HKSAR v. SO CHUN FAI

DCCC 932/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.932 OF 2013

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Reasons for Sentence

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1. The defendant pleaded guilty to one charge of causing death by dangerous driving and one charge of using a goods vehicle on the road without fitting rearguards.

Facts

Charge 1

2. The defendant was the driver of a heavy goods vehicle RR 6685. At 11:14am on 2^nd April 2013, when the vehicle was about 81 meters (or 4.8 seconds) from a pedestrian crossing, the vehicle traffic lights turned from green to amber. The defendant’s vehicle is estimated to have been travelling at an average speed of around 68 km/h at this point, which was within the speed limit of 70 km/h for that section of the road.

3.  The defendant did not slow down and maintained his speed while approaching the pedestrian crossing. When the vehicle was about 31-36 meters (or 1.9 seconds) from the crossing, the vehicle traffic lights turned from amber to red.

4.  The defendant did not stop but continued to drive through the red light at an estimated speed of about 59 km/h.

5.  Closed circuit television at the nearby petrol station captured 9 year old girl Bibi Faiza stepping on to the pedestrian crossing after the vehicle traffic lights had turned red. The defendant’s vehicle ran into Ms. Faiza from her right hand side and threw her to her left hand side. Ms. Faiza died from the injuries sustained. Autopsy report suggest that she was rolled over by the defendant’s vehicle and dragged along before the vehicle came to a stop some 60 meters away from the pedestrian crossing.

6.  It is the opinion evidence of the Government Forensic Scientist that had the defendant applied emergency braking from the moment the vehicle traffic lights turned amber, the incident could have been avoided.

7.  The incident happened on a straight section of the Northbound carriageway of the 2-lane Castle Peak Road. The pedestrian crossing was controlled by a set of traffic lights, with 2 rows of studs marking the yellow strips of the crossing. The white stop line for vehicles is 2 meters from the edge of the yellow stripes.

8.  Before arrival at the pedestrian crossing, there was a ‘SLOW’ marking on the road surface at about 95 meters before the crossing, a warning traffic sign of ‘Traffic Lights Ahead’ at the central embankment between the North and South carriageway, another ‘SLOW’ marking 33 meters before the crossing and a traffic warning sign of ‘Children Ahead’ 26 meters before the crossing.

9.  The weather was dull but the road surface was dry and in good condition at the time of the incident with good visibility and moderate and smooth traffic. All traffic lights at the scene were in proper working order.

Charge 2

10.  The defendant’s vehicle was later examined and found to have been in breach of the regulations requiring goods vehicle over a certain tonnage to have rearguards fitted. There is no evidence that this failure to comply had any bearing on the defendant’s manner of driving in the incident.

Previous convictions

11.  The defendant has 2 previous criminal convictions, both dating back to 2005. The first one was for assault occasioning actual bodily harm and the second was for possession of a dangerous drug. He was fined on both occasion.

12.  In relation to the defendant’s traffic record, he has been fined for speeding on 11 previous occasions, with 4 of those in 2013, the latest being on 28 February, just 33 days before the present incident. Save for 1 speeding conviction in 2006, the remaining 6 convictions were all in 2012.

13.  There was one careless driving conviction dated 12 April 2012 and other failures to comply with various traffic signs.

Mitigation

14.  The defendant is 43 years old. He was born in Hong Kong and educated up to secondary 2 level. The defendant has been a professional goods vehicle driver for 15 years and was earning $18,000 per month prior to the incident. All his income goes to his family.

15.  The defendant resides with his partner and their 8 year old son. His partner works as a cashier earning about $5,000 per month.

16.  Mr. Davies submitted that the defendant’s dangerous driving was not the most serious of its kind. He informed the court that the defendant had donated $2,000 to Ms. Faiza’s family through Apple Daily Newspaper shortly after the incident and that the defendant is extremely remorseful about what he had done.

17.  Mitigation letters from the defendant’s partner, his employer and friends were handed up. They were all shocked to learn about the defendant’s dangerous driving incident because they have always found the defendant to be a good person.

18.  Mr. Davies then referred the court to the case of Secretary for Justice v Wong Wai Hung, CAAR 7/2010.

19.  In Wong Wai Hung, an 87 year old gentlemen was knocked down and died from his injuries while crossing slowly at a zebra crossing with his domestic helper. The Court of Appeal reiterated what was said in an earlier case of Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601:

“19. In Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, CAAR 2 & 4 of 2009, this Court (Ma CJHC, Hartmann JA and Saw J) made clear that it would be a serious aggravating feature that dangerous driving causing death occurred at pedestrian crossings, and that a conscious disregard for traffic lights would be likely to put the case into the most serious category. This court also said one must not overlook the fact that an innocent life has been taken away, and that good character and remorse may count for very little.”

20.  Although Mr. Davies did not refer directly to Lam Siu Tong, I find it necessary to do so in order to understand better the rationale of the Court of Appeal in Wong Wai Hung.

21.  In Lam Siu Tong, CAAR 2/2009, the respondent drove a private vehicle at relatively high speed (74 km/h on a road with a 50 km/h speed limit) through an amber traffic light at a pedestrian crossing and hit the deceased who was crossing the road. The Court of Appeal accepted that they had to make the assumption that the deceased must have ran on to the crossing when the pedestrian light was still red. The application for review was successful and the Court was of the view that a proper starting point should be 2 years’ imprisonment.

22.  In Wong Ton Fan, CAAR 4/2009, the respondent was the driver of a double decker bus that collided with a 54 year old person who was crossing the road at a pedestrian crossing. Mr. Chong died as a result of injuries sustained. Just prior to the collision, vehicles on either side of the respondent’s lane had stopped in front of the pedestrian crossing because the vehicle traffic lights were red. The respondent, in the middle lane, however did not stop nor slow down and continued to approach the crossing at 30 km/h. Evidence was that the pedestrian lights were showing green when the deceased was hit by the respondent’s bus. For the purpose of the review, the Court of Appeal assumed that the bus driver did not actually see the vehicle traffic lights were on red against him. The review was successful as well and the Court found that a proper starting point should be that of 3 years’ imprisonment.

23.  It must be pointed out that the applicable maximum sentence for dangerous driving causing death was that of 5 years’ imprisonment at the time when those two cases were being dealt with.

24.  The Court of Appeal highlighted one common feature in both Lam Siu Tong and Wong Ton Fan, namely, that the incidents took place at pedestrian crossings and stated that they are,

“20. …..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.”

25.  Back to the case of Wong Wai Hung. Having referred to Lam Siu Tong, the Court considered that ‘a conscious disregard for pedestrians is equally, if not, more reprehensible’ than a conscious disregard for traffic lights, which would put a case into the most serious category of dangerous driving.  In Wong Wai Hung’s case, the Court of Appeal considered the respondent’s culpability as being at the lower end of the higher culpability range, as adopted in the English case of R v Cooksley and Others [2003] 3 All ER 40 and agreed to by the Hong Kong Court of Appeal in the case of Secretary of Justice v Poon Wing Kay [2007] 1 HKLRD 660, and they “would not consider a starting point for sentence of 4 years’ imprisonment to be manifestly excessive”.

Sentence

Charge 1

26.  The maximum sentence on conviction on indictment for causing death by dangerous driving under s.36(1) is that of a fine at level 5 and imprisonment for 10 years.

27.  The defendant is not of clear traffic record. He has multiple convictions for speeding in both 2012 and 2013. Given the type of heavy goods vehicle that he has been driving for a living, even simple speeding can have dire consequences. The defendant has not been a considerate driver as evidenced by his speeding convictions.

28.  It is understandable how a professional driver might want to perform his duties quickly and as a result might choose to be less vigilant in observing traffic regulations, in particular traffic lights. This should not be the case and must be discouraged. As pointed out by the Court of Appeal in Wong Wai Hung, it must be driven home the message to drivers that the court takes a very serious view of incidents on pedestrian crossings.

29.  The defendant had ample warning in the form of the markings on the road as well as the warning sign of ‘children ahead’. He made the conscious decision not to slow down when the lights turned amber and so was not able to stop in time when the lights turned red and Ms. Faiza stepped on to the crossing.

30.  Photographs, especially 43 and 44, of the pedestrian crossing show that any competent driver coming from the defendant’s direction must have been able to see Ms. Faiza standing on the kerb waiting to cross the road. In fact, camera 6 of the closed circuit television footage (at counter 14:30) captured Ms. Faiza arriving at the crossing 37 seconds before she took 3 steps onto the road and was knocked down by the defendant’s vehicle. It is clear that she did not run onto the road.

31.  Camera 3 of the closed circuit television footage showed the vehicle traffic lights changed from green to amber at counter 14:34, and from amber to red at just before counter 14:39, with the defendant’s vehicle entering the right side of the picture just a fraction of a second later.

32.  It can also be seen from the camera 6 closed circuit television footage that apart from Ms. Faiza, there were a number of other pedestrians waiting to cross on the same side of the road. Any responsible driver would be on immediate alert when approaching the crossing given their presence. Yet, instead of slowing down his vehicle when the traffic light turned amber, the defendant decided to continue at the same speed and not to heed the amber light warning. It must be taken as likely that pedestrians might run onto the road or even jaywalk, and a driver must always be prepared for such emergencies when approaching a crossing such as the present one where the road was busy and in particular when the defendant was driving such a heavy vehicle. In our present case, the jumping of the red light by the defendant rendered his action even more culpable.

33.  Taking into consideration the aggravating factor that the incident happened on a pedestrian crossing and that the defendant had jumped a red light, I would put the defendant’s culpability as just below that of the respondent in Wong Wai Hung and adopt a starting point of 45 months’ imprisonment. Given that the defendant pleaded guilty, I grant him the full one-third discount and sentence him to 30 months’ imprisonment.

Disqualification

34.  Pursuant to s.36(2A)(a) of the Road Traffic Ordinance, given that this is a first conviction for a s.36(1) offence, the defendant is disqualified for a period of 5 years.

Driving improvement course

35.  Pursuant to the requirement under s.72A(1A) of the Road Traffic Ordinance, there being no special reasons against the making of an order, the defendant is ordered to attend and complete a driving improvement course. Pursuant to s.72A(3B)(b), the defendant must attend and complete the driving improvement course within the last 3 months of the said disqualification period of 5 years.

Charge 2

36.  The maximum sentence under s.121 of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap.374A is that of a fine of $10,000 and imprisonment for 6 months.

37.  This is the defendant’s first conviction for this type of offence. It is the prosecution’s evidence that the lack of the rearguard did not contribute to the dangerous driving incident. The defendant is fined $5,000.