HKSAR v. Khalid Waseem

DCCC 227/2018

[2018] HKDC 1300

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 227 OF 2018

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REASONS FOR SENTENCE

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

Facts

2.In the morning on 12 December 2017, the defendant drove his private car bearing registration mark PP 9114 (“the Car”) at about 40km/h and hit Mr Wong Yun Kan who was aged 78 (“the Deceased”).  The defendant alighted from the Car for a short while and then left the scene before police arrival.

3.The offence location was at a signal controlled pedestrian crossing at Wo Muk Road, Fanling (“the Pedestrian Crossing”).  Wo Muk Road was a two lane dual way road.  At the time of the accident, the weather was fine.  The road surface was dry and in good repair.  Both traffic and pedestrian flow were moderate.  The speed limit was 50km/h.

4.Madam Ng Yung Tai was the wife of the Deceased.  At around 7:30 am on 12 December 2017, the Deceased and Madam Ng waited at the Pedestrian Crossing.  When the pedestrian signal turned “Green”, the Deceased and Madam Ng then walked across the road.  At that time, Madam Ng walked in front of the Deceased slowly.  While Madam Ng was about to reach the pavement at the opposite side, she heard a private car passing behind.  When she glanced back, she saw the Deceased lying next to a nearby Green Public Light Bus stop with his head bleeding.

5.Mr Ng Koon Man was the driver of a KMB double-decker bus.  At the material times, he was travelling along the opposite bound of the Car towards Sha Tau Kok Road direction.  He stopped the bus at about 80 metres in front of the Pedestrian Crossing when the “Red” traffic signal was on.  He then saw the Car passing through the Pedestrian Crossing along the opposite lane and hit the Deceased who was walking across the road.  The Deceased went airborne after the impact and landed at 10-20 metres beyond the Pedestrian Crossing.  The Car subsequently slowed down and stopped adjacent to the offside rear of his bus.  He noticed the defendant alighting from the Car and the defendant walked along to take a look at the Deceased.

6.Mr Fong Fat Ming was a public light bus (“PLB”) driver.  At about 7:34 am on 12 December 2017, he parked his PLB outside Union Plaza which was about 40 metres in front of the Pedestrian Crossing. Suddenly, he heard a huge “Bang” sound from behind.  He then saw the Deceased somersaulting in the air then fell on the ground.  The accident was captured by the camcorder of the PLB which consisted of the front view camera and the rear view camera.

7.The incident was also captured by two CCTV cameras of a nearby building.  One of the CCTV recordings showed that at 07:34:14, the traffic signal for vehicles at the Pedestrian Crossing turned from “Green” to “Red”.  Numerous pedestrians walked across the road on the crossing.  At 07:34:28, the Car hit the Deceased on the crossing.  The Deceased was thrown onto the bonnet of the Car, who then somersault in the air and landed on the southwest-bound of Wo Muk Road beyond the crossing.

8.As a result of the collision, the Deceased sustained multiple injuries including traumatic brain injury, multiple fractures and laceration.  Various operations were done.  The condition of the Deceased deteriorated and he was certified dead on 4 January 2018.

9.On 12 December 2017, at around 12:55 pm, the defendant surrendered himself to Sheung Shui Police Station. Under caution, the defendant stated that the brake of the Car was not operative despite multiple attempts.  He applied handbrake to stop the Car eventually.  He stopped the Car after the accident and fled as he was scared.

10.Upon examination, no mechanical defect was found from the Car.  The braking efficiency of the Car was found to be 90%, which met the 50% mandatory requirement of braking efficiency for vehicles.  On the other hand, the front and windscreen of the Car were damaged.

Mitigation

11.The defendant is aged 32, born in Pakistan and came to Hong Kong with his family in 1997.  He has no criminal conviction records or traffic penalty records.  He was married in 2016 and his wife is staying in Pakistan.  He lives with his parents and two younger sisters.  His parents rely on CSSA.  For the past 5 years, the defendant has been working as a casual worker earning about HK$6,000 per month.  He would give HK$1,000 to his parents and send some money to his wife each month.  He occasionally takes up delivery job using the Car. 

12.In mitigation, it was revealed that the defendant obtained the driving licence in June 2017, around 6 months before the accident.  On that day, he was driving his nephew and a friend of his younger brother.  It was submitted that the defendant was coming from a bend to the crossing and he did not see the red light.  When he tried to apply the brake, he found it was not functioning properly.  As a result, he hit the Deceased.  After the accident, he told his nephew and the friend to leave the Car and he went back to the scene.  Out of panic, he left before the police arrived.  He later surrendered to the police indicating he was remorseful.

13.Mr Lam for the defence referred to SJ v Liu Kwok Chun [2011] 1 HKC 70 and submitted that all the aggravating factors set out in that case did not apply in the present case.  On the other hand, several mitigating factors in paragraph 39 of the judgment were applicable to the present case.  Mr Lam suggested the present case falls within the category of intermediate culpability.  He also referred to the reasons for sentence in HKSAR v Siu Yam Nam, DCCC 104/2018, [2018] HKDC 842 and submitted that case was similar to the present case.  Upon the court’s invitation, Mr Lam distinguished the case of the respondent in CAAR 4/2009 in SJ v Lam Siu Tong & Anor [2009] 5HKLRD 601 and submitted that the present case is less serious in that the defendant did not see the red light.  Finally, Mr Lam did not make any submission on the length of period for disqualification.

Sentence

14.The maximum sentence for this offence is fine of HK$50,000 and imprisonment for 10 years.  There is also a mandatory period of disqualification for not less than 5 years for a first offender.  This is the defendant’s first conviction for causing death by dangerous driving. 

15.There is no sentencing guideline for this offence as obviously each case must be decided on its own facts.  The Court of Appeal in SJ v Poon Wing Kay [2007] 1 HKLRD 660 set out the relevant sentencing principle and the matters that a sentencing court must take into account when considering an appropriate sentence.  The sentencing principle is one of deterrence for the law imposes a standard on a motorist to ensure that all who came into contact with motor vehicles were safe, be they motorist, passengers and pedestrians.  The court must look at the overall circumstances and overall culpability of the offender.  Culpability is often the dominating factor.  Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased.  The impact on people’s lives ought to be taken into account when sentencing.  Major aggravating factor justifying a heavy sentence is when a person had driven with selfish disregard for the safety of other road users or his passengers or of pedestrians.

16.The Court of Appeal has repeatedly stated that there is no excuse for driving dangerously since it involves taking risk whilst in control of a potential lethal machine (see SJ v Lam Siu Tong & Anor [2009] 5 HKLRD 601).  Further, motorists are required to exercise the utmost care when approaching pedestrian crossings for the obvious reason that it is highly likely that people will be crossing the road there, whatever the time of day or night.  Accordingly, if motorists approach pedestrian crossings at high speed or disregard traffic lights, there is a high risk that an accident will occur.  And where a collision takes place, fatalities are common.  The Court of Appeal further pointed out that where the offence of dangerous driving causing death is established and this involves the running over of persons at pedestrian crossings, then, for the purposes of sentencing, it would be a serious aggravating feature that the accident has occurred in such a location.  A conscious disregard for traffic lights will likely put the case into the most serious category.

17.Before sentencing, I have the opportunity to watch the recording of the incident captured by one of the CCTV cameras of a nearby building.  It confirms the incident as described above. 

18.The defence submitted the defendant did not see the red light.  The prosecution has no evidence to rebut this.  In the circumstances, I have to sentence the defendant on the basis that he did not see the red light.

19.In this case, the accident occurred at a pedestrian crossing with a number of pedestrians crossing the road at that time.  From the photos, it is clear that the bend that the defendant was driving along before he reached the Pedestrian Crossing is not a sharp bend.  The photos show that some distance away from the Pedestrian Crossing, there is a road sign indicating traffic light ahead.  After the traffic light for vehicle at the crossing turned red, there was no vehicle in front of the defendant, which blocked his view of the traffic light or the crossing.  The photos show that anyone driving along that bend would be able to notice the presence of traffic light and the pedestrian crossing from a distance.  In the circumstances, it is clear the defendant had not paid attention to the condition of the road for some time.  As a result, the defendant was not able to stop and avoid the collision and an innocent life was taken away.  There is no doubt that grave distress has been caused to the family of the Deceased.  I consider the acts of the defendant fall within the higher end of intermediate culpability. 

20.I consider the circumstances of the present case are similar to the case of the respondent of CAAR 4/2009 in SJ v Lam Siu Tong.  In that case, the respondent was driving a bus at the material time.  The lights governing the bus were red.  The lights facing pedestrian crossing were green.  The vehicle on both side of the respondent’s bus were stationary at the crossing.  The bus continued to travel into the pedestrian crossing without slowing down.  The Court of Appeal considered the appropriate starting point to be 3 years.  This case is also more serious than the case of HKSAR v Yu Wing Shing, CACC 33/2012 referred by the prosecution.

21.Taking into consideration the facts of this case and the above authorities, I consider the appropriate starting point is 3 years’ imprisonment.  Given the defendant’s guilty plea, he is entitled to the usual 1/3 discount for his plea.  The sentence is reduced to 2 years’ imprisonment. 

22.As Mr Lam agreed that the surrender by the defendant only indicated his remorse and did not qualify for reduction in sentence, I do not consider it to be a mitigating factor justifying further reduction of the sentence.  Apart from the defendant’s guilty plea, I do not see other mitigating factor justifying further reduction of sentence.  The defendant is therefore sentenced to 2 years’ imprisonment.

23.Pursuant to section 36(2) and (2A) of the Road Traffic Ordinance, I order that the defendant be disqualified for a period of 5 years for all classes of vehicles. 

24.The defendant is also ordered to attend and complete a driving improvement course, at his own costs, within the last 3 months of the disqualification period pursuant to section 72A(1A) of the Road Traffic Ordinance.