HKSAR v. Ha Kwok Ching

DCCC 1027/2018

[2020] HKDC 58

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1027 OF 2018

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REASONS FOR SENTENCE

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1.Defendant is convicted on his own plea and agreement to amended summary of facts to a charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.

2.The accident occurred at the signal-controlled pedestrian crossing outside No 292, Tai Po Road, Shek Kip Mei, Kowloon, Hong Kong.  This section of Tai Po Road (southbound) was a downhill carriageway consisting of two lanes.  On the opposite direction, there were three northbound lanes.  There was a safety island between the northbound and southbound lanes at the pedestrian crossing.

3.At the material times, the weather was fine and the road surface was dry with sufficient sunlight.  The traffic flow was normal and the prescribed speed limit was 50 kilometres per hour.

4.At around 7.10 am on 24 March 2018, defendant was driving a public light bus bearing registration mark NG7789 (“V1”) downhill along the second left lane of Tai Po Road (southbound) at around 50 to 65 kilometres per hour with passengers on board.  When V1 was around two to three public light bus lengths before the traffic lights at the pedestrian crossing, the offside traffic light signal was red.  However, V1 did not reduce speed and maintained the same speed.

5.At that time, the deceased, a female aged 68, walked on the pedestrian crossing across the northbound lanes and reached the safety island pursuant to a pedestrian green light signal. 

6.When V1 was around 2 to 3 feet before the white stop line of the pedestrian crossing on the southbound lanes, the deceased walked out from the safety island onto the pedestrian crossing to cross the southbound lanes pursuant to a green pedestrian light signal (ie from V1’s offside towards V1’s nearside).  The deceased was looking towards her front and not at V1.  Defendant did not apply the brakes and a passenger on V1 yelled at defendant.  The offside front of V1 then knocked down the deceased and thereafter came to a halt in front of the deceased.  V1 did not reduce speed, swerve or honk before the collision. 

7.Around two to three seconds after the collision, the traffic light signal for traffic flow on the northbound and southbound lanes changed from red to green.

8.The following damage defects were found on V1:-

(a) offside front corner panel dented;

(b) offside front radio antenna buckled;

(c) front windscreen cracked; and

(d) both sides stop lamp inoperative.

9.When ambulance men arrived, the deceased had no signs of breathing and had no pulse.  There was bleeding on the back of her head, laceration on the left side of her face and blood coming from her mouth. The deceased was rushed to hospital in an unconscious state and was certified dead before arrival.  The autopsy revealed multiple blunt force trauma consistent with the result of being hit by a moving vehicle.

10.Defendant was arrested.  Under caution, he admitted at a video recorded interview that:-

(a) he had 12 years of experience as a public light bus driver;

(b) on 24 March 2018, he started work at 6 am. At around 7 am, he started to drive V1 and there were 9 passengers on board;

(c) when V1 was around two public light bus lengths behind the white stop line at the pedestrian crossing, he wanted to drive ahead at the pedestrian crossing. At that time, he saw the deceased stepping onto the pedestrian crossing from V1’s offside towards the nearside. Someone shouted to alert him of the deceased and the deceased stepped out for around three steps before the collision;

(d) at the material times, the road surface was dry, traffic flow was light and his vision of the surroundings was clear. The headlamps of V1 were on and he was familiar with the roads in the area.

11.According to V1’s motion data extracted from motion data recording device, from around 31 seconds to around 6 seconds before the collision, V1 was travelling above 50 kilometres per hour, with V1’s speed reaching 65 kilometres per hour at around 25 seconds before the collision. 

12.The light signals at the pedestrian crossing were working properly at the material times.  When the traffic light signal for traffic flow on the northbound lanes was red, the traffic light signal for the traffic flow on the southbound lanes was red, and the pedestrian light signals for both northbound and southbound lanes were green.

Criminal record

13.Defendant has one previous conviction of gambling in a gambling establishment in year 1980.  He was fined $250. 

14.He had three previous convictions for using a mobile phone or other telecommunication equipment or accessory to such a telephone or equipment while the vehicle is in motion, all within two months (ie 9 January 2017, 10 January 2017 and 14 February 2017).  For each of these offences, he was fined $450.

Mitigation

15.Defendant is aged 67.  He was born in Hong Kong and received education up to Primary 2 level.  He is married.  His wife is aged 62.  He has a son aged 36 and a grandson aged 6 months.  He also has a daughter.

16.From year 2007 to the date of the offence, defendant was a part-time public light bus driver, working one to two days per week, earning about $2,000 per month. 

17.Defendant had colon cancer in year 2011 and he received two surgeries and chemotherapy.  He also had problem with bone degeneration and was on painkiller medication even before the offence. Defendant was also said to be suffering from arrhythmia, vascular occlusion and was receiving medical attention.  He also has deafness in his right ear.

18.It is the case of the defence that he did not know of these health problems at the time of the accident and that, even now, he had no idea as to why there was inattention on his part at the material times.

19.It was submitted by defence counsel that, on the day in question, defendant got up at 5:30 am and started driving at 6 am.  He was familiar with the driving route.  Up till now, defendant was unable to explain why he had caused the accident.  He felt guilty for causing the loss of a valuable life.

20.It is said that, after the collision, defendant immediately got off the PLB to see if he could help the deceased.  On learning the death of the deceased, defendant could not eat or sleep properly and he went to the temple to pray for the deceased and her family.

21.Defendant loves his family.  He now pleads guilty to show his remorse, and he is willing to shoulder the legal consequences for his misdeed.

22.Defence counsel handed to this court mitigation letters. 

23.Defendant in his letter to this court says that he is apologetic for his misdeed, resulting in the loss of a life as well as distress to the family of deceased.  He vows not to drive again and hopes to perform more good deeds to compensate what he has done and hope that the deceased would rest in peace. 

24.Family members of the defendant, namely the son and daughter-in-law, daughter and son-in-law, say defendant is a genuine, kind and caring man who loves his family, and that, in order not to increase the financial burden of the family or to get social security from government, he takes up this part-time job as a driver.  They say the defendant is now deeply remorseful for what he has done and he now prays for the forgiveness of the deceased and her family.  It is said that defendant’s health had deteriorated since the accident.

25.It is also said that defendant is receiving medical treatment for a number of health issues, including that of prostrate gland and his heart.  It is said further that, as a result of the treatment of colon cancer, defendant now has to stay within a short distance from a restroom.  They say that the wife of defendant has quitted the job in order to look after the defendant.

26.Mitigation letters from former colleagues of the defendant say that defendant has good driving manners, always cautious on safety of passengers.  They say defendant now deeply repents what he has done and feels guilty towards the deceased and her family.  They all ask this court for leniency on the defendant.

27.Defence counsel submits that the present case falls within the least culpable category of dangerous driving, as depicted in R v Cooksley [2004] 1 Cr App R (S).  She also invited this court to consider the authorities[1]. She submitted that although the defendant was speeding immediately prior to the accident, the speed was not at grave excessive speed.  She says that the defendant had all along been driving below 60 kilometres per hour for the 22 seconds immediately preceding the accident.

28.Defence counsel urges this court to deal with the defendant leniently in view of his satisfactory driving record, good personal background, and lack of aggravating factor in the present case (other than the slightly excessive speed that the defendant was driving).

Discussion

29.For this offence, on conviction upon indictment, the maximum sentence is fine at level 5 and 10 years’ imprisonment.

30.In the judgment of the case for Secretary for Justice v Ng Hop Sing also known as Ng Hop Shing, CAAR 1/2017, the Court of Appeal stated in paragraph 35 to 40 of the judgment that:-

“It is never an easy task to sentence a defendant convicted of dangerous driving causing death. In these cases, most of the defendants are persons of good character and in normal circumstances they have never thought of going to jail.

The courts have emphasised many times that a vehicle in control by an irresponsible driver could be a deadly lethal weapon that could cause great loss of human lives and property damage.

And, in order to deter dangerous driving by irresponsible drivers and in order to avoid loss and injury to human lives and property damage, the court would generally sentence defendants convicted of dangerous driving causing death to immediate custody sentence.

As Lord Woolf CJ in the case of R v Cooksley [2003] 3 All ER 40 on page 46 of the judgment stated:

‘A factor that courts should bear in mind in determining the sentence which is appropriate is the fact that it is important for the courts to drive home the message as to the dangers that can result from dangerous driving on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standard of driving. Motor vehicles can be lethal if they are not driven properly and this being so, drivers must know that if as a result of their driving dangerously a person is killed, no matter what mitigating circumstance, normally only a custodial sentence will be imposed. This is because of the need to deter other drivers from driving in a dangerous manner and because of the gravity of the offence.’

It is set out in the case of Cooksley that, even in the absence of any aggravating factor, the appropriate sentence for such an offence is 12 months to 18 months’ imprisonment.

The Court of Appeal in Hong Kong, in the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, adopted the sentencing principle and guideline in Cooksley. The Court of Appeal emphasised, due to the serious consequence of the offence, there is a need for deterrent sentence.”

31.In the present case, the defendant was driving in excess of the speed limit at the material times.  Defence counsel concedes that defendant was driving below 60 kilometres per hour within 20 seconds prior to the collision.

32.However, the chart shows that even assuming collision occurred on 24 March 2018 at 06:57:37, 20 seconds before, the speed of the vehicle was 62 kilometres per hour. 

33.According to the statement from the Traffic Department, the traffic light in favour of the defendant had been red for about 20 seconds before the collision occurred. 

34.Defendant failed to slow down on approach of the traffic-lights controlled pedestrian crossing.  He actually rushed the red traffic light, which had been there for 20 seconds.

35.Before the public light bus hit the deceased, there was no horn, braking or manoeuvre of the PLB to avoid the accident.

36.The layout of the stretch of road was such that the defendant should have been able to see the traffic-light controlled pedestrian crossing while going downhill.  The stretch of road approaching the set of traffic light is a relatively straight stretch of road, as can be seen in photographs 4 to 11 in the photo album. 

37.Further, before this set of traffic light, there is another pedestrian crossing adjoining two exits (one on each side of the road).  The defendant should have slowed down, knowing the existence of these pedestrian crossings, yet he was speeding at the material times and he knew the layout of the road well.  His view of the deceased on the safety island was not obstructed at the material times.  The weather then was fine, road surface was dry and the traffic was normal.  His vehicle was of a roadworthy condition and the accident site was a traffic-light-controlled pedestrian crossing and the deceased was hit when she was properly crossing the road when the traffic light in her favour was green.

38.In the Court of Appeal case of Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, the court in paragraphs 19 and 20 of the judgment said:-

“19…. It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious: 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 as we have seen in the Reviews before us.”

20. Thus, we are of the view 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. The degree of seriousness will of course depend on the precise circumstances. For example, a conscious disregard for traffic lights will likely put the case into the most serious category.”

39.The fact that the accident took place at this site is an aggravating feature.

40.In the cited case of Lam Siu Tong, the defendant approached the pedestrian crossing at a speed well beyond the speed limit of 50 kilometres per hour (the court assessed the speed at 74 kilometres per hour).  In our case here, the speed was about 60 kilometres per hour and under.  There was no intention by the defendant in that case and in our case to slow down as they approached the pedestrian crossing. 

41.In that case, the lights facing the defendant was amber rather than red, and there were three seconds’ duration of amber light that should have alerted the defendant to slow down.  By the time of collision, the traffic light was red.  In our case here, when the defendant’s vehicle hit the deceased, the red light has been there for 20 seconds.  The defendant here in our case did not slow down the vehicle throughout this period. 

42.In that case, the driver’s record was said to be not ‘particularly good’.  In our case here, the driver’s record was good, save for three fixed penalty tickets which indicated the defendant had in the past been caught repeatedly using telephone whilst the vehicle is in motion.  This concerns this court, as the same would obviously result in inattention. 

43.In our case here, there is no evidence showing that the defendant intentionally hit the deceased.  He should have hit her because of inattention, but to say that the defendant is not aware of the red lights in the 20 seconds is not a realistic statement.  This court has no hesitation that he is aware of the red light.

44.In that case, the court said that the fact that the accident took place at a pedestrian crossing was a serious aggravating feature that should have resulted in a higher starting point than 18 months. The court said that the starting point of 24 months would reflect the seriousness of cases of dangerous driving causing death at pedestrian crossing.  It should be noted, however, that in that particular case, the deceased dashed out from the pedestrian crossing, whereas in our case the deceased followed the green traffic light in her favour when crossing the road.

45.In Cooksley, the court laid down sentencing guideline for cases involving different categories of dangerous driving.

46.In the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, the court, whilst having certain other observations, adopts the sentencing principle and the sentencing guideline in Cooksley.

47.On what is before us, defendant should have been able to notice not just the deceased crossing the road, but another person also at a short space behind the deceased also crossing the road.

48.From the car video, one could see the deceased had walked about three paces onto the carriageway when she paused for a while before being hit by the defendant’s vehicle.  Defendant did not do anything to avoid the collision.  The timespan of inattention was therefore long. 

49.Considering the authorities referred to this court by defence counsel, the driving manners of the defendant in the present case is obviously much more serious than that of the defendant in those cases.

50.Considering all the factors aforesaid, including of course that a person is killed as a result, this court finds that the present case falls within the intermediate culpability category. 

51.The defendant is a professional driver but, as he is only a part-time driver, this court is not going to consider that as an aggravating feature.

52.This court has considered all mitigation submissions by defence counsel, including the mitigation letters handed to court. 

53.The only appropriate sentence is one of immediate custodial sentence and the appropriate sentencing starting point is one of 2 years and 3 months’ imprisonment.

54.Defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount, bringing the sentence to 18 months’ imprisonment and, in view of his age and his health conditions, this court is willing further to reduce his sentence by 3 months, bringing the sentence to 15 months’ imprisonment.

55.Accordingly, defendant is sentenced to 15 months’ imprisonment for this charge.

Disqualifications

56.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 circumstance. 

57.There is no special reason in this case.  Accordingly, defendant is disqualified for 5 years from holding or applying for any driving licence of any class.

58.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 costs, the same to be completed within the last 3 months of the disqualification period. 

59.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 a fine at level 2 and to imprisonment for 1 month, and that, even on the expiry of disqualification period, he would not be allowed to apply for, hold or obtain any driving licence of any class until he has completed that driving improvement course.