HKSAR v. Young King Cheung January

DCCC 696/2024

[2025] HKDC 1039

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 696 OF 2024

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REASONS FOR SENTENCE

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1.Mr Young is charged before me with three charges on a Charge Sheet as follows.

2.Charge 1 is Causing death by dangerous driving, contrary to section 36(1)  of the Road Traffic Ordinance, Cap 374.

3.Charge 2 is Using a vehicle with fitting other than in good and serviceable condition, contrary to regulation 5(1)(b)  and 121(1)  of the Road Traffic (Construction and Maintenance of Vehicles)  Regulations, Cap 374A.

4.Charge 3 is Using a motor vehicle fitted with a pneumatic tyre that had its portion of the cord structure exposed, contrary to regulations 22(1)(e)  and 121(1)  of the Road Traffic (Construction and Maintenance of Vehicles)  Regulations, Cap 374A.

5.Mr Young pleaded guilty to Charge 1 and not guilty to Charges 2 and 3. Prosecution asked that Charges 2 and 3 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

6.Particulars of Charge 1 are that Mr Young, on 8 October 2023, near Lamppost No AD5085, Long Yip Street, Yuen Long, New Territories, in Hong Kong, caused the death of Wong Kam Hei, by driving a motor vehicle, namely, a taxi bearing registration mark XS6452, on a road dangerously.

Facts admitted by Mr Young

7.The subject location was a section of Long Yip Street in Yuen Long near where Lamppost No AD5085 was.  It was a two-lane one-way straight carriageway without traffic light control where the applicable speed limit was 50 km/h.

8.On 8 October 2023, at about 5:04 am, the source of light being street lighting was sufficient for illumination purpose.  The weather was rainy and strong wind signal No 3 was being hoisted.  The road surface was wet and traffic flow was low.

9.Mr Young was driving a taxi XS6452 along the 2^nd left lane of Long Yip Street with a passenger on board.  They were chatting.  The windscreen wipers swung slowly and the front view from inside the taxi was blurred by the rain water on the windscreen.  When the taxi reached the subject location, the front of the taxi collided with a Ms Wong (“the deceased”), then aged 83, wearing a red outfit and holding an umbrella, who was crossing the 2^nd left lane at a normal pace.  The deceased was thrown up to the air and subsequently landed in front of the taxi.

10.Mr Young reported the case to the police.  The deceased was sent to hospital for treatment but she died from her injuries at 5:56 am.

11.The police arrested Mr Young.  Under caution, Mr Young said that he was able to see between 10 and 50 metres ahead from his driver’s seat.

12.In a subsequent cautioned VRI, Mr Young admitted that:-

(a)  He worked 12-hour shifts starting 5 pm;

(b)  Inclusive of 8 October 2023, he had been working for 11 consecutive days (without taking leave);

(c)  He started driving since 5 pm on the day prior to the day of the incident;

(d)  At the time of the incident, he was taking his last passenger from On Ning Road to Park Yoho before finishing his shift;

(e)  He had checked that the taxi was functioning properly but had not tested the windscreen wipers in all its modes; besides, he had mistakenly set the windscreen wipers to run at slow mode;

(f)  As a result of his mistake, his view was obstructed by the residual water distorting straight lines into curved ones;

(g)  He was conversing with the male passenger onboard before the incident;

(h)  He then heard a ‘bang’ but was unsure what he had collided with; so he braked immediately;

(i)  After stopping, he saw the deceased on the ground; and

(j)  He had about 25 years’ driving experience, nearly 10 years of which as a taxi driver.

13.Dashcam footage of the taxi showed that shortly before the incident, the windscreen wipers swung at an interval of about once every 11 seconds; the front view from inside the taxi was blurred by the residue of rain water accumulated on the windscreen after each swing of the windscreen wipers.

14.Dashcam footage of the taxi also showed the deceased appear at the middle of the 2^nd left lane of Long Yip Street when the taxi hit her; she was thrown up to the air and fell onto the ground in front of the taxi; the taxi stopped about 3 seconds after the collision.

15.Forensic scientist using the dashcam footages calculated the average speed of the taxi (with an uncertainty of 10%)  as follows:-

(a)  From 4.34 to 2.07 seconds before impact: 57 km/h; and

(b)  From 2.07 seconds before impact: 55 km/h.

Mr Young now admits he caused the death of the deceased by driving the taxi on a road dangerously, that is by:-

(a)  Allowing himself to be distracted by conversing with the passenger;

(b)  Failing to apply the appropriate windscreen-wiper setting bearing in mind the conditions of the road, weather and vehicle;

(c)  Failing to maintain an appropriate speed bearing in mind the conditions of the road, weather and vehicle;

(d)  Failing to keep a proper lookout; and

(e)  Continuing to drive despite significantly reduced visibility.

Criminal and Road traffic conviction records

16.Mr Young has a clear criminal as well as road traffic conviction records.

Antecedents

17.Mr Young is aged 62 (almost 61 at the time of the offence), educated to junior high school level, was a driver.  Mr Young lives with his son.

Mitigation

18.Ms Tiffany Tin of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Young.  The following is a summary of the mitigation submissions.

19.Mr Young has a clear criminal and road traffic conviction record.

20.Mr Young has been married for over 30 years.  His wife (61)  has a medical issue and requires full-time care and has been residing in a nursing home with CSSA subsidies for almost 10 years.  Their son (28)  is a student under tertiary education while working part-time.

21.For the past decade or so and until the offence, Mr Young had been making a living by driving taxis.  Since the offence, he has stopped driving. He then turned to qualify as a security guard and started working as such since August 2024, with a monthly income of $15,000.

22.The maximum penalty for the offence of Dangerous driving causing death is a fine at level 5 ($50,000)  and imprisonment for 10 years.  There is also a mandatory disqualification for at least 5 years (subject to presence of special reasons otherwise).  The court also has power to order attendance of driving improvement course under section 72A of the Road Traffic Ordinance, Cap 374.

23.Ms Tin sets out the 16 non-exhaustive aggravating factors and the 6 mitigating factors listed in R v Cooksley [2003] 2 Cr App R 18, at para 15.  Ms Tin also sets out the 4 categories of seriousness with which the same offence could be committed with the corresponding suggested ranges of starting points in the same case.

24.Ms Tin refers to a passage in Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70 at para 37:

“In assessing the degree of culpability there are two extreme situations. The first is where the event occurred because of a momentary error of judgment. The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness. In between these two extremes, there are varying degrees of culpability depending on the presence of the aggravating factors which were referred to in Cooksley at para 15.”

25.In Secretary for Justice v Lau Sin Ting [2010] 5 HKLRD 318, the Court of Appeal stated at para 36 that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice.

26.Ms Tin then drew my attention to three District Court sentencing cases for reference, namely HKSAR v Wong Ka Shing, DCCC 86/2021 [2021] HKDC 867, HKSAR v Ma Shing Chuen, DCCC 398/2018 [2018] HKDC 1129, and HKSAR v Lam Shen Hriung Gilbert, DCCC 978/2009.

27.Ms Tin submitted, without minimizing or justifying Mr Young’s actions, that the following factors are worthy of the court’s attention:

(a)  The accident took place in the small hours, namely 5:04 am, when strong wind signal no 3 was hoisted;

(b)  The streets were very quiet and traffic was very light;

(c)  The intensity of rain fluctuated and varied from time to time and location to location due to typhoon;

(d)  Though it was raining at the material time, it was not heavy;

(e)  Although Mr Young could have driven more slowly, he was not speeding;

(f)  The deceased was jaywalking at the accident location – there was no traffic light, as per para 1 of the Re-Amended Summary of Facts, and there were crash barriers and fences on either side of the road;

(g)  While a prudent driver should have kept a proper look out and been alert at all times, it was understandable that Mr Young did not expect anyone to be crossing the road at that time and place; and

(h)  Mr Young stopped immediately after the accident, went to check on the deceased and reported to the police right away.

28.Mr Young’s driving at the time was not the worst of its kind.  He was not drink or drug driving, nor car racing.  He was not far above the speed limit over prolonged period of time; nor was he jumping red lights, cutting lanes at high speed, driving aggressively.  He was definitely not driving in selfish disregard of the safety of other road users or of his passengers or driving recklessly.

29.Mr Young’s culpability lay in a momentary error of judgment, namely by allowing himself to be distracted by conversing with the passenger at the material time (video footage because of editing could only show chatting before collision for about 30 seconds), which caused the death of the deceased.

30.Owing to the momentary lapse of judgment and losing his focus, Mr Young did not see the deceased at the material time, which led to the accident.  Ms Tin submitted Mr Young’s driving fell into the lower end of the Intermediate range of culpability.

31.Mr Young is aged 62 (61 at the time of the accident).  He was first issued his driving licence in 1990, and has had a good driving record for the past 25 years.  He has only been fined twice for speeding.  He is also of good character with a clear record, and has never been arrested or involved in any form of litigation.

32.This incident has caused genuine shock to Mr Young, as evidenced by his breaking down when the police showed him the dashcam footage at the VRI.  Since the accident, Mr Young has had no desire to drive.

33.Mr Young has been feeling extremely guilty, remorseful and sorrowful for causing the death of the deceased and for causing much grief to her family members.  Mr Young wishes to express his most sincere apology and condolences to the family.

34.Mr Young is saddened and ashamed for bringing disturbance and burden upon his son.  Without Mr Young’s financial income, the family has to move out of their current rented apartment.  Upon his imprisonment, his son will have to move to another place by himself, which would undoubtedly affect his studies and personal life.

35.Mr Young has learnt a very painful lesson and has been under immense pressure and an overwhelming feeling of guilt for almost 2 years.  He is worried a criminal record would jeopardise his ability to resume work as a security guard or to look for another job after release.

36.In conclusion, Ms Tin asked the court to adopt a starting point no higher than 2 ½ years’ imprisonment and invited the court to grant Mr Young sentence reduction in light of his good background and driving record.  Ms Tin has no submissions to make on disqualification and driving improvement course.

Sentence

37.I have seen the video footage showing the front view from inside the taxi (with audio)  from 04:58:30 to 04:59:34: the collision occurred at about 04:59:00[1]; the deceased was walking across the path of the taxi from right to left.

38.Past instances of how another sentencing court has sentenced an offender for a similar offence do not assist much in my sentencing exercise.

39.Comparing Mr Young’s driving with the aggravating factors listed in para 38 of Liu Kwok Chun (supra), which essentially replicated those in para 15 of Cooksley (supra), Mr Young’s driving included one highly culpable factor namely no (6)  of “driving while the driver’s attention is avoidably distracted”.

40.For this reason, Mr Young’s driving belongs to the Higher culpability range where the standard of the offender’s driving is more highly dangerous. This category calls for a starting point of 4-5 years’ imprisonment (see para 40 of Liu Kwok Chun).

41.Although it was early in the morning and pedestrian and vehicular flow was low, one must not forget that Mr Young was driving at or near the speed limit of 50 km/h under stormy weather and on wet road surfaces and where visibility was significantly reduced because of a mistaken windscreen wipers setting.  This was far too high a speed under those hazardous conditions.

42.In the premises, I fear I cannot adopt a starting point lower than 3 ½ years’ imprisonment and that is the one that I adopt.

43.Mitigating factors here include a timely plea of guilty, lack of previous convictions, a good driving record, Mr Young’s genuine shock, and the deceased’s jaywalking behaviour.

44.For his plea, I will grant Mr Young the usual 1/3 sentencing discount. After that, I will give him a further sentencing discount of 4 months for the basket of the other above-mentioned mitigating factors.  There are no other mitigating factors of weight to justify any other sentence reduction.

45.There are no special reasons why I should not impose the otherwise mandatory disqualification order of a minimum length of 5 years; nor are there such reasons why I should not order Mr Young to attend the otherwise mandatory driving improvement course upon a conviction of this offence.

(Mr Young, please stand)

46.The sentence for Charge 1 is 24 months’ imprisonment.

47.I order Mr Young to be disqualified from holding or obtaining a driving licence for all classes of vehicle for a period of 5 years.

48.I order Mr Young to attend and complete a driving improvement course at this own cost within the last 3 months of the disqualification period.

49.Mr Young is not to hold or obtain a driving licence again until he has both (a)  served his disqualification period and (b)  attended and completed at his own cost the driving improvement course.

50.I hereby warn Mr Young that failure to attend and complete the driving improvement course at the time specified without reasonable excuse is itself an offence and can attract an imprisonment sentence.