HKSAR v. CHAN SHU KAN

[English Translation – 英譯本]

DCCC 589/2018

[2019] HKDC 363

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 589 OF 2018

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Reasons for Sentence

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1.  The defendant pleaded guilty to one count of causing death by dangerous driving.

Facts of the Case

2.  The fatal traffic accident in question took place at about 12:10 p.m. on 24 December 2017 when a green minibus GK6438 (“the minibus”) driven by the defendant reversed at the Festival Walk Public Transport Interchange and hit a 75-year-old woman (“the deceased”), causing her serious injuries which led to her death.

3.  Lanes 5 to 10 of the interchange were minibus stands.  There was a pavement between each of the lanes to allow passengers to queue up for minibuses. Near the front of each lane, there was a pedestrian crossing (“the crossing”) without traffic lights to allow pedestrians to walk to different minibus stands or to go from one side of the interchange to the other.  

4.  At the time of the offence, the interchange was well-lit and the road surface was dry.

5.  Shortly before the offence, the minibus driven by the defendant was originally parked in Lane 6.  In order to drive his minibus to Lane 7 which was to the right of Lane 6, the defendant drove forward and turned right.  When the rear of the minibus had just passed the front of Lane 7, the defendant began to reverse into Lane 7. It can be seen from the screenshots of the Festival Walk CCTV footage (Exhibit P12) that at that juncture, the deceased was walking along the crossing from the left of Lane 7 to the right, while the defendant continued to reverse without stopping. When the deceased was crossing Lane 7, she was knocked down by the defendant and the point of impact was near the middle part of the rear of the minibus. The defendant did not stop until about 2 seconds after the deceased was knocked down.  When he alighted to check, he found the deceased lying between the two rear tyres of the minibus.

6.  Some five minutes later, firemen arrived at the scene and immediately sent the deceased to hospital upon finding that she was in a coma with blood oozing from her nostrils. The deceased remained unconscious on arrival at hospital.  Her pupils were fixed, her brain and head traumatized.  Her condition deteriorated and she died from serious injuries at 3:02 p.m. on 25 December.

7.  Post-accident investigations revealed that:

a. when reversing, the defendant turned around to check the rear of the minibus. At the rear window, there was a piece of paper blocking the view of the deceased through the rear window;

b. the defendant continued to reverse for about two seconds after hitting the deceased;

c. before the collision, the speed of the minibus had likely to have been about 8 km/h;

d. when the defendant was reversing, there was no one to assist him.

8.  At a video interview under caution, the defendant disclosed that he had 20 years’ driving experience, of which 11 years were in driving a minibus.  At the time of the incident, he had been driving the minibus in question for about 1 year during which he drove it about once every 3 days.  He claimed that when he was reversing, he had checked the zebra crossing and the rear of the minibus but saw no one.

Defendant’s records

9.  Other than being convicted of careless driving on 29 April 2016 for which he was fined $1,000, the defendant has a clear record.

Mitigation

10.  The defendant is now 72 years old, married with two sons aged 27 and 25 respectively.  His wife is a cleaning worker, earning about $10,000 a month.  His elder son is suffering from a mental illness and cannot work while his younger son is unemployed. The defendant earned about $10,000 a month as a minibus driver.  He continued to work as a minibus driver after the incident and quit his job a week prior to his plea in court.

11.  Mr Yuen, for the defendant, pointed out that while the defendant had a conviction of careless driving, that incident of careless driving was not of serious gravity.  Given the fact that the defendant had 20 years’ driving experience, of which 11 years was as a professional driver, his driving record was in fact not bad, which also showed that his driving manner was good.

12.  Mr Yuen pointed out that when the defendant was reversing, the “hazard lights” of the minibus were on and the alarm was buzzing.  Having reversed at about 8 km/h for 5 or 6 seconds, the defendant realized that something unusual had happened and he stopped.  Before reversing, he had checked Lane 7. When reversing, he also looked backwards through the rear window of the minibus but unfortunately his view was partially blocked by pieces of paper stuck to the rear window. Yet, in the present case, there were no aggravating factors such as those set out in R v Cooksley [2003] 3 All ER 40.  Therefore, the culpability of the defendant should be in the least serious category.

13.  Mr Yuen then pointed out that the defendant’s biggest mistake was his failure to get someone to keep watch behind the minibus when he was reversing in order to give him instructions or warnings.

14.  Mr Yuen frankly accepted that where the collision in question took place at a crossing, the offender’s culpability would be more serious. However, he hoped that this Court would consider that the present case was different from cases involving collisions at crossings in general, and was less serious in nature.

Sentencing

15.  As a matter of fact, the collision involved in the present case did not take place at a pedestrian crossing controlled by lights or a zebra crossing with yellow beacons but an uncontrolled pedestrian crossing.

16.  However, this Court cannot disregard the fact that the purpose of setting up a pedestrian crossing within the interchange must have been to encourage pedestrians or passengers to go from one side of the interchange to the other, or to go between the stands and the exit of the interchange or the entrance to the shopping arcade via the crossing instead of walking everywhere within the interchange, thereby endangering themselves. Therefore, drivers within the interchange should pay particular attention to the crossing. And it is precisely because the crossing in question was not controlled by lights that drivers should be vigilant against, in particular, the possibility of any pedestrian walking along the crossing at any time.

17.  As the Court of Appeal pointed out in paragraphs 24 and 25 of the judgment in SJ v Wong Wai Hung（黃偉雄）CAAR 7/2010, as far as traffic accidents on zebra crossings are concerned, it is all the more necessary for the courts to drive home the message that there may be extremely grave consequences flowing from acts of dangerous driving and it is therefore often necessary to pass a deterrent sentence.  Otherwise, how could one persuade pedestrians to forsake the convenience of crossing wherever they like, and make an effort to cross at a zebra crossing?  This is exactly why the court takes a very serious view of accidents on pedestrian crossings.

18.  The Court of Appeal said the following in SJ v Lam Siu Tong （林兆棠） [2009] 5 HKLRD 601:

“19. At the outset of this judgment, we highlighted one feature common to both Reviews, namely, that the accidents took place at pedestrian crossings. 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. Accordingly, if motorists approach pedestrian crossings at high speed, or disregard traffic lights, there is a high risk that an accident will occur. And where a collision takes place, fatalities are common as we have seen in the Reviews before us.

20. Thus, we are of the view that where the offence of dangerous driving causing death is established and this involves the running over of persons at pedestrian crossings, then, for the purposes of sentencing, it would be a serious aggravating feature that the accident has occurred in such a location. The degree of seriousness will of course depend on the precise circumstances. For example, a conscious disregard for traffic lights will likely put the case into the most serious category.”

19.  Thus, I disagree that the culpability of the defendant was in the least serious category set out in Cooksley.

20.  Lam Siu Tong dealt with two reviews, namely CAAR 2/2009 involving Lam Siu Tong and CAAR 4/2009 involving Wong Ton Fan. In CAAR 2/2009, Lam Siu Tong was driving at about 74 km/h towards a pedestrian crossing governed by traffic lights on Tuen Kwai Road.  The speed limit for that stretch of road was 50 km/h.  As he approached the crossing, the traffic lights turned to amber from green. However, when he hit a woman at the crossing who he claimed appeared suddenly in front of his car, the lights had already turned to red. In view of the fact that the deceased dashed out of the road suddenly, the Court of Appeal considered that a sentence of 24 months’ imprisonment could reflect the seriousness of the incident. However, the Court also pointed out that should it not have been the case that the deceased was in part responsible for the collision, the starting point would have been much higher than 24 months.

21.  In CAAR 4/2009, Wong Ton Fan was driving a bus along the middle lane of Cheung Sha Wan Road north bound towards Cheung Lai Road (sic) at the time of the incident when he hit and killed a man at a pedestrian crossing.  At the crossing, there were traffic lights governing pedestrians and vehicles.  As Wong approached the crossing, there were on either side of him vehicles that had stopped in front of the crossing.  However, without slowing down or stopping, Wong kept driving towards the crossing and knocked down the deceased.  At that time, he was travelling at about 30 km/h.  Since Wong was “jumping the red light” at that time, and even if he did not see the lights, he disregarded the vehicles that had stopped on either side and realised that the traffic lights must have turned to red (sic), the fact that he still drove forward was without doubt reckless.  The Court of Appeal considered that a sentence of 32 months’ imprisonment was appropriate.

22.  It is worth noting that both Lam Siu Tong and Wong Ton Fan occurred prior to the effective date of the law altering the maximum sentence for this type of offence from 5 years’ imprisonment to 10 years’ imprisonment.

23.  In SJ v Liu Kwok Chun（廖國鎮）CAAR 3/2009 and CACC 34/2009, the offender drove past a zebra crossing marked by a yellow beacon at a speed at least 12 km/h over the speed limit and hit and killed a woman thereat. He did not stop after the accident. The Court of Appeal was of the view that the acts of the offender were close to the high end of intermediate culpability in Cooksley and varied the original sentence of 2 years and 8 months’ imprisonment to one of 3 years and 3 months’ imprisonment. This case also took place prior to the increase in the maximum sentence.

24.  In Wong Wai Hung, the collision took place on 21 May 2009 at a zebra crossing on a road within a large private housing estate. There was a yellow beacon on each side of the zebra crossing with a “drive slow” marking and a road hump. There was also a 20 km/h speed limit traffic sign there. The respondent approached the crossing at more than 20 km/h. Although he saw that there were people crossing the road at the crossing, he still drove forward and consequently knocked down and killed the deceased who was in a wheelchair and also knocked down and injured the domestic helper who was pushing the wheelchair. The Court of Appeal considered that the offender, having consciously disregarded the pedestrians on the zebra crossing and ignored all the warning signs and the deceased who had the right of way at that location, did not stop or slow down. The Court found that the offender’s culpability should fall within the “higher culpability” category in Cooksley and that a starting point for sentence of 4 years was not manifestly excessive. However, having regard to the fact that it was a review of sentence case and that the respondent would soon finish serving the sentence imposed on him in the original trial, the Court of Appeal altered his sentence to 2½ years’ imprisonment.

25.  Unlike the circumstances in the above authorities, the collision in the present case, although it occurred at a pedestrian crossing, did not involve driving in excess of a reasonable speed or continuing driving towards the crossing by the defendant who had consciously disregarded the pedestrians at the crossing. As the crossing was not controlled by lights, there was no question of “jumping the light” or disregarding the lights.

26.  Notwithstanding these matters, it did not mean that the defendant could let down his guard or take it lightly.  The defendant took a risk when he chose to reverse into another stand instead of taking the normal course by driving to the end of that stand and then driving forward into that stand. This is because when a pedestrian was crossing that stand along the crossing, he would normally check whether there was any vehicle coming from the end of that stand. In other words, he would only pay attention to whether there was any vehicle approaching from the correct direction of traffic and would not expect any vehicle approaching from the opposite direction. This is common sense and the defendant should have been aware of it.  Moreover, the interchange was the terminus for the minibus driven by the defendant and he must have known that passengers and other people would often use the crossings.

27.  Therefore, in adopting this unusual approach, i.e. reversing into the stand from the front, the defendant should have exercised extra caution. However, the defendant, when reversing, did not get someone to give other road users warnings or appropriate instructions behind his minibus in order to make sure that the road was clear and that there would be no collision with other vehicles or pedestrians when he was reversing.

28.  Furthermore, knowing full well that the paper stuck on the rear window of the minibus was partially blocking his view, the defendant should all the more not have reversed rashly by just looking backwards when there was no one else to assist him.

29.  According to the screenshots of Exhibit P12, the deceased kept walking along the crossing from the entrance of the interchange towards the 7^th lane instead of dashing out to the rear of the defendant all of a sudden.  If the defendant’s statement under caution that he looked at the zebra crossing and the rear of the minibus when reversing but saw no one was true, then it showed all the more that the observation he carried out at the time of reversing had been extremely cursory. The fact that the defendant did not stop until about 2 seconds after he had hit the deceased also showed that the defendant’s reaction was rather slow.

30.  Under these circumstances, I am of the view that the defendant’s culpability should be at the low end of intermediate culpability set out in Cooksley and so I adopt a starting point for sentence of 2 years.

31.  The driving record of the defendant, though not too bad, cannot be described as impeccable. Also, the defendant was convicted of careless driving less than 2 years prior to this incident. Thus, his driving record cannot be used as a mitigating factor.

32.  Except for the defendant’s guilty plea, there are no other valid mitigating factors in this case. The defendant is sentenced to 16 months’ imprisonment for this case after being given a one-third reduction for his  plea.

33.  I further order that the defendant is disqualified from driving for 5 years, i.e. within 5 years starting from today, the defendant is not allowed to apply for or hold a driving licence of any class of vehicle. The defendant is also required to attend and complete a driving improvement course at his own cost 3 months prior to the expiry of the disqualification period.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.