HKSAR v. Lee Wing Hung Mickey

DCCC 644/2022

[2023] HKDC 802

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 644 OF 2022

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REASONS FOR SENTENCE

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1.The D pleaded guilty to a charge of dangerous driving causing death.

2.At around 6 p.m. on 22 November 2021, the D was driving a LGV along the 2^nd left lane of Po Lam Road North.  Madam Lok was hit by the LGV when she was crossing the pedestrian crossing from left to right.  Her body was laid between the first and the second lane . The left side of her face was on the ground facing the left side walk. Her right shoulder was deformed and her pelvis was seriously injured.

3.Madam Lok was not breathing and had no pulse at the scene. She  was certified death after arriving T.K.O. Hospital. The cause of death appeared to be “multiple injuries”.

4.The D was arrested at scene, in a gist, he said under caution that:

(i)  he was travelling at about 60 km/h;

(ii)  he kept looking to the right as there was a pedestrian on the right side walk. He did not pay attention to the left;

(iii)  as soon as he noticed the deceased, she was already in front of his vehicle, he braked immediately, but still knocked her down;

(iv)  he had received a GoGoVan order at the material time. (he was on the way to take that order)

Criminal record

5.The Deft has 2 previous criminal convictions in 1996 & 2001.  They are not similar to the present offence.

Traffic record

6.The D obtained his driving license in 1999.

7.He has 3 fixed penalty records:

(i)  Driving in excess of speed limit by more than 15 km/h in 2016;

(ii)  Failing to comply with traffic signals in 2020;

(iii)  Failed to secure fastened seat belt in 2021.

Mitigation

8.The D is 47 years old and is still single. His long term ex-girlfriend suffered a replase in mental illness not long before the present incident. Her family demanded him to move out. However, he was still responsible to pay the mortgage of their previous residence.

9.The D’s parents also relied on him for financial support.

10.He committed the present offence because his attention was drawn to a pedestrian on the right side-walk.

11.The D suffers from insomnia since this accident.  He is very remorseful.  He sold his vehicle immediately after the accident and stopped working as a professional driver.

12.He started to work as a casual worker since December, 2021. Today , I have a letter from his company to inform me that he was a responsible and helpful employee. They will continue to employ him after his discharge from prison.

13.The defence also said that he was not under the influence of drinks or drugs at the time of accident.

14.He sincerely wishes to take this opportunity to apologize to Madam Lok and her family to ask for their forgiveness in this matter.

Sentence

15.The maximum sentence for dangerous driving causing death is 10 years and a fine of level 5 plus disqualification period.

16.As said in the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 that:-

“In assessing the overall seriousness of a crime, culpability is often the dominant factor.”

17.As said in the case of Secretary for Justice v Liu Kwok Chun [ 2011] 1 HKC 70, there “were varying degrees of culpability depending on the presence of the aggravating factors referred to in Cooksley”.

18.In Cooksley [2004] 1 Cr App R (S), there were four categories of culpability and they were also adopted in Hong Kong:-

a. Where there are no aggravating factors – 12-18 months’ imprisonment;

b. Intermediate culpability – 2-3 years;

c. Higher culpability – 4-5 years;

d. The most serious culpability – 6 years onwards.

19.In the present case, there was a pedestrian being killed in this traffic car accident.

20.The following aggravating factors were present :-

a. The D drove at an excess speed. The forensic examinations revealed that the average speed before the accident was 76 to 77±8 km/h.

b. The accident took place at a pedestrian crossing.

21.Regarding the speed at the material time.  The speed limit was 50km/h.  

22.According to the forensic examination report, if the travelling speed was 50 km/h, with a reaction time of 0.9 seconds to avert the accident, the LGV could be stopped completely before reaching the path of Madam Lok. The accident could have been avoided.

23.I also notice from the photos provided by the Prosecution, the point of impact was right in front of the driver seat’s bonnet.

24.It is often said that speed can kill or main.  Any one sitting behind the driving wheels has a great responsibility to any road user.

25.At the time of the accident, the road was straight and clear, there was no other cars on the road to block the view the D.  Madam Lok was walking right in front of him. She had completed 75% of the pedestrian crossing.

26.The D did not reduce the speed, he maintained the speed of around 77 km/h at the point of impact.

27.Madam Lok was 71 years with good health.  As stated in the summary of facts, that the Road Users’ Code advise: -

a. Drivers have legal and moral responsibility to take proper care to avoid accident with pedestrian at all times and places. Always give way to pedestrians on the roadway.

b. For the elderly pedestrians, their reaction time become longer and their walking pace become slower. Drivers should give allowance to them to cross the road at their own pace.

28.The loss of life always has an impact on the deceased family. Today, the children and relative of Madam Lok are in Court. I am told that Madam Lok was on her way to dinner with her aunt in T.K.O. No one would expect that she would meet in this traffic accident. Her family memebrs must be grieving over the lost of Madam Lok.  In the case of HKSAR v Chan Kwok Fai CACC 70/2011, Stock VP said that:

“whilst culpability is the dominant factor to be taken into account, the impact on the families of those killed is nonetheless a matter that should certainly be taken into account, see R v Cooksley, para 11.”

29.In the same judgement of Cooksley, the Court also said that “the public are entitled to require the Courts to reflect the loss of life to demonstrate that dangerous driving was a serious social evil, which if death results would lead to a substantial custodial sentence.”

30.When passing sentence on the D, I bear in mind that he has no similar record in the past, he pleaded guilty to the charge.  However, the D’s circumstances carry very little or no weight in passing sentence on him.

31.I judge this incident at the higher end of the intermediate culpability.

32.I take a starting point of 3 years 3 months, reduce to 2 years 2 months after ¹/₃ discount.

33.I also impose a 5 years’ disqualification period on the D from driving any types of vehicles.

34.The D is also ordered to attend and complete a driving improvement course at his own expense within 3 months prior to the end of disqualification period.