HKSAR v. Hussain Ashfaq

DCCC 759/2024

[2026] HKDC 1065

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 759 OF 2024

------------------------------

------------------------------

----------------------------------------

REASONS FOR SENTENCE

----------------------------------------

1.The defendant is convicted after trial of a count of dangerous driving causing death, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (Charge 1).

2.He is also convicted of 4 other charges regarding to the condition of the vehicle that he was driving at the material times, namely:

(a) Using a vehicle without good and efficient braking system, contrary to regulations 5(4) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A (Charge 4);

(b) 2 counts of using a trailer with unsuitable tyres, contrary to regulations 22(1)(a) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A (Charges 5 and 6); and

(c) Using a trailer fitted with a pneumatic tyre that has a portion of the ply or cord structure exposed, contrary to regulations 22(1)(e) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A (Charge 7).

3.He was convicted of Charges 4, 5, 6 and 7 on his own plea and agreement to Summary of Facts for these charges.

4.It is also agreed between the parties that the conviction of Charges 4 to 7 in this case bears no relevance to the case against the defendant in Charge 1.

Facts

Charge 1

5.The facts of this charge had been set out in the reasons for verdict delivered on 28 April 2026. 

6.In summary, on 6 January 2024, the defendant was driving a medium goods vehicle bearing registration mark PF7520 with a trailer displaying registration mark 48598T (“the Vehicle”) out of a trailer warehouse onto Kam Sheung Road via the vehicular access of the warehouse and making a left turn onto Kam Sheung Road when the left side of his trailer hit and ran over a pedestrian (“the deceased”) standing on the pavement adjoining the vehicular access.

7.The defendant was fully aware of the presence of the deceased who stood on the pavement when he made his left turn.  The deceased had backed several steps trying to avoid the hit by the trailer but failed and was ran over by the rear left wheels of the trailer.  She died as a result of multiple serious injuries sustained 2 hours later.

8.In the course of the left turn, the trailer had cut diagonally onto and far inside the pavement.

9.When the defendant drove the Vehicle out of the trailer warehouse, it was noted that there was large room on its right side from the gateway of the exit.

10.Further, when making its left turn and driving onto Kam Sheung Road, the defendant had caused a vehicle, CP9999, to stop abruptly.  There was also a narrow miss with another vehicle which was going in the other direction of Kam Sheung Road in the opposite carriageway when the defendant continued his left turn after going across the front of CP9999.

Charges 4 to 7

11.After the traffic accident on 6 January 2024, the Vehicle was driven to Tai Lam Chung Vehicle Examination Centre.  On 9 January 2024, the trailer component of the Vehicle was examined by a motor vehicle examiner of the Transport Department.  He confirmed that at the time of accident, the trailer was found to have the following defects, contrary to the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A:

(a) Charge 4 (Braking System): The braking system of the trailer was not maintained in good and efficient working order and properly adjusted, specifically, the brake chamber of the first axle nearside was not kept in good condition in that there was air leakage while braking.

(b) Charge 5 (Tyres - Second Axle): The trailer was used with unsuitable tyres, specifically, the tyres fitted on the second axle nearside outer was of a different size from the other three tyres.

(c) Charge 6 (Tyres - First Axle): The trailer was used with unsuitable tyres, specifically, the tyre fitted on the first axle was of a different size from the other tyres.

(d) Charge 7 (Tyre Structure - Third Axle): The trailer was used with a pneumatic tyre that had a portion of the ply or cord structure exposed, specifically, the internal cord structure of the third axle nearside outer tyres was exposed.

Criminal record

12.The defendant has a clear record.

Mitigation

13.The defendant is now aged 57.  He is married, earning $25,000 per month as a truck driver.  He lives with his two sons and an elder daughter in Hong Kong.  The rest of his family including his wife, his father and three other children live in Pakistan.  It was said that the defendant’s father and wife both have high blood pressure. 

14.Defence counsel submitted that the defendant’s traffic record is extremely good.  He had only received 2 fixed penalty tickets in the past 20 odd years of professional driving.

15.Upon instructions of the defendant, defence counsel apologised to the victim’s family as the defendant deeply regrets what happened.

16.It was submitted that the defendant is a man of positive good character as he frequently does voluntary community work, making donations for charitable cause, and is popular among his peers.

17.Defence counsel submitted to court letters in mitigation from the defendant, the defendant’s son, the Chief Imam in Hong Kong, the director of The Pakistan Association of Hong Kong Limited, and the chairman from The Incorporated Trustees of the Islamic Community Fund of Hong Kong. 

18.They all say the defendant is an honest, hardworking, sincere and kind person, and that he did a lot of voluntary work for the mosque and donates money for good causes.  They also say the defendant is a family-oriented person, caring for his elderly father, wife and six children with devotion.  His conduct had always been exemplary, leading a disciplined lifestyle, refraining from smoking and alcohol, and is respected as a responsible member of the community.

19.Defence counsel conceded that whilst immediate custodial sentence appears inevitable, the offence was committed by the defendant within a short period of time due to his short period of attention elsewhere.  He also submitted that there is no aggravating feature in sentencing in this case.

20.As for the period of disqualification, defence counsel urged this court to consider this being a special case and not to disqualify the defendant for 5 years.  It is said that the defendant came from ethnic minority and has been working as a professional driver for 20 odd years, which is the only job that he has done.  He has limited education and job opportunities to him is limited, so that if he is not allowed to drive, given his age and high blood pressure, he would have to undertake a low pay job.

21.As for Charges 4 to 7, defence counsel submitted that the usual sentence is a fine.  He asked for smaller fines for these offences.

Discussion

22.Before sentencing, the court has considered all mitigation submissions as well as mitigation letters lodged. 

Charge 1

23.A person convicted of this charge upon indictment is liable to a fine of level 5 and imprisonment for 10 years.

24.In the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, the Court of Appeal affirmed that deterrent sentence is called for in sentencing a defendant convicted of this charge because of the grave consequence flowing from the offence.  At the same time, the Court of Appeal recognised that culpability of the defendant is the dominant factor in sentencing exercise.

25.In the case of HKSAR v Lee Yau Wing CACC 282/2012, the Court of Appeal emphasised that, in sentencing, the focus is on the culpability of the defendant’s driving, and therefore his clear record and general good character carries little weight.  The dominant sentencing principle is general deterrence with principles of retribution and denunciation.

26.In the case of Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, the Court of Appeal was of the view that there was no acceptable excuse for dangerous driving and nothing could justify the loss of life or lives consequent upon it.  Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine.  The courts would not show leniency to any driver who had endangered the lives and safety of other road users.  It is said therefore that good character and remorse must not be given undue prominence in sentencing for this offence.  This counted very little, or not at all, for the family and those connected with the victim who died as a result of an act or omission that could have been avoided.

27.In the case of Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70, the Court of Appeal said for offences of dangerous driving causing death, a deterrent sentence was called for because of the grave consequence flowing from the offence.  Again, the court said that the culpability of the defendant was the dominant factor in sentencing, following the approach in the case of Poon Wing Kay.

28.It is said that the court must also take into account mitigating factors, such as (i) a good driving record; (ii) absence of previous convictions; (iii) a timely guilty plea; (iv) genuine shock or remorse; (v) the offender’s age in cases where lack of driving experience had contributed to the commission of the offence; and (vi) the fact that the offender had also been seriously injured as a result of the accident.

29.It is said that there were two extreme situations in assessing the degree of culpability.  The first was where the event occurred because of a momentary error of judgment, and the other was the most serious one where the driver drove with selfish disregard for the safety of others or with a degree of recklessness.

30.According to the Cooksley[1] range of sentencing in respect of the four categories of culpability, the sentence would be within the 12 to 18 months’ imprisonment for the least culpability category.

31.Here, the defendant has a good driving record, especially in view that he was a professional driver for the last 20 odd years before the accident.  He had no traffic convictions, and only 2 fixed penalty tickets.

32.From the car camera footage, one could see, and the same was also admitted by the defendant, that the deceased was within sight of the defendant when she stood on the pavement on the left side of the Vehicle.  The defendant had unobstructed view of the deceased when he made his turn as there were 4 side mirrors affixed on the left side of the Vehicle.  Further, one could see that when the deceased saw the approaching danger when the Vehicle turned left, she had backed a few steps to avoid the accident, but was still hit by the left side of the trailer.  She fell on the pavement and was being ran over.

33.There was obviously a momentary lapse of attention on the part of the defendant, both on the deceased and from the abrupt way that CP9999 has to stop. The defendant should have waited for CP9999 to pass through before coming out of the vehicular access road, so that when the defendant negotiated his turn, he could direct his vehicle a bit more to the right side before turning to his left onto Kam Sheung Road.  This could avoid his trailer going across diagonally on the pavement where the deceased was standing.

34.Further, after the front of the defendant’s vehicle went past the front of CP9999, continuing its left turn, the front of the defendant’s vehicle narrowly missed the front of the light goods vehicle PR6667, going in the opposite direction, which did not pause to allow the defendant to finish his left turn.

35.Having considered the circumstances of this case, this court will put the defendant’s culpability to the top of the lowest culpability section or the lower part of the second category in terms of culpability.  The appropriate sentencing starting point in this case would be 18 months’ imprisonment. 

36.The court is, however, impressed with his good traffic record and consider this a valid mitigating factor, reducing his sentence by 2 months’ imprisonment.

37.The defendant is convicted after trial.  His remorse is therefore limited.

38.This court also accepts that he is a man of positive good character by reason of his contribution to society as said.  For this reason, his sentence is further discounted by 1 month. 

39.The defendant is accordingly sentenced to 15 months’ imprisonment for Charge 1.

Disqualification

40.As for the disqualification period, under the law it is mandatory that on the first conviction of this charge, the defendant should be disqualified from holding or obtaining a driving licence of all classes of vehicles for a period of not less than 5 years unless there is special reason.  This court has considered the submission by defence counsel, but does not find sufficient reason to justify the special reason prescribed by law.

41.The defendant is therefore disqualified from holding or obtaining driving licence of any class of vehicle for 5 years from the date of conviction of this charge.

42.The defendant is further ordered to attend and complete a driving improvement course pursuant to section 72A(1A) of the Road Traffic Ordinance at his own cost, same to be completed within the last 3 months of the disqualification period.

43.The court warns the defendant that if he fails to complete the course within the specified period, he might have breached section 72A(9) of the Road Traffic Ordinance and is liable to a fine of level 2 and imprisonment for 1 month, and that even on the expiry of the disqualification period, he will not be allowed to apply for or hold any driving licence of any class of vehicle until he has completed the driving improvement course.

Charges 4, 5, 6 and 7

44.A person convicted of each of these offences is liable to a fine at level 3 and to imprisonment for 6 months. 

45.This is the defendant’s first conviction of any of these offences.  The commission of these offences pose obvious and serious risk both to the people on board of the vehicle and to other road users.  The matters complained of in the particulars of Charges 5, 6, and 7 are apparent to anyone who went past the vehicle had they checked.

46.The defendant is fined HK$2,000 for each of these charges, the same to be paid within 1 month from today.  In default, the defendant shall serve imprisonment for 14 days, the same is to run consecutive to the sentence imposed on Charge 1.