HKSAR v. CHUNG KI KIT

DCCC 483/2023

[2024] HKDC 169

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 483 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty of a charge of dangerous driving causing death.

Summary of facts

2.  At about 0715 hours on 22 September 2022, the defendant was driving a government refuge collection vehicle along the right hand lane of Camp Street towards the direction of the stop junction.

3.  At the same time, the 85 years old Mr. Lo was walking straight across the carriageway of Fuk Wing Street towards the stop junction at a normal pace with a walking stick.

4.  When the vehicle reached to the stop junction, Mr. Lo had crossed about halfway through the carriageway of Fuk Wing Street and was ahead of the defendant at the offside front of the vehicle.  

5.  The defendant drove against the stop signs, stop lines and stop road markings at the stop junction; he did not stop the vehicle, but only slowed it down. The defendant negotiated a right turn onto Fuk wing Street at an accelerated speed. The off side front of the vehicle knocked down Mr. Lo at the junction. The vehicle came to stop abruptly upon the collusion. Mr. Lo fell onto the ground with his head hit on the road surface.

6.  At 0753 hours, Mr. Lo was certified dead in the hospital. Autopsy report confirmed the direct cause of his death was head injuries.

7.  Under caution, the defendant said that he had driven past the junction for about 50 to 60 times over the past two months. He knew there was a stop junction with double white line road markings. He was aware of the blind spots of the vehicle. However, he was negligent in, not checking the blind spot at the front of the vehicle, not following the traffic signs, therefore causing the accident.

8.  Traffic accident reconstruction by forensic scientist suggested:-

(a)  that the estimated speed of the vehicle was slowed down to around 4 km/h when it approached the stop junction, but it accelerated from around 8 km/h upon crossing the junction to around 14 km/h at the time of collusion.

(b)  if the defendant maintain an upright driving position at the material time, his view might have been obstructed or partially obstructed by a taxi parked near the curb or by the offside A-pillar of the vehicle. However, his view could have been improved if he leaned forward, or turned his head to the offside at the material time.

Criminal record

9.  The defendant has a clear criminal record.

10.  Traffic conviction records:-

(a)  2016 for crossing double white line

(b)  2017 and 2022 for speed driving

11.  The defendant obtained his driving license in 2009.

Background

12.  The defendant is now 35 years old, he is married with a son who is two years old. His son has a medical condition since he was born. His son requires regular treatments since the age of one week old and has been hospitalized with operations on three occasions. The defendant’s wife stays at home to look after their son while the defendant’s parents also have medical problems that require the defendant’s care and attention.

13.  The defendant used to receive $21,340 per month as a government driver with the logistic department. His employment contract was terminated in October 2023. Now his family is relying on his savings for living.

14.  After the accident, the defendant has been suffering from thyrotoxicosis and post-traumatic stress disorder; he has been seeking professional medical treatment.

15.  The defendant is very remorseful, he feels guilty for causing the death of the victim and he sincerely apologies to his family in this regard.

16.  The defendant has stopped driving all kinds of vehicles since the accident.

Sentence

17.  The maximum sentence is 10 years.

18.  There is no doubt if the defendant had been driving with a little bit of care by looking onto the road condition and stopped at the stop line before negotiating a right turn, this tragic accident could have been avoided.

19.  It has been emphasized in many cases that a vehicle can main or kill. Driving a vehicle comes with great responsibility.

20.  The Court of Appeal said in the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 paragraph 10(4):-

“… In assessing the overall seriousness of a crime, culpability is often the dominant factor… It is not a case of counting number of aggravating or mitigating factors, and then arriving by mechanical means at the relevant sentence.”

21.  In R v Cooksley & Others [2003] 3 All ER 40, there were four categories of culpability and they were adopted in Hong Kong:-

(a)  Where there are no aggravating factor.

(b)  Intermediate culpability.

(c)  Higher culpability.

(d)  The most serious culpability.

22.  In Cooksley, the Court said that even without aggravating factor a starting point of 12 to 18 months. The sentence will progress as culpability becomes more serious, a starting point of 2 to 3 years in intermediate culpability.

23.  The defendant had been driven past that stop junction for about 50 to 60 times in the past 2 months prior to the accident. The road condition was nothing new to him.

24.  He was aware that there were blind spots on the offside of his vehicle, but he did not stop to look. He just slowed down to around 4 km/h when it approached to the stop junction, he did not give himself an opportunity to observe the road condition.

25.  When he suddenly saw a shadow and that was the head of Mr. Lo appeared at the offside front windscreen of the vehicle, it was too late, as accident had already occurred.

26.  We all have the opportunity to look at the CCTV in the open court. Mr. Lo had already crossed the road halfway. It is clear to me that the defendant simply did not notice the present of Mr. Lo before the accident.

27.  On the other hand, the rubbish truck was a huge one, the weight was heavy and the size was bigger when comparing to a private car or even a minibus, a slight contact with an old person like Mr. Lo, the consequence was foreseeable, no one can stand the force of the impact from a heavy weighted vehicle.

28.  The defence brings to my attention to the case of HKSAR v Kwan Wan Ki CACC 5/2019 that the appellant was convicted of one charge of causing grievous bodily harm by dangerous driving. The victim suffered from a dislocation of her right ankle. The accident resulting minor injuries and was fully recovered without permanent injury. The court of appeal set aside the 18 months imprisonment by substituting a sentence of six months imprisonment.

29.  This case is not comparable to the present case.

30.  The defence asked for a CSO sentence, I disagree.

31.   As said in the judgment of Kwan Wan Ki that “if the defendant, in a particular case has a positive good character or conduct, the court may, at its discretion, reduce the sentence. However, most of the defendants who committed dangerous, driving offences have good backgrounds and do not have a propensity to commit a crime. Therefore, factors such as the defendant’s good background or clear criminal record are not strong mitigating factors to the degree that the court should pass a non-custodial sentence on the defendant. On the contrary, if the defendant has a criminal record, especially of multiple similar convictions, it will be an aggravating factor.”

32.  In addition, a sentence for this type of offence needs to reflect the impact of the death of Mr. Lo on his family members. I am told this morning that his children are all very upset and his wife suffers from insomnia since the present incident.

33.  On the other hand, I accept that this was a one off occurrence, the defendant has a clear record and he is in genuine shock and remorse. There will be a devastating effect on the defendant’s life and family. To this end, I consider that the culpability of this accident pitch at the upper end of the no aggravating factor level.

34.  I take 18 months as the starting point, reduce to 12 months after 1/3 discount. I also take a compassionate approach to further reduce 2 months for his son medical conditions. The final sentence is 10 months’ imprisonment.

35.  Pursuant to section 36 (2A)  (a)  of the Road Traffic Ordinance, I also order the defendant to be disqualified from driving all classes of vehicles for a period of five years. This disqualification period will commence from the date of sentence. I also order the defendant to complete a driving improvement course at his own expense within the last three months of that five years disqualification period. Failing which, the defendant may be subject to another criminal offence.

36.  The defendant has to surrender his driving license immediately.