HKSAR v. KONG WAI MING

DCCC 325/2022

[2023] HKDC 805

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 325 OF 2022

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REASONS FOR SENTENCE

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Introduction

1.  The Defendant was originally facing one count of causing death by dangerous driving, contrary to s.36(1)  of the Road Traffic Ordinance, Cap. 374 (“RTO”).

2.  He pleaded not guilty to the charge but pleaded guilty to the lesser offence of careless driving at the outset of the proceedings, which was however not accepted by the Prosecution.  After trial, the Defendant was acquitted of the charge of causing death by dangerous driving, and he was convicted of careless driving, contrary to s.38 of the RTO.

Facts

3.  It is undeniable that the present case is an unfortunate tragedy, in which the Defendant’s careless driving attitude has caused the death of the victim CHEUNG Woon-tong (the “Deceased”). 

4.  The fatal accident took place at around 14:36 hours on 10 September 2021, when the Defendant was driving a medium goods vehicle bearing registration mark TC5382 (the “MGV”)  near the junction of Shu Kuk Street and Marble Road, North Point, in Hong Kong (the “Junction”). 

5.  It is worth noting that the Defendant confirmed that he is an experienced driver of medium goods vehicles and used to drive at the material Junction.  At the time of the accident, there was sufficient sunlight, and the sight was clear, the weather was good and the road was dry.  The Defendant acknowledged that he knew the traffic conditions were busy, and the pedestrian flow was heavy at the Junction. 

6.  There was a “Stop” sign and double white lines painted on the road at the approach of the Junction from Marble Road and a yellow cross-hatched box marking (the “Cross-Hatched Marking”)  was painted on the road at the Junction.

7.  When approaching the Junction, the Defendant did apply the brakes, though did not stop at the “Stop” sign and double white lines, and entered the Junction despite knowing that it was not clear for him to exit.  As a result, he stopped at a distance behind a blue lorry (the “Lorry”)  on the Cross-Hatched Marking, which at the time was blocking an uncontrolled cautionary crossing adjacent to the North of the Cross-Hatched Marking. 

8.  The space between the MGV and the Lorry was sufficient for pedestrians to walk pass in order to cross Shu Kuk Street, albeit against traffic regulation.  Soon after the Defendant had stopped the MGV at the Junction, the Deceased was pushing a trolley across Shu Kuk Street at the Junction.  The Deceased walked slowly and steadily from the left-hand side to the right-hand side in front of the MGV.

9.  Just when the Defendant started moving the MGV forward again intending to complete the right turn, he steered slightly to the right as the Junction required, and the offside front tyre of the MGV caught the heel of the Deceased as he was then next to the driver’s door of the MGV.  The collision with the Deceased caused him to topple backward and fall under one of the rear offside wheels of the MGV.

10.  Based on two car camera footages taken respectively from a heavy goods vehicle at the Junction on the left-hand side of the Lorry and a UPS vehicle immediately behind the MGV at the time of the accident, and the reconstruction exercise of the accident conducted by the Prosecution traffic crash reconstruction expert witness Dr. Tao Chi Hang, I found that the Deceased was capable to be seen via the fisheye mirror on the MGV, but not by the direct eyesight of the Deceased, roughly between 3.4 seconds to 1.2 seconds prior to the impact. 

11.  It was only until at 1.2 seconds before the impact that the head of the Deceased was visible to the Defendant through the driver side window, to which the Defendant did not look at the right and failed to notice the Deceased at that moment.  Given the traffic condition at the Junction and there was a bus stopping behind the Lorry when the traffic was on halt at the material time, it was nonetheless reasonable in all circumstances for the Defendant to have paid more attention to the left hand side and hence his lack of attention to the right where the Deceased then was.

12.  Nonetheless, during such 2.2 seconds when the Deceased was visible to the Defendant’s position via the fisheye mirror, he failed to give due care and attention to check whether it was clear for him to drive forward before he started moving the MGV, which tragically resulted in this accident and hence the death of the Deceased. 

13.  Whilst there was insufficient evidence to support the finding that the Defendant’s driving attitude was far below what a careful and competent driver was expected to do, it was found beyond reasonable doubt that he was driving carelessly in failing to check for a clear path before moving the MGV so as to avoid hitting any pedestrian or obstacles, hence guilty of careless driving.

Background and driving records

14.  The Defendant is currently 53 years old.  He is single, and is residing with his 80 years old mother.  The Defendant’s mother is suffering from limb cancer, and the next medical appointment is in July 2023.  He has 3 siblings who are living apart. 

15.  It was submitted on the Defendant’s behalf that he has been unemployed since the accident.  That said, Mr. Ng submitted that the Defendant had worked for the previous employer for 13 years, and the employer spoke highly of the Defendant.

16.  At the time of the accident, the Defendant had had over 30 years of experience driving medium goods vehicles and heavy goods vehicles.  He has 5 criminal convictions.  In 1999, he was convicted of driving in excess of speed limit, driving while disqualified and using a motor vehicle on a road against third party risk; in 2000, he was convicted of driving while disqualified and using a motor vehicle on a road against third party risk.

17.  Mr. Ng also submitted that the Defendant began to suffer psychologically since the accident, and the accident has changed his life.  It was further submitted that the Defendant did not drive as the employer did not assign any work to him.

Mitigation

18.  The Defendant pleaded guilty to the charge of careless driving at the first opportunity.  The Defence urges this Court to offer a one-third discount to the sentence.

19.  It was submitted that whilst the loss of life is one factor that the Court should consider, the culpability is the main issue to be considered.  Mr. Ng submitted that none of speeding or jumping red light or any other form of inconsiderate driving was involved in this case, the culpability in this case is not the worst case of the kind.

Sentencing considerations

20.  In considering the question of sentence for careless driving, the first thing to note is that the Defendant was convicted of the lesser offence of careless driving after trial, to which he has entered a guilty plea at the outset of the proceedings.  The maximum sentence for careless driving is a fine of $5,000 and 6 month’s imprisonment.

21.  Another equally, if not more, important consideration in the present case is of course the actual consequence of the careless driving on the part of the Defendant which resulted in the tragic death of the Deceased.  That said, the culpability of the Defendant remains the primary consideration and the Court must decide whether the act of his careless driving was serious.

22.  The Court of Appeal clearly enunciated in HKSAR v Leung Chiu Yu[1], at §33, that:

“The fact that the primary consideration in driving offences is the culpability of the impugned course of driving does not derogate from the fact that the consequences of that driving are relevant for sentencing purposes. There is obvious sense in the remarks made by Blair-Kerr J in Chan Kwai-lai v The Queen [1968] HKLR 31 at 42 that whilst the fact that a driver has killed someone is not an element in the offence of careless driving, nonetheless:

“… What the fact of death does is to throw into proper perspective the reason behind the enactment of various provisions relating to careless, dangerous, and drunken driving, speeding, failing to give preference to pedestrians on road crossings, failing to obey various lawful orders in regard to stopping when approaching major roads and so on. These provisions have on object: to reduce the risk of death and injury on our roads. Yet, how often do we all forget the intensity of the potential danger to persons or property which is created by careless driving.””

23.  In the present case the Defendant, despite being an experienced medium goods vehicle driver, his familiarity at the Junction, and acknowledging that there were busy traffic and pedestrian flow there at the material time, he failed to stop at the Stop sign and entered into the Junction knowing that he did not have a clear exit.  As a result, he needed to stop his MGV at the Cross-Hatched Marking, at a distance behind the Lorry in front of him, with a cap that was wide enough for pedestrian to cross between the two vehicles. 

24.  Although his failing to stop at the Stop sign and proceeding into the Cross-Hatched Marking did not form the basis of the finding of his conviction, the Defence accepted, they are part of the relevant background leading up to this accident, namely that he had placed himself and the MGV at the relevant position.  Hence they need to be taken into consideration in deciding his sentence. 

25.  As noted above, the Lorry in front of the MGV was blocking an uncontrolled cautionary crossing adjacent to the North of the Cross-Hatched Marking.  With the space left by the Defendant between the two vehicles, it was only natural that pedestrians were left with little, if at all, options other than crossing between the two vehicles.  Given the uncontrolled cautionary crossing was blocked and the exit of the Junction was not clear, but the Defendant knowing that still took the risk and proceeded into the Cross-Hatched Marking, he essentially positioned himself to the risk of the pedestrians who needed to cross the Junction in front of and close to the MGV, as did the Deceased and the school girl.  Had the MGV been stopped before the “Stop” sign, there would be more space for the pedestrians to cross and for the Defendant to observe.

26.  In view of the above, the Defendant should have given due care in observing the road condition and making sure he has a clear path before moving his vehicle.  Especially the Defendant was driving an MGV, his standard of care should have been considered in light of the height and the size of the MGV.  He must have acknowledged the fact that when driving the MGV, his direct view of the front and two sides of the vehicle would be obstructed, and hence he needed to rely more on the fisheye mirror and wing mirrors installed on the MGV in checking the pedestrians and obstacles on the road before moving forward. However, the Defendant failed to do so and was unable to observe the Deceased who was crossing the Junction in front of the MGV, and eventually the offside front tyre of the MGV caught the heel of the Deceased as he was then next to the driver’s door of the MGV. 

27.  Having considered all the circumstances of the present case and the considerations above, even the Defendant’s driving manner was not far below that of a competent and careful driver, I find that the Defendant’s culpability was leaning towards the more serious end of the scale. 

28.  In view of the authoritative legal text submitted by Mr. Delaney, the case of HKSAR v Ng Siu Bun[2] was mentioned.  In considering the appropriate sentence, the Court of Appeal in Ng Siu Bun referred to Leung Chiu Yu (which involved the killing of a 4-year-old child who had strayed onto a pedestrian crossing)  and Li Chau Wing (which involved the loss of 21 lives and was described as “the other end of the spectrum”).  The Court of Appeal commented that the appropriate sentence in that case would have been 6 weeks’ imprisonment after trial.

Conclusion

29.  Having considered the facts as found, the relevant culpability of the Defendant and the result of the accident as elaborated above, and the mitigation advanced on the Defendant’s behalf, I adopt a starting point of 6 weeks’ imprisonment.  Given the Defendant has pleaded guilty to careless driving at the outset of the proceedings, I give one-third discount to the starting point.  Hence the sentence is reduced to 4 weeks’ imprisonment.

30.  Further, the Defendant has become unemployed since the accident, and given he was psychologically impacted by this tragic accident, I reduce the sentence further by 1 week to 3 weeks’ imprisonment.

31.  Therefore, the Defendant is sentenced to 3 weeks’ imprisonment.