HKSAR v. CHEUNG HUNG YUNG

DCCC 858/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 858 OF 2016

-----------------

-----------------

-------------------------------------------

REASONS FOR SENTENCE

-------------------------------------------

1.  The Defendant has pleaded guilty to one count on the indictment of causing death by dangerous driving, contrary to Section 36(1) of the Road Traffic Ordinance, Cap. 374.

Summary of Facts

2.  The accident took place near lamppost No. U8860, Kam Tin Road, Yuen Long. The relevant section of Kam Tin Road is a two lane dual carriageway with double white lines dividing the two lanes.   The accident occurred at an unnamed road adjacent to that section of Kam Tin Road.   The unnamed road is a single lane for traffic travelling in both directions and leads to various warehouses and industrial premises, one of which is the “Rising Aerial Platform Company”, where the Defendant had been working since 1 August, 2015.  The Defendant was responsible for delivery and other miscellaneous jobs. A light goods vehicle (LGV) with the registration number NN3981 was assigned to the Defendant for his use in company deliveries. The Defendant would drive the LGV on every working day to and from the company’s warehouse on the said unnamed road.  There are pedestrian pavements on both sides of the relevant section of Kam Tin Road. Traffic on that section of Kam Tin Road is usually heavy, with large size trucks and light goods vehicles. The speed limit on that section of road is 50 Km/H. 

3.  The traffic accident occurred at around 8 a.m. on 11 March, 2016. At the material time, the weather was fine and the road surface was dry.  Lighting was sufficient.  The Defendant was driving the LGV at the material time along Kam Tin Road towards Tai Po direction. On approaching the unnamed road near the offence location, the Defendant stopped the LGV on Kam Tin Road waiting for the oncoming traffic in the opposite lane to clear before turning into the unnamed road.  After waiting for a few seconds, when the oncoming traffic was less, the Defendant drove the LGV across the opposite lane to enter the unnamed road.  The deceased, So Ying-fat, a male aged 66 years, was walking slowly on the pavement near the entrance of the unnamed road.  The Defendant drove the LGV across the pedestrian pavement that the deceased was walking along to access the unnamed road. In so doing, the LGV hit the deceased and rolled over his body so that he was dragged under the LGV.  The LGV drove forward for about 10 metres before it came to a halt after it crashed into the stone placed in front of a metal fence at the roadside. A report was made to the police by pedestrians who witnessed the accident. The police and an ambulance soon arrived. Paramedics at the scene found that the deceased was semi-conscious and his arms were fractured.  The deceased was sent to the Pok Oi Hospital and was certified dead at 9.13 a.m. on 11 March, 2016 from injuries he had sustained as a result of the traffic accident.

4.  The Defendant told SPC 53706 that he drove the LGV at 5 Km/H when turning right into the unnamed road having waited 1-2 minutes for oncoming traffic to lessen. When the LGV had just reached the unnamed road, he suddenly saw the deceased 1 metre from the left front of the LGV. He immediately turned the LGV to the right but the left front of the LGV hit the deceased.  The Defendant told SPC 51550 that he was returning to his company and when negotiating the right turn into the unnamed road, he did not pay attention to whether there were any pedestrians walking by. He suddenly saw the deceased at the front of his LGV, and he tried to stop but could not avoid hitting the deceased. A passerby who had witnessed the entire accident estimated that the Defendant was driving the LGV at a speed of 10 Km/H when he was negotiating the turn into the unnamed road.

5.  A CCTV camera located at the opposite side of the unnamed road had captured the entire accident.  The CCTV was produced by agreement and the relevant video footage played in Court. A sketch of the location showing the position the LGV stopped at after the collision and an album containing 42 photographs were also produced by agreement.  The photos depict the entrance to the unnamed road, as well as the location where the LGV stopped after it collided with the deceased, and the stone and the metal fence the LGV hit.     

6.  The LGV was examined and found to be in a good and satisfactory condition on 16 March, 2016 and it was free from any mechanical defect, including the braking and steering systems and the tyres.

7.  Forensic Scientist, Dr. Tam Yiu-yan, conducted an accident reconstruction and confirmed that the speed of the LGV when it drove onto the pedestrian pavement just before it hit the deceased was about 13 Km/H, whilst that of the deceased was 1m/s.  Dr. Tam’s report was also submitted by agreement.  In paragraph 5 of his report, Dr. Tam said a total of 5 images were extracted from the CCTV footage to determine the driver’s views of the deceased before the impact, and these images were contained in appendix 1 of his report. The position of the LGV and the deceased were marked on these images.      

8.  The Defendant drove into the unnamed road without heeding the presence of the deceased on the pavement who would have been clearly visible at the material time. As a result, the LGV hit the deceased and rolled over his body. His driving fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous. I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charge and accordingly I convicted the Defendant of the charge that he had admitted.

Previous Convictions

9.  The Defendant had a clear criminal record.

10.  In respect of his traffic record, he was first issued with a driving licence on 12/08/1997. He had no previous traffic convictions.  He had 4 fixed penalty tickets, of which the last 3 were for failing to comply with traffic signals and traffic signs in 2015 and 2016. I attached no weight to these.

Mitigation

11.  The Antecedent Statement was read into the record by the Prosecution – no issue was taken on its contents by the Defendant.  It disclosed that the Defendant was now aged 65 years and was born in China.  He had been educated up to secondary school level.  He was a driver prior to the accident and earned about $15,000 a month. He resigned after the accident and has remained unemployed.  His health condition was normal.  He is married and lives with his family.

12.  Mr. Poon on behalf of the Defendant expressed the Defendant’s deepest apologies to the deceased and his family for what had happened.  The Defendant accepted that this incident had caused stress and sadness to them.  The incident had also brought shock and sadness to the Defendant and his family, who were in Court to show their support to the Defendant.

13.  The Defendant was aged 65 years at the time of the accident. He had received his driving licence in 1997. Although not a professional driver as such, his work involved making deliveries, and driving was a part of his work. His driving record can be described as good. He has no previous driving convictions, and has received 4 fixed penalties. He had resigned after the accident and has been unemployed,

14.  Mr. Poon submitted that the Defendant was married with 3 children. He came to Hong Kong from China in 1985. He had worked as a mechanic to repair automatic and electronic elevation platforms in industrial sites. He was the breadwinner of his family and had raised 3 children.  He should have retired when he reached the age of 65 years.  He had taken up his last employment some months before the accident. He was mainly responsible to repair elevation platforms. As he had to travel to various industrial sites, and had to transport his tools as well for the repairs he had to do,   he was assigned a van for his use by the company.

15.  He described the accident as a sad tragedy – the Defendant had not been keeping a proper lookout when he turned into the unnamed road - he had stopped his vehicle but was focused on oncoming traffic rather than on pedestrians on the pavement, and saw the deceased when it was too late – when he was less than a metre from the front of his LGV.  He had not been driving fast at the time – he had steered to the right to avoid hitting the deceased but was unable to and the LGV only came to a halt after it hit a stone on the road and the metal fence – the deceased by that time was at the back of the LGV – the Defendant had immediately alighted and gone to the back of the LGV to see what had happened.

16.  Mr. Poon said the Defendant had been driving since 1997 and had a clear traffic record save for some fixed penalties in the last two years. He said the Defendant’s eyesight was deteriorating because of his age and his response to sudden incidents and traffic conditions was slower than the norm. 

17.  He described the Defendant as a hardworking man and the breadwinner of his family. His wife was a housewife. He was a loving husband and caring father, and not a criminal.  He was very remorseful for what had happened, and had indicated his intention to plead guilty from the outset.

18.  A number of mitigation letters were submitted.  The Defendant in his letter expressed the great regret and sorrow he felt and apologised to the family of the deceased for the great sorrow and distress to them as a result of the accident.   He said he was the breadwinner of his family and worked hard to provide for them.  He also had to care for his wife who suffered from a number of illnesses including high blood pressure. As he was getting old and worried about the family’s future financial situation, he was disturbed and could not focus his mind.  He was greatly disturbed by the accident and feared being alone. He felt great sorrow and remorse. He was willing to take up responsibility for the accident and sought leniency.  There was also a letter from his wife and children commending him as a loving husband and caring father, working hard to provide for his family, and taking care of his wife. There were also letters in mitigation from his current and former employer and colleagues, and friends, all commending him and seeking leniency for the Defendant.

19.  Defence Counsel accepted that here, the Defendant’s failure to notice the presence of the deceased and therefore  failing to keep a proper lookout to the road conditions amounted to dangerous driving. He submitted two cases for the Court’s consideration as to sentence, where he submitted that the driver had failed to keep a proper lookout. One was HKSAR v. Cheung Kwok Leung, CACC 287/2013, where in the District Court the driver had been sentenced to 15 months’ imprisonment after trial for the offence of causing death by dangerous driving as well as being disqualified for driving for 18 months and ordered to attend and complete a driving improvement course – although he had lodged his appeal against the sentence imposed in the District Court, he abandoned his appeal against sentence.  The second case he referred to was HKSAR v. Ho Kam Cheong, HCMA 139/2010, a magistracy appeal from KTCC 1764/2009, where a sentence of 12 months’ imprisonment after trial on a charge of dangerous driving causing death was upheld on appeal – it is to be noted that this was a sentence before the term of imprisonment was increased from 5 to 10 years’ imprisonment.  The disqualification order was reduced from 3 to 2 years on appeal, and the order in respect of the driving improvement course was confirmed.

20.  In response to a question from the Court as to what Counsel was submitting was the level of culpability of the Defendant here, Mr. Poon submitted that it was close to the lowest category, bearing in mind the age and response time of the Defendant.  He referred to Paragraph 18 of the Amended Summary of Facts admitted by the Defendant, referring to the accident reconstruction performed by Dr. Tam Yiu-yan, that disclosed that when the LGV was stopped at Kam Tin Road for oncoming traffic before it negotiated the turn, the distance between the LGV and the deceased was 8.2 metres.  While the LGV was on Kam Tin Road, the Defendant could have an unobstructed line of vision to see the pedestrian movement. Mr. Poon submitted that the Defendant’s view when turning would have been blocked by the off-side A-column of the LGV as demonstrated in frames 4 and 5 of the reconstruction he performed, on page 9 of his statement.

21.  Mr. Poon sought leniency on behalf of the Defendant.

Sentence

22.  After hearing Counsel in mitigation, I adjourned the matter until 21 November, 2016 pending a Background Report, remanding the Defendant in custody.   However, the Court was informed by the Probation Officer by a memo dated 17.11.2016 that the Defendant had been interviewed at the Lai Chi Kok Reception Centre on 11.11.2016 and had decided not to give any background information on himself and he understood the consequences.    When Defence Counsel appeared before me on 21 November, 2016, he informed me that the Defendant had been confused when approached by the Probation Officer and misunderstood the purpose of the visit of the Probation Officer.  He sought an adjournment for the Background Report to be obtained. The Prosecution’s position in respect of the adjournment application was neutral.  I adjourned the matter until today for the Background Report to be prepared.  That report is now before me.  Defence Counsel has informed me that the Defendant agrees with the contents. He also made no further submissions.

23.  In sentencing the Defendant, I have also carefully considered all that has been urged upon me in mitigation by Counsel on behalf of the Defendant, as well as the contents of the letters   seeking leniency on behalf of the Defendant and the authorities submitted by Counsel and the contents of the Background Report. The Background Report confirms much of what was said by Mr. Poon. 

24.  The Defendant is now aged 65 years.  He has a clear criminal record and a clear driving record. His first issue of a driving licence was in 1997. He has had only four fixed penalty tickets in all these years.  Clearly he has been driving for many years and his driving record is to be commended. I am told by Mr. Poon that he was so affected by the accident and felt such deep remorse that he resigned his job as a result.

25.  The maximum penalty for offences of dangerous driving causing death is 10 years’ imprisonment on conviction on indictment and a fine at level 5, namely $50,000. This is set out in Section 36(1)(a) of the Road Traffic Ordinance, Cap. 374.  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 5 years in the case of a first conviction, unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified. The Ordinance also provides that the Court shall also order that the person attend and complete a driving improvement course.

26.  Road accidents can cause immense human suffering and bring about serious economic burdens both to the victim’s family and the society. Vehicles can be lethal if not driven and maintained in an appropriate manner. Those who are in charge of vehicles owe other road users a heavy duty.   As the Court of Appeal said in Secretary for Justice v. Poon Wing-kay,  [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 law of 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 such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous”.

The court also said that where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased. The impact on people’s lives ought to be taken into account when sentencing.

27.  As the Court of Appeal has said in Secretary for Justice v. Lau Sin Ting, CAAR 3/2010:-

“34. Sentencing decisions for an offence under s.36(1) of the Road Traffic Ordinance are by their nature difficult. As was said by Yeung JA in delivering the judgment in HKSAR v. Chan Wing Keung, Andy CACC 356/2009 at para. 36:“...The court is not dealing with criminals, but normally law-abiding drivers, who, apart from their involvement in the offence which resulted in death, can be individuals who would not otherwise dream of committing a crime. However, their irresponsible driving attitude had led to extremely serious consequences, including death to innocent people and grave distress to their families, albeit they did not intend to cause any such death or serious injury.”

35. A principled approach to sentencing for the offence has nevertheless evolved. In Secretary for Justice v. Poon Wing Kay (2007) 1 HKLRD 660 this court approved a number of general principles set out in the judgment of Lord Woolf CJ in R. v. Cooksley & Ors [2003] 3 All ER 40. That judgment is also of considerable assistance in its reference to aggravating and mitigating factors which a court may, depending of course on the facts before it, take into account in sentencing for the present offence: see Secretary for Justice v. Liu Kwok Chun, CAAR 3/2009.

36. Recognising that Hong Kong road conditions may differ in many ways from those in England, nevertheless much of what is said in R. v. Cooksley has application to this jurisdiction. We emphasize however that each case is different and may vary greatly in circumstances and too formulaic an approach to sentence may result in injustice.

37. Considerable discretion must therefore be allowed a court in its approach to sentence. We bear in mind also what was said by Ma CJ (as he then was) in Poon Wing Kay at paragraph 10:

“While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor: at p. 47B (para. 14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. …”

.......

42. But it must be borne in mind, as the judge states, that there is a considerable element of general deterrence involved in sentencing for this offence. The seriousness of the offence is underlined by the increase in the maximum penalty from 5 to 10 years’ imprisonment.......No doubt the legislature in increasing the maximum penalty for this offence intended to reflect public sentiment that greater deterrence was called for in this sort of case.”

28.  Although the Defendant did stop for oncoming traffic before he turned right into the unnamed road and he was not driving fast, he would have had an unobstructed view of the pavement and pedestrians on the pavement whilst he was waiting to turn into Kam Tin Road.

29.  Mr. Poon had submitted that the Defendant’s view of the deceased would be slightly blocked by the offside A-column of the LGV as disclosed by Frames 4 and 5 in the reconstruction conducted by Dr. Tam set out on page 9 of his report which was produced by agreement.  One cannot look at those 2 frames in isolation. If one looks at frames 1, 2 and 3 of that reconstruction, on page 8 of Dr. Tam’s report, the deceased could be seen. In respect of frames 4 and 5, Dr. Tam in table 2 on page 4 of his report did say his view was blocked by the offside A column, but he also said that Dr. Poon, who was portraying the deceased in the reconstruction, could be seen through the front windscreen when he ‘slightly’ tilted his head to the nearside.  A viewing of the CCTV that captured the accident shows quite clearly that had the Defendant kept a proper lookout, he could not have failed to note the presence of the deceased as he was negotiating the turn into the unnamed road.  Dr. Tam had extracted five frames from the CCTV onto his report on pages 6 and 7 of his report, where he had also pointed out the deceased on these frames.  Dr. Tam in his report also said that whilst the LGV was on Kam Tin Road, the Defendant could have had an unobstructed line of vision to see the pedestrian pavement.  Therefore had the Defendant kept a proper lookout, he would have seen the deceased walking on the pedestrian pavement.

30.  I accept that this incident is a tragedy also for the Defendant. There is no doubt that he is now deeply and genuinely remorseful as reflected by what he wrote in his letter in mitigation. He has a good driving record and a clear criminal record. He is highly regarded by his family, his friends and his colleagues. But I must take into account the view expressed by the Court of Appeal in Secretary for Justice v. Lam Siu Tong, [2009] 5 HKLRD 601,  to the effect that previous good character and genuine remorse of a Defendant who has committed this offence must not be given undue prominence (para 13 (c) and (d) of the judgment). The focus of sentence is on the culpability of the Defendant’s driving and his clear record and good character carry little weight.

31.  Mr. Poon submitted that the Defendant was aged 65 years at the time of the accident. He had in 2015 committed three traffic offences for which he was given fixed penalty tickets – the offence dates for the two fixed penalties for failing to comply with traffic signals were on 14/12/2015 and 28/12/2015, and that for failing to comply with traffic signs was on 4/2/2016 – all within a period of 2 months – his eyesight was deteriorating because of age and his judgment of and response to sudden events and traffic conditions has slowed. He would have been aware of this deterioration and its effect on his driving skills but it would appear that he did not do anything about it.      

32.  The danger herein was his failing to keep a proper lookout whilst driving.   The Defendant would have been aware that his reaction was slower than the norm.  He needed more time to process information.   I would place the Defendant’s culpability at the intermediate culpability as set out in paragraph 40 of Liu Kwok Chun (supra) – ‘momentary dangerous error of judgment’.

33.  On the other hand, there are plenty of mitigating factors. His good driving record, the absence of any traffic convictions (although I do bear mind that he has some fixed penalties for failing to comply with traffic signals and traffic signs), a timely plea of guilty, genuine shock and remorse and his advanced age. The Defendant resigned his job after the accident. From the letters submitted in mitigation, it is clear that the Defendant has been a good employee, friend, husband and father. He has also always worked conscientiously, as evidenced from the letter in mitigation from one of his previous employers as well as his employer at the time of the accident.  

34.  I take the view that an immediate custodial sentence of imprisonment is the only appropriate sentence in this case.  Having considered the whole circumstances of the offence, including the degree of culpability, the serious consequences, mitigation put forward on the Defendant’s behalf and the Defendant’s background including his driving record, and the letters in mitigation submitted to me,  in respect of the offence of causing death by dangerous driving, I take as a starting point 2 years (24 months) imprisonment, discount this by one-third in recognition of the Defendant’s plea. In addition, I would take an exceptional course of exercising my discretion to further reduce his sentence by 2 months in order to reflect his good record and that he is a person of good repute in the eyes of his family and friends and sentence him to 1 year and 2 months’ (14 months) imprisonment. 

35.  I can see no special reasons not to disqualify the Defendant. He is also disqualified from holding or obtaining a driving licence for all classes of vehicles for 5 years. What this means is that if the Defendant drives during the period of disqualification, he will commit an offence of driving whilst disqualified, an offence which will usually attract a sentence of imprisonment, and that is in addition to any other offences that would be automatically committed where he is driving whilst disqualified, such as driving without third party insurance. I also make an order under section 72A(1A) of the Road Traffic Ordinance, Cap. 374, there being no special reasons against the making of an order,  that he must at his own expense attend and complete a driving improvement course within the last three months of the expiration of the period of disqualification of 5 years. The Defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course, notwithstanding that the disqualification period may already have ended. I will also put on record my warning that the order places a duty on the Defendant to make arrangements to attend and complete the course on his own initiative.  No one will remind him to do so. Failure to comply with such an order may result in prosecution.