HKSAR v. Cheng Tak Yiu

DCCC 161/2018

[2018] HKDC 1489

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 161 OF 2018

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REASONS FOR SENTENCE

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1.The defendant was acquitted of dangerous driving causing death and convicted of careless driving after trial.

Facts

2.In brief, the accident happened at about 2345 hours on 15 August 2017 on southbound Chatham Road South.  At the material time, the deceased, apparently drunk, was lying on the right lane of Chatham Road South.  As a result of impact with the defendant’s taxi, the deceased died of multiple injuries. 

Mitigation

3.The defendant is aged 65, single and lives with his mother.  Prior to the offence, the defendant had been working as a taxi driver earning about HK$15,000 per month.  He has 1 previous conviction record in 1983, which is not similar to the present offence.  According to his traffic conviction records, his driving licence was first issued in 1975 and he had a fixed penalty for speeding in 2013 and a conviction for failing to comply with traffic sign in 2016.

4.In mitigation, it was submitted that the defendant had been a professional driver for a long time and had got a very good record.  He had never been convicted of careless driving prior to this case.  It was further submitted that imprisonment was only appropriate in very serious case of careless driving.  The present case was not a serious case of careless driving and hence imprisonment is inappropriate.  It was further stated that the defendant had stopped driving since the incident and the chance of his re-offending is low.  Mitigating letter from the defendant’s family members show that he is a responsible person who takes good care of the family.  There is no submission on disqualification.

Sentence

5.The maximum sentence for the offence of careless driving is a fine of $5,000 and imprisonment for 6 months. 

6.There is no sentencing tariff.  The predominant factor that determines the sentence is the defendant’s culpability in his manner of driving at the material time.  It is well established that the consequence of the driving is a relevant consideration.

7.In HKSAR v Ma Kwong Tak CACC 217/2014, the Court of Appeal stated that in cases of serious careless driving, especially in cases where persons were killed in the accident, it was appropriate to sentence the driver to a short term of imprisonment so as to remind drivers to maintain their vigilance all the time in order to prevent the innocent from being harmed and also to redress the grievance and distress suffered by the family members of the deceased.

8.On the other hand, in HKSAR v Leung Chiu Yu [2012] 2 HKLRD 313, the Court of Appeal held that even if the offender’s careless driving had resulted in the death of another person, when the degree of carelessness was assessed to be “at a low rung of the ladder of culpability”, it would be appropriate to impose a fine coupled with an order for disqualification from driving.   

9.In the present case, there is no allegation that the defendant was driving badly at the material time.  He was found carless only due to his insufficient attention to the condition of the road.  As the prosecution witness Mr Yeung testified, he did not realize what the thing was when he first noticed it and he was only able to realize it was a person when he drove near to the deceased.

10.Further, as I have mentioned in the verdict, one would not normally expect to find a person lying on the road as what the deceased did.  So, the defendant can hardly be said to have been solely responsible for the accident.

11.In view of the authorities above, I consider imprisonment to be inappropriate.    

12.However, this case is serious in that as a result of the defendant’s careless driving, a death had occurred.  In the circumstances, I will impose a higher financial penalty.  Given the defendant indicated his willingness to plead guilty to the lesser charge of “careless driving” at the earliest opportunity, he is entitled to the usual 1/3 discount.  I therefore consider the appropriate fine to be $3,000, to be deducted from the defendant’s bail money.

13.The defendant will be disqualified for a period of 3 months for all classes of vehicles pursuant to section 69 of the Road Traffic Ordinance.