HKSAR v. WONG WAI HUNG

DCCC 1310/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NUMBER 1310 OF 2009

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REASONS FOR SENTENCE

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1. I convicted the defendant after trial of a charge of dangerous driving causing death. The particulars are that on the 21^st May 2009, outside City One Shatin, Po Shing Street junction with Hang Shing Street, Shating he caused the death of UNG Kuan-pui ( the deceased) by driving a motor vehicle on a road dangerously.

2. This tragic accident happened at about noon. The deceased, a man aged 87, was crossing a zebra crossing assisted by his domestic helper when they were struck by the defendant’s 7-seater private vehicle whilst in the middle of the crossing. The defendant claimed in his defence that he was momentarily distracted.

3. Po Shing Street is situated within City One, a domestic estate in Shatin. The street is is a dual carriageway with a speed limit of 20 km per hour. Traffic signs have been erected along the street to remind drivers of vehicles to drive their vehicles at a slow speed and to take precautions.

4. The 20 kilometre per hour speed limit sign is approximately 72 metres before the crossing. There is a speed calming hump in the road about 32 meters before the crossing. On both lanes of this southbound carriageway, appear the large characters and English words “DRIVE SLOWLY” before the speed calming hump and the words “SLOW SLOW” before the zig zag lines immediately before the crossing. There is a traffic sign before the crossing warning of the presence of pedestrians and pedestrian children.

5. There is a central divider erected in the middle of the road between the two carriageways. Flashing yellow beacons are erected a the nearside and offside of the crossing.

6. Just beyond the crossing there is a large shopping complex and a market. There is a secondary school and kindergarten in the vicinity.

7. At the material time the weather was fine and the street was dry. The line of vision along the southwest bound carriageway to the zebra crossing is good and clear and there were no obstructions or other vehicles in the street.

8. The domestic helper, PW3, told the court that when she and the deceased were at the central reservation in between the two carriageways she was the defendant’s vehicle passing over the speed calming hump, which is 32 metres before the crossing according to the scale plan, Ex P1. PW1, a pedestrian, told the court that when he arrived at the crossing, PW3 and the deceased were at the second stripe of the crossing and the defendant’s vehicle was 18-19 metres to his left where the words SLOW SLOW appear on the road. PW1 said he was walking quickly and the couple were walking very slowly. He said when he passed the couple they were at the third stripe. He said at that stage the defendant’s vehicle was just before the zig zag lines where start about 8 metres from the crossing. He said he had just taken one or two steps on to the pavement when he heard the impact.

9. After the collision the defendant’s vehicle was straddling the crossing in the middle of the road facing the offside. The nearside front wing mirror struck PW3 and was broken off. The slipper of the deceased was found under the vehicle just before the fourth white stripe of the crossing.

10. There was no evidence of any skid marks, no sound of a horn and no sound of braking.

11. The defendant said he was at the SLOW SLOW signs which are 18 -20 meters before the crossing when he first saw the couple on the crossing. He said he saw PW1 overtake them. He said he thought he they would have crossed before he got to the crossing. He said he was driving at 20-25 kilometers per hour when he was in the zig zag lines. He said just before he reached the crossing he suddenly came to think of something and at that time the couple were not able to cross in time and he swerved to avoid them. He said he thought of his mother and mother in law who had both been diagnosed with cancer.

12. It was clear from the evidence that the deceased and his helper were not going to have crossed over the road before the defendant’s vehicle arrived at the crossing. He had a clear view of the crossing. The road markings, words of caution, signs, the location and the speed calming hump are all designed to make it as plain as possible that the utmost care and attention is required for motorists traveling along this street in the direction the defendant was heading. In my view the driving of the defendant fell far below that expected of a careful and prudent motorist and it would be obvious to a careful and prudent motorist that driving in that way would be dangerous.

13. The deceased sustained head injuries. Computer tomography showed left acute subdural haematoma, left frontal contusion with midline shift fracture, right occiput and right cerebellar haemotoma. His condition deteriorated to comatose state. He was certified dead at 0128 hours the following morning. The domestic helper sustained minor injuries.

14. The defendant’s criminal record revealed a minor conviction in 1984. His driving record revealed a careless driving conviction in 2007, speeding in January 2009, and three convictions for using a mobile phone whilst a vehicle was in motion in January 2009, March 2009 and 18 May 2009, three days before this offence.

15. The defendant is 59 and born in Hong Kong. He was educated to secondary two level. He has been working as a private car driver for two years earning HKD9000 per month. He is generally in good health, he suffers from hypertension since 2007. He is married and lives with his 80 years old mother who is suffering from stage four cancer.

16. He has three grown up children.

17. His father –in-law has kidney disease. He and the defendant’s mother require frequent follow-up treatment for which he assumes responsibility.

18. Letters were submitted in mitigation from the defendant’s employer, his daughters, his son and the Chairman of the Sheung Shui Rural Committee. I have considered the contents of these letters. They speak of his as a dedicated father, family member, employee and community member.

19. I am told the defendant is extremely remorseful and that he and his family have been under severe pressure since it happened. He expresses through his counsel his sincere condolences to the members of the deceased’s family.

20. The maximum sentence for this offence as provided in Section 36(1)(a) is a fine at Level Five and an imprisonment term of 10 years.

21.      It is further provided in Section 36(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 years in the case of a first conviction, unless the court for special reasons orders that person be disqualified for a shorter period or that the person not be disqualified.

22.      The maximum imprisonment term was, with effect from 4 July 2008, increased from 5 years to 10 years. 

23.        Where the legislature increases the maximum penalty for an offence, the courts treat that as an indication of the legislative view that the offence is regarded as more serious than it used to be regarded and the courts will reflect that view by passing sentences more severe than the sentences that used to be passed before. 

24.      Road accidents can cause immense human suffering. Vehlcles are potentially lethal machines.   Those who are in charge of vehicles must bear in mind the duty they owe to other road users. 

25.      As the Court of Appeal said in Secretary for Justice v Poon Wing Kai [2007] 1 HKLRD 660, “Since sometimes there might be extremely grave consequences flowing from acts of dangerous driving, it is necessary to have in mind a deterrent effect.  The standards required by the law for motorists are there to ensure that all who come into contact with motor vehicles, including other drivers, passengers in the defendant’s car and pedestrians, etc are safe.  While it might be right in some instances not to treat violators of traffic laws as true criminals, for offences such as dangerous driving causing death, the offender might not necessarily be seen in quite such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous”. 

26.      In deciding the appropriate sentence, the court should take care not to be overwhelmed by the outcome.  It is the culpability of the defendant which is the dominant factor.  Whilst understandably there are calls for tough sentencing and a consequence including the impact on the deceased’s family is a relevant sentencing consideration, the defendant  in the present case did not intend to cause death or serious injury.          

27.      Notwithstanding that I find the defendant did not have such an intent, the incident did cause one death. 

28.        I am told that the defendant is very remorseful now.  I have no reason not to accept this.  Indeed,I believe all drivers who have a conscience will feel extreme regret and remorse where theirdriving causes a tragic result like this.   
29.      Learned counsel for the defence urged upon me that this was not the most serious case of this nature.  He is justified to say so.  The manner of driving, though dangerous, was at the low end of spectrum of seriousness.  There is no evidence of aggressive driving on the part of the defendant.  It was not a case of speeding.   There is no evidence of any prolonged driving of the defendant with no regard for the safety of others.  The duration of dangerous driving was short.  The defendant was not under the influence of drugs or alcohol.  There is no indication that the vehicle was not properly maintained.  My attention was also drawn to the photographs which show that the only damage to the defendant’s vehicle was the broken wing mirror which domonstates the low impact of the collision.

30.      A sentence of imprisonment should only be imposed if necessary and no longer than necessary.  I can appreciate that when a person starts to drive his vehicle, he can hardly contemplate that the driving will result in an imprisonment term.  However, people must bear firmly in mind his duty behind the driving wheel. 

31.      The court has a duty to drive home the message as to the dangers that can result from dangerous or other kind of irresponsible driving on the road.  It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standard of driving. 

32.       The defendant’s judgment was seriously flawed. The circumstances demanded that the defendant should take the greatest of care.

33.      The offence of dangerous driving simpliciter carries a much lower sentence than the offence of dangerous driving causing death, thus indicating that the legislature regards the consequence of dangerous driving as being a relevant sentencing consideration, so that if death did result, this in itself can justify a heavier sentence than could be imposed for a case where death does not result. 

34.      Having considered the whole circumstances of the case, bearing in mind submission by learned defence counsel and having had regard to cases such as SJ v Poon Wing Kay [2007] 1 HKLRD, SJ v Fong Chai Man [2008] 3 HKLRD 493, R v Cooksley [2003] 3 All ER 40, HKSAR v Tam Kwok Choi HCMA700/2008, I am of the view that an immediate custodial sentence is called for in  a case like this. 

35.      I take the view that  an immediate sentence of imprisonment is the only appropriate sentence in this case.  As far as the imprisonment term is concerned, I accept that this is not a bad case for this nature of offence.  However, it is a case of dangerous driving resulting in the loss of a human’s life. 

36.      Having considered the whole circumstances, including the degree of culpability, the serious consequence, mitigation put forward on the defendant’s behalf, the defendant’s background including his driving record, I consider a sentence of 12 months appropriate.  I disqualify the defendant from driving for a period of 3 years.