HKSAR v. CHUNG HUNG PAN

DCCC 84/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 84 OF 2012

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Reasons for Sentence

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The Charge

1.  The defendant pleaded guilty before me to one charge of “dangerous driving causing death”, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.

The Facts

2.  According to the summary of facts which were admitted by the defendant, in the morning of 17 September, 2011, at about 7:45am, a lady road cleaner (“the victim”) was sweeping around the edge of the central island of the roundabout outside Cheung Sha Wan Wholesale Marine Fish Market at Yen Chow Street, Kowloon when she was knocked down by a light goods vehicle (“the LGV”) which was driven by the defendant who drove around the roundabout intending to turn into the fish market.

3.  Upon police enquiry, the defendant had said that whilst he was negotiating the turn round the centre island, he saw the victim sweeping with a broom and a dustpan besides the centre island. He also said that just after the LGV had passed the victim, she stepped back suddenly and hit the offside of the LGV. The defendant also told the police that he was driving at a speed of about 40 km/hr but when the LGV came close to the victim, he had reduced the speed to 20 km/hr but he did not sound his horn. Police took measurements at the scene and found that the closest point between the central island and the LGV was only 0.6 metre whereas the total width of the road at the point was 12 metre.

4.  The defendant’s LGV was also examined and found to be in good working condition prior to the accident.

5.  Insofar as the victim worker is concerned, she was rushed to Kwong Wah Hospital for resuscitation. An urgent operation was conducted because her rib and head injuries. She was closely monitored at the Intensive Care Unit of the hospital but her condition deteriorated. She was certified dead on 19 September 2011. The cause of death was by multiple injuries including open fracture of the skull, severe head injury, injury to right kidney, liver laceration and haemo peritoneum.

Mitigation

6.  The defendant is now aged 34 and is married with a son aged 11. The wife is a housewife and she is now pregnant and the delivery due date is expected to be in the coming August. He is the sole bread-winner of the family. According to the background report, the defendant was born in China and he came to Hong Kong in 1992 to join his father. He could not catch up with his study and was only educated up to Form 3 level. He started to work at the age of 19. From 2001 to 2006, he had been employed as a lorry driver. After buying a second hand vehicle, he had been a self-employed driver from 2006 until October 2011. He delivered vegetables from markets to various restaurants. He could earn a stable living to support his family and he worked very hard for almost 12 hours a day every day without any rest day around the year.

7.  The defendant has no previous criminal conviction record.  As regards traffic convictions, the defendant has only a “careless driving” record in 2005 and there are two other minor “fixed penalty” cases including “using a mobile phone while the vehicle is in motion” in 2009 and a “failing to comply with traffic signs” in 2011. He received only a fine in each of those cases.

8.  In mitigation, it was said that the defendant has merely committed an error of judgment as opposed to a deliberate taking of risk or driving in an irresponsible manner. He was not driving at an excessive speed and there were no other aggravating factors. Mr Boyton acting for the defendant also submitted that the defendant did not have an appalling driving record and he was very upset and distressed by the fatal accident.  The defendant could not drive again and he had already sold the LGV. The defendant has expressed his remorse and concern for his pregnant wife and the financial condition of the family. The defendant begged the court to treat him leniently so that he could be discharged sooner to take care of the family.

Sentencing Considerations

9.  In SJ v Poon Wing Kay [2007] 1 HKLRD 660, the Court of Appeal expressed general agreement with the sentencing considerations detailed in R v Cooksley & Ors [2003] 3 All ER 40, and stated, inter alia, that :

“10(3) 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 … are there to ensure that all who come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

10.  In SJ v Wong Wai Hung CAAR 7/2010 (unreported), the Court of Appeal noted that,

“21. In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving.

22. … Culpability is the determining factor.”

The Defendant’s Culpability

11.  The list of what the court considered to be aggravating factors in Cooksley included a number of matters such as the consumption of drugs or alcohol, excessive speed, racing, competitive driving, showing off, a disregard of warnings from fellow passengers, a prolonged persistent and deliberate course of very bad driving or aggressive driving, for example: persistent inappropriate attempts to overtake or cutting in after overtaking, using a mobile phone, driving when suffering from a known medical condition; other offences committed at the same time, for example: driving without holding a driving licence, driving whilst disqualified, driving without insurance, and driving while a learner without supervision.

12.  The court goes on to cite other examples of aggravating features.  I have to accept that many of those aggravating features referred to in the case of Cooksley are not present in the present case. It is also urged upon me that distress has been caused to the defendant so much so that he could not drive again and he had already sold his LGV, his only mean to earn a living even though he still has to repay a home mortgage and her wife is expecting a baby in August. 

13.  However, the fact remains that the defendant should be well aware of the presence of the victim in the roundabout shortly before the accident. Despite what he said in the background report that “he could not spot the victim working on the roundabout” both at paragraph 4 and 6, what he told to the police officer after the accident as recorded and agreed by him in the summary of facts had clearly contradicted himself on this point. In this regard, the defendant has obviously retracted his earlier statement to the police. Upon enquiry by the court, Mr Boyton finally clarified his client’s position and agreed that the court should sentence the defendant based on his original statement to the police. In my judgment, the main reason of the accident was the path the defendant took to negotiate his right turn into the entrance of the fish market. I judged that in order to save time and to cut the corner, the defendant had positioned his LGV in such a way which was obviously too close to the edge of the centre island regardless of the possible risk to the victim who was seen working near the centre island and who was actually wearing a reflective vest at the time of the accident. It was clear from the CCTV footage as also depicted by photographs captured by the same footage, and the defence could not dispute this, that the LGV was driving too close to the edge of the centre island in all the circumstances. That the defendant was not speeding was immaterial. That manner of driving was wholly unnecessary and avoidable as there was ample space for the LGV to steer to its offside to avoid hitting the victim. As confirmed by the CCTV footage, also it was certainly not the case that there were other stationary vehicles on the roundabout, an exculpatory statement which was proffered by the defendant after the accident. The defendant also admitted that he did not sound the horn to warn the victim. The possibility of a blind spot as suggested by Mr Boyton simply did not arise as it is now accepted by him that the defendant well knew the presence of the victim standing there before the accident and yet the defendant still chose to drive around in such an irresponsible manner. I also rejected the defendant’s assertion to the police that the victim suddenly stepped back and hit the LGV when he drove passed her in the roundabout. It is again totally false and is another untrue statement by the defendant seeking to exculpate himself.

14.  The maximum penalty on conviction on indictment is $50,000 and 10 years’ imprisonment. The court shall order disqualification unless there are special reasons not to do so. Disqualification on first conviction shall be for not less than 2 years and on second or subsequent conviction for not less than 3 years.

15.  There are no sentencing guidelines but virtually all cases result in imprisonment. The leading case on principle is The Queen v Pang Kwok Poon CACC 23/1985. Roberts CJ adopted the view of the English Court of Appeal in that there were 2 categories in sentencing dangerous driving:

“7. We have been referred to a number of cases, in which the appropriate sentence for the offence of dangerous driving causing death has been considered. In particular, we have received some assistance from Guilfoyle v. R [57 Cr.App.R. 549]. Lawton, L.J. delivering the judgment of the Court of Appeal, suggested that cases of dangerous driving causing death might fall into two broad categories, those in which the accident has arisen through momentary inattention or misjudgment and those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers or with a degree of recklessness.”

16.  In Secretary for Justice v Tsang Ho Pong CAAR 6/ 2009, the respondent, who was driving his MGV, closed his eyes for 2 seconds just before hitting the back of a motorbike and then the back of a container truck. The 27-year-old motorcyclist died. The Court of Appeal did not agree with the prosecution’s submission that it was a case of “selfish disregard for the safety of other road users” [in terms of Guilfoyle]. The original sentence of 8 months after trial was reviewed. The Court of Appeal regarded that, despite the aforesaid, it was a serious case and the proper starting point ought to have been 24 months but for its being a review of sentence. Disqualification was increased from 2 years to 3 years.

The Sentence

17.  Clearly, no matter what the sentence to be imposed is, the deceased could not be brought back to life. I accept that the defendant was very remorseful and was suffering from distress and this is something he has to live with for the rest of his life. On the other hand, his distress cannot be compared to the pain and agony of the two children of the victim. According to the victim impact statement, the victim was only in her fifties and was a divorcee and she has left behind a son and a daughter who are now still studying in the university and they can now only rely on her limited savings and student financial assistance for living. If only the defendant had been more prudent and steered more into his right when he was turning in the roundabout, this accident could have been avoided and the deceased’s life saved and her son and daughter’s livelihood would not be affected.

18.  Taking into account the facts of this case, I do not agree with the defence submission that it was just a case of “momentary inattention or misjudgment” but rather it was “a selfish disregard for the safety of other road users with a degree of recklessness”. However, it was certainly less serious than those cases which took place in a pedestrian crossing but having considered all the circumstances, including the defendant’s record and mitigation, nevertheless, I consider that a starting point of 36 months is still appropriate. The defendant had pleaded guilty and he should be given a one-third reduction in sentence. Mr Boyton has urged me to take into account that the defendant took active steps in rendering assistance to the poor victim and he was holding her in his arms waiting for the ambulance. Behaved responsibly by acting actively after the accident at the scene was also held to be a specific mitigating factor(see R v Richardson [2007] Crim LR 315). I shall therefore further reduce the sentence by 2 months and the sentence is therefore 22 months’ imprisonment. I have of course much sympathy for the wife of the defendant who is now pregnant and looks upon her husband for support both, financially and emotionally but the accident was already 9 months ago and the result of the case, namely, an immediate custodial sentence should be well within the couple’s expectation and they certainly have to bear the consequences for their decision to still have the baby, to be born some 2 months later, at this difficult moment.

Disqualification

19.  As far as disqualification is concerned, Mr Boyton whilst not arguing against the imposition of such an order argued that the Magistrate Court below had wrongly sent the defendant’s driving license which was surrendered to the court as a bail condition to the Transport Department pursuant to s.71 of the Road Traffic Ordinance, Cap 374. The Defence had produced a receipt issued by the First Clerk of the Kowloon City Magistracy to support this argument. He stressed that the act was ultra vires as the driving license should only be sent to the Transport Department following a traffic conviction under s71 and therefore it amounts to a “special condition”. He submitted that any period of disqualification to be ordered by the court should be set off against the period when the defendant’s license was wrongly retained by the Magistrate Court.

20.  This is a bold submission. Even I am satisfied that the driving license should not be sent back to the Transport Department by the Magistrate Court as happened in this case, the driving license would still have to be properly retained in the Magistrate Court in any event because it was pursuant to a special condition of bail which was imposed by the magistrate concerned. I fail to see how the defendant’s right was prejudiced in practical terms.

21.  As for periods of disqualification from driving for cases involving dangerous driving causing death (R v Cooksley [2003] 3 All ER 40 applied): (See para12)

(a) 2 years was required where the defendant had a good driving record and the offence resulted from a momentary error of judgment;

(b) Between 3 and 5 years was required where the facts of the case and the defendant's record showed that he tended to disregard the rules of the road, or to drive carelessly or inappropriately;

(c) Between 5 and 10 years was required where the facts and the defendant's record showed that he represented a real and continuing danger to other road users; and

(d) Disqualification for life in highly exceptional cases where the defendant represented an extreme and indefinite danger.

22.  This case as I have held is far from a momentary error of judgment and in the absence of any special reason, I disqualify him for a period of 3 years from driving all classes of vehicles.

23.  Since the new law requiring that the period of disqualification should commence upon the term of imprisonment has been served had already came into effect on 17 December 2010 before the present case, the disqualification order that I just imposed is to take effect upon the defendant’s serving of the term of imprisonment.

Driving Improvement Course

24.  Once a person is convicted of the relevant offences which include dangerous driving causing death, it is mandatory to order the person to attend driving improvement course unless the court for special reasons decides not to make such an order.  I can find no special reason for not ordering the defendant to attend a driving improvement course and he is to attend and complete such a course at his own expense within the last 3 months before the expiry of the disqualification order. Failing to comply with such an order is an offence and the maximum sentence is one of 2 months imprisonment (Section 72A of Road Traffic Ordinance).