HKSAR v. WONG KWOK WING

DCCC 1154/2018

[2019] HKDC 729

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 974 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded not guilty to one charge of dangerous driving causing death. He was found not guilty of this charge after trial, but guilty of careless driving.

SUMMARY OF FACTS

2.  The defendant was the driver of a medium goods vehicle and had stopped behind some vehicles in front of a red traffic light.

3.  While stationary and just before he began to move his lorry forward, he had checked his mirrors and saw a cyclist on his bicycle moving along in the same direction as the traffic in the gap between the left side of his lorry and the kerb.

4.  The defendant assumed the cyclist would continue to move forward without incident.  After he finished checking the right door mirror, he turned his attention back to the front and started to move off.

5.  Almost as soon as the vehicle had started moving forward, it ran over something and the defendant immediately applied the brake and stopped his vehicle.

6.  As it turned out, the defendant’s vehicle had run over the bicycle and the cyclist, Mr Ho Ming.  Mr Ho suffered multiple blunt force injuries and did not survive the incident.

7.  I found that the driver of such a large lorry as the defendant’s, having seen a cyclist moving in the narrow gap between his lorry and the kerb just before moving off, should be more careful when starting off to see where the cyclist had gotten to.

8.  It was not the case that the defendant had never known about the existence of the bicycle, he did, he just failed to continue to pay attention to its presence before moving off.

9.  Having seen the cyclist, the defendant just assumed he had continued to travel on without incident.

10.  Given the slightly uphill gradient, the busy road condition, the size of the defendant’s lorry, the narrowness of the gap that the bicycle was moving through when the defendant saw it, that was a careless assumption to make.

11.  According to the evidence of the expert witness, at least part of the bicycle would always be visible to the driver of the lorry through the mirrors on the left side of the lorry, whether it be behind or immediately in front of the lorry.

12.  If the defendant had taken the time to check his left mirrors again, he would have seen where the bicycle was and adjusted his action accordingly.

13.  Under the circumstances, I found that the defendant’s driving was without due care and attention in that he had failed to check again to ascertain the exact whereabout of the bicycle before moving his lorry forward, having seen the bicycle moving in the narrow gap on the left of the lorry just moments before, and convicted him of the offence of careless driving.

PREVIOUS CONVICTIONS

14.  The defendant has a clear criminal record.  As for his traffic record, he does have one previous conviction for careless driving, for an incident that took place on 12 March 2012 when he was fined $850.  I was told that it did not involve another vehicle, just the defendant getting entangled with some wires.  He had also previously been fined for 3 other minor traffic offences, being for failing to drive in the nearside, without wearing a seat belt and failing to comply with traffic signs in 2017.

MITIGATION

15.  The defendant is 34, he is married with a 2-year-old daughter.  He is the sole financial support of the family.

16.  The defendant had been a waiter and a warehouse keeper before.  He began working as a lorry driver in 2007.  In 2013 he decided to be self-employed and bought the lorry in question.

17.  The defendant lives in a public housing unit with his parents, younger sister and wife and daughter.  He was making around $20,000 per month, of which roughly $8000 to $10,000 go to the upkeep of the lorry.  Depending on his income, he contributed a maximum of $4,000 to his parents.

18.  The defendant’s parents, former employer and friends wrote on his behalf in mitigation.  They speak to his being a loving son, a dutiful father, a kind, friendly and responsible person.

19.  The defendant himself also wrote.  He tells the court how since the accident he had been suffering emotionally.  He had stopped driving for a few months and had thought about seeing a psychologist.  He finds the pressure very difficult to handle, but is grateful for the help and support from his family and friends.

20.  The defendant promises not to re-offend and to be extra careful in future when driving.  He wishes to be able to continue to drive for a living to support his family, as well as to try his best to help others who are less fortunate.

SENTENCE

21.  The maximum sentence for the offence of careless driving is a fine at level 2 (currently at $5,000[1]) and 6 months’ imprisonment.

22.  There are no sentencing tariffs for this offence.  The appropriate sentence would depend on the facts of each case.

23.  The fact that as a result of the defendant’s carelessness a live was lost must be one of the factors to be considered.

24.  In the case of HKSAR v Leung Chiu Yu [2012] 2 HKLRD 313; CAAR 5/2011, the respondent was acquitted of dangerous driving causing death but found guilty of careless driving after trial.

25.  The learned trial judge imposed a fine of $4,000.  The Department of Justice applied to review that sentence.

26.  In that case, the deceased was a four-year-old boy who seemed to have stepped out of a central crossing onto the road when the respondent’s vehicle was approaching, resulting in the boy’s head being caught under the front wheel of the vehicle.  The evidence as to what exactly happened was not clear.  There was, however, no evidence that the vehicle was travelling in excess of the speed limit.

27.  In dealing with the review for sentence, the Court of Appeal accepted that the respondent’s degree of carelessness was found by the trial judge as “at a low rung of the ladder of culpability.”

28.  They found that on the basis that the respondent was careful when he approached the crossing and as he crossed it but not quite careful enough as he departed it, “the suggestion of a sentence of imprisonment is not realistic despite the tragic result of the accident.”

29.  The court specifically found that the respondent might not have been the person solely at fault in the accident.  Those who allowed the child to be unattended at such a dangerous location might also have to shoulder part of the blame for the accident happening.

30.  Having said that, the court did find that the sentence passed by the trial judge was insufficient to impart a message about the acute care needed at pedestrian crossings especially when children are about.

31.  The court then proceeded to consider what the penalty should be.  They recognized that the nature of the careless driving was “far from the bracket of the worst of its kind”.  They also noted the exemplary character of the respondent, the suffering he and his family had gone through, and the promising career he had before him.

32.  The court concluded that the circumstances as a whole did not call for a sentence of imprisonment.  They did, however, consider that a period of disqualification was necessary to protect the public from the risks posed by the offender, pointing out the fact that the respondent was found speeding just 3 weeks before the accident, and that his carelessness, although not high on the scale, was carelessness in the vicinity of pedestrians.

33.  The application for review was allowed and in addition to the fine imposed by the trial judge, they ordered that the respondent be disqualified from driving for a period of 12 months.

THE PRESENT CASE

34.  In our present case, the defendant was not driving at a speed inappropriate for the circumstances.  His carelessness lies in his failure to check his mirrors and the front of his vehicle to ascertain where the cyclist was.

35.  He had ended his phone call before moving off.

36.  He had checked all his mirrors before moving off.

37.  The defendant’s driving was never aggressive.  He kept very close to the right side of the lane when he was moving off, no doubt being aware of the bicycle he assumed to still be moving in the gap to his left.

38.  It is likely that Mr Ho had already started to fall when the lorry collided with Mr Ho’s back and then ran him and his bicycle over.

39.  The defendant managed to stop his vehicle about 1 second after the collision.

40.  I find that given the circumstances of the case, the defendant’s carelessness is at the lower end of the scale.

41.  Despite the fact that as a result of the defendant’s carelessness a live has been lost, I find that imprisonment is not the appropriate sentence in the circumstances.

SENTENCE

Fine

42.  I find that a financial penalty is the proper sentence and I adopt a starting point fine of $4,000 given that this is a second careless driving conviction.

43.  I was informed by Mr Khosa that the legal representatives of the defendant had previously written to the Department of Justice offering to plead guilty to careless driving but was rejected.

44.  Mr Khosa relies on the case of Sze Kwan Lung and others v HKSAR, FAMC nos 1 and 2 of 2004 for a sentencing discount on the basis of that earlier offer to plea, despite the defendant indicating at trial that he will not so plea.

45.  In short, the legal principle is that there should be a discount, although not the usual full one third discount.

46.  Accordingly, I do grant the defendant a discount on that basis and order that he be fined $3,500.

Disqualification

47.  Pursuant to section 69 of the Road Traffic Ordinance, this court has a discretion to order the defendant to be disqualified for such period as the court thinks fit as a result of the careless driving conviction.

48.  Although this is a second conviction for careless driving, the previous one was some time ago.

49.  The defendant’s driving record is relatively good for a professional lorry driver.

50.  The defendant’s carelessness is at the lower end of the scale.

51.  The defendant has since the incident resumed driving as a professional driver and has been trouble free for about 10 months.

52.  Having considered carefully all the circumstances, bearing in mind that a disqualification order is forward looking in nature, seeking to protect the society from someone’s driving, I find that there is no need to impose such an order in the defendant’s situation, since I do not find that he poses such a danger.

Driving Improvement Course

53.  Pursuant to s 72A(1)(a) and (b), and Schedule 11 of the Road Traffic Ordinance, and the Schedule to the Road Traffic (Driving-offence Points) Ordinance, Cap 375, where careless driving is not an excluded item under Schedule 11, this court has the discretionary power to both impose a penalty and order the defendant to attend and complete a driving improvement course.

54.  In the circumstances of the case, I find that it is in the best interest of the general public, as well as the defendant, that he does attend and complete such a course at his own expense and I do so order.

55.  Pursuant to section 72A(3A), the defendant must attend and complete the driving improvement course within 3 months beginning on the date the order is made to attend and complete it, since he has not been ordered to serve a term of imprisonment or detention and is not the subject of a disqualification order.

COSTS

56.  The defendant’s application for costs is to be dealt with separately upon receiving the written submissions of the prosecution and defence.