HKSAR v ABDUL GHAFOOR

DCCC 836/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 836 OF 2012

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Reasons for Sentence

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1. Defendant, originally you pleaded not guilty to a single offence of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374. However, from the outset you indicated a willingness to plead guilty to careless driving. That plea was not acceptable to the prosecution.

2. As you will recall, at the close of the prosecution case Mr Ross on your behalf made a submission of no case to answer. The basis of that submission, as I understand it, was that on either scenario advanced by the prosecution then you could not be convicted of death by dangerous driving.  For reasons which I gave at the time and do not intend to repeat again, I found in your favour.  I was satisfied on the evidence that had been presented to me that no reasonable tribunal properly directed could have convicted on the evidence it had heard.  Having made such a ruling and expressed the view that I agreed with your offer of a plea of guilty to careless driving, you confirmed that plea and I convicted you on the evidence. Hence we arrive at the position we are in today that you have to be sentenced for the lesser offence of careless driving.  Rather than go through the whole of the evidence which is unnecessary in my opinion, I am going to simply go through the main points and the prosecution’s case. 

3. The accident took place at the T-junction of Tak Shing Street and Tak Hing Street, Jordan.  Tak Shing Street westbound is a single carriageway.  At the junction with Tak Hing Street there is a give-way mark on the road and two give-way signs at both sides of Tak Shing Street westbound.  After going through the give-way signs, traffic has to turn right into Tak Hing Street which is also a single carriageway.  The road is 6.15 metres wide with a speed limit of 50 kilometres per hour.  At the time of the accident the weather was fine, the road dry and in good condition. 

4. On 6 March of last year at 1435 hours, you were driving LGV HY9956.  You proceeded along Tak Shing Street westbound.  On reach the junction with Tak Hing Street the prosecution say you did not comply with the give-way signs and went through without stopping or slowing down which, as I would comment here, is perfectly permissible if there is no one or no other vehicle on the other road.  It is not and never was portrayed as a stop sign. You turned right into Tak Hing Street.  At the time the deceased and her husband were crossing Tak Hing Street.  Her husband crossed first with the deceased about 10 feet behind.  They crossed at normal walking pace and would have been clearly visible on the road to you.  The male crossed but when the deceased walked to the middle of the road, she was hit by the offside of your vehicle, that is the prosecution case.

5. As we know, the evidence of PW4, that is the principle ambulance man, as led by the prosecution did not support this scenario.  This is because the deceased at the scene, at the very least putting it at the highest the prosecution had told the ambulance man that there was a possibility that she had panicked and walked into the vehicle.  She lost balance and fell. The front offside wheel of your vehicle ran over her left instep.  You stopped and the police were called.  She was taken to hospital. She was found to have a 10 centimetre diameter open wound at the dorsum of her left foot with exposed tendons and macerated tissue edges.  However, she became unconscious, she was sent for CT scan and without going into the minuté of what then took place, she was found to have internal head injuries which led to her untimely death.  Tragically on 15 March she died.

6. You denied the offence but admitted being the driver.  A nearby CCTV camera captured the process of the accident.  However, what it crucially did not show was the impact.  PW14, a forensic scientist of the Government viewed the CCTV and gave the following opinion: that you could have seen the male crossing Tak Hing Street when he was 32 metres from the junction; that you could have clearly seen the male near the middle of Tak Hing Street and probably could have seen the deceased when you vehicle was 19 metres from her; that you could have had a clear view of the deceased and the male when you were about 13 metres from the T-junction.  I comment as I did in my ruling on the submission of no case to answer that this witness also could not exclude the possibility that the lady had turned and walked into your vehicle whereas he found the prosecution version more likely.

7. You have no formal criminal convictions but you have had four fixed penalties in the past.  Very helpfully, Mr Yuen provided me with the case of HKSAR v Leung Chiu Yu Court of Appeal Review No. CARR 5 of 2011.  In that case, as in this present case, the defendant was convicted of careless driving, not death by dangerous.  There is a difference, however, it does seem that in that case that the defendant did not admit to careless driving.  Judge Browne fined him $4,000.  The Court of Appeal on the facts of that case added also a disqualification from driving for 12 months for reasons which they gave.

8. Mr Ross on your behalf entered mitigation.  He pointed out that there were two possible scenarios in this case, that put forward by the prosecution in which the lady was struck by your vehicle’s offside as she crossed the road, the second was that supplied by the ambulance man and not excluded by PW14, in which the lady had almost crossed the road, heard a horn and turned and possibly walked into the side of your vehicle.  It is very telling that evidence supportive of this second scenario was led by the prosecution in the person of PW4, the principle ambulance man who recounted the conversation he had with the lady before she was taken away to hospital.  Mr Ross submitted I should believe this or at the very least give you the benefit of the doubt as is customary.  Mr Ross, very fairly and properly accepted that there had been loss of life and this had to be taken into account. 

9. He submitted that you yourself had suffered stress and sleeplessness because of this accident.  He told me that you are 38 years of age, married with four young children and a mother in poor health. You care for your family and are the sole breadwinner.  You had been in receipt of CSSA of $12,000 a month.  However, you had chosen to take a job driving which only paid $8,000 per month.  This reflected your willingness and wish to support your family.  You had come to Hong Kong from Pakistan in 1994.  There you had been educated to Form 5 level. 

10. Mr Ross submitted that this accident was a momentary lapse of attention.  He reminded me that there was no excess speed involved, you were going some 10 to 16 kilometres per hour at the time of impact in a 50 kilometre per hour limit.  It was also part of the prosecution case that you had taken no alcohol, this was not a case of running a red light nor a pedestrian crossing. 

11. You produced four letters of support from members of the Islamic community in Hong Kong.  Naturally those letters spoke well of you and spoke of your charitable works.  I have read those letters and will ultimately take them into account.  Mr Ross went on to say that loss of your licence would result in your loss of employment and you being thrust back onto the State.  Pointing to your good record, the very low level of carelessness involved in this case and your personal circumstances of employment, he asked me to view this as an exceptional case.  I turn now to the sentence itself.

12. I agree with Mr Ross in this case.  Whilst I do take into account the tragic loss of life and I do find that your culpability was not of the highest, the evidence is highly supportive of the more favourable version to you and I do give you the benefit of the doubt in that regard.  You are a man without previous criminal convictions though I do note the four fixed penalties.  In this case there was no deliberate running of red lights, no deliberate running of pedestrian crossings and no failure to stop at stop signs.  Even on the prosecution contention, you had no duty to stop at the give-way sign if you perceived your way to be clear.  There is nothing to say that you had any other perception, however, this is where the carelessness arose because your way was not in fact clear.  You had a duty to make certain that no pedestrians were on the roadway and of course no vehicle, which was the case.  I note also that there was no question of alcohol playing a part in this case, that at all times your vehicle proceeded well within the speed limit. PW14 accepted the estimates of speed put forward by your own expert which meant at the point of contact with the unfortunate lady your speed would have been between 10 and 16 kilometres per hour.  This is supported also by the lack of damage to your vehicle. 

13. In my opinion, taking all the circumstances into account, it would not be the right sentence to suspend your driving licence.  I do note that if I were to do so, you would lose your job and then have to move back onto State benefit so the taxpayers of Hong Kong would then be looking after you and your family. 

14. Taking all matters into account, there will in this case be a fine of $4,000.  The fine will be paid from bail.  The remaining 1,000 of course will be refunded to the defendant.