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DCCC 258/2020
[2020] HKDC 450
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 258 OF 2020
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| Present: |
Mr Dimitri Au-Yeung, PP, of the Department of Justice, for HKSAR |
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Ms Anna Ho, instructed by Foo & Li, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Causing death by dangerous driving |
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(危險駕駛引致他人死亡) |
REASONS FOR SENTENCE
1. The defendant pleads guilty to one charge of causing death by dangerous driving, contrary to section 36 (1) of the Road Traffic Ordinance, the maximum sentence for which is 10 years’ imprisonment[1].
2. On 10 June last year the defendant was driving public light bus GP 8106 when he knocked down Madam Lao, aged 54, who was crossing Ma Hang Chung Road near the junction with Kowloon City Road.
3. Where Madam Lao crossed the road is described as an uncontrolled cautionary crossing[2]. Photographs of the scene of the accident have been submitted to court[3].
4. Full particulars of the offence are set out in the re-reamended summary of facts admitted by the defendant. In summary at around 1944 hours when Madam Lao started to cross Ma Hang Chung Road the minibus was stopped on Kowloon City Road.
5. When Madam Lao reached the middle of the road the defendant started to turn left into Ma Hang Chung Road. When Madam Lao had almost reached the pavement on the opposite side of the road the minibus knocked her down and rolled over her.
6. At the time the weather was fine, the road surface was dry and the traffic flow was light.
7. An ambulance was called and Madam Lao who was unconscious was taken to Kwong Wah Hospital. Madam Lao sustained multiple injuries from which she sadly passed away the same evening[4].
8. The police arrived and conducted a screening breath test on the defendant. No alcohol was detected from the defendant’s breath.
9. The defendant told the police that when he was making the left turn he did not pay attention to whether people were crossing the road and that he stopped the minibus only after he heard a “bang” sound.
10. In a subsequent video recorded interview, the defendant under caution said, inter alia, that he was familiar with the road; that pedestrians very often crossed the road; he could not see anyone crossing the road; he did not know where the deceased came from and only realized he had knocked someone down when a passenger yelled out the minibus knocked down somebody.
11. The motion data of the minibus revealed the highest speed of the defendant was 12km/h when he was turning left into Ma Hang Chung Road. The speed limit was 50km/h.
12. The accident was captured by the in car camera of a light goods vehicle which was following behind the minibus and an overhead CCTV. I have had the opportunity of viewing both the in car camera footage and the CCTV footage.
13. Dr Tao, a Government Chemist, reconstructed the accident and concluded that the defendant had an unobstructed view of Madam Lao and that with hard braking the accident could have been avoided.
Mitigation
14. In passing sentence, I have carefully considered the oral and written submission of Ms Ho, including that the defendant, aged 78, has high blood pressure and his wife, aged 54 has high cholesterol and diabetes[5].
15. I have read the mitigation letter written by the defendant’s daughter, who is 15 and is studying in Form 3.
16. I take into account that the defendant was helping out his ex-boss by taking up casual work to relieve the financial hardship of the family and that he is deeply remorseful[6].
17. I take into account that the defendant has only minor convictions for gambling and apart from a conviction for careless driving in 2012 and a fixed penalty for failing to comply with traffic signals in 2018, has a good driving record having first obtained his driving licence in 1964.
Dangerous Driving
18. In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[7]. These factors were revised in R v Cooksley[8]and have been adopted in Hong Kong[9].
19. Whilst in R v Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in R v Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another[10] emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.
20. In Secretary for Justice v Lau Sin Ting the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[11].
21. In R v Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability. This has also been adopted in Hong Kong[12].
22. In HKSAR v Lee Yau Wing, the court emphasised that the focus on the culpability of the driving has been adopted notwithstanding that it is sad feature of these cases that the offender is usually not a person of a criminal background but is a law abiding citizen of good character[13].
Sentence
23. In Secretary for Justice v Poon Wing Kay the Court of Appeal said: -
“It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”
24. Ms Ho in submitting the defendant’s driving falls into the low to intermediate culpability submits there are no aggravating features like excessive speed, driving under the influence of alcohol or prolonged, persistent and deliberate course of very bad driving[14].
25. The accident was however clearly avoidable. Having viewed the CCTV and the in car camera footage the defendant clearly had an unobstructed view of Madam Lao as she crossed the road.
26. Madam Lao is seen carrying bags in both hands and taking care as she crossed the road. Madam Lao crossed the road slowly letting a car pass in front of her. Madam Lao had almost reached the pavement on the opposite side of the road when the defendant knocked her down and rolled over her. This is not a case of a pedestrian dashing across the road or stepping in front of the minibus leaving the driver little time to react.
27. I am satisfied by failing to check whether any pedestrians were crossing the road before turning left; failing to see Madam Lao who walked across the road and failing to stop in time, the defendant’s driving falls into the higher end of the least culpable dangerous driving range.
28. Taking into account all the circumstances of the accident including that the defendant’s speed was no more than 12 km/h and that the defendant who is aged 78 has a good traffic record and is genuinely remorseful for what happened, I am satisfied that the proper starting point after trial is 18 months’ imprisonment.
29. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 12 months’ imprisonment.
Disqualification
30. There is mandatory disqualification of not less than 5 years in the case of a first conviction unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified. I find there are no special reasons. The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 5 years.
31. Section 72A (1A) of the Road Traffic Ordinance provides that a court shall order a person convicted of causing death by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order. Again I find there are no special reasons not to order the defendant to attend and complete a driving improvement course.
32. The defendant is ordered to attend and complete a driving improvement course, at his own cost, within the period of 3 months ending on the date on which the disqualification expires. The defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course notwithstanding the disqualification period may already have ended.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 374.
[2] Mr Au-Yeung submitted to court an extract printed from the Transport Department concerning “At-grade Pedestrian Crossings” which states that an uncontrolled cautionary crossing is normally indicated by dropped kerbs. Mr Au-Yeung also submitted regulation 39 of the Road Traffic (Traffic Control) Regulations “Duties of Pedestrians” and an extract printed from the Transport Department concerning the duties of a driver to pedestrians.
[3] The location of the accident is best seen in photograph 38 and close-ups of the dropped kerbs on either side of the road are best seen in photographs 42, 45, 55 and 58.
[4] See §§4, 17 & 18 of the re-reamended summary of facts.
[5] See §1 of the written mitigation submission.
[6] See §3 of the written mitigation submission.
[7] [1984] 3 All ER 35.
[8] [2003] RTR 32.
[9] See for example Secretary for Justice v Liu Kwok Chun CAAR 3/2009.
[10] [2007] 1 HKLRD 660.
[11] [2010] 5 HKLRD 318 at §36.
[12] For example, see Secretary for Justice v Liu Kwok Chun CAAR 3/2009.
[13] See HKSAR v Lee Yau Wing [2013] 1 HKC 572 at §32.
[14] See §4 of the written mitigation submission. In the list of authorities Ms Ho refers to the reasons for sentence in DCCC 809/2019 which are in Chinese. After clarification that the place where Madam Lao crossed the road was not a controlled crossing such as a zebra crossing Ms Ho no longer placed reliance on this case. Accordingly, no agreed translation was required of the reasons for sentence.
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