HKSAR v. Tong Pak-fai, Sammy

DCCC 741/2020

[2021] HKDC 51

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 741 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to one count of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.

2.The particulars of the offence are that the defendant, on 23 February 2020, near the junction of Ting Kok Road and Nam Wan Road, Tai Po, New Territories, caused the death of a Madam Cheung by driving his taxi dangerously. 

3.The defendant admits driving his taxi at about 8.20 pm on Ting Kok Road westbound when he approached an intersection with a set of traffic lights controlling a pedestrian crossing.  The speed limit at that location was 50 kilometres per hour.  At the material time, the road was dry, street lighting sufficient and the volume of traffic normal. 

4.The defendant was in the third lane of a four-lane road.  The first three lanes from the left directed traffic to go straight ahead at that intersection whilst the fourth lane from the left directed all traffic to turn right only.  As the defendant approached the intersection and just before his taxi passed the stop line of that intersection, the traffic lights for the taxi turned red but he nevertheless proceeded over the intersection.  He jumped a red light. 

5.As he was approaching the pedestrian crossing immediately after the intersection and traffic lights, the deceased was already walking on the pedestrian crossing.  The defendant honked his horn and swerved slightly to the right but the nearside front of his taxi hit the deceased. This accident was captured by the defendant’s car camera. 

6.There was also a witness who had been waiting with the deceased at the pedestrian crossing just before the accident.  He heard the sound of a car horn and he looked up.  The pedestrian traffic light controlling their crossing was still red.  However, the deceased had already started to walk over the crossing.  He saw the defendant’s taxi when it was near that crossing and saw it hit the deceased. 

7.The police and an ambulance attended the accident scene within minutes.  The deceased was taken to Prince of Wales Hospital but, unfortunately, died in the Accident and Emergency Department soon after.  The direct cause of her death was due to multiple injuries. 

8.A forensic scientist did examine the car camera footage from the defendant’s taxi and made the following findings. 

a.  When the defendant reached the beginning of the pedestrian crossing, the average speed of his taxi was 60(+/-6) kilometres per hour to 70 (+/-7) kilometres per hour. When he braked and sounded his horn just before the point of collision, his average speed was around 55 kilometres per hour (+/-6) kilometres.

b.  Had he been travelling at a speed lower than 70 kilometres per hour at the time when the traffic lights turned from green to amber, then there would have been sufficient distance for his taxi to come to a complete halt before reaching the stop line and intersection. The stopping distance for a taxi travelling at 50 kilometres an hour should be 26.5 metres.

c.  The camera captured the deceased walking across the pedestrian crossing and when she was about to reach the middle of the second lane, the taxi was around 26.5 metres from the point of impact. Therefore, if the taxi had been travelling at 50 kilometres an hour and that the driver was able to see the deceased, then the accident could have been avoided because he would have been able to stop in time.

9.The traffic lights were functioning properly at the time and it is an admitted fact that there was a 36-second time gap when both the pedestrian traffic light for the deceased and the traffic light for vehicles, that is the taxi, would both be red at the material time. 

10.The defendant admits at the material time he was exceeding the speed limit, had jumped a red light and failed to keep a proper lookout.  As a result, he drove his taxi dangerously and caused the death of the deceased. 

Mitigation

11.The defendant is 64 years old and a man with a clear record.  He is married with two adult sons.  His wife is a full-time housewife.  His younger son was born with Down syndrome and lives with as well as relies heavily on his parents.  The defendant himself suffers from hypertension and diabetes.  He has been driving since 1979 and has only one traffic conviction, a careless driving offence in 2013 for which he was fined $1,000. 

12.The defendant was working as a night-shift New Territories taxi driver earning approximately $6,000 a month.  He is the main breadwinner of the family which is not financially well off.  In fact, they struggle to meet their daily expenses.  This is more pertinent now since the accident because the defendant has ceased driving and retired.  As a family, they now rely on their savings, their youngest son’s government allowance because he is mentally handicapped and some contribution from their oldest son who is working. 

13.The family, I have been told, are not in good health.  The defendant, other than hypertension and diabetes, has heart disease and lipid metabolism disorder.  Not long ago, he had surgery to remove his gallbladder and also angioplasty surgery.  His wife is also in poor health with chronic gastritis and stomach issues.

14.His youngest son has a number of medical complications including severe psoriasis skin disease.  He has an injection every two weeks to treat this skin problem which is an expensive medication subsidised by the Samaritan Befrienders Hong Kong.  He also suffers from painful gout, an inflammation of his joints which means he sometimes has to rely on a wheelchair.  He was also born with heart defects which necessitated surgery in 2000 for which he is still monitored regularly.  He is very close to his father who is the one who helps with all his medical issues including applying skin cream nightly. 

15.I have received several letters in mitigation from the defendant and his family but also from a director of the Hong Kong Down Syndrome Association and another member of the Parents’ Association of the Hong Kong Down Syndrome Association, as well as a retired headmaster of the youngest son’s school who has remained in touch with the defendant long after his son left the school and the headmaster retired. 

16.The defendant expresses true remorse and heartfelt condolences to the family of the victim.  He cannot apologise enough.  He accepts he must take responsibility for his actions. 

17.Since the accident, the stress and remorse has exacerbated his medical conditions, worsening his health.  His family explained what a hardworking father he is but, more importantly, a loving one who has embraced the son with many difficulties and shown him nothing but love and patience.  Those that know the family, the defendant and his younger son say the same thing.  He has been nothing but a loving father, a conscientious husband and utterly devoted to his younger son.  It has been explained that individuals with Down syndrome rely on their family very much.  His younger son is attached to and devoted to the defendant.  He will find the absence of the defendant due to a term of imprisonment intolerable and confusing.  There is a concern as to how the defendant’s wife will be able to cope at home alone. 

18.The acting director of the Hong Kong Down Syndrome Association tells me that it is not an easy task to look after a child with Down syndrome.  She says the time, effort and stress are beyond one’s imagination.  She asks me to take into consideration what a term of imprisonment will do to this family. 

Reasons for Sentence

19.Defence counsel, Miss Wong, has said all she can say on behalf of the defendant and said it succinctly.  The defendant’s best mitigation is his plea of guilty.  She has asked me to consider the authority often quoted in such cases, R v Cooksley and Others [2003] 3 All ER 40. She has referred me to the four levels of culpability defined in that authority.  She has urged me to consider accepting the facts of this case to be within the bands of an intermediate culpability scenario.  I agree with her submission. 

20.In that authority there are various aggravating and mitigating features identified for the purposes of sentencing.  In Secretary for Justice v Liu Kwok Chun, CAAR 3/2009, the court suggested at paragraph 37:

“In assessing the degree of culpability there are two extreme situations. The first is where the event occurred because of a momentary error of judgment. The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness. In between these two extremes, there are varying degrees of culpability depending on the presence of the aggravating factors which were referred to in Cooksley at paragraph 15.”

21.I accept that in assessing the degree of culpability here, the defendant drove dangerously because of a momentary error of judgment.  This was a momentary dangerous error of judgment or a short period of bad driving.  This was not the more extreme situation, a highly dangerous, deliberate and selfish disregard by the defendant for the safety of others.  

22.The court in Liu Kwok Chun explains the four categories of culpability and gave a range of sentencing within those categories.  That is, if the culpability is intermediate, which is where the momentary dangerous error of judgment or a short period of bad driving aggravated by a habitually unacceptable standard of driving caused the death of a victim, this would lead to sentences within a range of 2 to 3 years’ imprisonment. 

23.Here, there are aggravating circumstances.  The defendant has exceeded the speed limit and ignored the traffic light.  I have also considered the evidence from the witness account that the deceased ignored the pedestrian lights and crossed the road before the pedestrian light turned green. 

24.However, where a death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased.  The impact of that ought to be taken into account when sentencing. Vehicles can be dangerous weapons and even though violators of traffic laws are often not true criminals, if the manner of driving is obviously dangerous, then an offender deserves to be punished accordingly. 

25.In recent years, the courts have repeatedly emphasised the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving. 

26.When determining the starting point in this case, I treat the defendant as a law-abiding citizen and having maintained a very good driving record as a professional driver for 30 years.  I have taken into account his age, family background and mitigation put forward.  I have taken into account the facts of the case, his driving manner, the aggravating factors as well as the eyewitnesses’ evidence. 

27.Having considered all of those factors, I adopt a starting point of 2 years and 3 months’ imprisonment.  A one-third discount is given for the defendant’s guilty plea, reducing the sentence to 1 year and 6 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Thus, I sentence the defendant to 1 year and 6 months’ imprisonment. 

28.In addition to imprisonment, I make a disqualification order from driving all classes of vehicles for a period of 5 years.  This disqualification period will start to run from today, the date of sentencing. 

29.I also order the defendant to complete a driving improvement course at his own expense within the last three months of that disqualification period.