HKSAR v. Hon Wai Kwong

DCCC 569/2020

[2021] HKDC 455

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 569 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Causing death by dangerous driving". He knocked down a male cyclist at a junction when driving a taxi through a green light.

Summary of Facts

2.The accident took place at the junction of southbound Tai Po Tai Wo Road and Po Nga Road in Tai Po ("the Junction").  The Junction was controlled by both pedestrian and vehicular traffic lights.  At the time of the accident, the weather was fine, visibility was good and traffic flow was moderate.  The speed limit of the relevant road segment was 50 km/h.

3.About 9:22 a.m. on 12 January 2020, the defendant was driving a taxi HJ117 ("the Taxi") along the 1^st left lane of southbound Tai Po Tai Wo Road with a passenger on board.  At the same time, Mr. Tsui (the Deceased) was riding a bicycle along westbound Po Nga Road.  In other words, from the defendant's view, the Deceased was moving from his left to right.

4.The vehicular traffic light which controlled southbound Tai Po Tai Wo Road was green when the Taxi went past the Junction. Unfortunately, the defendant failed to notice the Deceased.  The nearside of the Taxi hit the Deceased on his right side.  The Deceased hit the windscreen of the Taxi and landed at about 18 metres in front of the location of impact on the 1^st left lane of southbound Tai Po Tai Wo Road.  The Taxi stopped at about 23 metres in front of the location of impact on the 2^nd left lane.

5.The Deceased was certified dead at 10:18 a.m. on the same day.  The medical cause of death was multiple injuries. 

Admissions

6.At the scene, the defendant said under caution that he had a green light and did not pay attention to the bicycle.

7.In his video recorded interview, the defendant claimed that he drove through the Junction with a green light.  When he first saw the Deceased, the defendant was about 10 metres away.  He thought the Deceased would wait for the pedestrian traffic light to turn green.  The accident happened soon after the defendant applied the brakes.

Accident Investigation

8.A forensic scientist, Dr. Tam Cheok-ning, examined the footage captured by the Taxi's car camera.  He concluded that when the Taxi approached the traffic light at the Junction, its speed was 68 ± 7 km/h.  When the Taxi went past the traffic light and approached the location of impact, its speed was 78 ± 8 km/h.  The defendant started applying the brakes when the Taxi was 19.5 metres away from the Deceased.  When the Deceased entered into the 1^st left lane of southbound Tai Po Tai Wo Road, the Taxi was 30 metres away from him.  At that time, the defendant had a clear view of the Deceased.  Had the Taxi been driven under the prescribed speed limit, the accident could have been avoided.

9.The prosecution alleges and the defendant admits that (i) he should have noticed the presence of the Deceased when the Taxi was 30 metres away from him; (ii) he should have paid extra attention to the traffic condition when approaching a pedestrian crossing; and (iii) the accident could have been avoided if he was driving under the prescribed speed limit.

Mitigation & Sentence

10.The defendant is 68 and has 1 conviction of a minor "Gambling" offence in 1992, for which he was fined $50.  He obtained his full driving licence in 1973.  In terms of traffic records, he has 3 convictions of "Careless driving" and received 6 fixed penalty tickets (3 of which were "Speeding").  Defence counsel Mr. Yau informed me that the defendant is divorced and has not been in contact with his children for many years.  He earns his living by driving a taxi and doing part-time delivery.

11.In mitigation, Mr. Yau submitted that as the footage clearly shows, the Deceased was riding his bicycle on the road. According to Chapter 4 of the Road Users' Code, a bicycle is regarded as a vehicle; and a cyclist is deemed to be a driver having the same obligation to follow the rules and regulations applicable to drivers when cycling on the road.  Hence, Mr. Yau suggested that the Deceased should be treated as a driver rather than a pedestrian.  Regarding the Taxi's speed, Mr. Yau pointed out that right after the pedestrian crossing, the same road became an expressway[1]. It perhaps explains why the defendant was accelerating and drove at 70 km/h when he approached the Junction[2].

12.Mr. Yau also submitted that the defendant misjudged the Deceased thinking that the Deceased was going to stop.  Mr. Yau accepted that the defendant made a wrong decision.  Mr. Yau stated that the defendant has been a taxi driver for more than 30 years.  On this basis, his traffic record is not perfect but quite acceptable.  Finally, Mr. Yau submitted that the defendant's mistake falls into the lower end of the Cooksley's scale.  He also mentioned the contributory negligence of the Deceased in disobeying a red light which controlled the vehicular traffic of westbound Po Nga Road.

13.To the victim(s) and their families, a traffic accident which involves fatalities or serious personal injuries must be one of the most tragic events which could happen to them.  It saddens me each time when I need to deal with a case in which someone has lost his/her life or has been seriously injured as a result of a traffic accident.

14.I have viewed the footage of the Taxi's car camera numerous times.  The duration of the accident was a few seconds only[3]. But in those few seconds, the Deceased lost his life. That is the reason why the court must instil into the minds of the general public that driving (whether in a professional or recreational capacity) is a privilege ‒ a privilege with great responsibilities attached.  It is a message which cannot be stressed enough.

15.In the course of sentencing, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just[4].  I must also consider the hardship caused to the Deceased's family as a result of his death as well as their grievances and resentment[5].

16.The courts have repeatedly emphasized the importance of deterrence when sentencing in cases related to dangerous driving.  I have reminded myself of the sentencing principles[6] set out by the Court of Appeal in SJ v POON Wing Kay [2007] 1 HKLRD 660, in particular paragraph 10(4) "While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  In assessing the overall seriousness of a crime, culpability is often the dominant factor.  It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence.  Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence…"

17.In HKSAR v LEI Tin Seng [2011] 1 HKLRD 341, Yeung JA (as he then was) held :-

"17. This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.

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19. The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.

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22. This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment."

18.I accept Mr. Yau's submission that the Deceased was a "driver" and that he disobeyed a red light.  On the other hand, the accident occurred because (i) the defendant had failed to notice the Deceased's presence in a timely fashion and/or he made a wrong judgement that the Deceased was going to stop; and (ii) the defendant was speeding (travelling at 70 in a 50 zone).  Had the defendant proceeded through the Junction with caution (i.e. bearing in mind the possibilities of unexpected events occurring at the pedestrian crossing ahead) and driven at a slower speed, the accident could have been avoided. 

19.It is not an easy task to send someone like the defendant, who has never lost his freedom, to prison.  I have considered long and hard what the appropriate length of imprisonment should be.  I understand the traumatic effect of a prison term would have on the defendant and people who care about him.  The court, however, must send a clear message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.

20.Although the Deceased was a "driver" and he disobeyed a red light, his life was as vulnerable as a jaywalking pedestrian if hit by an oncoming car.  It may not seem fair, but it is a fact of life that drivers of motor vehicles are expected to carry a heavier burden in most situations when pedestrians, cyclists or motorcyclists are involved.  The bigger and heavier a vehicle, the more lethal it becomes. 

21.When determining the starting point, I treat the defendant as a person of good character and having an average driving record.  I am aware of his age and have also adopted the lowest figures calculated by Dr. Tam.  It was not difficult at all for the defendant to have noticed the Deceased's presence as the Taxi was approaching the Junction.  Regrettably, the defendant made a momentary yet fatal mistake.  I consider his mistake falling at the low end of the intermediate culpability category on the Cooksley's scale[7]. I adopt a starting point of 22.5 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 15 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 15 months' imprisonment.

22.In addition to imprisonment, I make a disqualification order for a period of 5 years[8] (the disqualification period will start to run from the date of sentencing[9]).  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[10].  In my view, it is unnecessary to order him to re-take his driving licence test.