HKSAR v. CHAN SAI MING

DCCC 92/2025

[2026] HKDC 75

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 92 OF 2025

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REASONS FOR SENTENCE

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1.  Mr Chan pleaded guilty before me to one charge of Causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 274. Particulars are that he, on 20 May 2024, at Sai Yee Street near Shantung Street, Mongkok, Kowloon, in Hong Kong, caused the death of Kwong Lai Chun, by driving a motor vehicle, namely a medium goods vehicle bearing registration mark LFG1, on a road dangerously.

Facts admitted by Mr Chan

2.  On 20 May 2024, at about 4:47 pm, Mr Chan was driving a medium goods vehicle bearing registration mark LFG1 (“the Lorry”) along Sai Yee Street (North bound) approaching the junction with Shan Tung Street.  After stopping the Lorry in light of traffic ahead, Mr Chan resumed movement whereupon Madam Kwong aged 82 (“the Deceased”) was knocked down and rolled over by the Lorry. The Lorry did not stop for 20 metres after the point of impact.

3.  The Deceased was conveyed to hospital for medical treatment but was certified dead at 6:05 pm on same day.

4.  CCTV footage from various nearby sources showed:-

(a) The Deceased had been standing at the side of Sai Yee Street facing the carriageway sometime earlier before the Lorry approached the stopping position;

(b) The Deceased did not cross the road there and then and walked forward along the traffic direction by the side of Sai Yee Street;

(c) The Deceased then crossed the road in front of the Lorry from the left side as the Lorry stopped behind the stationary private car YS1148; and

(d) Shortly after, when the Lorry moved forward following YS1148, the Deceased was hit and rolled beneath it.

5.  Traffic accident reconstruction showed:

(a) When the Deceased was at the left side of the Lorry between 5 seconds and 3 seconds before YS1148 started moving forward, the Deceased could be seen at the nearside wide-angled mirror of the Lorry; and

(b) Just at the moment when the Lorry was about to resume movement between 1 second before and 1 second after YS1148 started moving forward, the Deceased could be seen via the nearside fish-eye mirror of the Lorry.

6.  Mr Chan was arrested and under caution, he stated:

(a) He stopped the Lorry in light of the traffic ahead;

(b) The space between the Lorry and the preceding vehicle was about half a vehicle space;

(c) When the Lorry was stopped, he had chatted with a passenger on the Lorry;

(d) When the traffic ahead resumed, he had checked the mirrors at both sides including the fisheye mirror and the wide-angle mirror before moving the Lorry, but could not notice anything;

(e) The Deceased was wearing dark-colour clothing and therefore he might not have noticed her; and

(f) He had heard the scream of a female and stopped the Lorry after about 20 metres, having thought whether he hit some object in the first place and therefore took some time before he stopped the Lorry.

7.  At the material time, Mr Chan caused the death of the Deceased, by driving the Lorry on a road dangerously, that is by:

(a) Failing to keep a proper lookout of the road conditions when approaching a section of the road with slow vehicular traffic and slow pedestrian activities;

(b) Failing to review all mirrors of the Lorry and look around to make sure no pedestrian was crossing or standing by the Lorry before moving off, taking into account the height of the Lorry and his blind spots; and

(c) Failing to stop the Lorry immediately upon impact and/or after hearing the scream of the Deceased.

Criminal and Road Traffic conviction records

8.  Mr Chan has no such previous records.

Antecedents

9.  Mr Chan is aged 55 (53 at the time of the offence), educated to junior secondary level, was a goods vehicle driver.  Mr Chan is married and is living in public housing in Fanling.

Mitigation

10.  Mr Terry Kan of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.  The following is a summary of the mitigation submissions.

11.  Mr Chan is married.  His wife is aged 50.  Their two sons are aged 15 and 11.

12.  Mr Chan received up to F3 education.  He worked as a delivery assistant (ie driver) at a dispensary earning $16,500 per month prior to the incident. He is now a warehouse assistant at the same company.

13.  The tragic event could be seen from the car camera footage provided by a nearby car UN 906.  There were two pieces of footage, each one minute in length.

14.  In the first footage, from counter 00:40 onward, the Lorry slowly stopped behind the stationary cars waiting for the traffic lights to change. The Deceased jaywalked trying to cross the road in the middle of the street.

15.  It was submitted that Mr Chan was sober at the time of the offence; he was moving at a very slow speed and he did not violate any traffic signals.

16.  Mr Chan has a clear criminal record.  The main mitigating factor is his plea of guilty.

17.  Mr Chan is remorseful.  He has many sleepless nights whenever he thinks back on the tragic incident.  He needs to see a psychiatrist for his condition.  Antidepressant and sleeping pills were prescribed to him to help him get some sleep.

18.  The maximum penalty for the offence of Dangerous driving causing death is a fine of $50,000 and imprisonment for 10 years: section 36(1)(a) of RTO.

19.  For offence under section 36(1) of RTO, “a deterrent sentence is called for because of the grave consequences flowing from this offence.  At the same time, the Court recognizes that culpability of the defendant is the dominant factor in the sentencing exercise.” (see Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70 at para 35).

20.  Aggravating and mitigating factors, factors which was relevant to both dangerous driving and dangerous driving causing death, set out in R v Boswell [1984] RTR 315 were revised in R v Cooksley [2003] RTR 32 and have been adopted in Hong Kong, for example, see Liu Kwok Chun (supra).

21.  In Cooksley (supra), four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability.  This has been adopted in Hong Kong, for example, see Liu Kwok Chun (supra).

22.  Aggravating and mitigating factors referred to in Cooksley (supra) at para 15 thereof are recited in Liu Kwok Chun (supra) at paras 38-39.

23.  Mr Kan submitted that there were no aggravating factors in the present case; that among the mitigating factors referred to in Liu Kwok Chun (supra), the following may be relevant:

(a) A good driving record (only one fixed penalty record in at least the past 3 years);

(b) The absence of previous convictions;

(c) A timely plea of guilty; and

(d) Genuine shock or remorse.

24.  Although the Cooksley (supra) range of sentence has not been adopted as the tariff in Hong Kong, it is still useful to crosscheck the intended sentence with Cooksley’s four categories of culpability.  Since the maximum sentence of s 36(1) of RTO has been raised to 10 years’ imprisonment in Hong Kong, and when Cooksley was determined, the maximum sentence was also 10 years’ imprisonment in England.

25.  Para 40 of Liu Kwok Chun (supra) sets out the Cooksley’s range of sentence in respect of the four categories of culpability based on the then maximum sentence of 10 years’ imprisonment in England and which is the maximum sentence in Hong Kong:

(a) Where there were no aggravating circumstances: 12-18 months;

(b) Intermediate culpability: momentary dangerous error of judgement or a short period of bad driving aggravated by a habitually unacceptable standard of driving, by the death of more than one victim or serious injury to other victims or by the offender’s irresponsible behaviour at the time of the offence: 2-3 years;

(c) Higher culpability where the standard of the offender’s driving is more highly dangerous, eg the presence of one or more of factors of (1) to (9) [of para 38 of Liu Kwok Chun]: 4-5 years; and

(d) Most serious culpability: 6 years onwards.

26.  In Secretary for Justice v Lau Sin Ting [2010] 5 HKLRD 318, the Court of Appeal stated at para 36 that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice.

27.  In the case of HKSAR v Wong Wing Jerk (transliteration) [2025] HKDC 1349, HHJ WK Kwok found the defendant had failed to see the victim while his attention was distracted by humming a song (see paras 39 & 40).  Given all the circumstances of the case, the learned judge took a starting point of 12 months’ imprisonment[1]. It was submitted that the situation in the present case is similar to that there.

28.  In the present case, Mr Chan’s culpability lay in a momentary error of judgement, namely by allowing himself to move the Lorry without seeing the Deceased in the mirrors in split second.  His culpability should be in the bottom bracket of the Cooksley (supra) range of sentence where there were no aggravating circumstances.

29.  Mr Kan urged the court to adopt a starting point of 12 months’ imprisonment.

30.  Mr Chan is entitled to one-third discount for his timely plea.  Mr Kan asked the court to give Mr Chan a further discount of 2 months after the 1/3 for the psychological pain that the latter is suffering day and night.

31.  Moreover, Mr Kan asked the court to consider community service order as a real and effective alternative to prison in this case.  Mr Kan cited two District Court sentencing cases in support: HKSAR v Ho Chung Yin [2018] HKDC 1096, HKSAR v Yiu Sun Sun (transliteration) [2025] HKDC 1481.

32.  Under section 36(2) & (2A) of the RTO, the court shall order a person convicted for the first time of the present offence to disqualification for at least 5 years unless there are special reasons not to do so.  Mr Kan has no submissions to make.  Nor has Mr Kan any submissions to make on the mandatory order to attend a driving improvement course.

33.  Upon enquiry by the court, Mr Kan submitted that the aggravating factor in para 38(6) of Liu Kwok Chun – driving while the driver’s attention is avoidably distracted, eg by reading or by use of a mobile phone (especially if hand-held) – should not apply merely because Mr Chan was chatting with a passenger moments before he resumed movement of the Lorry, for the reason that this was just a “neutral thing”.

34.  Upon enquiry by the court, Mr Kan submitted that the aggravating factor in para 38(14) of Liu Kwok Chun – (irresponsible) behavior at the time of the offence, such as failing to stop… – should not apply because Mr Chan did not realize he had knocked down a person until later.

Sentence

35.  It is unclear why Mr Kan relied on two sentencing cases on a less serious offence, namely Causing grievous bodily harm by dangerous driving, to ask for a community service order for Mr Chan.  In a case as serious as the present one, community service order as a sentencing option is out of the question.

36.  I have seen the 3 sets of video footage more than once: one from UN906, one from a nearby restaurant, and the last one from the Lorry itself (in-cabin-view). It was apparent that the Deceased was a short lady who, may be due to old age, had a hunchback.  This made her even shorter in height.  There is no doubt that she was jaywalking dangerously on a busy road.  At the critical time, she was crossing from the left second lane to the left third lane into the Lorry’s path, and very close to the left front end of the Lorry.  In part, she was to blame.

37.  However, that does not to a large extent alleviate Mr Chan’s responsibility in the matter.  He, for his part, was distracted in his driving (including temporarily stopping) of a large Lorry by his chatting with a passenger.  The scientific evidence suggests that Mr Chan was in a position to see the Deceased with the help of external mirrors for a period of 4 seconds (though not continuously) before resuming movement.  However, it must be the case that he simply missed the Deceased, either through inattention or failure to exercise proper or sufficient care.  Mr Chan simply failed to keep a proper lookout of the ever-changing road conditions around him.  The distraction caused by his chatting with a passenger must have played a part.  The in-cabin footage shows he was looking to the right while chatting when the Deceased was walking near the Lorry from the left.

38.  For this reason, I am of the view that the aggravating factor in para 38(6) of Liu Kwok Chun does apply.  However, I agree with Mr Kan that there are degrees of distraction.  Although Mr Chan’s mind and ears were distracted, his eyes were not.  So it cannot be comparable to the examples cited in para 38(6) such as reading or using a mobile phone (eg by texting).  I am therefore of the view that although para 38(6) applies, Mr Chan’s manner of driving does not belong to the Higher culpability category under para 40 of Liu Kwok Chun.  I take into account the chatting stopped once Mr Chan resumed movement.  I also take into account that, from the in-cabin footage, he did seem to look around before moving off.

39.  All things considered, I am of the view that Mr Chan’s manner of driving can only be regarded as belonging to Intermediate culpability category.

40.  I am satisfied that the aggravating factor in para 38(14) of Liu Kwok Chun does not apply because it was only at a later stage that Mr Chan realized he had knocked down someone, despite the intermittent sounds of screaming that can be heard from the in-cabin footage.

41.  I take into account that the Deceased was partly to blame.

42.  These factors considered, I adopt a starting point of 2 years’ imprisonment.

43.  Mr Chan pleaded guilty in good time earning for himself the customary 1/3 sentencing discount.  For his good driving record, his lack of a criminal record, and his genuine shock or remorse, I will grant him a further sentencing discount of 3 months after the 1/3.  There are no other mitigating factors of weight to justify another sentence reduction.

44.  The present conviction calls for a mandatory disqualification of at least 5 years in duration and a mandatory order to attend a driving improvement course, unless special reasons exist.  There are none that I can see.

(Mr Chan, please stand)

45.  The sentence is 13 months’ imprisonment.

46.  I order that Mr Chan be disqualified from holding or obtaining a driving licence for all classes of vehicle for a period of 5 years.  I further order Mr Chan to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period.

47.  Mr Chan is not to hold or obtain a driving licence again until he has both (a) served his disqualification period and (b) attended and completed at his own cost the driving improvement course.

48.  I hereby warn Mr Chan that failure to attend and complete the driving improvement course at the time specified without reasonable excuse is itself an offence and can attract an imprisonment sentence.