HKSAR v. MA SHING CHUEN

DCCC 398/2018

[2018] HKDC 1129

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 398 OF 2018

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Reasons for Sentence

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1.   The defendant has pleaded guilty today to the 1st charge, causing death by dangerous driving and two other vehicular charges relating to a seatbelt and plastic film fitted to the vehicle windows which were unrelated to the accident.  He was driving a public light bus in Cheung Sha Wan and knocked down a pedestrian crossing the road who was subsequently certified dead later that same day. 

Summary of Facts

2.   This tragedy happened on 18 July 2017 at about 7.45 am.  When the defendant was driving a public light bus, a PLB, along the second lane of Shun Ning Road in Cheung Sha Wan.  He had been awake since 1 am to start his shift and it was his fourth round trip of that shift.  He had several passengers on board, it was raining but not raining heavily.  The victim had just walked across the first and second lane of Shun Ning Road and had entered the third lane of that road when he was hit by the PLB from behind.  The victim, Mr Lo Tim-fu was 81 years old and carrying an umbrella at the time because it was raining.  There is CCTV footage of him crossing Shun Ning Road with his umbrella up, shielding him from the rain.  There was a medium goods vehicle, an MGV, HU7805, parked in the third lane at the material time and Mr Lo was heading towards it but in front of it. 

3.   The defendant's PLB was travelling in the second lane but clearly more to the right of the second lane because his right side mirror hit the left side mirror of the MGV HU7805 and damaged it.  At the time his vehicle was not driving particularly fast, he was not speeding.  The defendant did not stop or slow down after hitting that mirror but continued forward and veered into the third lane.  By that time Mr Lo was walking in the third lane and was hit from behind by the PLB and thrown towards the pavement. The PLB continued to move forward and stopped 14.4 metres away from the MGV. Mr Lo suffered multiple injuries including head hematoma and rib fractures.  He was certified dead at about noon the same day.  It is clear from the photographs that the PLB front right bonnet was buckled and the bottom right front windscreen was smashed.  A screening breath test was conducted on the defendant with no alcohol detected.   

4.   A forensic scientist, Dr Tam, conducted a traffic accident reconstruction.  The speed data recorder of the minibus showed that for the 15 seconds leading up to the accident, the minibus was travelling between 23 and 36 kilometres per hour, the defendant was definitely not speeding. Dr Tam concluded that when the defendant was 19 metres away from Mr Lo when he was at left front of the MGV, he had an unobstructed view of Mr Lo and at that time he was travelling at about 33 kilometres per hour.  By the time of the collision, the defendant was travelling slightly slower at about 28 kilometres per hour, give or take 3 kilometres.  What this means is that if the defendant had been looking ahead, he would have seen Mr Lo and the accident would have been avoided. 

5.   Under caution, the defendant was very cooperative.  He told the police that he woke up at 1 am to start his shift and he was very tired.  He had had five hours sleep.  By the time of the accident he had been driving for a number of hours and had already completed three round trips from To Kwa Wan to Castle Peak Road.  He admitted he was feeling sleepy but did not stop to rest because he still had passengers on board and was about to finish work anyway.  He told the police that he did not notice that he had hit the MGV's mirror with his own mirror and he did not notice Mr Lo himself until it was too late.  He said he could not avoid him and knocked him down. He also said that he only braked after he hit him as he heard some noise. 

6.   He said being tired may have affected him, making him unaware of the presence of the victim.  I suspect he either fell asleep or closed his eyes for a couple of seconds causing him to veer to the right and hit the mirror of the parked vehicle and then the victim or he lost concentration for a couple of seconds because he felt sleepy and was not physically fit to drive. 

7.   The forensic scientist's calculations would support that suspicion.  His estimation of speed showed the defendant's vehicle decreased when he was 19 metres away from the victim, decreasing just before the accident.

Mitigation in Sentence

8.   The defendant is 62 years old, has been married for over 30 years and has one daughter.  He was educated up to primary school level.  The defendant has been driving for 35 years and has been driving a public light bus for 27 years.  He has been driving the same minibus route for 13 years, 6 days a week.  He is a professional driver.  He has been sole breadwinner of his family and still supports his 105 year old mother.  He does have one criminal record but for the purposes of sentencing I will essentially ignore it.  He was fined 20 years ago in Tsuen Wan Magistracy for criminal damage. 

9.   He has an exemplary traffic record for a professional driver.  In 35 years, he has essentially three parking tickets and that is it.  Since this accident, he has not driven again.  I have been given a medical report which shows that he sought psychiatric assistance from East Kowloon Psychiatric Centre about a month after the accident, exhibiting symptoms which were diagnosed as post-traumatic stress disorder.  Psychological counselling was given and he has slowly improved; his guilt arising from this accident is enormous.  I can understand that this would be a natural consequence.  He now no longer drives for a living and lives on his savings and his daughter. 

10.   Mr Lo, defence counsel, has taken the opportunity today to apologize on the defendant's behalf to the victim's family for the accident and grief and distress the defendant has caused them.  No apology today will alleviate their suffering but it must be true that defendant did not want or wish this tragedy to happen.  I can accept that his remorse is genuine and that this tragic accident occurred because of a momentary error of judgment.  It has been said time and time again that no term of imprisonment, short or long, can reconcile the family of a deceased victim to their loss.

11.   The culpability of the defendant is the dominant factor in the sentencing exercise for cases of this nature.  I have reminded myself of the sentencing principle set out in the Secretary of Justice v Poon Wing Kay [2007] 1 HKLRD 660.  And the importance of a deterrent effect when sentencing cases of dangerous driving.  I have also considered the categories of culpability and the approach of the English Court of Appeal in The Queen v Cooksley [2003] 3 All ER 40 which have been adopted by the courts in Hong Kong. 

12.   I accept the defence counsel submission that this tragedy did occur because of a momentary monumental error of judgment. The defendant was not, at that moment, physically fit and it is the error I will take into account when considering culpability.  I have also referred myself to HKSAR v Tsang Ho Pong CAAR 6/2009 where the Court of Appeal opined a starting point of two years was appropriate for an appellant who committed a momentary error of judgment.  One who was not in a fit condition to drive and closed his eyes through drowsiness or sleeping, he caused the death of a victim. 

13.  It is not easy to sentence someone like the defendant.  Someone who has an exemplary driving record, someone who is a filial husband, a good father and a supportive son.  At the same time I must consider the deceased's family who have suffered needlessly because of the defendant's momentary lapse of judgment behind the wheel. 

14.  In the course of sentencing, I need to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced and proportionate.  I have considered the mitigation put forward as well as the contents of the letter and medical report.  I have considered the authorities I have referred myself to as well as the categories of culpability in the Cooksley authority.  I consider the present falling at the lowest end of the intermediate culpability category of the Cooksley scale. 

15.   Having considered all mitigation and relevant factors I adopt, for Charge 1, a starting point of 24 months' imprisonment.  The defendant has pleaded guilty and is in entitled to a discount of one-third for that plea which reduces that sentence to 16 months. 

16.   In addition to imprisonment, I make a disqualification order for a period of 3 years.  The defendant is disqualified from driving all types of vehicles and it would take effect from today.  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.

17.   I impose fines for Charges 2 and 3, $500 for each charge.  $1,000 total fines deduct from bail.