and all those connected with a victim who has died as a result of an act or omission that could entirely have been avoided. The serious view that society holds for offences such as dangerous driving causing death is reflected by the increase in the maximum sentence for this offence from 5 to 10 years' imprisonment for convictions on indictment (see paragraph 2 above).

(4)  The court must therefore be astute to bear in mind the above considerations when determining the appropriate sentence in any given case in the face of details provided to it about an accused and the remorse that is shown. This is not to say that remorse or good character are not relevant considerations in terms of sentencing – they must be – but in the context of the offence with which we are concerned, they must not be given undue prominence. Further, nothing of course detracts from the discount that ought to be given when a timely plea of guilty is entered.”

38.  Having considered all the circumstances, I take 24 months’ imprisonment as the starting point for the charge.  After the full one third discount, the sentence is one of 16 months.

DISQUALIFICATION ORDER AND DRIVING IMPROVEMENT COURSE

39.  The Ordinance provides that a person convicted of the offence of causing death by dangerous driving shall be disqualified for a period of not less than 5 years in the case of a first conviction, unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.  The Ordinance also provides that the court shall also order the person to attend and complete a driving improvement course.

40.  I do not see there is any special reasons not to disqualify the Defendant. I order that Defendant be disqualified from driving all classes of vehicles for a period of 5 years.

41.  I further order, under section 72A(1A)  of the Road Traffic Ordinance, Cap 374, there being no special reasons against the making of an order, Defendant to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period[7]. Failure to comply with this order is an offence and Defendant shall continue to be disqualified until he has attended and completed the driving improvement course.