HKSAR v. Ho Ka Wah

DCCC 980/2021

[2022] HKDC 557

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 980 OF 2021

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REASONS FOR SENTENCE

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1.Mr Ho pleaded guilty before me to one charge of Causing death by dangerous driving, contrary to section 36(1)  of the Road Traffic Ordinance, Cap 374.

2.The particulars are that he, on 8 April 2021, near Lamppost No GF0007B, Cha Kwo Ling Road, Kwun Tong, Kowloon, in Hong Kong, caused the death of Leung Chun Man, by driving a motor vehicle, namely, a taxi bearing registration mark JV278, on a road dangerously.

Facts admitted by Mr Ho

3.On 8 April 2021, at about 11:25 pm, at a non-signalized pedestrian crossing near Lamppost No GF0007B, Cha Kwo Ling Road, Kwun Tong, a traffic incident occurred.  The traffic flow at that time was low.

4.The material section of the road was a dual carriageway with two lanes on each bound with a speed limit of 50 km/h.

5.Shortly before the incident, Mr Ho was driving a taxi along Cha Kwo Ling Road heading towards Yau Tong.  He then made a U-turn and headed towards Kowloon Bay.

6.A pedestrian [aged 78] (“the deceased”)  was crossing Cha Kwo Ling Road via the non-signalized pedestrian crossing.  When the deceased was on the 2^nd lane of the road, Mr Ho did not see him coming and the offside front of the taxi knocked down the deceased.

7.Shortly after, an ambulance took the unconscious deceased to Queen Elizabeth Hospital for treatment and he was found there to have sustained serious injuries to his head and pelvis.

8.Just before noon on 12 April, the deceased was certified dead.

Arrest and caution

9.On 9 April, Mr Ho was arrested for “dangerous driving causing grievous bodily harm”.

10.In a subsequent VRI under caution for “dangerous driving causing death”, Mr Ho stated:-

(a)  At the time, the weather was fine and the traffic was normal;

(b)  The offside front mirror of the taxi hit the deceased, causing the latter to fall onto the ground;

(c)  Prior to the accident, he was driving at around 35 km/h;

(d)  The deceased suddenly dashed out of the road and he did not see the deceased before the collision;

(e)  He did not know there was a non-signalized pedestrian crossing at the scene; and

(f)  The taxi’s mechanical function was normal.

Dash camera and CCTV

11.The taxi’s dash camera captured the following:-

(a)  The deceased appeared in front of the taxi for around 5 seconds before the taxi hit the deceased; and

(b)  The deceased was wearing light-colour clothing and was pulling a trolley while walking slowly across the road [from left to right] at the time.

12.CCTV of a nearby shop captured the following:-

(a)  At about 11:22 pm on the subject day, the deceased was walking slowly along the pedestrian pavement towards Yau Tong; and

(b)  At around 11:25 pm, Mr Ho’s taxi made a U-turn on Cha Kwo Ling Road; a few seconds later, the offside front of the taxi hit the deceased at the pedestrian crossing.

13.Forensic scientist estimated that Mr Ho was travelling at 33 km/h prior to the incident.  He also opined that Mr Ho only perceived the danger of hitting the deceased when the taxi was about to hit the deceased.

14.Mr Ho failed to keep a proper lookout at the material time.

Criminal and road traffic conviction records

15.Mr Ho has 3 previous dissimilar criminal convictions the last of which was recorded in 2013 which attracted a fine.

16.In the area of road traffic matters, Mr Ho has 5 previous convictions including 3 instances of careless driving and 2 instances of failing to stop/report after accident (damage).  The last instance of careless driving occurred on 27 February 2021.

17.Mr Ho attended and completed 4 times of Driving improvement course the last two of which were completed on respectively 23 November 2020 and 8 February 2022.

Antecedents

18.Mr Ho is aged 69 (68 at the time of the offence), educated to secondary two level.  He had worked as a taxi driver for over 30 years.  He resides in public housing in Ngau Tau Kok.

Mitigation

19.Mr Jerry Chung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ho.  The following is a summary of the mitigation submissions.

20.Mr Ho had the following additional things to say at the VRI:-

(a)  He had been a taxi driver for about 30 years;

(b)  He started his work at about 1630 hours on the day of the accident;

(c)  He woke up at 1000 hours previously and had sufficient rest and was in suitable physical and mental conditions to drive at the time of the accident;

(d)  The lighting at the scene was a bit dim; and

(e)  He only noticed the deceased after the collision and he did not know whether the deceased dashed onto the road.

21.Mr Chung referred to R v Cooksley & Others [2004] 1 Cr App R (S)  1 which he said identified a number of aggravating factors for this kind of offence.

22.Mr Chung referred to the following passage at Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 at para 10[4]:-

“In assessing the overall seriousness of a crime, culpability is often the dominant factor. It is not a case of counting number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence.”

23.Mr Chung submitted that in Cooksley, there were four categories of culpability which were adopted in Hong Kong:-

(a)  Where there are no aggravating factors;

(b)  Intermediate culpability;

(c)  Higher culpability; and

(d)  The most serious culpability.

24.Mr Chung continued to submit that the sentence must convey a clear and strong message that all drivers that drive dangerously and cause death will be punished severely; that there must be a deterrent effect in sentencing offences of this nature.

25.Mr Chung brought to the court’s attention that in Cooksley, it was said that even without aggravating factors, there could be a starting point of 12 to 18 months; that the sentence will progress as the culpability becomes more serious; that in intermediate culpability cases, the starting point could be 2 to 3 years.

26.Mr Chung emphasized that in the present case, the accident occurred in a road of low traffic near midnight in Cha Kwo Ling; that there were apartment buildings on the left of the road (Yau Tong direction); that on the other side, from where the deceased crossed the road, there were no buildings; that the deceased was crossing Cha Kwo Ling Road via a non-signalized pedestrian crossing; that there could be pedestrians in the area or even crossing the road.

27.Mr Chung made the point that the accident took place near midnight; that the video footage showed that after Mr Ho’s taxi proceeded from Wai Yip Street into Cha Kwo Ling Road at around 2325 hours on the video timestamp, not a single pedestrian could be seen in the area until the deceased appeared; that the same video showed Mr Ho was driving without fault up to the point where he completed the U-turn; that it is more difficult for drivers to see pedestrians (Road Users’ Code p11); that the deceased’s clothing in grey tone rendered his presence not easily noticeable from the relatively dark environment.

28.Mr Chung submitted that the accident was caused by Mr Ho’s momentary lapse of attention, failing to heed the conditions of the road in time; that there was no reckless behavior; that Mr Ho cooperated with the police throughout.

29.On Mr Ho’s personal background, Mr Chung submitted that Mr Ho had been a taxi driver for over 30 years; that he has a relatively good driving record.

30.Mr Chung emphasized that Mr Ho is remorseful and sorry for the loss of life; that he made a timely plea and has assisted the police; that after the accident, Mr Ho has worked as a cleaner earning about $10,000 a month; that because of age and the imposition of a disqualification order on him, Mr Ho will not be able to drive a taxi for an extended period or at all thus suffering from loss of half of his earning capacity.

31.Mr Chung brought to the attention of the court 4 sentencing cases, namely, HKSAR v Tang Man Ching, DCCC 526/2021; HKSAR v Tsang Wai Man, DCCC 298/2021; HKSAR v Lau Shu Pui (transliteration), DCCC 1022/2020 (Chinese Reasons for Sentence); and HKSAR v Chan Yun Ping (transliteration), CACC 34/2018 (Chinese judgment).

32.Finally, Mr Chung submitted that there are no aggravating factors in the present case and that a starting point of about 12 months would be appropriate in the circumstances.  When asked by the court if the fact of a pedestrian crossing might be an aggravating feature, Mr Chung replied that the subject scene was not a clear and noticeable pedestrian crossing.

33.Mr Chung has no submission to make on the topic of special reasons in relation to the making of otherwise mandatory ancillary orders.

34.Mr Chung submitted a mitigation letter (in Chinese)  written by Mr Ho himself.  The contents are generally that he apologized to the deceased and the latter’s family about the loss of life and hoped that they would forgive him; that Mr Ho will be more prudent in the future and will not reoffend.

Sentence

35.I have seen three video clips played in open court by the prosecution:-

(a)  Footage from the taxi’s dash camera;

(b)  Video C001 (from 23:22:35 to 23:25:40)  taken from CCTV camera installed at MS Company; and

(c)  Video C003 (from 23:25:23 to 23:25:40)  taken from CCTV camera also installed at MS Company.

36.I have also seen the photographs contained in the four photo albums handed up by the prosecution.

37.I note all of the cases cited by Mr Chung before me.  Insofar as they demonstrated examples of sentencing quanta based on fact matrices but not sentencing principles, they are not too helpful to the task before me.

38.Rather, in the case of Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, at 611-612 (paras 19-20), there is the following passage which I found useful:-

“19. At the outset of this judgment, we highlighted one feature common to both reviews, namely, that the accidents took place at pedestrian crossings. It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious: it is highly likely that people will be crossing the road there, whatever the time of day or night. Accordingly, if motorists approach pedestrian crossings at high speed, or disregard traffic lights, there is a high risk that an accident will occur. And where a collision takes place, fatalities are common as we have seen in the reviews before us.

20. Thus, we are of the view that where the offence of dangerous driving causing death is established and this involves the running over of persons at pedestrian crossings, then, for the purposes of sentencing, it would be a serious aggravating feature that the accident has occurred in such a location. The degree of seriousness will of course depend on the precise circumstances. For example, a conscious disregard for traffic lights will likely put the case into the most serious category.”

39.In the present case, the incident occurred at a pedestrian crossing and I found it to be a clear and noticeable one.  However, I accept that the seriousness of the circumstances has been toned down because the pedestrian crossing here belongs to the non-signalized type.  Nonetheless, motorists are expected to pay more particular attention to the road conditions there; and pedestrians have a right to expect that they can cross more safely there.

40.I therefore do not accept Mr Chung’s submission that there were no aggravating factors in the present case.

41.For 4 or 5 seconds, Mr Ho simply failed to see the slowly walking deceased cross the road in front of him for no good reason.  I would place this case somewhere between the higher end of “without aggravating circumstances” category and the lower end of the “intermediate culpability range”.

42.Noting that the Cooksley suggested guidelines have not been formally adopted in Hong Kong, I will adopt a starting point of 19 months in the case of Mr Ho before any consideration of the mitigating factors.

43.Because of his old age, I will first knock off one month from the starting point as an act of mercy.  The final starting point becomes 18 months.

44.Mr Ho indicated his plea at the earliest opportunity and having materialized it today is entitled to a 1/3 discount to the imprisonment term. There are no other mitigating factors that I can see which will help lower his sentence further.

45.The conviction of this offence carries with it mandatory disqualification order of a certain minimum period and the mandatory taking and completion of a driving improving course unless special reasons exist.  There are no such reasons in this case.

46.I impose the following sentence.

(Mr Ho, please stand)

47.Mr Ho shall go to prison for 12 months.  He shall be disqualified from driving all classes of vehicle for a period of 5 years.  In addition, Mr Ho must attend and complete, at his own cost, a driving improvement course within the last 3 months of the disqualification period.  Mr Ho is not to drive again until the expiry of the disqualification period or until he has attended and completed the said driving improvement course, whichever is the later.