HKSAR v. Cheung Kee Hung

DCCC 526/2017

[2018] HKDC 1642

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 526 OF 2017

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REASONS FOR SENTENCE

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1.The defendant is convicted of one count of dangerous driving causing death after trial. As I have spelt out the facts when giving the reasons for verdict, I do not propose to deal with them in details here, suffice to say that this is a very sad case in which a six-year-old boy was killed.

2.At the material time, the young boy was walking along with his father, hand in hand and side by side, at an uncontrolled cautionary crossing on Tung Wing On Road.  The place where they were crossing was quite close to the T-junction with Castle Peak Road.  The father and son were almost 4 metres away from the pavement from which they came out, when they were hit by the defendant’s vehicle.

3.The defendant was at the material time turning right into Tung Wing On Road from Castle Peak Road, Yuen Long bound carriageway.  In doing so, he had to cut across the carriageway for Sheung Shui direction.  The boy, as I have said earlier, was killed whilst the father luckily suffered only superficial injury, and, when all this happened the mother of the boy was a few metres behind, witnessing the whole thing.

4.As I made clear in my reasons for verdict, the defendant’s claim that he had seen the boy running out onto the road suddenly is wholly rejected.  Given that the defendant’s vehicle, according to my findings, only appeared after the father and the son had started crossing and that they were walking as opposed to running across the road, I cannot see how the defendant could have seen them leaving the pavement. 

5.After all, one must bear in mind that the father and the son were almost, as I have said earlier, 4 metres away from the pavement and, as I have found in my verdict, it is clear that the defendant was simply not paying any attention to what was happening at the crossing when he was turning.

The defendant’s background

6.The defendant was 66 years old at the time of the accident and is now 68 years old.  According to Mr Grounds, he has a loving family, something which I can see from the letters put in by his family members. 

7.The defendant had worked for many years in the transportation industry and retired in 2010.  In around 2016 he joined the Fortune Nine or “Kau Kee” as a part-time driver, earning about $4,000 per month. 

8.I have before me the excellent traffic record the defendant has, considering his long years of working as a driver, and although the defendant had previous convictions for, among others, professing to be a triad member and thefts and so on, they all dated back to the late 60s.  As I have said earlier, I would treat the defendant as a man of good character for all purposes.

9.Now, in mitigation, it has been said by Mr Grounds that the case is not a bad case of dangerous driving and, except for the fact that the collision took place at an uncontrolled crossing, there are no other aggravating features in the case.  On the aforesaid basis, I accept Mr Ground’s argument that the case can be put at the lower, if not lowest, end of the range of culpability.

10.However, I must at the same time also bear in mind the observations made by the Court of Appeal in various cases about how sentencing should be approached in cases of this kind.

11.In the case of the Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, the Court of Appeal referred to the earlier case of the Secretary for Justice v Poon Wing Kay and added the following observations, and I quote:-

“(a) Almost invariably in mitigation for the offence of dangerous driving causing death, the sentencing court is provided with details going to the good character of the accused. The court is also usually informed of the deep remorse that is expressed. The present cases provided no exception.

(b) And yet the one fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided. Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine. There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it.

(c) In these circumstances, good character and remorse may count very little. These certainly count very little, or not at all, for the family and all those connected with a victim who has died as a result of an act or omission that could entirely have been avoided.”

12.Bearing in mind these observations and everything else put before me by both the defence and the prosecution, I am of the view that a 15 months’ term would be a proper starting point for the present case.

13.However, considering the defendant’s age, his clear record and excellent family support, I will give the defendant a 3 months’ discount.

14.The defendant is therefore sentenced to a term of 12 months’ imprisonment.

15.In accordance with S.36(2) of the Road Traffic Ordinance, I will also order the defendant be disqualified from driving all classes of vehicle for a period of 5 years.