HKSAR v. ALI ZAIN

DCCC 900/2023

[2025] HKDC 359

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 900 OF 2023

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REASONS FOR SENTENCE

The defendant faces a charge of "Causing death by dangerous driving" (Charge 1) and 2 minor traffic-related offences (Charges 2 and 3).

2.  He pleaded guilty to Charges 2 and 3 (namely "Driving an unlicensed vehicle" and "Failing to display a valid vehicle licence").  For Charge 1, the defendant pleaded guilty to "Careless driving", but the prosecution decided to proceed with the original charge.  I found him guilty of "Careless driving" after trial.

Evidence accepted by court

Charge 1

3.  In the evening on 14 December 2022, the defendant rode his motorcycle WD5012 ("the Motorcycle") and hit a pedestrian at a crossing regulated by traffic lights.

4.  The accident location was a pedestrian crossing at the junction between Nathan Road (southbound) and Hamilton Street ("the Crossing").  Nathan Road (southbound) is a 3-lane road.  The Crossing was regulated by both vehicular and pedestrian traffic lights.  There was a pedestrian waiting area ("the Island") between the southbound and northbound lanes of Nathan Road.  The speed limit of the relevant road segment was 50 km/h.

5.  As shown in the dash cam footage of a private car VN157 travelling directly behind the Motorcycle (Exhibit P1[1]), right before the accident, from time marker 08:54:48 to 08:55:00 (i.e. time of impact), the defendant was riding the Motorcycle along the 3^rd left lane of southbound Nathan Road.  The weather appeared to be fine; road surface was dry; and the traffic flow was smooth.  There was no vehicle in front of the Motorcycle for some distance.

6.  According to the CCTV footage of No.562 Nathan Road (Exhibit P12[2]), at time marker 20:54:14, Mr. Cheng (aged 73; the deceased), who was pulling a small suitcase with wheels with his left hand, began to cross the northbound lanes of Nathan Road at the Crossing (against a red pedestrian traffic light).  He reached the Island at time marker 20:54:21.  At time marker 20:54:26, the deceased was stepping on the 1^st yellow stripe (the one closest to the Island) at the Crossing on southbound Nathan Road (also against a red pedestrian traffic light).  At time marker 20:54:28, the deceased was between the 1^st and 2^nd yellow stripes at the Crossing and he suddenly took a step backward.  He was then hit by the Motorcycle.

7.  The vehicular traffic light for southbound Nathan Road did not turn amber from green until time marker 20:54:37; and red, at 20:54:41.  The pedestrian traffic light at the Crossing for southbound Nathan Road turned green from red at time marker 20:54:43.

8.  As shown in the CCTV footage of No.560 Nathan Road (Exhibit P11[3]), from time marker 20:56:01 to 20:56:02, the Motorcycle pushed the deceased forward for a short distance.  Upon hitting the bollard light erected at the end of the Island, the Motorcycle collapsed and stopped.

9.  In addition to the Admitted Facts[4], the prosecution called a total of 3 witnesses, namely Ambulanceman Sun (PW1), Pathologist Dr. Wong (PW2) and Government Chemist Dr. Wong (PW3).

10.  Dr. Lau Wing attended the deceased at the A&E Department of Queen Elizabeth Hospital at 9:26 p.m. on 14 December 2022.  Despite active resuscitation, he certified death of the deceased at 10:38 in the same evening[5].  PW2 conducted an autopsy on the deceased.  He concluded that the medical cause of death was chest injuries with ischaemic heart disease as a significant contributing condition.

11.  The deceased had disobeyed one (if not 2) red pedestrian traffic light.  According to the footage in Exhibit P1, the Motorcycle's brake light went on at time marker 08:54:57.  Bearing in mind that the impact took place at time marker 08:55:00, the court can safely assume that the defendant noticed the presence of the deceased as late as 3 seconds before impact.  PW3 did not (or was unable to) comment in his reports/evidence whether or not the defendant reacted too late in braking or what manoeuvres he could have taken to avoid the accident. There is, however, a piece of evidence favourable to the defendant – he was not speeding[6]. Defence counsel Mr. Allan has also asked PW3 a crucial question – If the deceased had continued walking forward [at the Crossing] (instead of taking a step back or hesitating), the accident could have been avoided.  PW3's answer was "Probably".

12.  The accident occurred because the defendant was unable to avoid the deceased.  Although the defendant had a green light, he was still expected to proceed through the Crossing with caution.  On the other hand, the deceased was jaywalking, which, of course, put himself in danger.  In my view, the defendant's driving did not fall far below what would be expected of a competent and careful driver.

13.  Based on the evidence before me, I was satisfied beyond reasonable doubt that the defendant did not proceed through the Crossing with caution.  Even though he had a green light, the defendant rode the Motorcycle without due care and attention or without reasonable consideration for other persons using the road. On this basis, I found him guilty of "Careless driving".

Charges 2 and 3

14.  The defendant was the registered owner of the Motorcycle.  According to the records of the Transport Department, its vehicle licence had expired on 11 May 2022. In other words, on 14 December 2022, the defendant drove an unlicensed vehicle on the road.  At the same time, when he rode the Motorcycle, he had failed to display a valid vehicle licence.

Mitigation & Sentence

15.  The defendant is 21 and has a clear criminal record.  Regarding his traffic record, the defendant obtained his driver's licence on 9 November 2022 (just one month prior to the present accident).  He has received 18 fixed penalty tickets (10 of which were for "Failing to display valid licence" and 2 were for "Driving an unlicensed vehicle") and has 1 conviction for "Failing to display valid licence".  I am aware that 15 of his fixed penalty tickets post-dated the present case.

16.  Defence counsel Mr. Allan informed me that the defendant is a 1^st year student at HKU SPACE studying law.  In mitigation, he submitted that defence has written to the prosecution on 23 January 2024 offering a guilty plea to "Careless driving", but was rejected.  Mr. Allan invited me to consider other sentencing options instead of imprisonment.  I decided to call for a Community Service Order Report.

17.  Comments in the CSO Report are favourable.  The defendant came to Hong Kong from Pakistan with his family in 2013.  He received primary and secondary education in Hong Kong.  After DSE, he worked as a construction worker for a short period of time.  In May 2024, he started his own business selling electronic products.  His current income is $25,000 per month.  The defendant is also studying for a part-time Certificate in Legal Studies at HKU SPACE.  In his spare time, he performs volunteer work serving the Pakistani community in Hong Kong. 

18.  To the victim(s) and their families, a traffic accident which involves fatalities or serious personal injuries must be one of the most tragic events which could happen to them.  It saddens me each time when I need to deal with a case in which someone has lost his/her life or has been seriously injured as a result of a traffic accident.

19.  I have viewed the video footage of the accident more than a few times.  The time gap between the moment when the deceased set foot on southbound Nathan Road at the Crossing and the moment of impact was about 2 seconds.  But in those 2 seconds, a traffic accident occurred and the deceased lost his life.  That is the reason why the court must instil into the minds of the general public that driving (be it in a professional or recreational capacity) is a privilege ‒ a privilege with great responsibilities attached.  It is a message which cannot be stressed enough.

20.  In SJ v Lam Siu Tong [2009] 5 HKLRD 601, the Court of Appeal held "It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious: it is highly likely that people will be crossing the road there, whatever the time of day or night...[7]  In SJ v Wong Wai Hung [2011] 2 HKC 224, Tang Ag. CJHC commented that "we must drive home the message to drivers that the court takes a very serious view of accidents on pedestrian crossings[8]." It is true.  A driver should always proceed with caution when approaching any type of pedestrian crossings.

21.  It is perhaps easy to say in retrospect what someone should or should not have done in order to avoid the accident.  In my view, despite the tragic consequences of the accident, the defendant did not make a serious mistake in terms of his driving manner.  He had a green light and was not speeding; whereas the deceased was jaywalking.  At present, the law does not require a driver to be able to stop for a pedestrian under any circumstances.  On the other hand, the law says the defendant should have kept a proper lookout for the presence of the deceased. 

22.  In the course of sentencing, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just[9].  I must also consider the hardship caused to the deceased's family as a result of his death as well as their grievances and resentment[10].

23.  The defendant was a newly licensed motorcyclist at the time of the accident.  I have reminded myself that his sentence must commensurate with his wrongful conduct in the present case.  After careful consideration, I take the view that a Community Service Order is the appropriate punishment for "Careless driving".

[Requirements of Community Service Order explained. The defendant understood and is willing to comply.]

I sentence the defendant to 200 hours of Community Service for Charge 1. I also impose a condition that he shall abstain from all dangerous drugs and submit himself for random urine tests during the supervision period as directed by the supervising probation officer.

24.  In addition to a Community Service Order, I make a disqualification order for a period of 9 months[11].  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[12].

25.  For Charge 2, the maximum penalty for a first conviction is a Level 2 fine (i.e. $5,000) and imprisonment for 3 months.  I am aware that the defendant received 2 fixed penalty tickets for "Driving an unlicensed vehicle" respectively on 2 and 20 July 2023, but they are not convictions.  In theory and chronologically, Charge 2 is his first conviction.  I fine him $1,000 for this charge.

26.  For Charge 3, the maximum penalty is a Level 1 fine (i.e. $2,000) and imprisonment for 3 months.  The defendant had 1 conviction of and 3 fixed penalty tickets for "Failing to display a valid vehicle licence" prior to the present case.  I fine him $800 for this charge.