HKSAR v. Chan Kai Hing

DCCC 783/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 783 OF 2009

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Reasons for Sentence

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

2.The events happened shortly after 1pm on a Sunday (11 Jan 2009 2 weeks before the Chinese New Year) in Yuen Long at Tai Lee Street (泰利街). The defendant was a public light bus (PLB) driver plying the PLB route between Yuen Long and Lau Fau Shan.

3.Shortly before the incident there were just 3 passengers on board of the defendant’s PLB and the defendant was driving along Tung Tai Street (元朗東堤街). After the defendant turned into Tai Lee Street, he found out the traffic ahead of him came to a standstill. To avoid being held up by the traffic congestion, the defendant intended to reverse his PLB back into Tung Tai Street.

4.In reversing his vehicle the defendant only looked to check his rear vision mirror within his vehicle without checking the wing mirrors on both sides of his vehicle. He relied on a passenger sitting on the nearside of his vehicle to tell him if it was safe to reverse before he started his reversing motion.

5.At the same time, a 94 years old male (the victim) was at the road junction of Tai Lee Street and Tung Tai Street. The defendant’s vehicle was about 3 vehicular (of a PLB) length ahead of him. The victim was trying to cross Tung Tai Street. The victim looked to the direction of Tung Tai Street for on-coming traffic and started to cross Tai Lee Street slowly with the aid of his walking stick.

6.The defendant failed to heed the presence of the victim at the off-side rear of his PLB. After reversing for about 3 vehicular length, the offside rear of the defendant’s PLB hit the victim, and caused the victim to fall. The defendant’s PLB rolled over the neck of the victim before the defendant stopped his PLB. The defendant drove forward again. In driving forward the defendant’s vehicle ran over the victim’s waist and leg.

7.When subsequently interviewed under caution, the defendant said he stopped his PLB when he heard others shouting someone had been knocked down. He also felt the offside rear of his vehicle banged onto an object. The defendant said he was frightened but he gave no explanation why he drove his vehicle forward again after knocking over an object.

8.The victim was taken to the hospital for resuscitation but was certified dead at about 1.42pm on the same day. The victim was found to have extensive injuries to his chest. His face was deformed. Laceration marks were seen on his left eyebrow and his left shin. Cause of the victim’s death was multiple injuries.

9.The defendant reversed without paying due care and attention to those using the road behind him. His acts of reversing without proper lookout is an act fallen far below that of a competent and careful driver. It is not normal for a road user, in the present case a pedestrian, crossing the road to expect vehicles to reverse unnecessarily. It is certainly inappropriate for the defendant to rely on a passenger sitting on his nearside to tell him whether it would be safe to reverse as (i) firstly, one could not be sure if the passenger was himself a competent driver; (ii) secondly, whether the nearside passenger could have a clear vision to the offside rear of the vehicle; and (iii) thirdly, whether the nearside passenger did pay attention to the road condition at the back, offside and nearside of the defendant’s PLB.

10.The defendant’s driving manner, his lack of appropriate safety precaution in reversing, created serious and obvious danger to other road users seeking to cross or use that stretch of Tai Lee Street behind the defendant’s PLB. Such a danger would be obvious to a competent and careful driver.

11.Had the defendant looked to his right, he would have seen the victim. Had he simply made a reasonable erroneously estimation that the victim had sufficient time to cross the road, his decision might well be an error of judgment. But the facts of the present case remained the defendant did not look to his offside rear, he took a deliberate risk, which he would have obviously known and realised had he given a thought to the fact that he was reversing without looking to his rear left or rear right.

12.The present fact circumstances differed from the case of Fong Cai Man (房濟民) CAAR-6/2007. In Fong the Court of Appeal accepted the lorry driver to have made an error of judgment in reversing rather than turning around in a one-lane road. The fault of the defendant in the present case was not his decision to reverse when he was stuck in a traffic-congested road. Rather his error lies in the fact that he had made a decision to reverse without checking his nearside and offside rear to ensure it was safe for him to reverse. His reliance on a nearside passenger to guard him against any danger on his offside side rear has no justification whatsoever. This is the taking of a deliberate and reckless risk which is obviously dangerous to a competent and careful driver.

13.The incidence of serious road accidents taking away human lives increased tremendously in current times. The increase has reached the alarming level where legislation was invoked to increase the maximum penalty of dangerous driving causing death from 5 years to 10 years on 3 July 2008.

14.In most traffic offences, the drivers did not intentionally kill the deceased. They took risks which are obviously dangerous to competent and prudent drivers. The offending drivers often failed to aver their minds to the consequences of their acts. At times they failed to heed the presence of the victims. On occasions they believed they could be lucky and made it through red lights or other road restrictions. In other scenarios they failed to check the mechanical defects of their own vehicle. Often the drivers over-estimated their skills in their manoeuvres.

15.In the majority of the traffic offences, the court is dealing with offenders who have clear criminal records or who are otherwise hard-working but incompetent, imprudent and careless drivers. The sentencing objective in traffic offences is the balancing of the social need to deter and the defendant’s personal mitigating factors. Often the social need to deter tips the scale and carries a greater impact than the personal background of the defendant.

16.I accept there is no aggravating features averred to in Cooksley [2003] 3 All ER 40 or Poon Wing Kay [2007] 1 HKLRD 660 such as speeding, driving under influence of drinks and drugs or driving under extreme fatigue where one lost his concentration and control over his vehicle.

17.Apart from a previous conviction for assault, gambling and one previous traffic record of jumping the red light 2 months before the current events in November 2008, the defendant had worked hard to maintain his family. Weighing all the factors, I consider an appropriate starting point for sentence is a term of 2 ½ years imprisonment.

18.Giving the defendant credit for his plea of guilty indicating remorse, I accord him 1/3 discount and sentence him to a term of 20 months imprisonment instead.

19.One should really monitor the overall situation to see if deterrent sentences in this type of traffic offences would have helped to curb the incidence of recurrence. Society may wish to explore into the feasibility of community service order options in which the court can order the defendant to help the deceased family to re-establish their financial support or mental support for the loss of their loved ones, for the defendant to make amends with the deceased family or for the defendant to participate in programmes which would enhance his awareness of need of caution when taking charge of what could have been turned into a deadly weapon on the road.

20.Reversing without checking the rear is a general deficient driving manner for which I feel it just to impose a disqualification from driving all classes of vehicle for a period of 3 years under s.36(2). The defendant has to be re-tested for all classes of vehicles under s.70 should he wish to drive again.