HKSAR v. Hui Wang-chin

DCCC 1347/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1347 OF 2011

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

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

Reasons for Sentence

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

1.The defendant has been convicted after trial on 1 count on the indictment of causing death by dangerous driving, contrary to Section 36(1) of the Road Traffic Ordinance, Cap 374.

2.Full particulars of the offence are set out in my verdict delivered on 2 April 2012.  The accident relates to a fatal road traffic accident that occurred on 23 May 2011 on Hoi On Road, Tsuen Wan.  At the material time, 1853 hours, the defendant was driving a public light bus, registration mark FS 2041, with passengers on board, along the second left lane of southeast bound Lai Shun Road.  He drove into the junction of Lai Shun Road and Hoi On Road, and made a right turn into southwest bound Hoi On Road.  The public light bus hit a 77 year old man, Yim Koon-wing, who was thrown into the air, and lay on the ground bleeding and unconscious.  He sustained multiple injuries and was certified dead at 1942 hours.  At the time the road at the scene was dry and in good repair and well illuminated.  Lai Shun Road is a dual carriageway with three lanes in the southeast bound direction which runs downslope and forms a T-junction with Hoi On Road.  Traffic from southeast bound Lai Shun Road can make a right turn into southwest bound Hoi On Road, which is also a dual carriageway, with two lanes in the southwest bound direction.  Traffic at the junction of Lai Shun Road and Hoi On Road is controlled by traffic lights and there are pedestrian crossings as well.  The speed limit is 50 km/h.  A ‘line of vision’ test was conducted by the Government Chemist who found that the defendant would have had an unobstructed view of the deceased from 60 metres away sitting at the driver’s seat of the public light bus when it was being driven on the second left lane of Lai Shun Road before it turned right onto Hoi On Road, as the deceased was standing on the traffic island preparing to cross Hoi On Road.  The traffic light for traffic on Lai Shun Road had changed to amber when the public light bus was some 50 to 60 feet from the traffic light, and had already changed to red when the defendant drove the public light bus past the traffic light and turned right onto southwest bound Hoi On Road, where the deceased had begun to cross the road at the pedestrian light controlled pedestrian crossing, albeit that the pedestrian light would have been red.  The defendant did not slow down or stop as he approached the traffic light although it had changed to amber but drove into the intersection against a red traffic light.  His driving fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

3.Counsel for the prosecution handed up two authorities on sentence – Secretary for Justice v Lam Siu Tong & Secretary for Justice v Wong Ton Fan, CAAR 2/2009 and CAAR 4/2009 reported at [2009] 5 HKLRD 601 and Secretary for Justice v Liu Kwok-chun, CAAR 3/2009 & CACC 34/2009.  I have considered all the matters raised by counsel for the prosecution.  I have also carefully considered all that has been urged upon me in mitigation by counsel on behalf of the defendant, as well as the contents of the Background Report that I had called for, and the letter written and signed by 27 colleagues of the defendant seeking leniency on behalf of the defendant.

4.The defendant is now aged 54 years.  Although he does not have a clear criminal record, his only previous conviction is for an offence of theft in 1984, when he was fined $2,500 or 5 months’ imprisonment.  For the purpose of sentence, I shall treat him as a man of clear record.  He has a clear driving record.  His first issue of a driving licence was in March 1982.  He has had only one fixed penalty in 2009, for driving in excess of the speed limit by 15 km/h or less.  Although he told the interviewing officer for the Background Report that he became a lorry driver in 1980, that cannot be correct as he was only issued with a driving licence in 1982.  He changed to work as a minibus driver in 2005.  Clearly he has been a professional driver for many years and his driving record is to be commended.  He earned around $7,300 a month.  He was so affected by the accident in May 2011 that he has stopped working and is unemployed, supported financially by his siblings.  He is divorced, with two children aged 19 and 21 years, but he has little contact with them.

5.The maximum penalty for offences of dangerous driving causing death was increased from 4 July 2008, from 5 years’ imprisonment to 10 years’ imprisonment on conviction on indictment and a fine at level 5, namely $50,000.  This is set out in Section 36(1)(a) of the Road Traffic Ordinance, Cap 374.  It is further provided in Section 36(2) that a person convicted of the offence shall be disqualified for a period of not less than 5 years in the case of a first conviction, unless the court for special reasons orders that person be disqualified for a shorter period or that the person not be disqualified.  This clearly reflects how seriously the legislature and society in general view offences of this nature.  In particular, where the legislature increases the maximum penalty for an offence, the courts treat that as an indication of the legislative view that the offence is regarded as more serious than it used to be regarded and the courts will reflect that view by passing sentences more severe than the sentences that used to be passed before.

6.Road accidents can cause immense human suffering and bring about serious economic burden both to the victim’s family and the society.  Vehicles can be lethal if not driven and maintained in an appropriate manner.  Those who are in charge of vehicles owe other road users a heavy duty.  As the Court of Appeal said in Secretary for Justice v Poon Wing-kay, [2007] 1 HKLRD 660,

“Since sometimes there might be extremely grave consequences flowing from acts of dangerous driving, it is necessary to have in mind a deterrent effect. The standards required by law of motorists are there to ensure that all who come into contact with motor vehicles, including other drivers, passengers in the defendant’s car and pedestrians, etc are safe. While it might be right in some instances not to treat violators of traffic laws as true criminals, for offences such as dangerous driving causing death, the offender might not necessarily be seen in such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous”.

7.The court also said that where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased.  The impact on people’s lives ought to be taken into account when sentencing. 

8.The court referred to the dictum of Lord Woolf CJ in R v Cooksley, [2003] 3 All ER 40.  It stated there that while a list can be drawn up of aggravating and mitigating factors, a sentencing court must, however, look at the overall circumstances and the overall culpability of the offender.  The principles enunciated in Cooksley were considered with approval by the Court of Appeal in Hong Kong in Poon Wing-kay, supra.

9.In Secretary for Justice v Liu Kwok Chun, supra, Hon Cheung, JA, giving the judgment of the Court, said :-

“37. In assessing the degree of culpability there are two extreme situations. The first is where the event occurs 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 paragraph 15.

Aggravating factors

38. It is worth repeating the aggravating factors which may be grouped under the following headings :

1) Highly culpable standard of driving :

(1) the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a “motorised pub crawl”;

(2) greatly excessive speed; racing; competitive driving against another vehicle; “showing off”;

(3) disregard of warnings from fellow passengers;

(4) a prolonged, persistent and deliberate course of very bad driving;

(5) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking);

(6) driving whilst the driver’s attention is unavoidably distracted, eg by reading or by use of a mobile phone (especially if hand-held);

(7) driving when knowingly suffering from a medical condition which significantly impairs the driver’s driving skills;

(8) driving when knowingly deprived of adequate sleep or rest;

(9) driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns;

2) Driving habitually below acceptable standard

(10) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;

(11) previous convictions for motoring offences, particular offences which involve bad driving or the consumption of excessive alcohol before driving;

3) Outcome of offence

(12) more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable);

(13) serious injury to one or more victims, in addition to the death(s);

4) Irresponsible behaviour at time of offence

(14) behaviour at the time of offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by serving in order to escape;

(15) causing death in the cause of dangerous driving in an attempt to avoid detection or apprehension;

(16) offence committed while the offender was on bail.”

10.As the Court of Appeal has said recently in Secretary for Justice v Lau Sin Ting, CAAR 3/2010 :-

“34. Sentencing decisions for an offence under s 36(1) of the Road Traffic Ordinance are by their nature difficult. As was said by Yeung JA in delivering the judgment in HKSAR v Chan Wing Keung, Andy CACC 356/2009 at para. 36:

“...The court is not dealing with criminals, but normally law-abiding drivers, who, apart from their involvement in the offence which resulted in death, can be individuals who would not otherwise dream of committing a crime. However, their irresponsible driving attitude had led to extremely serious consequences, including death to innocent people and grave distress to their families, albeit they did not intend to cause any such death or serious injury.”

35. A principled approach to sentencing for the offence has nevertheless evolved. In Secretary for Justice v Poon Wing Kay (2007) 1 HKLRD 660 this court approved a number of general principles set out in the judgment of Lord Woolf CJ in R v Cooksley & Ors [2003] 3 All ER 40. That judgment is also of considerable assistance in its reference to aggravating and mitigating factors which a court may, depending of course on the facts before it, take into account in sentencing for the present offence: see Secretary for Justice v Liu Kwok Chun, CAAR 3/2009.

36. Recognising that Hong Kong road conditions may differ in many ways from those in England, nevertheless much of what is said in R v Cooksley has application to this jurisdiction. We emphasize however that each case is different and may vary greatly in circumstances and too formulaic an approach to sentence may result in injustice.

.......

42. But it must be borne in mind, as the judge states, that there is a considerable element of general deterrence involved in sentencing for this offence. The seriousness of the offence is underlined by the increase in the maximum penalty from 5 to 10 years’ imprisonment ….. No doubt the legislature in increasing the maximum penalty for this offence intended to reflect public sentiment that greater deterrence was called for in this sort of case.”

11.Counsel for the prosecution has contended that the aggravating factors here include jumping a red light and not slowing down when approaching an intersection, which would amount to aggressive driving.  Although the defendant did not exceed the speed limit, he drove at a speed incompatible with the circumstances at the material time, as he was approaching an intersection and the light had already changed to amber when he was some 50 to 60 feet from the traffic light at the intersection, which had changed to red by the time he actually drove past the traffic lights.  The defendant would have had an unobstructed view of the deceased from 60 metres away sitting at the driver’s seat of the public light bus when it was being driven on the second left lane of Lai Shun Road before it turned right onto Hoi On Road, as the deceased was standing on the traffic island preparing to cross Hoi On Road at a pedestrian crossing.  Counsel for the defendant has submitted that there are no aggravating factors as the dangerous driving was the jumping of the red light. I do not accept that – I find that there was aggressive driving by the defendant herein, and the accident took place on a pedestrian crossing.

12.The defendant was a professional driver.  A very substantial portion of the population of Hong Kong rely on public buses and public light buses to travel to and from work and to their families and in so doing they expect to be carried safely from place to place.  Dangerous driving by public vehicle drivers has firmly to be deterred by sentencing policy.

13.In Secretary for Justice v Lam Siu Tong & Secretary for Justice v Wong Ton Fan, supra, the Court of Appeal said :-

“19. At the outset of this judgment, we highlighted one feature common to both reviews, namely, that the accidents took place at pedestrian crossings. It hardly needs reminding that motorists are required to exercise the utmost care when approaching pedestrian crossings, by reason of the obvious : it is highly likely that people will be crossing the road there, whatever the time of day or night. Accordingly, if motorists approach pedestrian crossings at high speed, or disregard traffic lights, there is a high risk that an accident will occur. And where a collision takes place, fatalities are common as we have seen in the Reviews before us.

20. Thus we are of the view that where the offence of dangerous driving causing death is established and this involved the running over of persons at pedestrian crossings, then, for the purposes of sentencing, it would be a serious aggravating feature that the accident occurred in such a location. The degree of seriousness will of course depend on the precise circumstances. For example, a conscious disregard for traffic lights will likely put the case into the most serious category.”

14.I accept that this incident is a tragedy also for the defendant.  The defendant has been convicted after trial, and he has shown little remorse until now.  Counsel has submitted a letter from Dr Kenneth Y K Ng that the defendant was seen by him on 13 July 2011 for anxiety and insomnia.

15.In sentencing, I take into account all that has been urged upon me in mitigation by counsel on behalf of the defendant.  There is no doubt that he is now genuinely remorseful as reflected by what is in the Background Report.  He has a good driving record, and his only criminal conviction was many years ago, and as I said, I shall disregard that for the purpose of sentence and view him as having a clear criminal record.  But I must take into account the view expressed by the Court of Appeal in Secretary for Justice v Lam Siu Tong, supra, to the effect that previous good character and genuine remorse of a defendant who has committed this offence must not be given undue prominence (para 13(c) and (d) of the judgment).

16.In my view, by driving as he did, the defendant demonstrated a conscious disregard for the traffic conditions and drove with selfish disregard for the safety of other road users.  It is this that puts this offence into a more serious category.  An innocent life has been taken away and good character and remorse may count for very little as against that.  The main determining factor is culpability.  I am conscious of the fact that the deceased was crossing at the pedestrian crossing when the lights governing pedestrians were on red.  Notwithstanding that, he would have been clearly visible to the defendant when he was standing at the pedestrian crossing preparing to cross, yet the defendant chose to disregard the red traffic signal for traffic turning right towards the pedestrian crossing.

17.I take the view that an immediate custodial sentence of imprisonment is the only appropriate sentence in this case.  Having considered the whole circumstances of the offence, including the degree of culpability, the serious consequences, mitigation put forward on the defendant’s behalf and the defendant’s background including his driving record, the defendant is sentenced to 3 years’ imprisonment.  I can see no special reasons not to disqualify the defendant.  He is also disqualified from holding or obtaining a driving licence for all classes of vehicles for 5 years, and this disqualification period is not to run until he has completed serving the term of imprisonment.  What this means is that if the defendant drives during the period of disqualification, he will commit an offence of driving whilst disqualified, an offence which will usually attract a sentence of imprisonment, and that is in addition to any other offences that would be automatically committed where he is driving whilst disqualified, such as driving without third party insurance.  I also make an order under section 72A(1A) of the Road Traffic Ordinance, Cap 374, that he must at his own expense pass a driving improvement course within the last three months of the expiration of the period of disqualification.