HKSAR v. CHEUNG CHAK HING

DCCC 656/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 656 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of dangerous driving causing death.

The Facts

2.  Around 10:40 am on 31 December 2012, the defendant was driving a goods vehicle NK 5250 along Marble Road in North Point in a westerly direction.  When he was making a right turn from Marble Road into Shu Kuk Street, his vehicle hit an 84-year-old Chinese woman Lo Mui Chun (“the Deceased”).  The Deceased was taken to the hospital.  She died at about 10:07 pm on the same day, from injuries she had sustained during the above accident.

The scene

3.  Marble Road runs in an east-west direction.  At some point, it is intersected by Shu Kuk Street which runs in a north-south direction.  Just before the accident occurred, the defendant has been approaching Shu Kuk Street from the section of Marble Road which is east of Shu Kuk Street (“the east section of Marble Road”).

4.  The east section of Marble Road is a one-way one-lane westbound carriageway.  Close to its junction with Shu Kuk Street, there were “Give Way” and “Turn Right on this Lane” markings on the road.  A “Give Way” sign and two “Turn Right” signs facing westbound traffic on the east section of Marble Road were erected at the junction, where there was a pair of transverse Give Way Lines.

5.  The section of Marble Road which is west of Shu Kuk Street (“the west section of Marble Road”) is a street market.  The stalls in the street market were in business at the material time.

6.  Shu Kuk Street is a one-way two-lane road, allowing traffic to move in a northbound direction only.

7.  At the time of the accident, the weather was fine, the road surface was dry, traffic volume was moderate and visibility was good.

The accident

8.  PW1 Mr Lo Siu Fan and PW2 Mr Tam Tien Heng were in different shops close to the scene of the accident.  Upon hearing the sound of a bang, they came out of their respective shops to find the deceased lying in the centre of the 2^nd lane of Shu Kuk Street.  NK 5250 was stopped at an oblique angle on the 2^nd lane, with its nearside front corner close to the intermittent white line dividing the 1^st and 2^nd lanes.  The Deceased was lying with her face up and her head pointing north.  Her head was farther away from NK 5250 than her feet, which were about one metre from off-side front of NK 5250.  She was bleeding from the back of her head.  Neither witness heard the sound of honking or braking.

9.  The goods vehicle NK 5250 did not leave any skid marks or brake marks at the scene of the accident.

10.  CCTV of a nearby building – the Odeon Building – shows that at the material, a pedestrian, identified as the Deceased, was crossing Shu Kuk Street from the 1^st lane to the 2^nd lane.  As she was crossing the 2^nd lane, a white goods vehicle, identified as NK 5250, emerged and then it came to an abrupt stop on the 2^nd lane.  Thereupon, the Deceased can be seen lying on the ground in front of this vehicle.

11.  CCTV of another nearby building - the Kin Bong Building – shows NK 5250 turning into Shu Kuk Street from Marble Road without stopping or slowing down at the junction, and at a speed relatively higher than other vehicles making the same turn.  Then NK 5250 suddenly stopped, and an object, identified to be the Deceased, can then be seen lying in front of this vehicle.

The defendant’s allegation

12.  At the scene, the defendant told PW6 PC 14347 that when he was making a right turn from Marble Road into Shu Kuk Street, he noticed the presence of the Deceased on the road.  He applied the brake at once, but he had no idea whether his vehicle had hit her.  After alighting from NK  5250 he found the Deceased lying on the ground.

Examination of NK 5250

13.  The lights, brakes, horn and steering were all operative.  No mechanical defect was found.  However, a small dent on the offside corner of the front of NK 5250 was noted by PW11 PC 4536 when he took over investigation of this case on 2 January 2013.  Photographs of this vehicle taken at the scene of the accident also reveal the presence of the said dent.

Cause of death

14.  The Deceased was first examined by a doctor at the Pamela Youde Nethersole Eastern Hospital at 11:11 am on the day of the accident.  She had injuries on her head in the form of a hematoma with 1 cm laceration over left parietal scalp with active oozing, and another hematoma over occipital scalp. She was treated and transferred to the Intensive Care Unit for further treatment, but she passed away at about 10:07 pm on the same day.

15.  The pathologist PW 14 Dr Fung Shing Hoi who carried out the autopsy concluded that the Deceased had died from head injuries in the form of skull fracture, subdural hemorrhage, brain contusion, and intracerebral hemorrhage suffered as a result of the above traffic accident.

Road users’ code

16.  The defendant was in breach of the Road Users’ code and his manner of driving fell far below what would be expected of a competent and careful driver in that he did not give way or slow down at the Give Way Lines; he did not give way and did not stop for the Deceased who was crossing Shu Kuk Street near the junction; he was driving too fast under the circumstances at the location which was close to a street market, where a lot of pedestrians were expected and were actually crossing the street at the proximity of the junction, and he failed to keep a proper lookout for the presence of pedestrians on the road.

Mitigation

17.  The defendant has a minor conviction in 2007 for common assault when he was placed on probation.  His traffic record shows that he has received five fixed penalty tickets in the last 3 years.

18.  The defendant is 22 years of age and was born in China.  He was educated to Form 3 standard.  I am told by his counsel that it was not until he left school that he was found to be dyslexic.

19.  He originally worked as a cook but later became a lorry driver over two years ago.

20.  He lives with his retired parents and elder sister in a rental unit.  Whilst working as a lorry driver he contributed one-third of his salary to support his family.  The transportation company for whom he was working at the time of the accident have continued to employ him as a delivery worker on a reduced salary.

21.  I am told that after the accident the defendant remained at the scene and tried to assist the deceased by providing bandaging for her injuries.

22.  I am told that the defendant has been greatly affected by this incident. He suffers from insomnia, loss of appetite and has lost a considerable amount of weight.  He is deeply remorseful and repentant for what occurred.  In a letter to the court, the defendant said that when he was informed by the police that the victim had died, he was traumatized.  He states that each and every day he regrets what happened.  He stated that he feels deeply sorry for the relatives of the victim.

23.  The defendant’s mother, in a very moving letter written by his sister on her behalf as she cannot write, she states that on the day of the accident, as soon as her son came home, he hugged her tightly and started to cry out loud saying he hoped the victim would be fine.  She describes her son as being very filial, kind and caring.  She said that her son cannot sleep at night and has told her that every time he closed his eyes he would relive what occurred.

24.  A number of other letters were placed before the court.  They speak of his good nature and industriousness and the very traumatic consequences he has suffered as a result of this incident.

Sentencing considerations

25.  The maximum sentence for an offence of dangerous driving causing death as provided in section 36(1)(a) of the Road Traffic Ordinance Cap 374 is a fine at Level Five and an imprisonment term of 10 years. 

26.  It is further provided in section 36(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 years in the case of a first conviction, unless the court for special reasons orders that person be disqualified for a shorter period or that the person not be disqualified. 

27.  The maximum imprisonment term was, with effect from 4 July 2008, increased from 5 years to 10 years.

28.  Where the legislature increases the maximum penalty for an offence, the courts treat that as an indication of the legislative view that the offence is regarded as more serious than it used to be regarded and the courts will reflect that view by passing sentences more severe than the sentences that used to be passed before. 

29.  Road accidents can cause immense human suffering. Vehicles are potentially lethal machines.  Those who are in charge of vehicles must bear in mind the duty they owe to other road users. 

30.  As the Court of Appeal said in Secretary for Justice v Poon Wing Kai [2007] 1 HKLRD 660, adopting the general principles found in the English case of R v Cooksley and Others [2003] 3 All ER 40:-

“In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly. This is important to bear in mind, because, while it might be right in some instances not to treat violators of traffic laws as true criminals, for offences such as dangerous driving causing death, the offender might not necessarily be seen in quite such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous

Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased. The impact on people’s lives ought to be taken into account when sentencing.

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 …… A motor vehicle, many may often forget, when not driven to the requisite standard, 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 come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and their lives are not endangered.”

31.  The Court of Appeal in SJ v Lam Siu Tong and Wong Ton Fan CAAR 2/2009 and CAAR 4/2009 made the following  observations:-

“(1) Almost invariably in mitigation for the offence of dangerous driving causing death, the sentencing court is provided with details going to the good character of the accused. The court is also usually informed of the deep remorse that is expressed. The present case provided no exception.

(2) And yet the one fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided. Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine. There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it. As Yeung JA remarked in HKSAR v Au Yeung Kwok Kin (CACC 21/2008, 25 August 2008) the courts will not show leniency to any driver who has endangered the lives and safety of other road users.

(3) In these circumstances, good character and remorse may count very little. These certainly count very little, or not at all, for the family and all those connected with a victim who has died as a result of an act or omission that could entirely have been avoided. The serious view that society holds for offences such as dangerous driving causing death is reflected by the increase in the maximum sentence for this offence from 5 to 10 years’ imprisonment for convictions on indictment.

(4) The Court must therefore be astute to bear in mind the above considerations when determining the appropriate sentence in any given case in the face of details provided to it about an accused and the remorse that is shown. This is not to say that remorse or good character are not relevant considerations in terms of sentencing – they must be – but in the context of the offence with which we are concerned, they must not be given undue prominence. Further, nothing of course detracts from the discount that ought to be given when a timely plea of guilty is entered.”

32.  I considered the various aggravating and mitigating features identified in the case of Cooksley:

“Aggravating factors:-

1) Highly culpable standard of driving;

(1) the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a “motorised pub crawl”;

(2) greatly excessive speed; racing; competitive driving against another vehicle; “showing off”;

(3) disregard of warnings from fellow passengers;

(4) a prolonged, persistent and deliberate course of very bad driving;

(5) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking);

(6) driving while the driver’s attention is avoidably distracted, eg by reading or by use of a mobile phone (especially if hand-held);

(7) driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills;

(8) driving when knowingly deprived of adequate sleep or rest;

(9) driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns;

2) Driving habitually below acceptable standard;

(10) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;

(11) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving;

3) Outcome of offence;

(12) more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable);

(13) serious injury to one or more victims, in addition to the death(s);

4) Irresponsible behaviour at time of offence;

(14) behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape;

(15) causing death in the course of dangerous driving in an attempt to avoid detection or apprehension;

(16) offence committed while the offender was on bail.

Mitigating factors

At the same time the court must also take into account mitigating factors, such as,

(1) a good driving record;

(2) the absence of previous convictions;

(3) a timely plea of guilty;

(4) genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);

(5) the offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence), and

(6) the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.”

33.  I noted that in this case, none of the aggravating features identified in Cooksley were present.  On the other hand there were some of the mitigating features.  The defendant entered a timely plea.  I was satisfied that he did suffer genuine shock and is very remorseful.  At the time of the offence the defendant was 21 years old.  He stopped immediately after the accident and tried to render some assistance.  At the time of the accident he was not exceeding the speed limit and there was no suggestion of drink or drugs having been taken.

34.  In my view the defendant’s driving, whilst it did amount to dangerous driving, was very much at the lower end of the spectrum in terms of gravity.

35.  The place where the accident occurred is a very busy area.  The west section of Shu Kuk Street is a street market and the market was in business at the material time.  It is an area where one would expect large number of pedestrians at that time of day.  The Road Users Code requires driver to drive carefully and slowly when there are pedestrians about, particularly in crowded streets.  Junctions are a common place for pedestrians to cross the road and this accident occurred at a particularly busy junction.  Motorists are required to give way to pedestrians crossing a road into which they are turning.  The defendant failed to stop at the give way lines.  From the CCTV footage one can see that the defendant drove into the junction at a speed relatively higher than other vehicles and then came to an abrupt halt.  This was not a case of a pedestrian being knocked down shortly after stepping from the pavement.  The deceased was hit after she had crossed the first lane and arrived at a midway point in the second lane.  Before entering Shu Kuk Street the defendant’s view of Shu Kuk Street to the north of Mable Road would be obstructed by the buildings on his offside.  Clearly the defendant gave no thought to the presence of pedestrians on the road he was entering in a situation where their presence was highly likely.

36.  In my view the appropriate starting point for this offence is 18 months imprisonment.  This sentence will be reduced to 12 months to reflect the guilty plea entered by the defendant.

Disqualification

37.  According to the provisions of the RTO, the period of disqualification is to run concurrently with the term of imprisonment.

38.  The Court of Appeal in SJ v Hung Ling KwokCAAR 7/2009:-

“ …… The main purpose of disqualification is “forward looking and preventive rather than backward looking and punitive”. It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads. The risk represented by the offender is reflected in the level of culpability which attaches to his driving, so that matters relevant to fixing the length of the driving disqualification are more or less the same as those factors relevant to determining the term of imprisonment.”

“First of all, we must point out that although matters relating to culpability which need to be considered when determining the term of imprisonment are more or less the same as those which need to be considered when fixing the length of the driving disqualification, according to sentencing principles, a sentence passed by the Court must have actual effect. Since the period of disqualification and the term of imprisonment are to run concurrently, if the period of disqualification is of the same length as or shorter than the term of imprisonment, then the period of disqualification may be devoid of any real significance. This is because the defendant can resume driving soon after he served his sentence of imprisonment. This is against the basic principle of sentencing.”

“We agree with the opinion expressed in Cooksley that when considering disqualification, the Court should not anticipate that the defendant will be granted remission of sentence due to his good conduct in prison and therefore can have an early release. The reason is that it is not certain that the defendant will have an early release because of his good conduct. We believe that the relation between the term of imprisonment and the period of disqualification must be a relevant issue.”

39.  Having taken into consideration of the whole circumstances of the case and the sentencing principle, this court disqualifies the defendant from holding or obtaining a driving license for all classes of vehicles for a period of 5 years.

Driving improvement course (“DIC”)

40.  This court orders the defendant to attend and complete a mandatory driving improvement course within 3 months prior to the end of the disqualification period.