HKSAR v. Liu Kwok Chun

DCCC325/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 325 OF 2007

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Before:   H H Judge Whaley

Date:     22 January 2009 at 3.16 pm

Offence:  Dangerous driving causing death (危險駕駛引致他人死亡)

Reasons for Sentence

1. The defendant has been convicted after trial of one charge of dangerous driving causing death on 21 September 2006, a 2nd charge of failing to stop after that accident, a 3rd charge of failing to report that accident, and a 4th charge of interfering with a vehicle which had been involved in an accident causing death.

2. This fatal accident took place shortly before 6.00 am at a pedestrian crossing on Castle Peak Road, outside Yin Kong Village, Sheung Shui.

3. To recapitulate the broad facts: a few seconds after PW1 had driven over this pedestrian crossing on her motorbike driving in the direction of Sheung Shui, the defendant, driving a New Territories taxi “very fast,” in her words, passed her travelling in the opposite direction towards Yuen Long.

4. Almost immediately after they had passed each other, she heard a horn and then a bang and saw in her rear view mirror a body lying in the road.  She turned around and saw the deceased lying dead in the Yuen Long bound lane, west of the pedestrian crossing.  There was no sign whatsoever of the defendant or his taxi. 

5. There were no eyewitnesses to this accident so the precise circumstances which led to the defendant’s taxi colliding with the deceased are not known.

6. There was a straight stretch of road on either side of the pedestrian crossing, the road surface was dry and in good repair and the traffic flow was light.  According to the Observatory records, sunrise on that morning took place at 6.12 am, approximately 15 minutes after the accident occurred, so it was dawn at the time of the accident. 

7. The road was well-illuminated by streetlights, which were all working and still on at the time of the accident, including the lamp post very close to the pedestrian crossing.

8. The pedestrian crossing was well-marked with zebra stripes on the road surface, yellow lights on both sides of Castle Peak Road and a concrete island in the centre of the road with illuminated yellow bollards.

9. The speed limit on Castle Peak Road in that vicinity was 50 kilometres per hour.  PW1 was travelling at approximately 50 kilometres per hour on her motorbike and she said the defendant was travelling considerably faster than she was as he by passed her.

10. Dr Chim Lai-chu, the traffic accident reconstruction expert who gave evidence for the prosecution and whose evidence I have accepted as being accurate and reliable, calculated that at the moment of impact with the deceased, the taxi must have been travelling at minimum speed of 62 kilometres per hour and a possible maximum of 86 kilometres per hour.

11. Even adopting the most favourable interpretation for the defendant, namely, assuming that the taxi’s speed was 62 kilometres per hour, this was in excess of the speed limit.  More importantly, as he approached the pedestrian crossing the defendant clearly totally ignored his duty to slow down and to keep a proper lookout for any pedestrians who might be using the pedestrian crossing or who might be on the side of the road about to use the pedestrian crossing to cross over Castle Peak Road in order to get to the bus stop on the other side of the road, which the deceased was heading for.

12. It is clear from all the evidence, particularly of PW1, that it was only at the last moment before the collision occurred that the defendant blew his horn, which was followed immediately by the bang when his taxi struck her at speed, shattering her left ankle.  Her body was scooped up onto the bonnet of the taxi, whereafter the defendant decelerated and the deceased’s body was thrown onto the road, where the wheels of the taxi ran directly over her head and torso.

13. It is clear, again from PW1’s evidence, that the defendant did not stop to render whatever assistance he could to the deceased and, generally, to take responsibility for what he had done.  Instead, he sped off.  There was no sign of him when PW1 turned around immediately after the accident.  It was a clear attempt by the defendant to distance himself from this shocking accident.  (Those facts are the subject of the 2nd charge, Failing to Stop).

14. Thereafter, the defendant not only failed to report the accident as he was obliged to do in terms of the Ordinance, (which is the subject of the 3rd charge), but he tried to conceal the evidence that the taxi had been involved in a collision, on the same day of the accident, by taking off the damaged front number plate on the taxi and substituting a new one.

15. Furthermore, on 25 September, he had just started to repair the dents in the bonnet and the radiator grille of the taxi when the police intercepted him outside his house in Fairview Park at about 10 o’clock in the morning.  (Those facts are the subject of the 4th charge).

16. The defendant is 58 years old.  He has a clear criminal record.  The background report shows that the defendant is generally a man of good character.  He has three relatively minor driving offences, using a vehicle without insurance in 2002, driving in excess of the speed limit by not more than 30 kilometres per hour in 2005 and again in August 2006, and careless driving on 27 July 2006 for which he was fined $700.

17. At the time of the accident, section 36 of the Ordinance provided that a person who causes the death of another person by driving a motor vehicle dangerously is liable on conviction on indictment to a fine of $50,000 and to imprisonment for 5 years.

18. It was only subsequently on 4 July 2008 that the maximum sentence was increased from 5 to 10 years’ imprisonment.  That amendment has no retrospective effect at all so as to warrant higher sentences for offences which were committed prior to the increase.

19. This is not a case in which the defendant was guilty of a prolonged course of bad driving.  There is simply no evidence at all as to the defendant’s driving on that morning, save for PW1’s evidence that he was driving “very fast” as he passed by her and approached the pedestrian crossing.

20. I keep in mind, in fairness to the defendant, that the accident occurred shortly before 6.00 am on the morning in question and there was little traffic on the road and therefore there was, to that extent, less reason for the defendant to expect to encounter any pedestrians at the pedestrian crossing than would have been the case at busier times.

21. However, it is crucially important for all drivers to keep in mind that their duty to drive safely and responsibly is never abrogated in any circumstances.  It is a continuing duty which applies at all times and in all circumstances.

22. Even at that hour and in those circumstances it was the defendant’s duty to slow down as he approached the pedestrian crossing and to keep a proper lookout for any pedestrians that were crossing or about to cross the road.

23. The defendant failed dismally in both respects and his culpability was high, in my view.  He was driving at an excessive speed as he approached and entered the pedestrian crossing, at least 62 kilometres per hour, and he manifestly failed to keep a proper lookout.

24. If he had slowed down and kept a proper lookout, he would have been able to take appropriate steps to avoid this tragic accident in which he mowed down and killed this elderly lady, Mrs Auw Pau Wai-ying, Winnie, who was innocently going about her business and had just some 15 minutes beforehand left her family home in the nearby village to catch a bus at the bus stop on Castle Peak Road.

25. The distress which was caused to her family members was visible in the demeanor of her son, Mr Auw Tho-king, when he gave evidence in this case.  As the Court of Appeal has recently reaffirmed, the impact on people’s lives of a tragic accident such as this ought to be taken into account when sentencing.

26. It is worth repeating over and over again that motor vehicles are potentially lethal instruments and when they are not driven to the required standards, they can and very often do kill or maim, especially if they strike pedestrians at speed.

27. It is crucially important that drivers remain actively conscious of this danger at all times when they are driving, and equally conscious of the responsibility that this places upon them, to drive in a manner so as to ensure insofar as is possible and reasonable, the safety of other road users, whether these are fellow motorists, passengers or pedestrians.

28. Human nature being what it is, it is in my view only if the courts impose appropriately rigorous sentences on drivers whose dangerous driving causes death, including substantial sentences of imprisonment where this is warranted by the facts, that drivers will learn to temper and adjust their driving so as to allow themselves a sufficient margin of error to be able to deal appropriately and take appropriate avoiding action when unexpected situations arise.

29. As the Court of Appeal affirmed in Secretary for Justice v Poon Wing Kay & Another [2007] 1 HKLRD 660 it is necessary for courts to have in mind a deterrent effect when sentencing in many cases involving dangerous driving.

30. In the present case, because of the speed at which he was driving as he approached the pedestrian crossing and the fact that he was clearly not keeping a proper lookout, the defendant had left himself no margin for error when he became aware of the presence of the deceased on the pedestrian crossing in front of his speeding vehicle.

31. In these circumstances he drove with disregard for the safety of other road users and in particular pedestrians, who he had reason to expect to be on the pedestrian crossing or on the side of the road about to use it.

32. I have given anxious consideration to all the many previous sentences imposed in cases of dangerous driving causing death which have been cited to me, to which I have been referred by both counsel.  I agree entirely with Mr Patterson’s submission that many of the sentences, indeed most of them were very lenient - some of them inexplicably lenient, in my view.

33. As I have stated, I accept that this was not a case of a proven, prolonged course of bad driving, nor a case of a driver deliberately jumping red lights or a stop street, nor a case of a professional driver carrying members of the public for reward at the time of the accident, and in disregard for the safety of those passengers.

34. On all the facts and in all the circumstances of the present case I have adopted a starting point of 2 years’ imprisonment after trial.  In all the circumstances, bearing in mind particularly that the defendant was a man of clear criminal record and generally good character and that he had no serious driving offences in his long course of driving taxis professionally, I have discounted that starting point by 4 months, and I impose a sentence of 1 year and 8 months’ imprisonment on the 1st charge.

35. The Ordinance further provides that a driver shall be disqualified from driving for a period of not less than two years in the case of a first conviction.  In my view, the minimum term of disqualification will meet the requirements of justice in the present case and I accordingly disqualify the defendant from driving for a period of two years.

36. In relation to the 2nd charge, the Ordinance provides that a person who fails to stop after an accident in which personal injury was caused to a person shall be liable to a fine of $10,000 and imprisonment for 12 months.  In my view, this was an extremely serious case of failing to stop given that it would have been perfectly clear to the defendant that he had killed or at least caused grievous injuries to the deceased.  It calls for the maximum sentence to be imposed in my view.

37. I adopt a starting point of 12 months’ imprisonment and I see no reason to discount it, and the sentence I impose is 12 months’ imprisonment.  It is a completely separate offence from the 1st charge and it is appropriate in my view and I so order that the sentence be consecutive to the sentence imposed on the 1st charge.

38. On the 3rd charge of failing to report the accident, the Ordinance provides for a fine of $15,000 and 6 months’ imprisonment.  I adopt a starting point of 6 months’ imprisonment, again I see no reason to discount it, and I impose sentence of 6 months’ imprisonment which I order to be concurrent with the sentences imposed on the 1st and 2nd charges.

39. In relation to the 4th charge, the Ordinance provides that a person who interferes with a motor vehicle which was involved in an accident shall be liable to a fine of $10,000 and 6 months’ imprisonment.  I adopt a starting point of 6 months’ imprisonment and again see no reason to discount it, and impose a sentence of 6 months’ imprisonment, which I order to be also concurrent with the sentences imposed on the other charges.

40. So the total sentence to be served by the defendant on all charges is 2 years 8 months’ imprisonment.