HKSAR v. TANG MAN CHING

DCCC 526/2021

[2021] HKDC 1427

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 526 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to three charges under the Road Traffic Ordinance Cap 374:-

First charge:	Dangerous driving causing death, contrary to S36 (1)
Second charge:	Failing to stop after the accident contrary to S56(1)(a)  and (5).
Third charge:	Failing to report an accident involving personal injury to another person, contrary to S56(3)  and (6).

2.  At about 7:22 am on 25 January, 2021, the defendant drove a private car on an unnamed road outside 19 Leung Tin Tsuen, Tuen Mun.

3.  A 89 year old lady walked along that road.

4.  The defendant reversed his car for some 40 meter, hit and knocked down the old lady without stopping the car and continued to reverse and rolled over the body of the old lady.

5.  When the defendant stopped the car some 20 meters away from the old lady, the defendant and his 3 passengers left the scene.

6.  At 7:28 am, PW1 saw the old lady lying on the road, he called the police.

7.  When the ambulance man arrived at 7:35 am found the old lady suffered serious head and limb injuries and was certified death at the scene at 7:36 am.

8.  When the police arrived, found the bloodstains underneath the car’s front plate and offside bumper.  The old lady’s beanie was rest on top of the boot of the car.

9.  The defendant surrendered himself on the same day.  He was arrested for dangerous driving causing death.  Under caution, he said that he did not intentionally knock down the old lady and killed her.

10.  In a video record interview, the defendant said that:-

(a)  While he was reversing the car along the road of Leung Tin Tsuen, he did not observe the middle rear-view mirror. He mainly relied on the side mirror.

(b)  He felt the car hitting and rolling over something, but he kept reversing until he parked his car.

(c)  When he found the old lady was lying on the ground, he was frightened and left the scene.

(d)  He relied on the side mirror, not the middle rear-view mirror for reversing.

Autopsy

11.  The autopsy report confirmed that the cause of the death of the old lady was “multiple injuries” and remarked that the multiple blunt injuries were consistent with having been hit by a motor vehicle.

CCTV

12.  It captured that the old lady walked along the road while the defendant reversed his car in the same direction.

13.  The car was seen bumping up and down at one point.

14.  Forensic scientist’s estimate of the speed of the car at the material time was 6 km/h.

Psychologist Reports dated 18 June 2021

15.  The prosecution also provided two psychologist reports regarding the mental health conditions of the old lady’s daughter and grandson.  They both suffered from grief and posttraumatic symptoms due to the traumatic death of the old lady and they were shocked to see the distorted body of the old lady as a result of the accident.

16.  The daughter cried often and grief for the sudden loss of her mother who was a cheerful and health person.  She also has nightmares related to the accident.  While the grandson’s daily functioning is impaired by poor sleep, his attention and memory are both deteriorated which affected his work performance.

Criminal conviction

17.  The defendant had one previous conviction of possession of dangerous drugs in 2020.  He was fined for $3,000.

Driving offences

18.  He obtained his driving licence in January 2016.  He attended driving improvement course ordered by the Transport Department and completed in March 2019.  He had:-

(a)  2 times of failing to comply traffic signals in 2017 and 2018;

(b)  Using mobile phone while he was driving a vehicle in 2018 and 2019;

(c)  Driving in excess speed in 2018 and 2019;

(d)  Crossing continuous double white line in 2018.

Mitigation

19.  The defendant is now 25 years of age, single, prior to the incident, lived alone and was a garage worker earning $15,000 per month.

20.  The defence stated the following mitigating factors:-

(a)  A timely guilty plea.

(b)  Surrender to police.

(c)  Very slow speed – 6 km/h.

(d)  No consumption of alcohol or drugs.

(e)  Momentary lapse of attention to the rear of vehicle.

(f)  The defendant became a vegetarian after the commission of the present offence. He was deeply remorse.

(g)  The defendant and his father dictated a Buddhist script daily to ask for forgiveness from the Buddha and to atone for defendant’s misdeeds.

(h)  Today the defendant further provided another mitigating letter to inform the old lady’s family that he was deeply sorry for what he did in this tragic incident. He asked for their forgiveness.

(i)  The defence also provided 6 cases for reference.

Sentence

21.  The maximum sentence of each charge:-

(a)  Charge 1 is one of 10 years;

(b)  Charge 2 is a fine at level 3 and 12 months imprisonment;

(c)  Charge 3 is a fine at level 4 and 6 months imprisonment.

22.  There is no doubt that if the defendant had been driving with a little bit of care by looking at the middle rear view mirror and asked one of his 3 passengers to come out of the cars to help him to reverse his car, this tragic accident could have been avoided.

23.  This accident of death could have been avoided had the defendant stopped immediately and checked what had been hit when he felt the back of cat hit something.  But he did not, he rolled over the body of the old lady and continued to reverse for 20 meters.

24.  By this time, the old lady must have been lying on the ground unconsciously and her distorted body must be in the full view of the defendant and his 3 passengers.

25.  He did not take responsibility to save the life of the old lady.  He simply left her and ran away from the scene.  His conduct was totally irresponsible. It was a worse case of failing to stop and to report the car accident.

26.  It had been emphasized in many cases that a vehicle can maim or kill.  Driving a vehicle comes with great responsibility.

27.  Due to this tragic incident, the old lady’s family members were in great distress.  I have received 2 psychological reports regarding the emotional condition of the daughter and the grandson of the old lady.  They both suffered from post-traumatic symptoms.

28.  As said in the case of Secretary for Justice v Poon Wing Kay, [2007] 1 HKLRD 610 that “where death resulted from dangerous driving, grave distress would be caused to the family of the deceased.  The impact on people’s lives ought to be taken into account when sentencing”.

29.  In R v Cooksley and others [2004] 1 Cr App R (S)  1, the English Court of Appeal identified a number of aggravating factors for this kind of offence.

30.  Yesterday, the prosecution told me that the defendant admitted under caution that he had been staying up with his friends chatting away over night since 11 pm the previous day and drove the 3 passengers home at the time of the accident.  This is an aggravating factor in considering the sentence.  The prosecution should have incorporated this piece of information into the summary of facts as the defendant was clearly deprived of sleep at the time of driving.

31.  The Court of Appeal said in the Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 at 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.”

32.  In Cooksley, four categories of culpability and were adopted in Hong Kong:-

(a)  Where there are no aggravating factors;

(b)  Intermediate culpability;

(c)  Higher culpability;

(d)  The most serious culpability.

33.  The sentence must convey a clear and strong message to all drivers that driving dangerously and causing death will be punished severely.  There must be a deterrent effect in sentencing offences of this nature.

34.  In Cooksley, it said that even without aggravating factors, 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.

35.  In the present case, the accident occurred in an unnamed road in a village in Tuen Mun.  There are village houses by the road.  That means both pedestrians and vehicles have to use the same road.  

36.  I have the opportunity to view the CCTV footage in the open court and I understand that it was a cul de sac.  The Defendant knew the condition of the road before the present incident as he had been there before.  There was also enough space for him to drive in, but he chose an easy way by reversing into the village.

37.  From the sketch provided by the prosecution, it was not a straight road. It has a curve, a bend.  That means the defendant could not see clearly when he reversing into the bend.

38.  From the CCTV footage, I can also see that the old lady was a normal size human being.  Any competent driver felt that there was a hit at the back of the car should have stopped immediately to check what happened instead of keeping on reversing.

39.  It was some distance to reverse in.  Some 20 meters at the hitting point and another 20 meter after hitting the pedestrian.  The defendant’s conduct by reversing in without seeking the help of his passenger was a selfish disregard of the other road users, especially when he did not stop after the accident. It is not difficult to imagine that the defendant’s 4 wheels rolled over the body of the old lady, resulting her body to be totally distorted.

40.  The defendant had a number of traffic conviction records which indicated that the defendant had a bad driving manner.

41.  I take into account that it was momentary lapse of attention.  His speed was slow when reversing.  He was deprived of sleep at the material time and the car rolled over the old lady, the tragic death of the old lady caused great distress to the family members.  I found his culpability was at the low end of the intermediate culpability category.  I consider that the following starting point is appropriate:-

(a)  2 years imprisonment in charge 1, reduced to 16 months after 1/3 discount;

(b)  6 months for charge 2, reduced to 4 months after 1/3 discount;

(c)  3 months from charge 3 reduced to 2 months after 1/3 discount;

(d)  2 months from charge 2 and one month from charge 3, a total of 3 months to run consecutively to charge 1. It arrives at a total of 19 months.

42.  Pursuant to S. 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 5 years.  This disqualification period will commence from the date of sentence.  That is today.  I also order the defendant to complete a driving improvement course at his own expense within the last three months of that 5 years disqualification period.  Failing which, the defendant may be subjected to another criminal offence.

43.  The defendant has to surrender his driving licence immediately.