HKSAR v. LEW BACK-LIN

DCCC 781/2018

[2019] HKDC 394

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 781 OF 2018

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Reasons for Sentence

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1.  I am dealing today with Mr Lew, who is a 70 years old aged gentleman who is pleaded guilty before me to a single offence of causing death by dangerous driving.

2.  The offence itself was committed on 30 December 2017.  Whilst the defendant was driving a taxi in the New Territories along Sai Sha Road in Wu Kai Sha.  The scene of the accident was a pedestrian safety island with what is described as having two short reflector signs erected located on the Sai Sha Road near Wu Kai Sha.  The road itself was an undivided two-lane carriageway with one lane bound in each direction.  There was a separation of continuous double white lines, so there was no overtaking, and the speed limit in the location was 50 kilometres an hour.

3.  The accident happened around about lunchtime, about 12.24 in the afternoon of 30 December.  I am told the traffic was busy, weather was good, fine, road surface was dry. 

4.  The defendant, as we know, Mr Lew, is a taxi driver and he was driving his taxi along with a passenger, whereas the deceased in this case, a Ms Lee, was crossing the road by using the pedestrian safety island in the middle of the road.  She was some 80 years old.

5.  The description of the accident is that the taxi driven by Mr Lew when it was about 10 metres away from the pedestrian safety island which the victim had reached, the description is that his taxi swayed right towards the opposite direction and partially crossed the dividing double white line and as a result of that, the taxi got onto, as it says, the pedestrian safety island colliding with a short reflector sign, hitting the deceased, Ms Lee, and in the process of hitting her obviously causing her death.  The taxi then proceeded back into its own lane after it had passed over the pedestrian safety island.  The deceased was, as I say, killed during the course of that accident.

6.  That is the description of the offence and nobody takes any issue with any of those facts.  The defendant himself was recorded by way of a video-recorded interview and admitted those basic facts. He said he understood his speed was in the range of 50 to 60 kilometres per hour.  He said he did not notice the collision until he heard a bang.  He did not hear the sound of a horn.  There was some evidence that a horn had been sounded by another driver.  Before the collision, he said he yawned and he felt dizzy.

7.  There was some question of his use of blood pressure hypertension medicine.  He had taken it on the day in question.  I will deal with that in a few moments.  He had completed about 10 rides on that day and was sufficiently rested.  Some analysis was made of the medication the defendant was taking.  He was provided with Amlodipine.  Under normal circumstances such medicine would not affect one’s ability to drive, nor should it cause dizziness and blackouts.  So it would appear that the defendant’s hypertension and taking of medicine was not causative or contributive towards the accident that occurred that day.

8.  There was some other forensic examination but it does not materially change the facts that the defendant has pleaded guilty to.

9.  Mr Lew is, as I have said, over 70 years age. He has been a professional taxi driver and he has no criminal convictions.  He has what I would describe as a good record for a taxi driver in terms of summons citations.  I did note that in the last few years he has received convictions for failing to comply with road markings and driving in excess of speed limit which is unusual because in the years before that, these are recorded after to 2015, he had only got one or, in fact, two citations in 2011.  So, that is otherwise what, I think, one can describe as an exemplary record for a man in his profession and trade.

10.  Turning to Mr Lew’s background, I did obtain a background report upon him.  It tells me that Mr Lew is now 71 years old. He has raised a family with two sons, lives with his wife in a private flat in To Kwa Wan.  The observation of the interviewing officer is that this is the household of an elderly couple and Mr Lew himself being in his 70s and his wife, Ms Leung, being aged 64.

11.  What is apparent from the background report is that Madam Leung has certain health issues.  She is not well and she has, as happens with couples of this age, become reliant upon her husband in many ways both for support and also for medical assistance such as trips to doctors and hospitals and the like.  There is other family.  There are the sons and there is other family of both parties who can assist.  But, nevertheless, in a case such as this the court must consider custodial sentences and it will have, in my view, an overly harsh impact on a family such as this of two elderly persons.

12.  The defendant’s health conditions are described to be unremarkable.  He has hypertension but he is generally well and would be able to serve any sentence of imprisonment.

13.  Now I turn to the question of sentencing because it does need examining in a case as this.  The causing of a death by way of driving is now and has been for a long time seen to be a serious offence warranting sentences, immediate sentence of imprisonment and, in fact, over the years the maximum sentence has been increased for this offence.

14.  I have been referred to two formative cases in respect of the considerations the court should look at when sentencing.  The English case of R v Cooksley, [2003] RTR 32.  Then the analysis of that case and the Hong Kong case of Secretary for Justice v Poon Wing Kay, [2007] 1 HKLRD 660.  I do not want to go into too much detail on this because the factors are set out in those cases.

15.  The defence has also referred me to a number of cases involving what are described in those cases as pedestrian crossings.  I will note at this stage that what is a pedestrian crossing can vary considerably factually, but they do seem to, in Hong Kong, form almost a separate head of sentencing rather than seeing a pedestrian crossing as being something to be assessed when looking at general levels of risk and assessment of the dangerousness of the particular driving.

16.  In particular, there are cases that the defence has referred me to.  HKSAR v Lee Sui Wah, that is CACC 187/2017, an accident with a public light bus at a pedestrian crossing, death being caused where a starting point of 3 years’ imprisonment was adopted.  In the case of HKSAR v Wong Wai Hung, CAAR 7/2010, involving a private car, again, at a zebra crossing causing the death of an 87 year old man with injuries to a domestic helper.  The Court of Appeal said in that particular case a starting point should be 2½ years’ imprisonment. 

17.  Also, a case I found relevant, Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, where there were two appeals, both cases involving accidents at pedestrian crossings, one where the driver was driving in excess of the speed limit.  The court had adopted a starting point of 18 months and the Court of Appeal said in that particular case the starting point should be 24 months’ imprisonment, but that involved the victim dashing out of the crossing when lights at the pedestrian crossing were on red.  

18.  So, you can see simply from those cases that the range of sentencing certainly is indicative of the fact that a sentence of imprisonment and an immediate sentence of imprisonment must be imposed.  Such a sentence of imprisonment would range at minimum between 2 to 3 years’ imprisonment.  But, finally, where one would find oneself in that range would be very much dependent on the individual factors that are prevalent in each particular case, both aggravating and mitigating factors.  I must apply those principles as best I can to the facts that I have already outlined in this case and then having regard afterwards to any particular mitigating factors that might exist in this case.

19.  I make these observations about how I am going to approach sentencing.  The principal harm done by this offence is, of course, the death of the person.  It is an element of the offence and I consider that the factors that must primarily determine the starting point for sentence is the culpability of the offender.  The central feature of an assessment of this case should be an evaluation of the quality of the driving involved and the degree of danger that that driving has foreseeably created. 

20.  In other words, I am looking at what risk has been created by the defendant’s actions and the existence of the pedestrian safety island in this case is a feature that I must consider because it is seen in Hong Kong to be a feature that aggravates the amount of risk and the assessment of risk and danger in the driving.

21.  From my description, this is clearly a brief event involving the car going over the double white lines and onto the pedestrian safety island.  There is no excess speed.  There is none of the other normal indicia of aggravation of driving.  I would describe the defendant’s driving as follows.  This is a brief but obvious danger arising from a seriously dangerous manoeuvre.  In my view, that puts it at between what I would describe as a lower and intermediate level of risk where the defendant’s driving has created what I would describe as a significant risk of danger.

22.  That is the principles I am going to adopt in adopting the starting point for this case.  Having adopted a starting point, I will then look at any mitigating factors which relate to the defendants.  So, exemplary driving record, his previous clear record, his immediate admission of culpability in this offence and, finally, those issues which are particular to him, particularly his family situation and the position of his wife.

23.  Having taken all the factors of seriousness into account, I am going to adopt a starting point of 2 years’ imprisonment for this offence.  I consider that the driving is aggravated by the fact that a pedestrian safety island was involved.  But, as I said, it is only a brief and obvious danger that was created and I consider a starting point of 2 years’ imprisonment would be appropriate for this having regard to how these cases have been dealt with previously in Hong Kong.

24.  Now I look at the mitigating factors.  I have already described the defendant’s clear record, his good driving record, but the consideration that I actually think is perhaps of most importance here is the defendant’s age and the infirmity of his wife which would mean that any sentence of imprisonment will impact more severely upon him than it may well do on another person.  Having regard to that factor, I shall reduce that starting point from 24 months’ imprisonment to 21 months’ imprisonment.

25.  I can identify no other mitigating factors which would permit me to reduce the starting point further.  The defendant, of course, is entitled to one further reduction for that starting point and that is for his plea of guilty.  The defendant has always indicated his culpability from an early stage and I will fully acknowledge that in a further reduction of one-third which will leave a sentence of imprisonment of 14 months’ imprisonment for the defendant on this charge and that will be my order.

(Proceedings from 10.20 am to 10.23 am not required)

26.  Obviously, there is a compulsory disqualification in respect of these offences and I must consider what if any disqualification should be imposed on the defendant. 

27.  Given that there has been a death in the course of this accident, what I am going to impose is a 5-year disqualification from driving and order that the defendant take and complete a driving improvement course before he resumes driving.  That means that the defendant must take and complete such a driving improvement course within 3 months of the expiry of his period of disqualification if he wishes to continue driving.