HKSAR v. CHONG MEI FUNG

DCCC 109/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 109 OF 2017

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REASONS FOR SENTENCE

1. The defendant pleaded guilty to a charge of "Causing death by dangerous driving". He drove a light goods vehicle and knocked down a pedestrian (aged 82) when he was backing up.

Summary of Facts

Location of the Accident

2. The accident took place at a taxi stand outside Ground Floor, Nos.1-5 Nam Ning Street, Aberdeen.

3. The accident occurred at a segment of Nam Ning Street which had 3 lanes for vehicular traffic.  The left and middle lanes were separated by a 30-metre long safety island.  The left lane was designated as a taxi stand.  The left side of the taxi stand was a pedestrian pavement.  A 17-metre long pedestrian railing was erected along the taxi stand.  There was no pedestrian crossing within 15 metres of the accident location.

The Accident

4. About 6:25 a.m. on 8 June 2016, the defendant drove a light goods vehicle SZ 6965 ("the LGV") into the taxi stand. A taxi was already at the front, so the defendant stopped the LGV behind that taxi.  There was no pedestrian railing on the left side of the LGV.  The defendant started unloading goods from the rear of the LGV and moving them to a shop on the left side of the taxi stand.

5. When he finished unloading the goods, the defendant returned to the driver's seat.  The taxi was still stopped in front of the LGV.  At that moment, Madam CHUNG ("the deceased"), who was pulling a trolley, walked from the pavement on the left side of the LGV, which was still stationary.  She walked at a normal pace to the rear of the LGV.  At one point, she placed her hand on the rear left side of the LGV to stabilize herself.  The deceased continued to walk along the left lane behind the LGV.

6. At that moment, the defendant began to reverse the LGV, which was equipped with a rear view device[1]. After a few seconds, the LGV knocked down the deceased.  The LGV continued to reverse and its rear tyres rolled over the deceased.  The defendant stopped reversing and drove the LGV slightly forward.  Its rear tyres rolled over the deceased again.  The defendant stopped the LGV and alighted from it.  Upon seeing the deceased, he used his mobile phone to call for help.  The deceased was conscious when the ambulance arrived.

7. The accident was captured by the CCTV camera of a store nearby.  The footage[2] pretty much tells the whole story.

Subsequent Investigation

8. The defendant's breath alcohol test yielded a zero reading.  He told the Police at the scene that he did not pay attention to the rear of his vehicle when he was reversing.  He suddenly heard a sound of impact.  When he alighted from the LGV, he saw the deceased on the ground.  The defendant stated that he forgot to use the rear view device on the LGV.  The LGV was inspected by the Police; nothing in the cargo compartment could have blocked the driver's view.  The driver should have been able to see the road condition behind the LGV through the inside rear view mirror.

9. Taxi driver Mr. LEUNG was in his taxi which was stationary on the right lane of Nam Ning Street, some 30 metres behind the LGV.  He saw the deceased walking behind the LGV.  As the LGV was reversing, Mr. LEUNG honked for about 2 seconds and shouted towards its driver.  The LGV continued to reverse and knocked down the deceased.

10. Upon arrival at the hospital, the deceased was found having sustained fractures of multiple left ribs and left clavicle; right ankle deformation; haemopneumothorax; and splenic laceration.  Emergency operation was performed and she was admitted to the intensive care unit.  Her conditions deteriorated in the evening on 11 June 2016 with shock and haemothorax.  Emergency operation was performed on the following day, and she died on the table.  Autopsy Report revealed the causes of death being i) left haemothorax; ii) left clavicle and left rib fracture; and iii) injury by moving vehicle.

11. The Police confirmed that the rear view device of the LGV was functioning properly at the time of the accident.  The driver could through the display screen see a person of the deceased's stature standing 0 to 3 metres behind the vehicle.  The Police also confirmed that a driver of the defendant's height could see a person of the deceased's stature standing 0 to 3 metres behind the LGV through its side mirrors, inside rear view mirror and rear window.

12. In a cautioned interview conducted on the day of the accident, the defendant admitted that he was reversing the LGV and carelessly hit a female pedestrian.

13. In his video recorded interview conducted on 29 June 2016, the defendant admitted, inter alia, that when reversing his LGV, he did not look at the display screen of the rear view device.  He heard a "kok" sound when reversing and thought he hit an obstacle.  He then drove forward for about 2 feet and heard another "kok" sound.  He stopped, alighted from the LGV and saw an old lady lying on the ground.

Mitigation & Sentence

14. The defendant is almost 27.  He has 1 conviction record which involved 2 offences related to dutiable commodities.  He obtained his full driving licence in April 2016 and has 4 traffic convictions (1 "Careless driving" and 3 "Speeding") in 2012 and 2013 when he was holding a probationary licence.

15. Defence solicitor Mr. LAM informed me that the defendant is single and resides with his mother and 2 younger brothers.  Prior to the accident, the defendant was earning $10,000 per month and contributed $3,000 to his family.  After the accident, he became a casual construction worker earning only $6,000 per month.

16. In mitigation, Mr. LAM explained that on the day of the accident, the defendant was delivering noodles for his employer.  When he completed his delivery, he had to reverse the LGV in order to leave because a taxi was in front of him.  The defendant foolishly thought that no one would be walking out from the pavement since there were pedestrian railings.  Mr. LAM submitted that the defendant's driving manner does not fall within the most serious category.  No speeding or aggressive driving was involved.  He was not under the influence of alcohol or drugs either.  The defendant has trouble sleeping after the accident and decided not to drive again.  He was cooperative with the Police and made frank admissions.

17. To the victim(s) and their families, a traffic accident which involves fatalities or serious personal injuries must be one of the most tragic events which could happen to them.  It saddens me each time when I need to deal with a case in which someone has lost his/her life or has been seriously injured as a result of a traffic accident.

18. I have viewed the CCTV footage of the accident more than a few times.  The duration of the accident was only a few seconds.  But in those few seconds, the deceased lost her life.  That is the reason why the court must instil into the minds of the general public that driving (whether in a professional or recreational capacity) is a privilege ‒ a privilege with great responsibilities attached.  It is a message which cannot be stressed enough.

19. In the course of sentencing, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just[3].  I must also consider the hardship caused to the deceased's family as a result of her death as well as their grievances and resentment[4].

20. In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving. I have reminded myself of the sentencing principles[5] set out by the Court of Appeal in SJ 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…"

21. In HKSAR v LEI Tin Seng [2011] 1 HKLRD 341, Yeung JA (as he then was) held :-

"17. This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.

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19. The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.

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22. This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment.

22. When determining the starting point in the present case, I treat the defendant as a law-abiding citizen and having maintained a mediocre driving record.  The offence committed by the defendant is a serious one.

23. It is not an easy task to send someone like the defendant, who has never lost his freedom, to prison.  I have considered long and hard what the appropriate length of imprisonment should be. I understand the traumatic effect of a prison term would have on him and his family.  The court, however, must send a clear message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.

24. I consider the present case being borderline between the least culpability and intermediate culpability categories on the Cooksley's scale[6]. I accept that the defendant did not have the intention to drive extremely irresponsibly and dangerously over a long period of time.  The accident happened because he made an error of judgement by reversing the LGV without the assistance any of the tools available to him.  Also, he should have stopped and checked what happened after he heard the 1^st "kok" sound (instead of driving forward and causing the LGV to roll over the deceased for the 2^nd time).  Having considered all relevant factors, I adopt a starting point of 21 months' imprisonment[7].  A one-third discount is given for the guilty plea, reducing the sentence to 14 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence the defendant to 14 months' imprisonment.

25. In addition to imprisonment, I make a disqualification order for a period of 5 years[8] (the disqualification period will start to run from the date of sentencing[9]).  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[10].  In my view, it is unnecessary to order the defendant to re-take his driving licence test.