HKSAR v. Tsang Wai Man

DCCC 298/2021

[2021] HKDC 762

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 298 OF 2021

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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.This accident took place on 13 August 2020, just before 7 am, at a signal-controlled pedestrian crossing at the junction of Cornwall Street and Tat Hong Avenue in Kowloon Tong.  The location was a crossing controlled by both pedestrian and vehicular traffic lights.  The defendant knocked down an 87-year-old male jogger at that crossing when he drove a 27-seat public bus.  He was carrying no passengers at the time.

3.There is no dispute that according to the vehicular traffic lights at the time, the traffic light was green and the defendant had the right of way.  He did not jump an amber or a red light.  The jogger ran across the pedestrian crossing when the traffic light was green.  The pedestrian light must have been red.

4.A taxi driver behind the defendant confirmed that the traffic light was green as the defendant approached the crossing.  He also saw the jogger crossing from the offside front to the nearside front of their vehicles.  He then saw the defendant brake and come to a halt when he heard the sound of a collision before he saw the jogger land about 10 metres away from the pedestrian crossing. 

5.The accident was captured by the dashcam of the defendant’s bus and a nearby location.  This taxi driver immediately reported the accident to the police and the ambulance service arrived within minutes to find the victim unconscious.  He was conveyed to Princess Margaret Hospital but was sadly certified dead at 8.37 am.  The medical cause of death was multiple injuries.

6.At the scene, the defendant told the police under caution that he was driving according to the traffic light at the time but the deceased suddenly ran out at the crossing and he could not stop in time before colliding into him.

Accident Investigation

7.The defendant has admitted in the Summary of Facts that according to a forensic scientist who reviewed the dashcam footage and other materials, he was travelling at an average speed of 70 kilometres per hour some seconds before the collision.  His opinion was that the defendant could have seen the deceased about 38 metres from the point of impact and his view of the jogger should have been unobstructed.  The forensic scientist opined that if he had been driving at the imposed speed limit of 50 kilometres per hour, he would have stopped in about 30 metres and avoided the accident.

Mitigation

8.The defendant is 50 years old and has a clear record.  He obtained his driving licence in 1989 and has only received since then six fixed penalty tickets.  Ms Moosdeen has said all she can say on behalf of the defendant in mitigation. 

9.He is a married man with a 22-year-old daughter studying in Taiwan and a 12-year-old son in Hong Kong.  He is the sole provider for the family.  His wife does work but does not earn enough to support the family.  At the time of the accident, he was earning $20,000 a month as a bus driver.  He had to send seven to eight thousand dollars a month to his daughter in Taiwan for her fees and living expenses.  He also has to support his own elderly parents dependent on him.  After the accident, he continued to work for the same bus company until this month but only as a clerk earning $12,000 a month.  This decrease in income has put his family under great financial pressure. 

10.In mitigation, I have been told of his remorse, regret and overwhelming guilt.  He committed a momentary but inexcusable error. He saw the deceased at the crossing up ahead but did not anticipate him running out against the lights.  When he saw the deceased suddenly run across the road, he did brake and try to avoid him but failed.

11.After the accident, he has developed insomnia and has frequent nightmares.  He admits he is at fault.  Even though the traffic light at the time for him was green, he may have been distracted with worry about his daughter stuck in Taiwan and unable to return home due to the COVID pandemic and travel restrictions.

12.I have received a letter from the defendant himself as well as his employer, the bus company.  At the time of the accident, he had been employed for nine years as a bus driver with a very good work ethic and driving manner.  They ask for mercy in light of his sincere remorse and his momentary lapse in judgment.

Reasons for Sentence

13.There is no doubt that in this case, if the defendant had been driving a little slower within the legal limit, this tragic accident may have been avoided.  A man’s life has been taken because of this momentary mistake.

14.I am acutely aware that this accident may also have been avoided if the deceased had not run out against the pedestrian lights. Ms Moosdeen submits there is some contributory negligence here.  This accident happened in a matter of seconds, which is why it is stressed time and time again that a vehicle can maim or kill, and driving a vehicle comes with great responsibilities. 

15.The courts have emphasised that the dominant factor to be considered in sentencing is the defendant’s culpability.  There must be an objective assessment of the defendant’s dangerous driving manner as well as his moral culpability.  It is also repeatedly emphasised that there must be a deterrent effect in sentencing offences of this nature.  In R v Cooksley [2003] 3 All ER 40, the Court of Appeal considered relevant aggravating and mitigating factors for dangerous driving and dangerous driving causing death. 

16.In that same English authority, four categories of culpability were adopted:  where there are no aggravating circumstances; intermediate culpability; higher culpability; and the most serious culpability.  Those factors and categories have been adopted in Hong Kong. This focus on the culpability of the driving manner has been adopted notwithstanding that more often than not, the defendant is not a person with a criminal background, but usually a law-abiding member of the public who has made a mistake with tragic consequences.

17.To be sentenced to imprisonment for a traffic accident is in itself a very harsh punishment regardless of the length of the sentence.  The Court of Appeal said in The Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 at 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. ...”

18.The facts of each case will be different and may vary greatly.  Therefore, a sentencing court should not take too formulaic an approach.  However, sentences must convey a clear message that driving dangerously and causing death will be severely punished.

19.When deciding on an appropriate starting point, I have taken into account mitigation.  He, the defendant, is a law-abiding citizen who does not have a bad driving record.  He has pleaded guilty at the earliest opportunity.  His remorse and sense of guilt, I am sure, is genuine. I have taken into account everything said on behalf of the defendant and the submission that this was a mistake falling within the lower end of the Cooksley scale. 

20.Although in this case he was in compliance with his traffic lights and the deceased was not compliant with the pedestrian lights, there is one aggravating factor of driving above the legal speed limit at the time of the accident.  The accident could have been avoided if he had been within the speed limit.  He had a duty to approach pedestrian crossings with care, even if he was driving in compliance with the vehicular traffic lights.

21.In assessing his culpability, this offence occurred because of a momentary error of judgment.  I accept the defendant did not take any deliberate risks or drive with a selfish disregard for the safety of other road users.  There are no other aggravating factors other than his speed, which means I can find his culpability at the lowest end of the intermediate culpability category.

22.After a careful consideration of the facts, I adopt a starting point of 21 months’ imprisonment.  A one-third discount is given for the defendant’s plea of guilty at the earliest opportunity, reducing the sentence to 1 year and 2 months’ imprisonment.  Apart from this, I see no other mitigating factors which warrant any further discount.  Therefore, I sentence the defendant to 1 year and 2 months’ imprisonment.

23.In addition to imprisonment, pursuant to section 36(2A)(a)  of the Road Traffic Ordinance, 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.  I also order the defendant to complete a driving improvement course at his own expense within the last three months of that 5-year disqualification period.