HKSAR v. Cheng Tsz Hin
Read the full judgment text of DCCC 66/2019 on BabelCite. This District Court judgment was delivered on 1 August 2019.
1. Defendant is convicted of a charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374, on his own plea and agreement to amended summary of facts.
Cites 6 cases
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DCCC 66/2019 [2019] HKDC 1083 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 66 OF 2019 ----------------------------
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-------------------------------------- REASONS FOR SENTENCE -------------------------------------- 1.Defendant is convicted of a charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374, on his own plea and agreement to amended summary of facts. 2.The accident occurred near the junction of Nathan Road and Kansu Street (Northbound), Yau Ma Tei, Kowloon. A yellow box marking was painted at the centre of the junction. The material section of Nathan Road is a three-lane carriageway separated by centre lines. There were road markings on the three lanes, where the right lane allows drivers to turn right or keep straight ahead, while the centre lane and left lane only allow drivers to keep straight ahead. At the material time, the weather was fine, the road surface was dry and the traffic volume was normal. 3.On 18 June 2018 at about 3.02 am, the defendant was driving taxi SA430 travelling at the centre lane while Kong was driving taxi NH3639 on the right lane of Nathan Road (Northbound). Both taxis entered the yellow box marking with NH3639 slightly falling behind. When both taxis were at the middle of the yellow box marking, defendant suddenly steered his taxi to the right and hit the nearside of Kong’s taxi, which was then travelling straight ahead at the right lane. As a result, Kong’s taxi lost control, turned 90 degrees anticlockwise, rushed to the pavement on the left side of Nathan Road and knocked down a pedestrian, the deceased Yau Chi Man. 4.Kong said after the collision, his taxi lost control, crossed the centre lane and left lane of Nathan Road and rushed to the pavement, hit the guardrails on the pavement and eventually hit the roller gate of a shop nearby and stopped. 5.Kong said he tried taking evasive action and braked while losing control, but with no avail. He then spotted the deceased at the front of his taxi after hitting the roller gate. A passenger on his taxi also suffered minor injuries. 6.The deceased was later certified dead. Direct cause of death was multiple injuries. 7.Defendant admitted in the video recorded interview under caution that he has two years of driving experience and only few days of experience in driving a taxi. He had checked the taxi before driving that day and it was functioning properly. He admitted his presence at the centre lane of the location and intended to cut to the right when he reached the yellow box marking. He stated that he first checked the offside mirror and then a shoulder check and then he steered to the right and Kong’s taxi came at a rapid speed and collided with his taxi. He also said he did not use the indicator. 8.Forensic scientists examined the CCTV footage in the area, which show that both taxis were being driven within speed limit at the material time. 9.By making turns without paying attention to the road conditions at the site, defendant had caused the death of the deceased by driving his taxi on the road dangerously at the material time. Criminal record 10.Defendant has a clear record in all sense. He does not have any record of traffic convictions or even fixed penalty tickets. Mitigation 11.Defendant is aged 24. He is single. As said earlier, he has a clear record in all sense. He also has no record of traffic convictions or fixed penalty tickets. 12.The defendant lived with his mother and elder brother in a public housing estate in Wong Tai Sin. His parents are divorced and his father lives in Mainland. 13.At the time of the offence, he was a taxi driver by occupation but only for five days. He only obtained the taxi-driving licence not long before the accident. 14.Defendant had received education up to Form 4 level. He did register and attend a certificate study course in electrical engineering studies, but because his English was not good enough, he could not cope with the course and he dropped out. Since then he had worked in various trades, such as chef, courier, construction worker on casual basis. In order to earn a stable income to support his family, he decided to obtain a taxi-driving licence and eventually he succeeded shortly before the offence date. He expected to earn $15,000 a month to support himself and his mother. 15.Concerning the circumstances surrounding the commission of the offence, the defendant had started working the day before at 4.30 pm and he was expecting to finish his work at 4.30 am in the morning. At 3 am in the morning, defendant picked up a female passenger in Jordan for a journey to Lam Tin. When approaching the road junction in question, the female passenger suddenly yelled and asked the defendant immediately to turn right to Gascoigne Road, saying that was the shortest route. In response to the request, defendant immediately swerved his taxi to the right without having carefully observed the traffic on his right. The defendant’s taxi then collided with Kong’s taxi, as a result of which, the other taxi lost control and dashed to the left onto the pavement and tragically knocked down and killed the deceased. 16.It is submitted that the defendant committed the present offence out of his poor judgment and recklessness at the time. His unfamiliarity with the roads and traffic also contributed to the accident. 17.It is admitted by the defence counsel that the offence is serious in nature. It was also, however, submitted that at the material time defendant was not driving at high speed nor was there any deliberate risk-taking driving manner. It is submitted further that there is no aggravating factor in this case and that the defendant’s driving manner falls within the least culpable category of dangerous driving. Defence counsel asked this court to adopt a lower starting point in sentencing. Because of defendant’s guilty plea, it is submitted that defendant showed utmost regret and remorse. 18.Defendant is deeply apologetic to the deceased as well as the families of the deceased. 19.Defendant has written to this court a letter in mitigation which showed his remorse as to what he has done to the deceased and his family. 20.The maternal aunt of the defendant also wrote a mitigation letter. It described the defendant as a filial son and a responsible and hardworking person. 21.As defendant was very upset about his misdeed, he has started receiving psychiatric treatment from East Kowloon Psychiatric Centre shortly after the accident and has been diagnosed of suffering from post-traumatic stress disorder. He was prescribed with antidepressant medication and was required to receive follow-up treatments at the East Kowloon Psychiatric Centre. 22.Defence counsel referred this court to the well-known case of Secretary for Justice v Lau Sin Ting [2010] 5 HKLRD 318, where it was said in paragraph 34 of the judgment that:-
23.In the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, the court approved a number of general principles set out in the judgment of Lord Woolf CJ in R v Cooksley & Ors [2003] 3 All ER 40. CJ Ma in Poon Wing Kay at paragraph 10 of the judgment says:-
24.It is submitted by defence counsel that, considering the circumstances of the case, this court be urged to adopt a lower sentencing starting point. 25.As for the mandatory disqualification of not less than 5 years in the case of a first conviction, defence counsel concedes that there are no special reasons in this case to persuade the court from not ordering that 5 years’ disqualification. Discussion 26.For this offence, the defendant is liable on conviction upon indictment to a fine of level 5 and to imprisonment for 10 years. 27.In the case of HKSAR v Lee Yau Wing, CACC 282/2012, it is said that for this offence Hong Kong courts gave great prominence to the culpability of the driving, as was discussed by the English Court of Appeal in R v Cooksley[1]. 28.In the case of Secretary for Justice v Lam Siu Tong and Secretary for Justice v Wong Wai Hung [2011] 2 HKC 224, the Court had emphasised the importance of bearing in mind the need for deterrent sentences for cases of dangerous driving. It is said that the harmful consequences of a driving accident might be disproportionate to the level of culpability of the defendant’s driving at the time and consequently, even though the harm caused by the driving misconduct is an important factor to be considered for the sentencing judge, it is not given the same prominence as the culpability of the driving misconduct. This appears in paragraphs 28 and 30 of the judgment. 29.Now, coming to the culpability of the defendant in the present case, this court has the benefit of studying the report prepared by the forensic scientist, Dr Tao Chi Hang. According to this report, defendant was driving at a speed of 21 kilometres per hour to 22 kilometres per hour before the impact of his taxi with Kong’s taxi. The speed limit for the location is 50 kilometres per hour. Kong’s taxi before the accident was travelling at 50 kilometres per hour and it was travelling at 33 kilometres per hour after the collision. 30.No doubt the defendant was reckless in not having a proper lookout for the traffic on his right side when he swerved to the right while his taxi was in the yellow box at the road junction. This resulted in the collision between the two taxis but what followed next was something totally unexpected, at least from the defendant’s perspective, ie that Kong’s taxi had as a result lost control and ran across the two other lanes and rushed onto the pavement and struck the deceased, who died as a result. 31.In this case, the culpability of the defendant in my view is in the least culpable dangerous driving category as referred to in the Cooksley’s case, but, of course, the effect of which has resulted in disproportionate consequence causing death to the deceased as well as great stress to his family, having lost their very dear one. 32.This court of course has to consider the tragic result of this accident, it took away the life of the deceased and caused great stress to his family. In the sentencing exercise, retribution, denunciation and deterrence must be considered and given sufficient weight. 33.On the other hand, defendant is a young offender of age 24. He has got a clear record and a perfect traffic record, not even a fixed penalty ticket. He was a taxi driver at the time of the accident but had only been so for five days. This explained why it was mitigated on his behalf that he was not familiar with the road. 34.This court accepts that the accident resulted partly from the defendant being an inexperienced taxi driver when suddenly confronted after driving for 11 hours by a passenger who yelled at him to immediately turn right to take the shortest route, he had made the wrong decision of following such a request, without paying proper attention to the traffic. The relatively high speed of Kong’s taxi catching up from behind no doubt contributed to the appalling result that followed. 35.Defendant is said to be a filial son supporting his mother and a young man who strives to have a better future for himself and his mother by taking up the new job. 36.Defendant has been suffering from post-traumatic stress disorder as a result of this accident, which must have been quite a shock to the defendant himself. 37.It is very sad that the deceased lost his life and great distress to his family because of the misdeed of the defendant, but at the same time, because of the seriousness of the nature of this offence, the defendant, although a fresh offender, lost his chance for other sentencing option other than an immediate custodial sentence. The defendant has indicated his great remorse in his letter to this court and the court accepted that it is genuine. 38.Considering all the circumstances of this case and predominantly, as said by the Court of Appeal in previous cases, the culpability of the defendant, the court adopts a 15 months’ sentencing starting point for the defendant in this case. 39.Defendant has pleaded guilty at the earliest opportunity. He is entitled therefore to full one-third sentencing discount, therefore reducing the starting point to 10 months’ imprisonment. 40.It is submitted that defendant has suffered post-traumatic stress disorder as a result of the accident, probably because of the genuine shock of the accident. This is a valid mitigating ground and the sentence is further reduced to 8 months. 41.He is also a man with a perfect driving record and a man of clear record. This is again another mitigating factor identified in the Court of Appeal case of Secretary for Justice v Liu Kwok Chun, CAAR 3/2009, and for this reason this court further reduces the sentence to 6 months’ imprisonment. Sentence 42.Accordingly, defendant is sentenced to 6 months’ imprisonment for this offence. Disqualification 43.Going to disqualification, under section 36(2A) of the Road Traffic Ordinance, Cap 374, if a court convicts a person of this offence, the court shall under that provision disqualify the person in the case of a first conviction for a period of not less than 5 years, unless there are special reasons. 44.As conceded by defence counsel, there is no special reason in this case and accordingly defendant is disqualified for 5 years from holding or applying for a driving licence of any class. 45.The defendant is further ordered to attend and complete a driving improvement course pursuant to section 72A(1) of the Road Traffic Ordinance at his own cost, the same to be completed within the last three months of the disqualification period. 46.This court warns the defendant that if he fails to complete the course within the specified period, he might have breached section 72A(9) of the Road Traffic Ordinance and is liable to fine at level 2 and to imprisonment for 1 month and that even on the expiry of the disqualification period, he would not be allowed to apply or hold or obtain any driving licence of any class until he has completed that driving improvement course.
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Cases cited in this judgment