HKSAR v. HUNG WAI LOK

DCCC 612/2021

[2021] HKDC 1654

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 612 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges:-

Charge 1: dangerous driving causing death, contrary to S.36(1)  of the Road Traffic Ordinance, Cap 374.

Charge 2: Using a vehicle fitted with a pneumatic tyre that has its portion of the cord structure exposed, contrary to regulations 22(1)(e)  and 121(1)  of the Road Traffic (Construction and Maintenance of Vehicles)  Regulations, Cap 374A.

Summary of facts

The Accident

2.  At 7:14 am on 30 October 2020, the defendant drove a light goods vehicle along the westbound lane of King Lai Path.  While Mr Wong stood on the pavement waiting to cross the road. When Mr Wong took one step onto the Crossing, the LGV approached without slowing down and proceeded straight across the Crossing.  The left front side of the LGV then collided with Mr Wong who fell onto the ground.

3.  At the material time, another pedestrian Mr Mak was waiting to cross the Crossing on the opposite side of the pavement and had already taken two steps onto the Crossing.  He noticed the LGV travelling towards the Crossing at high speed without decelerating.

The Injuries

4.  As a result of the accident, Mr Wong suffered from severe right chest injury.  He was certified dead at 5:16 pm of the same day.

5.  Autopsy revealed that the cause of death was lung contusion.

The Investigation

6.  Upon police enquiry at the scene, the defendant told the police that he was driving at around 30 km/h.  He saw Mr Wong standing on the left-side pavement before the LGV entered the zigzag lines of the Crossing.  He continued driving forward as there were vehicles proceeding on the other lane.  Mr Wong suddenly stepped forward when the LGV reached the middle of the Crossing, he immediately applied the brakes upon hearing the collision on his left side.

7.  Under caution:-

(a)  When he first saw Mr Wong, the LGV was about 2 private cars away for him;

(b)  When the LGV was in the middle of the Crossing, Mr Wong suddenly took a step forward and the LGV’s left wing mirror hit Mr Wong. The collision took place about 5 seconds after he had first noticed Mr Wong;

(c)  The defendant knew that pedestrians had priority over vehicles at zebra crossings and that vehicles had to decelerate if there were pedestrians waiting to cross the road. However, he did not slow down when approaching the Crossing as there were vehicles passing through the Crossing on the other lane. He did not expect Mr Wong to step onto the crossing.

Motor Vehicle Examination

8.  As a result of the collision, two dent marks were created at the left front of the LGV near its structural column and the LGV's left wing mirror fell off.

9.  There was a mechanical defect in that the internal cord structure of its offside front wheel tyre was exposed.

Criminal record

10.  The defendant has got 3 previous convictions.

(1)  in 2016 for conspiracy to criminal damage;

(2)  in 2020 for possession of dangerous drugs. In both occasions, probation order was imposed.

(3)  5 days ago, he was further convicted in KT court for a number of driving offences which occurred in October 2021. That was about one year after the present offence. He was ordered to pay a fine and disqualified from driving for a period of 12 months.

Traffic convictions

11.  The defendant obtained his driving license in April 2019.  He was ordered by the Transport Department to attend driving improvement course, but he failed to attend within the specific period of time.  He subsequently attended driving improvement course ordered by the court and completed in June 2021 and October 2021. Other records:-

a. Driving in excess speed limit in 2019, 2020 (3 times), 2021 (3 times);

b. Failing to display valid license in 2020;

c. Failing to secure fasten seat belt in 2020 (2 times);

d. Driving unlicensed vehicle in 2021.

Mitigation

12.  The defendant is aged 22.  He was a LVG driver earned about HK$20,000 per month.  He was responsible for delivery of roasted meats to various restaurants.  He is now unemployed, living with his parents.

13.  As to the road of the accident, he was required at work to deliver roasted meat to restaurants on daily basis.  He was familiar with that part of the road condition.

14.  The defendant has made full and frank admission to the police.

15.  He pleaded guilty to the charges and saved the court's time.

16.  The defence referred to HKSAR v Wong Wai Hung CAAR 7/2010 that the appropriate sentence for causing death in zebra crossing should be 2 ½ years.

Sentence

17.  The maximum sentence for each charge:-

(a)  charge 1 is 10 years imprisonment;

(b)  charge 2 is $10,000 fine and 6 months imprisonment.

18.  There is no doubt that an innocent life could be saved had the defendant stopped his vehicle before the give way line at the zebra crossing.

19.  It has been emphasized in many cases that a vehicle can maim or kill.  Driving a vehicle comes with great responsibility to the road users, including the pedestrians.

20.  As said in the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 610 that

“in assessing the overall seriousness of a crime, culpability is often the dominant factor.”

21.  In Cooksley [2004] 1 Cr. App. R. (S.), there were four categories of culpability and they were adopted in Hong Kong:-

(a)  Where there are no aggravating factors

(b)  Intermediate culpability

(c)  Higher culpability

(d)  The most serious culpability

22.  In Cooksley, it also said that even without aggravating factors, the starting point is 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.  In Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, the Court of Appeal made it clear that it would be a serious aggravating feature that dangerous driving causing death occurred at pedestrian crossings.

24.  In Poon Wing Kay's case, the Court also emphasized that it is important for the courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is necessary to have in mind a deterrent effect when passing sentence in dangerous driving.

25.  In the present case, when the defendant approaching the zebra crossing, he was aware that there were pedestrians on the pavement waiting to cross the Crossing.  There were no other vehicles in front of him to block his view.

26.  I have the opportunity to see the CCTV footage in the open court with all the parties, that footage was captured from a coach which happened to drive pass the vicinity at the material time.

27.  In that footage, we all can see that Mr Wong was already at the pavement, looked to the defendant’s direction before he stepped onto the zebra crossing. When he was hit by the defendant’s vehicle, he was already one foot on the Crossing. After he was hit by the vehicle, his body was lying on the ground of the zebra crossing.

28.  Another pedestrian from the opposite side immediately appeared in the middle of the zebra crossing and he stopped to let the defendant’s LGV to drive pass.

29.  The defendant said that under caution he saw 3 to 4 pedestrians waiting to cross the road at the Crossing.

30.  Clearly, in his mind, it was for the pedestrians to give way to him, not him to give way to the pedestrian.

31.  His driving manner was appalling, he totally disregard the safety of the pedestrians.

32.  When there were pedestrians on the pavement by the zebra crossing, clearly those pedestrians have priority to cross the road over the vehicle.

33.  In the Hong Kong Transport Department, the road users code regarding zebra crossing, it said that:-

“when approaching a zebra crossing, look out for pedestrians waiting to cross (particularly children, the elderly and the disabled). Be ready to slow down or to stop behind “the Give way” line to them to cross”

34.  In the CCTV footage, the defendant’s vehicle had no sign of slowing down or to stop in front of the give way line, it just drove forward and hit Mr Wong. This is an aggravating factor. I find his culpability was in the intermediate culpability category. The only mitigating factor for the defendant is his guilty plea. I adopted a starting point of 30 months, reduced to 20 months after 1/3 discount. (Charge 1)

35.  I also order the fine to pay a fine of $3,000 for charge 2.  The defence informed this court that can be deducted from his bail sum.

36.  As to the mandatory disqualification, I order the defendant to be disqualified from driving all classes of vehicles for a period of 5 years.  This disqualification will commence after his 12 months disqualification period in KT 2079/21, that means the current disqualification order is to run consecutively to KT 2079/21.  I also order the defendant to complete a driving improvement course at his own expense within the last three months of the disqualification period.  Failing which, the defendant may be subjected to another criminal offence.