HKSAR v. Lee Sui Wah

DCCC 1178/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1178 OF 2016

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REASONS FOR SENTENCE

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1.The defendant is charged with one count of “Causing death by dangerous driving” (1^st charge) and one count of “Causing grievous bodily harm by dangerous driving” (2^nd charge), contrary to section 36(1) and section 36A of the Road Traffic Ordinance, Cap 374. The defendant pleaded not guilty to both charges and was convicted of both charges after trial.

Summary of facts

2.I have set out the facts of this case in some details in my statement of findings dated 2 June 2017 and I shall not repeat here.  In essence, the defendant who was driving a public light bus knocked down a young couple and their 5-year-old daughter at a pedestrian crossing outside Maritime Square, Tsing Yi, New Territories.  As a result, the father was serious injured and the daughter was also injured.  Sadly, the mother suffered fatal injuries and was certified dead on the next day.

3.At the trial, the court convicted the defendant on both charges on the basis that he failed to keep a proper lookout of the road condition and drove at excessive speed (though not exceeded the speed limit).

Mitigation

4.In mitigation, defence told the court that the defendant was born locally and is now aged 55.  He is married with three children.  He has a relatively minor criminal record back in 1977 which is of different nature and only has one careless driving conviction.  He obtained his driving license in 1979 and has over thirty years of driving experience.  He worked as a public light driver for many years and was earning about HK$18,000 per month before the accident of this case.  He is the main breadwinner of the family. 

5.Defence submitted that the defendant’s health is not good.  He has been suffering from diabetes. 

6.Defence submitted that the defendant is very remorseful.  He felt extremely sorry for what happened to the victims and their family.  Defence submitted that the accident was caused by a momentary misjudgment rather than a deliberate disregard of the safety of pedestrians.  Defence urged the court to impose a lenient sentence.  Lastly, defence made no submission about the length of disqualification the court may impose.

Discussion

7.Without a doubt, both charges, in particular the first charge, are very serious offences.  Loss of human life is irreversible.  Innocent lives should not be taken away by the dangerous or selfish acts of others.  Grave distress will no doubt be caused to the family of the deceased and such distress could last a lifetime.  The lives of the survived will never be the same.  The court owes the public a duty to take this kind of cases most seriously.  On the one hand justice and feeling of the affected must be addressed and on the other hand these dangerous behaviours must be deterred to protect the public.

8.The English authority R v Cooksley and Ors [2003] 3 All ER 40 has been approved by the Court of Appeal in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660.  In Cooksley, examples of aggravating factors had been listed out.

9.In the present case, one clear aggravating feature is that it was a conscious decision and deliberate act to drive pass the pedestrian crossing at a high speed and without keeping a proper lookout.  It was reckless and selfish because in order to save himself some time, the defendant put other road users in grave risk.  Instead of slowing down and paying more attention to the road conditions, the defendant drove towards the pedestrian crossing at high speed and failed to notice PW1 and his family earlier.  An innocent life had been taken away.  A family was broken.  It was not a momentary lapse of attention or momentary error of misjudgment. 

10.Further, in Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, the Court of Appeal made it clear that dangerous driving causing death at pedestrian crossing would be a serious aggravating feature.  In another case Secretary for Justice v Wong Wai Hung, unrep, CAAR 7/2010, the Court of Appeal expressed the view that dangerous driving causing death at zebra crossing could be regarded as higher culpability as in Cooksley.

11.Applying the sentencing scale in Cooksley, this case should fall between intermediate culpability (2 to 3 years) and higher culpability (4 to 5 years).  Considered the background of the defendant, his light previous record, the impact of his incarceration on his family, I am of the view the proper starting point for the 1^st charge should be 3 years.

12.Concerning the 2^nd charge, the injuries of PW1 cannot be described as minor at all.  He suffered multiple bone fractures and emergency operation was carried out on him.  I have considered the case HKSAR v Lee Yau Wing, unrep, CACC 282/2012 where the Court of Appeal upheld a starting point of 15 months’ imprisonment for the same offence.  In that case the defendant ran through a red light and knocked down a pedestrian at a pedestrian crossing.  The present case is less serious and I am of the view that 12 months’ imprisonment is the appropriate starting point.

13.The defendant was convicted after trial so there is no room for any discount.  Therefore, for the 1^st charge, the defendant is sentenced to 3 years’ imprisonment.  For the 2^nd charge he is sentenced to 12 months’ imprisonment.  After considered the totality principle, I order 6 months’ imprisonment of the 2^nd charge to be served consecutively to the sentence of the 1^st charge.  The total sentence is 3 years and 6 months’ imprisonment.

14.Concerning disqualification, for the 1^st charge, I order the defendant to be disqualified from holding or obtaining a driving license for all classes of vehicles for 5 years.  For the 2^nd charge, the defendant is disqualified for 2 years.  The said disqualification periods are not to run until the defendant has completed serving the term of imprisonment. For the 1^st charge, I also make an order under section 72A(1A) of the Road Traffic Ordinance, Cap 374 that the defendant must at his own expense complete a driving improvement course within the last 3 months of the period of disqualification.