HKSAR v. Wong Cheuk Wah

DCCC 402/2019

[2019] HKDC 1723

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 402 OF 2019

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to dangerous driving causing death (Charge 1) and using a vehicle with fitting other than in good and serviceable condition (Charge 2).

Facts

2.The material location (the “Location”) was at Chatham Road North near Chatham Road South, Kowloon (near the bottom of the Princess Margaret Road Link Flyover). Chatham Road is a route artery connecting East, West Kowloon and Tsuen Wan. This section of the road consists of 5 lanes. There were concrete crash barriers on both sides of the carriageway and there was no pedestrian pavement on either side of the road.

3.At the material time, the weather was fine, the road condition was dry and the street lights were lit. The traffic flow was light and the speed limit was 50km/h.

4.On 15 November 2018 at around 4:41am, female Chan Ng-nui (the “Deceased”) was walking on the rightmost lane at the Location towards To Kwa Wan direction at all material times. The Deceased was carrying a trolley and an umbrella as a walking stick.

5.The Defendant was driving a taxi EM4068 (the “Taxi”) along the same lane following the Deceased. At around 4:41am, the front of the Taxi hit the Deceased.

6.After traffic accident reconstruction, it was revealed that:

(a) starting from 6.7 seconds before the impact on the Deceased by the Taxi, or 91.4 metres before the impact, the driver’s line of vision to the Deceased had been unobstructed; and

(b) the speed of the Taxi was 52±5 km/h at 3.8 seconds before the impact. Its speed was of 51±5km/h at 1.56 seconds and 46±5 km/h at 0.44 seconds before the impact.

7.There was no skid mark found at the scene.

8.The Deceased was sent to hospital shortly after the incident. The clinical diagnosis was head injury. Her condition deteriorated and she passed away on 20 November 2018.

9.Police arrived and arrested the Defendant for “causing death by dangerous driving”. The Defendant said “I was driving on northbound Chatham Road North. That old lady was carrying a trolley from slow lane to fast lane, and then I hit her. I could not see her at the early stage.”

10.Motor Vehicle examiner examined the Vehicle and found 1 mechanical defect, namely “the driver seat belt was not in good and serviceable condition (the seat belt strap was fully extracted from its retractor and then clipped in place)”.

11.At the material time, the Defendant caused the death of the Deceased by driving the Taxi on a road dangerously, namely not paying attention to the Deceased at the carriageway in front of him for a prolonged period of time.

12.At the material time, the Defendant used the Taxi on a road when the Taxi was not in good and serviceable condition, namely, the operation of the safety seat belt of the driver’s seat was obstructed by an additional clip.

Mitigation

13.The Defendant was 69 years old at the time of accident.  He is now 70 years old. He has a clear record.  His traffic record over the past 7 years reveals 1 careless driving, 3 speeding contraventions, 1 failing to comply with traffic signals, and 1 for unlawfully entering yellow striped light signal crossing.  I do not regard that these justify any increase or decrease in his sentence today. 

14.His counsel Mr. Lo refers me to 3 cases.  R v Cooksley [2003] EWCA suggests 12 – 18 months as the starting point for dangerous driving causing death with no aggravating circumstances.  The position in England is the same as in Hong Kong, a maximum sentence of 10 years.     

15.In SJ v Liu Kwok Chun CAAR 3/2009 & 34/2009, the Court of Appeal considers that, culpability wise, a distinction can be drawn between a case of momentary error of judgment, as opposed to the more serious kind which features selfish disregard for the safety of other road-users or recklessness.  Mr. Lo submits that our case belongs to the former kind.  I agree to this submission. 

16.In HKSAR v Au Wai Sum (transliteration of 區維森) DCCC 866/2012, an elderly at dawn slowly stepped onto the southbound lane of Hip Wo Street, and walked toward the northbound lane of Hip Wo Street.  There were no structures dividing southbound and northbound lanes of Hip Wo Street.  The defendant failed to see him until knocking him down on the northbound lane.  He had stepped onto the road for about 15 seconds until hit by the defendant’s car.  The court took a starting point of 12 months.  

Sentencing the Defendant

17.I take 12 months as the starting point as our case is one of momentary lapse of attention to the emergence of the Deceased at an unexpected spot.  The Defendant did have sufficient time to react but he had failed to do so. 

18.I give a one-third discount for the plea of guilty.  I also reduce his sentence by 1 month because, for a man aged 70 of previous good character, a first experience with the jail is going to be very harsh.  The sentence is 7 months.  I disqualify him from driving all classes of vehicles for 5 years.  He has also to complete the driving improvement course before he can get back his driving licence.  This is for Charge 1.

19.I fine him $1,000 for Charge 2.