HKSAR v. HUNG WAI YIN

DCCC 213/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 213 OF 2014

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of dangerous driving causing death, contrary to s.36(1) of the Road Traffic Ordinance, Cap.374.

Summary of facts

2.  The defendant was the driver of a 28-seater public bus with registration number LF6280 at the material time. At about 8:30pm on 1 September 2013, the bus was on the second lane from the left on eastbound Chai Wan Road when it knocked down 48 year old pedestrian Madam Chung Sin-yan who was crossing the lights controlled pedestrian crossing at the junction of Chai Wan Road and Kam Yuen Lane, with the pedestrian light at green.

3.  Madam Chung sustained serious head injuries as a result of the accident and passed away on the same day from ‘head and chest injuries’.

4.  The accident happened at a T-junction controlled by various sets of traffic lights. At the time of the collision, the weather was fine, road surface dry, traffic condition light. Street lights were on and visibility was good.

5.  According to witness Mr. Wong, who was standing close to Madam Chung while they were both waiting to cross Chai Wan Road, after the pedestrian lights on Chai Wan Road had turned green, Madam Chung started crossing at a normal pace. Mr. Wong however waited slightly to light up his cigarette and then he also started crossing.  Mr. Wong took 2 to 3 steps on to the road and saw the defendant’s bus approaching at about 20-30 km/h from about one bus’ distance away with no sign of slowing down or stopping. He immediately stepped back onto the pavement. He however saw Madam Chung continued to cross at a normal walking pace. Mr. Wong looked towards the driver of the approaching bus and saw that the driver was looking to his left while he was driving cross the junction. The bus stopped after colliding with Madam Chung. Mr. Wong did not hear any horn being sounded during the incident.

6.  According to another witness Mr. Lo, who was sitting at a food stall near the junction, the traffic light signal governing the traffic along Chai Wan Road had been red for about 10 seconds when the defendant’s bus approached the junction along the 2^nd left lane at about 30 km/h. Mr. Lo saw 2 to 3 pedestrians, including Madam Chung crossing the road with the pedestrian lights showing green. While other pedestrians scrambled to the side of the road, Madam Chung just carried on crossing at a normal walking pace. The defendant’s bus continued at the same speed without slowing down. The bus then hit the right side of Madam Chung who then fell to the ground.

7.  The defendant was later arrested and cautioned for dangerous driving causing death. The defendant was not under the influence of alcohol at the material time. There were no skid marks found at scene. The bus was examined and no mechanical defects were found.

8.  The traffic lights at the junction were working properly at the material time. There was a minimum 7 seconds gap between the traffic lights turning red on Chai Wan Road and the corresponding set of pedestrian traffic lights turning green.

Previous conviction

9.  The defendant has a clear criminal record. As for driving record, the defendant’s driver licence was issued in June 1979 and in the next 35 years he had had 11 traffic offences, with one being for careless driving in October 2012 when he was fined $1500. The defendant’s traffic record is by no means a bad record.

Mitigation

10.  The defendant is now 59, married and with 2 children. His wife is a part time office assistant earning about $4000 per month. Today his wife and children are all in court to show their support. Both children are married and live with their own family. The defendant lives with his wife and mother who is 98 years old and suffers from dementia, hypertension and heart disease.

11.  Until around 2011, the defendant had been a chef in a Chinese restaurant for more than 30 years. In 2010, the restaurant closed down and he lost his job. Because of his age and muscle and joint pain, he could no longer stand for a long time and could not handle kitchen equipment. He was by that time already 56 years old but because he still had to look after his children and his mother, the defendant began working as a coach driver. His basic salary was $7000 per month, with extra bonus for each run, he managed an average monthly salary of $14000.

12.  In mitigation, Mr. Leung for the defendant told the court that, at the time of the accident, the defendant was driving an empty coach on his way to pick passenger up in the Chai Wan area to drive them to the airport. The scene of the accident was a T-junction, and as described by witness, the defendant was looking to his left rather than to the front at the time of the collision. The defendant was in fact looking at the traffic condition on Kam Yuen Lane to see if there were vehicles coming out and thus failed to see the deceased in front of him.

13.  Mr. Leung conceded that it was red light against the defendant at the time of the accident, but pointed out that the defendant was just doing 20-30 km/h, which was below the 50 km/h speed limit. Apart from the red light, there is no other aggravating factor. The defendant was not driving under the influence of alcohol, the bus was in good condition and he was moving at a relatively low speed. It was a short period of bad driving. Mr. Leung referred to the case of R v Cooksley [2003] 2 Cr. App. R. 18 to remind the court of the factors to take into account when sentencing.

14.  Mr. Leung then referred to 2 District Court cases and submitted that in our present case, the starting point should be no higher than that of 3 years’ imprisonment.

HKSAR v Lai Hung-Wut, DCCC 859/2012

15.  The defendant in that case drove against two no-right-turn signs and turned right into Smithfield Road. The deceased and her granddaughter were knocked down. At paragraph 12, the court pointed out that the defendant not only paid no regard to two sets of no-right-turn signs, he also failed to stop at the pedestrian crossing. At paragraph 28, the court referred to the defendant’s bad driving record. 3 years’ imprisonment was taken as the starting point and reduced to 2 years for the guilty plea.

HKSAR v Hui Wang-Chin, DCCC 1347/2011

16.  The defendant in that case was a public light bus driver with passenger on board. He jumped a red light and hit the deceased who was on the pedestrian crossing. The defendant had previous criminal convictions. The court adopted a starting point of 3 years’ imprisonment after trial.

17.  Lastly in mitigation, Mr. Leung told the court that the defendant is still very upset about the incident. The defendant also knows that he will be facing a term of imprisonment. There is a possibility that the defendant’s ailing mother would not be able to see him regain his freedom. The defendant also understands that there will be a long period of disqualification. He plans to look for work as a bartender in a small local fast food stall upon his release. Mr. Leung urges the court to be as lenient as possible.

Sentencing cases

18.  In relation to dangerous driving that happened at pedestrian crossings as being a serious aggravating factor, I refer to the case of Secretary for Justice v Wong Wai Hung, CAAR 7/2010.

19.  In Wong Wai Hung, an 87 year old gentleman was crossing slowly at a zebra crossing with his domestic helper when he was knocked down by the respondent’s vehicle and died from his injuries. The Court of Appeal referred to the earlier case of Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601 and stated the following:

“19. In Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, CAAR 2 & 4 of 2009, this Court (Ma CJHC, Hartmann JA and Saw J) made clear that it would be a serious aggravating feature that dangerous driving causing death occurred at pedestrian crossings, and that a conscious disregard for traffic lights would be likely to put the case into the most serious category. This court also said one must not overlook the fact that an innocent life has been taken away, and that good character and remorse may count for very little.”

20.  Having referred to Lam Siu Tong, the Court in Wong Wai Hung considered that ‘a conscious disregard for pedestrians is equally, if not, more reprehensible’ than a conscious disregard for traffic lights, which would put a case into the most serious category of dangerous driving.  The Court considered the respondent’s culpability as being at the lower end of the higher culpability range, and said that they “would not consider a starting point for sentence of 4 years’ imprisonment to be manifestly excessive”.

21.  In Lam Siu Tong, CAAR 2/2009, the respondent drove a private vehicle at relatively high speed (74 km/h on a road with a 50 km/h speed limit) through an amber traffic light at a pedestrian crossing and hit the deceased who was crossing the road. The Court of Appeal accepted that they had to make the assumption that the deceased must have ran on to the crossing when the pedestrian light was still red. The application for review was successful and the Court was of the view that a proper starting point should be 2 years’ imprisonment.

22.  In Wong Ton Fan, CAAR 4/2009, the respondent was the driver of a double decker bus that collided with a 54 year old person who was crossing the road at a pedestrian crossing. Mr. Chong died as a result of injuries sustained. Just prior to the collision, vehicles on either side of the respondent’s lane had stopped in front of the pedestrian crossing because the vehicle traffic lights were red. The respondent, in the middle lane, however did not stop nor slow down and continued to approach the crossing at 30 km/h. Evidence was that the pedestrian lights were showing green when the deceased was hit by the respondent’s bus. For the purpose of the review, the Court of Appeal assumed that the bus driver did not actually see the vehicle traffic lights were on red against him. The review was successful as well and the Court found that a proper starting point should be that of 3 years’ imprisonment.

23.  It must however be pointed out that the applicable maximum sentence for dangerous driving causing death was that of 5 years’ imprisonment at the time when Lam Siu Tong and Wong Ton Fan were being dealt with.

Sentence

24.  The maximum sentence on conviction on indictment for causing death by dangerous driving under s.36(1) is that of a fine at level 5 and imprisonment for 10 years. 

25.  According to the summary of facts, the defendant was driving at a speed of 20-30 km/h when crossing the junction. It is however the defendant’s manner of driving that constituted the offence and not the speed he was driving at.

26.  According to the version of fact put forward in his mitigation, the defendant was looking to his left to see if there was traffic coming out from Kam Yuen Lane when he was jumping the red light. I find that there is no doubt that the defendant did that because he knew that he was jumping the red light and that there might be cars coming out from Kam Yuen Lane on their green light. The defendant failed entirely to give any regard to the pedestrians who might be crossing Chai Wan Road upon the pedestrian green light, resulting in the loss of life.

27.  The fact that the defendant had jumped a red light and that the dangerous driving happened at a pedestrian crossing are factors influencing the defendant’s culpability in the incident. The incident did not happen because of a momentary error of judgment. According to witness and the summary of facts, the Chai Wan Road traffic lights had turned red against the defendant for about 10 seconds when the defendant approached the junction. Madam Chung was not the only person who was crossing the road at the time, it would have been easy for the defendant to see that there were pedestrians in front of him had he just paid the slightest of attention. It was a conscious decision on the defendant’s part to disobey the traffic lights. The defendant showed a selfish disregard for the safety of the pedestrians and had driven with a degree of recklessness when he chose to cross such a busy T-junction against a red light.

28.  As for mitigating factors, although the defendant is of clear criminal record, he does not have a particularly good traffic record as he had been convicted of careless driving in October 2012 and had since August 2011 on 7 other occasions either failed to comply with traffic signals and signs and road markings, or drove in excess of the speed limit. His plea of guilty only came on the first day of trial, and the prosecution witnesses had to attend court. There appears to be remorse on his part according to his counsel.

29.  Taking into consideration the serious aggravating factor that the incident happened on a pedestrian crossing when the defendant jumped a red light, I would put the defendant’s culpability as below that of the respondent in Wong Wai Hung, but above that of Lam Siu Tong (where the deceased ran on to the pedestrian crossing) and Wong Ton Fan (where the driver did not actually see the vehicle lights had turned red).

30.  I will therefore adopt a starting point of 3 and a half years’ imprisonment, granting the defendant the full one-third discount for his guilty plea and sentence him to 28 months’ imprisonment.

Disqualification

31.  Pursuant to s.36(2A)(a) of the Road Traffic Ordinance, given that this is a first conviction for a s.36(1) offence, the defendant is disqualified for a period of 5 years.

Driving improvement course

32.  Pursuant to the requirement under s.72A(1A) of the Road Traffic Ordinance, there being no special reasons against the making of an order, the defendant is ordered to attend and complete a driving improvement course. Pursuant to s.72A(3B)(b), the defendant must attend and complete the driving improvement course within the last 3 months of the said disqualification period of 5 years.