HKSAR v. Tam Chung Sang

DCCC 782/2017

[2018] HKDC 671

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 782 OF 2017

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Reasons for Sentence

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1.The defendant has been convicted after trial of a single offence of causing death by dangerous driving.

2.I do not propose to reiterate the circumstances and the findings I made, as I refer back to my earlier reasons for verdict for that.  The essential facts are the deceased was killed whilst on a green man pedestrian crossing.  The defendant’s speed was too high for the circumstances.

3.The defendant did take evasive action when he appreciated the risk, and also the deceased, when he appreciated the danger of the defendant’s car, chose to run across the face of that car to attempt to clear the crossing.

4.The defendant’s background is set out in his antecedents statement.  He is now aged 31.  He has a clear criminal record.  He has some what I would describe as minor driving convictions, fixed penalties. He is a married man, working in a trading company.  He has four children, and I have received letters from himself and also from members of his family.  It is clear from the letters I have received that the defendant is a careful and attentive father to his children, who are all of a young age, ranging between 8 months and 7 years, and also that the defendant himself has suffered from feelings of guilt as a result of this accident.  He is very aware of the seriousness of the offence and the consequences that are caused by his driving. It is clear that any sentence of imprisonment will lead to the children losing a father figure and deprive his family of both material and emotional support. Both the defendant’s wife and children will suffer as a result of his conviction as well.

5.As far as the approach to sentencing is concerned, it is clear that the courts impose sentences of imprisonment for this offence.  As long ago as the case of R v Cooksley [2004] 1 Cr App R 1, the Court of Appeal in England established four levels of sentencing for the offence of causing death by dangerous driving.  At the time of the Cooksley decision, the maximum penalty in England and Wales for that offence was 10 years’ imprisonment, and that has been the maximum level prevailing in Hong Kong since July of 2008.  For the lowest level of that offence, where there are no aggravating factors, starting points of imprisonment were between 12 to 18 months.  For what is described as the intermediate level, it was between 2 to 3 years’ imprisonment.  For levels involving higher culpability was 4 to 5 years, and the highest culpability was 6 years or longer.

6.This approach to starting point for sentence has been adopted in Hong Kong cases as well.  One case of interest is Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, and that involved a defendant knocking down a deceased who was running across the road when the red pedestrian signal was on.  The driver had passed the yellow traffic signal at excessive speed.  The appropriate starting point for sentence was said to be 2 years’ imprisonment in that case, although that was before the legislative amendment increased the maximum penalty.  In the case of Secretary for Justice v Wong Wai Hung [2011] 2 HKCC 224, that was another death on a pedestrian crossing.  A starting point of 4 years’ imprisonment was imposed in that case; and also a case I referred to in my judgment, which was Yu Wing Sing, where a sentence of 2 years 9 months’ imprisonment was imposed.

7.It would appear from my analysis of these cases that the facts of this case place the defendant’s driving within what I would describe as the intermediate category, where the defendant has struck a person on a pedestrian crossing whilst driving at a high speed for those circumstances and also in disregard of the change of lights from green to amber.

8.Mitigating within that level is the fact that the deceased was crossing the pedestrian crossing against the red man, that the deceased himself made a fatal misjudgement in how to react to seeing the defendant’s car, and that the defendant himself took evasive action, braking his car, turning away from the pedestrian, and sounding his horn.

9.I have already referred to the mitigating factor of the defendant’s personal circumstances, especially his family circumstances.

10.Taking all these factors into account, what I shall do is impose a sentence of imprisonment of 2 years and 9 months’ imprisonment.

11.There will also be a 5-year disqualification from driving, and the defendant must take and complete a driving improvement course within the final 3 months of the expiry of that period of disqualification at his own expense.