HKSAR v. Kan Nam Tim

DCCC 780/2020

[2021] HKDC 381

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 780 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of causing death by dangerous driving.

2.The charge arises out of an accident that occurred at the car park entrance to Island Place in North Point.  The car park entrance is off a two-way road and to enter the car park, a vehicle must cross a pedestrian walkway.  Following that, at the entrance to the car park there is a flat cross-hatched yellow area before a downslope into the car park.  Traffic is two-way in and out of the car park.  There are no indicated speed limits at the car park.

3.The accident occurred around the time of 1359 in the afternoon.  Roadway was dry, lighting was sufficient, conditions were good. The defendant drove a taxi.  At the time of this accident, he was 75 years old.  The taxi made a right turn into the location, stopped to collect some passengers who boarded.  The front wheels of the taxi were on the inbound side of the speed ramp that was at the car park.  The rest of the taxi was on the pavement.  At about the time this accident occurred, another vehicle was exiting the car park.

4.The deceased, who was a pedestrian, walked across the front of the taxi.  The taxi suddenly moved forward.  The bonnet of the taxi collided with the deceased.  The taxi swerved into the outbound line of the car park and moved down the slope into the car park.  The taxi rolled over the deceased and crashed into the wall of the car park.

5.Emergency services by way of fire officers arrived at 1418 hours.  The deceased was freed, sent to hospital by ambulance. At the time, however, there was no sign of breathing or pulse and the deceased was unconscious.  She was finally certified dead at 1642 hours that afternoon. The cause of death given in the Admitted Facts is hypoxic brain injury with injuries and head injury as the antecedent cause.

6.There were two other passengers in the taxi. They both suffered some injuries.  One was retained in hospital for two days and received lacerations.  The other received lacerations of the forehead and bruising and she had to attend physiotherapy and occupational therapy after the incident.

7.The defendant made a video-recorded interview in which he admitted he was driving the taxi at the time and that he picked up the passengers.  He said that as he was starting, a goods vehicle came up from the floor below.  He released the handbrake of the taxi and the taxi rolled forward.  As it rolled forward, he steered but the taxi gained speed and then collided with the corner of the car park.  He tried to use the brakes and handbrake after the taxi started rolling.  He said he did not step on the throttle when he released the handbrake as the car had automatic transmission. We also know from his video-recorded interview the defendant has over 50 years of driving experience.  He was found not to be under the influence of alcohol or medications at the time.

8.The admission made by the defendant was that at the material times, by failing to keep a proper lookout and failing to manoeuvre the taxi properly, the defendant drove the taxi on a road dangerously and caused the death of the deceased.

9.The defendant’s background is contained in various reports that were obtained.  The probation officer provided a background report.  There have also been psychiatric/psychological assessments.  The psychiatric and psychological assessments are unremarkable. The defendant is not suffering from any psychiatric or psychological disease and no sign of dementia either.

10.He is aged 75 years old.  He was working and at the time of the accident was a taxi driver.  As far as his criminal record is concerned, he has one historic conviction for theft which is irrelevant to the sentencing exercise today.

11.The defendant has had a driving licence since 1966.  He had committed no traffic offences until 2015, in fact, when there was a speeding conviction, then a careless driving conviction in 2016, then further convictions in 2017 and 2019, failing to comply with traffic road markings and traffic signs.  The only reason I remark on these convictions is that they may show deteriorating capacity to drive safely, but the defendant was in receipt of medical certificates which permitted him to continue to renew his licence. His last application was when he was aged 73.  He received a renewal for 3 years with an expiry date falling in October 2021.

12.The defendant is married. His wife - he lives with his wife who is 73 years old - has certain medical problems.  He has daughters, three daughters, who are obviously aged between 36 and 43.

13.And I will turn to the general approach to sentence in cases of this kind.  Generally it is said that good character/remorse are not usually reasons to depart from the need to impose a deterrent sentence in cases of causing death by dangerous driving.  The authority for that can be found in HKSAR v Lam Ying Yu [2014] 2 HKLRD 895.  The court must base its consideration on the defendant’s way of driving rather than the consequence of the accident - that is HKSAR v Lam Chi Fat, [2012] 1 HKLRD, page 968.  There are currently no sentencing guidelines for the offence; formulae sentencing approaches should be avoided as the circumstances of each case may vary greatly - the authority for that can be seen in Secretary for Justice v Lau Sin Ting, [2010] 5 HKLRD 318.  The culpability of the driver forms the dominant sentencing factor, and the authority for that is Secretary for Justice v Liu Kwok Chun, [2011] 1 HKC 70.

14.In the case of Secretary for Justice v Poon Wing Kay and Another at [2007] 1 HKLRD 660, the approach to sentencing was analysed including the English case of R v Cooksley [2003] 2 Cr App R 18.  In Cooksley, the sentencing was divided into four separate categories with various starting points set out.  Of course Cooksley is not authority for sentencing in Hong Kong.  And furthermore, even in England it has been superseded by the directions for sentence by the Sentencing Council. I do note that in the case of Cooksley, the starting point for an offence where no aggravating factors are present should be a custodial sentence of 12 to 18 months, that sentence being adjusted upwards as the level of culpability increases into the other categories.

15.Also, Cooksley set out a number of aggravating factors which would increase the sentence.  I do not propose to set out those aggravating factors as they are not, on the face of it, relevant to this particular accident.  The only factor that may have relevance in relation to culpability of the driving is the location.  The defendant’s car was of course parked across what was a pedestrian walkway.  Pedestrians could be expected to be present, and a failure to ascertain the deceased’s presence was a momentary dangerous error of judgment in this case.

16.As far as mitigating factors set out in Cooksley, we can see that the defendant has, up until recently, had a very good driving record.  He has entered a timely plea of guilty.

17.I am asked to consider, in sentencing, the defendant’s age.  He is obviously not a young man.  He has had many, many years of contribution to society.  Furthermore, the sentencing of a person of his age may well be affected by the fact that the sentence of imprisonment may impact in a more severe way upon an elderly person than a younger person, and that is a factor that can be taken into account when determining the level of sentencing.

18.I have taken all these factors into consideration in determining an effective and proper starting point for the defendant in this case.  As I said, the culpability or gravamen of this offence lies in an momentary dangerous error of judgment which resulted in the death of another person.  Clearly, a sentence of imprisonment must be imposed and such a sentence of imprisonment must have immediate effect.

19.The sentence, in my view, should lie within what will be the category 1 category in R v Cooksley.  And having considered all these factors, I will take a starting point for sentence in this case of 15 months’ imprisonment.  The defendant is entitled to a one-third discount by way of his plea of guilty.  That will be a reduction in that starting point to a sentence of 10 months’ imprisonment with immediate effect.

20.The defendant will also be subject to 5 years’ disqualification from driving.  He must, if he wishes to continue to drive after that period, he must take and complete a driving improvement course within three months of the expiration of the disqualification in addition to any other medical tests that would be required, but I understand the defendant will not be driving again.

21.That will be the order of the court.