HKSAR v. Chow Henry

DCCC 462/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 462 OF 2015

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Reasons for Sentence

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Charge

1.The Defendant is charged with causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance (Cap. 374).  He pleads guilty to the lesser charge of careless driving, contrary to section 38(1) of the Road Traffic Ordinance (Cap. 374).  The prosecution accepts his plea and provides facts constituting such careless driving.   

Facts

2.At about 0620h on 3 November 2014, the Defendant was driving his employer on board a private car with registration number PW 874 (“the Car”) along the southbound nearside lane of Princess Margaret Road in Ho Man Tin, Kowloon. 

3.At a location on the road with double white lines and railings separating the road from the pedestrian pavement, the Car hit a man, who died as a result (“the Deceased”, aged 83).  The wife of the Deceased was later contacted by the police.  She informed the police that the Deceased was demented and habitually pushed a metal handcart loaded with waste papers along that stretch of the road to Hung Hom to sell the load.  There is circumstantial evidence, as revealed by the photos capturing the damage caused to the car body, the injury to the Deceased’s back, the handcart and the waste carbon boxes scattering about the location, that the Deceased was pursuing the same task when hit from behind by the nearside front and side of the Car. 

4.There was nothing to complain about the weather, the road or traffic condition, the street lamps, or the mechanical state of the Car.

5.Speeding is not indicated by the evidence.   

Personal background and mitigation

6.He is aged 66, educated up to F. 3 level. He has been a chauffeur for the same employer for 20 years.  His employer has written a mitigating letter commending his exemplary performance at work.  He has no record for criminal conviction.  His traffic record, which I understand usually encompasses all entries for the last 6 or 7 years, shows only a $450 fine for speeding over 15 kmh but below 30 kmh.  His wife is working as a horse groom.  They reside with their 4 adult children.     

7.The Defendant was shocked by the accident and planned to retire after the present proceedings. 

Sentencing considerations

8.The maximum penalty is imprisonment for 6 months and a Level 2 fine.  His counsel Mr. Li has handed up a magistracy appeal case in Chinese,  HKSAR v Lee Chun Wah HCMA 709/2013 (transliteration), together with an unofficial English translation.  The defendant there drove a construction vehicle tailing another construction vehicle to make a right turn.  An elderly man with his trolley walked into the gap between the 2 vehicles when the defendant’s vehicle was making the right turn after the first construction vehicle.  He was hit by the defendant’s vehicle and died. On appeal the conviction for dangerous driving causing death was substituted by careless driving, with the sentence reduced to 3 months suspended for 12 months and disqualification for 12 months.  There was no mention in the judgment of what “exceptional circumstances” had contributed to the sentence being suspended.   

Sentencing this Defendant

9.The only aggravating factor in the present case is the loss of life.  It alone justifies imprisonment.  I take 15 weeks as the starting point.  One-third off for the guilty plea, the sentence is 10 weeks.  There are no exceptional circumstances to suspend the sentence.  I also order 12 months’ disqualification.