HKSAR v. Wong Miu Lin

DCCC 11/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 11 OF 2013

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Reasons for Sentence

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1.Defendant, I convicted you after trial of an offence of dangerous driving causing death, contrary to Section 36(1) of the Road Traffic Ordinance.

2.On 2 February 2012 at about 2.20 pm, Madam Chan Lai-fun, who was aged 73, was walking along a pavement of Kok Cheung Street. At that time your vehicle was driving behind her on Kok Cheung Street.  Madam Chan was on the nearside of your lorry.  She was walking towards Fuk Chak Street immediately ahead of her, which was at a junction.  You were intending to turn left into Fuk Chak Street from Kok Cheung Street.  Madam Chan stepped onto Fuk Chak Street.  You turned into Fuk Chak Street and, upon rounding the corner, your lorry ran over Madam Chan with its nearside rear wheels, which caused her death.

3.I found that you were not paying a proper lookout as you did not see Madam Chan at all or, if you did see her, you did not take any obvious steps to break or stop or manoeuvre your lorry to avoid an accident or collision with her. 

4.I found that your driving fell far below what would be expected of a confident and careful driver and that you were driving dangerously.

5.Mr Boyton and Mr Kevin Li have mitigated fully and thoroughly on your behalf and I have taken into account all that they have had to say.

6.You are aged 33 and are of clear criminal record.  At the date of the offence you were a professional driver employed by Nestlé Hong Kong Limited.  You have one traffic conviction for careless driving in 2008, to which you were fined $1,500.

7.I am informed by Mr Boyton that you had been a professional driver for some 10 years until the day of the offence.  After the date of the offence, you have not driven any more.  Your employers have continued to employ you but in a different capacity, that is as a warehouse store man.

8.You are married with a son aged 7 and your wife is about to give birth next month.  Mr Li has read to me two letters written by your family members together and your supervisor, Mr Tony Li. 

9.Your family speak very highly of you as a responsible husband, father and son to your aged mother who has a heart problem.  You are the sole breadwinner of your family.  They have informed me that this incident has caused a great impact on you.  However, you have tried your best to pretend to act as a normal person so that it would not affect your family.

10.Your supervisor in the warehouse, Mr Tony Wu, has said that you are a very hardworking and honest employee who is also very helpful to your colleagues. But for this incident you were placed on the promotion list of your company.

11.Your family and the supervisor have asked me to impose as lenient a sentence as possible.

12.Mr Boyton has submitted that this is at the bottom end of dangerous driving and has informed me that you understand the consequences of dangerous driving as one of an immediate sentence of imprisonment.

13.In The Secretary for Justice v Poon Wing Kay [2007] 1 HKLR 60, the Court of Appeal in Hong Kong expressed general agreement with the Cooksley approach on dangerous driving causing death cases.  In R v Cooksley [2003] 3 All ER 40, the Court of Appeal in England there dealt with in detail the sentences appropriate for dangerous driving causing death.  The fact is that in these cases an immediate custodial sentence is generally imposed.

14.The Court of Appeal in Hong Kong emphasised that it is important for the courts to drive home the message that there may sometimes be extremely grave consequences flowing from an act of dangerous driving.  It is, therefore, necessary to have in mind a deterrent effect when sentencing in cases involving dangerous driving.

15.In Cooksley, the court there set out four starting points.  In the lower end, where there were no aggravating factors, a sentence of 12 to 18 months was appropriate and these could be even after a plea of guilty.

16.It is clear in this case, defendant, that you are or were very shocked and stunned when you saw Madam Chan lying on the ground.  PW1 and the officer involved at the scene both said you were extremely emotional and crying when you saw her surrounded by blood.  When the video was shown again in court, you also broke down.  Your family has told me that you have found it difficult to sleep.

17.Your supervisor, Mr Wu, has told me that you understand that if you are in the wrong, you would be responsible for it.

18.No doubt in dangerous driving cases, drivers do not intend to harm their victims.  Sadly, it does have grave effects on the family of the deceased and, of course, in this case I case see, on you.

19.Looking at the aggravating factors set out in Cooksley, I do not see there to be any aggravating factors in this case.

20.I am satisfied that this offence involved a momentary dangerous error of judgment or a short period of bad driving.

21.As this case does not display any aggravating features, I consider that I can take a starting point at the lower end when sentencing you.

22.In the circumstances, defendant, taking into account all these factors I consider an appropriate sentence to be one of 12 months’ imprisonment.  You are further disqualified from driving for 5 years.