HKSAR v. GHULAM RAZA

DCCC 286/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 286 OF 2015

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Reasons for Sentence

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1.  I found, after trial, the defendant guilty of Charges 1 to 3. I found the defendant had knocked over and reversed over Madam Chow Moon. She was 80 years old. I found that he had focused on the wing mirrors on the sides of his vehicle because he was concerned that he would touch vehicles parked to his left or right as he reversed down this unnamed road. As a result, he neglected to pay attention to the rear of his vehicle. I found Madam Chow must have been to the rear, behind his vehicle, and I am sure that he, without seeing her, knocked her over and ran over her with his right rear tyre.

2.  The facts are that she died six days later from her injuries sustained.

3.  I do not intend to repeat the facts of this case.  I gave full reasons in my verdict.  In short, the defendant had to reverse out of an unnamed road.  The road itself was over 60 metres long. He had to reverse down a gap of 3.2 metres in width when his own vehicle was 2.4 metres wide.  This left very little room for him to navigate down between parked vehicles.  His vehicle itself is a big vehicle, over 6.6 metres long.

4.  This vehicle had a camera installed at the back with a monitor in front of the driver.  On that morning, either the monitor was not switched on, or he was not looking at the monitor.  If he had paid attention to the rear, I am sure the defendant would have not failed to see the deceased.  This, in my finding, is a momentary lapse of judgment leading to serious consequences.

5.  I accept this is a tragedy that the defendant would not have wished for.  He is previously a man of clear record, and his driving traffic record is not bad for a professional driver.  He has no convictions for careless driving or any other similar driving convictions.  He has had his licence since 2001.

6.  In mitigation I have heard the defendant is 35 years old, married, with a very young daughter; she was born last month.  His wife is reliant on him not only financially but also for day-to-day matters as she does not speak English or Chinese well.  I have been told the defendant is a driver earning $12,000 a month.  I also have before me two letters that tell me he is involved in charitable work for his local community.

7.  For dangerous driving causing death there is no sentencing guideline.  It all depends on the facts and circumstances of each individual case.

8.  The defendant is not a criminal in the true sense of the word.  He did not go out looking to commit a crime.  The sentence for this type of offence depends on the culpability of the driver.  Culpability is the basis of any sentencing exercise.

9.  The maximum sentence for this offence, dangerous driving causing death, is now 10 years.  The maximum sentence was raised in 2008.

10.  I have referred myself to paragraphs 21 and 22 of an authority, Secretary for Justice v Wong Wai Hung CACC 7/2010.  The courts are very aware of the importance of a deterrent effect when sentencing cases involving dangerous driving.  The courts must take into account the importance of ensuring or keeping public confidence in the sentencing system.

11.  In England, the leading case for dangerous driving is R v Cooksley [2003] 3 All ER 40.  This provided some guidelines.  In Hong Kong, Secretary for Justice v Poon Wing Kei [2007] 1 HKLRD 610 agreed with the approach taken in the Cooksley authority.  The Cooksley authority also said that even when there are no aggravating factors, a term of imprisonment is inevitable, starting from a 12 to 18 month starting point.  This would progress as culpability became more serious, progressing through intermediary culpability, where 2 to 3 years was deemed appropriate, to a higher culpability, and lastly, to a most serious culpability, with the starting point increasing as culpability increased.

12.  In this case, I take into account that, as I have said, the defendant, I find, had a momentary lapse of judgment.  There was no excessive speed.  There was no consumption of drugs or alcohol.  There was no selfish disregard to other road users. 

13.  There are two extremes of culpability:  firstly, where a defendant suffers a momentary lapse or an error in his judgment; and secondly, the more serious extreme, where a defendant chooses to disregard the safety of other road users when driving in a particular manner.

14.  In this case, I find the defendant is guilty of a lesser culpable scenario.  He did leave the scene.  He did not call the police.  But the reality is he knew the police were coming and an ambulance was on its way.  He did return to the scene when he was called by the police.

15.  Luckily, this is not a case where the victim suffered any more because a driver did not stop or call the police.

16.  As far as the defects of Charges 4, 5 and 6 are concerned, I will take them into account.  It may have saved the life of Madam Chow if she had been able to hear the audio warning from the device activated when the defendant goes into reverse.

17.  Defence counsel has referred me to two authorities, CACC 287/2013.  In that authority there is no appeal against the sentence, but I have considered the facts of that case and the sentence imposed.  In the other authority, CACC 242/2012 HKSAR v Chung Hung Pan, that court approved a starting point of 3 years.  I also considered the very similar facts of a District Court case, HKSAR v Li So Tai DCCC 1204/2011, where a 2-year starting point was taken.

18.  Defendant, please stand up.  In sentencing, I do take into account all relevant facts, my findings as to your driving manner, the defects of the vehicle that existed that morning, as well as all the mitigation I have heard on your behalf.

19.  For Charge 1, the most serious offence, I will take a starting point of 24 months.  After trial, I see no reason for any further discount.

20.  For Charge 2, I take a starting point of 6 months and impose a 6-month term of imprisonment.

21.  For Charge 3, I take a starting point of 3 months and impose a 3‑month term of imprisonment.

22.  Let me repeat:  for Charge 1, I impose a 2‑year term of imprisonment; Charge 2, 6 months; Charge 3, 3 months.  All will be served concurrently; a total of 2 years’ imprisonment.

23.  For Charge 4, 5 and 6, I impose financial penalties of $1,000 for each charge; a total of $3,000.

24.  I also disqualify you from driving any class of vehicle for a period of 3 years.  That will run from the date of your release from prison.  You must, before the expiry of this 3‑year disqualification period, in the last 3 months of that disqualification period, apply for and attend a driving improvement course at your own expense.