HKSAR v. KO CHI HANG

DCCC 707/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 707 OF 2016

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REASONS FOR SENTENCE

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Charge

1.  The defendant pleaded guilty to one offence of Dangerous Driving Causing Death.

Facts

2.  In summary, the location of the traffic accident was situated near No 80 Victoria Road, Kennedy Town, Hong Kong (“the Offence Location”) involving a green public light bus driven by the defendant (“the Vehicle”) and the deceased, Madam C C Lam, aged 84.  At the material time, the Vehicle was full with passengers.  The weather was fine with sufficient lighting, the road surface was dry and the traffic flow at the Offence Location was light.

3.  The relevant section of Victoria Road was a two-way road, with 1 lane going westbound towards Aberdeen direction and 1 lane going eastbound.  There was a marked crossing area with a pedestrian safety island in the centre of the road at the Offence Location.  Yellow signs with blue arrows were also erected on both ends of the safety island.  The speed limit of that section was 50 km/hr.

4.  At about 1:35 pm on 18 December 2015, the deceased and her daughter, Madam Y F Cheung, left their residence in Lai King Building at No 80 Victoria Road, Kennedy Town, Hong Kong (“the Building”), and intended to go to the Queen Mary Hospital (“QMH”).  The ground floor entrance of the Building was connected with the pedestrian pavement adjacent to the Victoria Road.  When they reached the ground floor, the deceased told Madam Cheung to go to the opposite side of the road and look for a minibus that would go to the QMH.  Madam Cheung immediately went to the other side of the road, whereas the deceased was walking slowly across the road with her walking stick.

5.  After reaching the other side of the road, Madam Cheung saw the deceased reach the safety island.  She then looked to her right and saw the Vehicle travelling very fast towards her direction near the Sinopec Petrol Station.  She waved at the Vehicle, but soon she realized that the Vehicle was not going to the QMH.  She then put down her hand. 

6.  At that time, the passengers on board of the Vehicle were concerned that the defendant was driving too fast causing the Vehicle to swing left and right.  The defendant did not slow down, despite the concerns about excess speed raised by the passengers to him.  When the Vehicle was nearby the Sinopec Petrol Station, two passengers (PW2 and PW4 seated at the 3^rd row on the left side and right side of the Vehicle respectively) heard the Vehicle’s horn being sounded twice and PW2 to PW4 (PW3 seated at the 2^nd row on the right side of the Vehicle) then saw the deceased standing in the vicinity of the safety island just on the carriageway next to the bollard about to cross the road.  However, the defendant did not slow down and continued to travel fast towards the deceased.  One of the passengers saw the deceased move a step forward onto the carriage way and then stop.  Even when the Vehicle was about to reach the safety island, the defendant having sounded the horn twice continued to drive at a high speed without slowing down.  The offside front of the Vehicle then hit the deceased who immediately fell to the ground.  It was only then that the defendant applied the brake. 

7.  Madam Cheung immediately walked across to the other side of the Vehicle and found the deceased lying on the ground near the right front corner of the Vehicle with her legs pointing at the Vehicle and bleeding from her nose and mouth.  Passengers on board of the Vehicle also noticed similar injuries on the deceased’s head. 

8.  The case was reported to the police.  The deceased was semiconscious right after the collision and was subsequently taken to the QMH for immediate medical treatment.  She was later transferred from the A&E Department to the Intensive Care Unit ward for further treatment.

9.  At about 1:46 pm on the same day, the police conducted an enquiry at the Offence Location with the defendant about the traffic accident.  The defendant told the police that he was the driver of the Vehicle when the traffic accident occurred; he was travelling at around 60 km/hr when seeing the deceased stepping out of the safety island; he had sounded the horn to warn the deceased, but she was still knocked down by the Vehicle. Further enquiries with the defendant revealed that the Vehicle was on the material day in a good condition; he first saw the deceased when she was about 30 meters away; he started work at about 6:00 am on that day; it was the tenth time he had driven that minibus route on that day. 

10.  At about 1:27 pm on 19 December 2015, the defendant was arrested and cautioned by the police.  At about 3:19 am on the same day, the deceased passed away.

11.  Prior to the traffic accident, the deceased was in good health without any chronic disease or illness.  According to the autopsy report, the deceased suffered bone fractures on various body parts and her skull base was fractured with subarachnoid hemorrhage and subdural hematoma. The cause of her death was severe traumatic head injuries leading to severe brain damage.

12.  CCTV footages retrieved from the respective cameras installed at the Sinopec Petrol Station located at No 61 on Victoria Road 70 meters away from the Offence Location and Hong Sing Aged Home Centre (“the Aged Home”) located on the G/F at No 80 on Victoria Road captured the Vehicle travelling at a high speed on Victoria Road and hitting the deceased when she was crossing the road respectively. 

13.  Forensic Scientist conducted examinations on the CCTV footages and concluded that (i) the Vehicle was travelling at 68 km/hr (with +/- 7 km/hr margin for error) when it was 60 meters away from the point of impact with the deceased; (ii) the respective stopping distances for the Vehicle travelling at 68 km/hr and 50 km/hr were estimated to be about 47 meters and 29 meters; (iii) it took about 2.08 seconds after the collision before the Vehicle came to a full stop, indicating that hard braking was not applied during the 2.08 seconds time frame.  No skid marks or braking tyre marks were found at the scene.

14.  Motor vehicle examination showed that the Vehicle was in good and satisfactory conditions and free from any mechanical defects.  A dent of about 18 cm x 13 cm in size was found on the offside front bodywork of the Vehicle close to the offside edge.

Criminal and traffic convictions

15.  Between 1998 and 2001, the defendant had been sentenced by the court on 10 occasions for offences involving theft, violence and drugs.  He was fined $450 for a speeding offence in 2010 and $800 for an offence of careless driving in 2012.

Mitigation

16.  A background report was called for before sentencing.  A bundle of mitigation letters, the defendant’s medical reports and certificate was also submitted to the court for consideration.

17.  The defendant, aged 47, resides with his wife and 15-year-old daughter in a public housing estate unit.  He received education up to Form 3. The couple have now been married for 15 years.  He is the sole breadwinner of the family.  He ranks the fourth among seven siblings.  He also takes care of his old aged mother and makes a monthly contribution of $1,000 to her.

18.  Both the defendant and his wife were drug addicts before and had undergone detoxification through Christianity practice at Ling Oi Centre (“the Centre”) for 3 years.  He also helped his wife with her drug problems.  His wife has been suffering from depression since 2005 and receiving treatment at a private psychiatrist.  In 2013, she also faced additional stress because of their daughter’s special educational need.

19.  As evidenced by his last conviction of a drug-related offence in 2001, the defendant had ever since made tremendous efforts to quit drugs.  He even became a model patient and employed by the Centre as a peer counsellor at the half way house to help other drug addicts. At the time of the offence, he was earning about $15,600/month.  The Centre also sponsored his driving lessons to enable him to offer transport service to the inmates.  He was qualified for driving van and medium size truck in 2009. However, he wanted to earn extra income for the family and had worked as a public light bus driver earning about $43/hour.  The defendant has resigned from the Centre. 

20.  He was diagnosed to have chronic hepatitis C and has been attending regular follow ups.  He was admitted to the hospital from 20 to 27 May 2016 and also seen by the cardiovascular clinic for idiopathic pulmonary hypertension.  The two medical reports showed that the status of his disease was overall stable.

21.  As revealed in the mitigation letters, the defendant’s family and those who have known and/or come into contact with the defendant have all given very positive comments about the defendant and are all very supportive to him. 

22.  Mr Davies pointed out that (i) the defendant was not at the material time travelling at a greatly excessive speed; (ii) he had no history of bad driving and his driving record was good for a professional driver; (iii) he admitted everything, owned up to his speeding and told the police what had happened; (iv) he made a terrible mistake and is very remorseful for what he did; (v) he pleaded guilty; (vi) no drug, alcohol and/or racing was involved; and (vii) there was no issue of gross negligence.

23.  Mr Davies also referred to paragraphs 14 and 15 of HKSAR v Pang Kun Wah, CACC 410/2013, and submitted that the culpability of the defendant’s driving fell within the lower end of dangerous driving, ie, Category 1. 

Sentence

24.  I have carefully considered everything said by Mr Davies on behalf of the defendant in mitigation. 

25.  The defendant’s culpability is the dominant fact in sentencing exercise and the range of relevant factors are set out in HKSAR v Liu Kwok Chun, CACC 34/2009. 

26.  It can be seen from the CCTV footage of the Aged Home Centre that, at about 13:30:00, Madam Cheung was crossing the road.  At about 13:30:12, the Vehicle hit the deceased.  During the 12-second period, no vehicle was seen travelling past the section of the lane in question.  Further, as revealed in photo numbers 17 to 23 of the prosecution’s photo album, the Offence Location is well within sight of the driver travelling nearby the Sinopec Petrol station.  It can be deduced from the said evidence that the defendant could have had a clear, unobstructed view of the material pedestrian safety island including the presence of the deceased when the Vehicle was nearby the Sinopec Petrol Station about 70 meters away from the Offence Location.  Also, having regard to the fact that PW2 and PW4 heard the defendant sounding the horn twice when the Vehicle was near the Sinopec Petrol Station and PW2 to PW 4 saw the deceased standing in the vicinity of the safety island just on the carriage way next to the bollard about to cross the road, I am sure the defendant must have been at that stage aware of the presence of the deceased.  And I can rule out the possibility of his seeing the deceased for the first time when he was about 30 meters away from her, as asserted by him during the police enquiries.

27.  Since it was the tenth time the defendant drove that minibus route within about 7 hours in that morning starting from 6 am, the defendant would, in my view, have been familiar with the road and could have reasonably expected the presence of pedestrians on or near the safety island. 

28.  After the sounding of the horn, PW2 to PW4 saw the deceased standing in the vicinity of the safety island just on the carriageway next to the bollard about to cross the road.  This showed that the deceased was at that time already present on the carriageway when the Vehicle was still near the Sinopec Petrol Station.  Since drivers have the legal and moral responsibility to take proper care to avoid accidents with pedestrians at all times and places, I am of the view that the defendant should have in the circumstances slowed down and prepared to stop the Vehicle and give way to the deceased at any time when approaching the safety island.

29.  I also note that there was one other passenger who saw the deceased moving a step forward onto the carriageway and then stop.  The prosecution informed me that that one other passenger was in fact referring to PW2.  As the CCTV footage of the Aged Home showed that the deceased kept moving forward from the moment she was first captured at about 13:30:08 until the moment of impact, I take the view that the said observation made by PW2 was when the Vehicle was nearby the Sinopec Petrol Station.  It might well have been another way for PW2 to describe the deceased’s action, ie, she was about to cross the road. 

30.  In any event, even if the deceased did stop, I am of the view that it must have been a momentary one and would not have been long enough to be treated as an indication of her noticing the defendant’s warning and/or the Vehicle, and/or her giving way to the Vehicle.  As such, I do not find this to affect the defendant’s judgment and/or his having to be prepared to give way to her.

31.  Moreover, the deceased was an elderly lady walking with the aid of a stick.  Any competent and careful driver should expect that (i) elderly pedestrians may be inattentive or take longer to react; (ii) they may not be able to judge speeds very well or notice approaching traffic and (iii) they may even step onto the road unexpectedly.  Therefore, I am of the view that, even though the defendant had sounded the horn to warn the deceased, he could still have reasonably anticipated her to continue proceeding across the road.

32.  However, the defendant failed to slow down and continued to drive at a high speed even when he was about to reach the safety island.  Forensic evidence showed that had he slowed down and stopped the Vehicle the accident could have been avoided.  In my view, the way in which he drove showed that he took unnecessary and avoidable risk.

33.  The speed the defendant travelled at was not only too high for the prevailing conditions but also above the speed limit. But I am prepared to give him the benefit and reduce his speed by the 7 km/hr margin for error to 61 km/hr.  This is still 11 km over the speed limit of 50 km, but I accept that it is not greatly excessive. 

34.  In the background report, the defendant denied hearing complaints from the passengers about his excess speed due to the loud engine noise around his driver seat.  Although this does not appear to be consistent with the facts admitted by him, the prosecution accepts that there was no evidence to suggest that the defendant had heard the complaints.  I am prepared to tip the balance in his favour and do not consider this as a disregard of the passengers’ complaint.

35.  As to the mitigating factors, I note that there was no record of complaints about the defendant’s driving manner as revealed in the background report.  I do accept that, as a professional driver, his driving record can be considered good.  His timely guilty plea is a clear indication of his remorse.  Despite his previous criminal convictions, he has successfully reformed himself for many years.  He has helped his wife and others to quit drugs successfully.  His wife is suffering from depression and their daughter requires special educational needs.  As revealed in the mitigation letters and the background report, the defendant has been regarded as a good person, a filial son and responsible husband.

36.  Taking into account all the circumstances, including both the aggravating and mitigating factors, I find a starting point of 18 months to be appropriate to reflect his culpability.  Giving full credit to the defendant for his guilty plea, I sentence him to 12 months’ imprisonment.

37.  This is the defendant’s first conviction of an s36(1) offence.  He is ordered to be disqualified from driving for a period of 5 years pursuant to s36(2A) of the Road Traffic Ordinance.  In the absence of special reasons, the defendant is also ordered to attend and complete a driving improvement course within the last 3 months of the said disqualification period of 5 years pursuant to s72(3B)(b) of the Road Traffic Ordinance.