HKSAR v. Chan Kit Fong

DCCC 980/2020

[2021] HKDC 305

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 980 OF 2020

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Reasons for Sentence

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1.Ms Chan has pleaded guilty to a single charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance. The accident causing death occurred on 28 March 2020 in Tuen Mun. The defendant has admitted that she drove a motor vehicle, which is a private car, at that time dangerously.

2.The facts of the accident show the location which is Tai Fong Street, Tuen Mun, a dual carriageway road, at the junction of Tai Fong Street and the vehicular access of Tai Hing Estate Car Park. The vehicular access is a dual carriageway consisting of two lanes.  The accident itself took place on the lane of the vehicular access that leads to Tai Fong Street near the “Give Way” intersection.  At the time of the accident, the weather was fine, sunlit.  The road surface was dry.  Conditions were normal.

3.The facts of the accident are agreed.  The defendant was driving a private car.  She drove towards the gate at the exit of the Tai Hing Estate Car Park.  She did not stop at the gate to wait for it to open.  The car hit the gate, entered the lane of the vehicular access that led to Tai Fong Street before the “Give Way” T-intersection.  There was no reduction in speed.  The car continued on the same lane, headed straight to Tai Fong Street.  The person killed in the accident was walking from the offside to the nearside in front of the car.  The car driven by the defendant knocked down the deceased, causing him to bang on the windscreen and fall toward the nearside of the car. 

4.All these matters were captured on CCTV, and the time of the accident was around 8.47.  By 9.11, the deceased had been admitted to Tuen Mun Hospital and he was certified dead at 9.45 am.  

5.The investigation showed that the speed of the defendant’s car before hitting the deceased was around 32 kilometres per hour, give or take 3 kilometres per hour. 

6.Now, the defendant was arrested and cautioned. On inquiry, the defendant said she stepped on the wrong pedal.  She had seen the person but could not avoid him.  The final admission by the defendant in the Summary of Facts is that she failed to reduce the speed of the car, failed to stop or apply hard brake or swerve in good time to avoid running into the deceased, and erred in identifying the difference between the brake pedal and the accelerator.

7.It can be said the defendant’s driving created a brief but obvious danger.  That involved a seriously dangerous manoeuvre which resulted in the death of another person.

8.The defendant’s background is set out in an antecedent statement.  At the time of the compilation of the information, she was aged 48.  She has no criminal conviction record.  She was employed as a field assistant, bushworking.  The defendant has no relevant convictions; clear record.  As far as her driving record is concerned, again no relevant information save a fixed penalty, what appears to be a fixed-penalty offence in 2019.

9.A number of reports have been obtained on the defendant, such as background report.  The defendant has suffered from the trauma of this accident, and the psychological and psychiatric reports being obtained on her would show the extent to which she has suffered trauma.   

10.As far as the mitigation for the defendant is concerned, it sets out that she has three sons who are aged between 21 and 26. At the time of the accident, she was employed as a field assistant by the Agriculture, Fisheries and Conservation Department.  The defendant appears to have worked hard in life, obtained a number of qualifications to assist in the employment she presently conducts.

11.In mitigation, the defendant’s explanation for the accident is the one she advanced to the police at the time of the accident. She said she mistakenly stepped on the acceleration pedal of the vehicle and completely lost control of the vehicle which resulted in the accident.  It is apparent the defendant has felt extreme guilt and trauma as a result of this accident.  She was correctly persuaded to seek medical attention and has attended Kowloon Hospital for both psychological and psychiatric treatment. 

12.The diagnosis of her condition that I have seen in all the reports that have been obtained on her is one of post-traumatic stress disorder.  The reports from Kowloon Hospital and also reports taken in detention show the same result.  And at the time, the mental health counsellor described the defendant’s visit to the centre that she had tremendously deep sorrow, regret particularly for the victim and his family.  This is also reflected in the background report that they have taken of the defendant as well.

13.I will now deal with the sentencing considerations in respect of an offence such as this.  The maximum sentence for an offence of dangerous driving causing death is provided by section 36(1)(a) of the Road Traffic Ordinance.  That is imprisonment for a term of 10 years.  A person convicted of this offence shall be disqualified for a period of not less 2 years in the case of a first conviction.  I note that in fact the maximum term of imprisonment for this offence was increased from 5 to 10 years in 2008.  That is an indication that the offence is now regarded as a more serious offence than used to be regarded.  It is noted that road accidents cause human suffering.  Those in charge of vehicles must bear in mind the duty they owe to other road users.

14.I note the observations of the Court of Appeal in the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660.  In that case, the court adopted the general principles found in the case of R v Cooksley & Others [2003] 3 All ER 40.  It said that in most cases of dangerous driving, it would be obvious to the defendant that his driving was dangerous.  When death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased.  The impact on people’s lives ought to be taken into account when sentencing.

15.The case of Cooksley identified a number of aggravating and mitigating factors that could exist in most accidents. These aggravating factors do not appear to be present in this case.  Examples of aggravating factors would be the consumption of drugs or alcohol; excessive speed; prolonged, persistent, deliberate course of bad driving or aggressive driving.  The court should also take into account any mitigating factors that exist.  An example of mitigating factors would be a good driving record, the absence of previous convictions, a timely plea of guilty, genuine shock or remorse, age of the offender, any injury caused to the offender.

16.It is clear that from an analysis of the offence that none of the aggravating factors identified in Cooksley are present in this case.  It is also clear that some of the mitigating factors are present.  The defendant has a good driving record.  She has an absence of previous convictions.  There has been a timely plea of guilty.  It is clear that the defendant has suffered genuine shock and is very remorseful.

17.It is clear that the defendant’s driving, whilst it does amount to dangerous driving, is very much at the lower end of the spectrum in terms of its gravity.  The accident scene itself was not a pedestrian crossing, and the victim was walking across the road instead of taking the pedestrian flyover that was available. 

18.The defendant has shown in the past that she is a motivated and hardworking individual and a responsible mother.  The details of her mitigation show she raised her family on her own. 

19.Taking all these factors into account, I would assess the appropriate starting point for this offence to be 18 months’ imprisonment.  That has taken into account most of the mitigating factors.  I consider there is one additional mitigating factor that should be taken into account when determining the starting point, and that is the clear trauma suffered by the defendant as a result of the accident.  It goes to the point of being what I would describe as a mental health injury.  I consider that would require the starting point for sentence to be reduced by a further 3 months to 15 months’ imprisonment.  The defendant is entitled of course to a one-third deduction from that for her plea of guilty.  That leads to a final overall sentence of imprisonment of 10 months’ imprisonment.  I consider that sentence should be served immediately, having immediate effect.  

20.The defendant must also be disqualified from driving for a period.  The events of this accident show seriously the dangers of poor driving.  Taking into account the circumstances of the case and the sentencing principles, the defendant will be disqualified from holding or obtaining a driving licence for all classes of vehicle for a period of 5 years.  The defendant must also attend and complete a mandatory driving improvement course within 3 months prior to the end of disqualification period.  Then so she understands the nature, that she has to get the driving improvement course?

DEFENDANT: Yes.