HKSAR v. Li Ka Keung

DCCC 690/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 690 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of Causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap.374.

Summary of facts

2.The defendant was the driver of a public light bus. At around 6:53pm on 10 February 2014, the defendant was driving in the 2^nd lane of Hiu Kwong Street going downhill. According to witnesses who were passengers on board and pedestrians nearby, the defendant paid no attention to the “Pedestrian Ahead” warning traffic sign and continued at a fast speed towards an uncontrolled pedestrian crossing.

3.Meanwhile, the victim, 77 year old Mr. Wong, walked across Hiu Kwong Street at a slow pace towards the safety island in the middle of the street.

4.There were no other vehicles in front of the defendant’s PLB and the defendant would have been able to see Mr. Wong clearly.

5.When Mr. Wong got to the broken white lines between the first and second traffic lane, the defendant’s PLB arrived at the same time. The defendant did not slow down the PLB until it was about one to two vehicle spaces from Mr. Wong. The nearside front corner of the PLB came into contact with Mr. Wong and knocked him down.

6.There was no life sign when the ambulance crew arrived and Mr. Wong was certified dead upon arrival at the hospital.

7.The defendant was arrested. Under caution, he said that he had been driving the Yau Tong and United Christian Hospital route for one year. At the material time, he was driving downhill along the second lane of Hiu Kwong Street at about 50 kmh. When he was near the collision point, he suddenly saw the deceased at the broken white line between the 1^st and 2^nd lane, walking slowly across the road towards the safety island. The PLB was about 2 vehicle space away at that time.

8.The defendant braked and sounded the horn but he was not able to stop in time and knocked down the deceased. There were no vehicles in front of the defendant, traffic was smooth and visibility good. The defendant knew that pedestrians would usually cross the road at the location, but he was just turning his head to the right to check the traffic and so did not see the pedestrian.

9.The PLB was examined and no mechanical defects were found except for an inoperative speed limiter. Speed date was retrieved, indicating speed of between 51 to 59 kmh prior to collision. Measurements at scene show that the defendant would have been able to see the collision point at about 122 meters away.

Previous convictions

10.There were 2 spent convictions and one fighting in a public place criminal conviction back in 1981. For present sentencing purpose, none of these convictions will be taken into consideration.

11.In relation to traffic record, the defendant was convicted of careless driving and fined $800 in September 2012.

Mitigation

12.A mitigation bundle was submitted.

13.The defendant is 63 years old.  He was employed as a lorry driver for 22 years until he became a Public Light Bus driver 2012. Since the incident, the defendant has been unable to drive because of his mental and health situation. He is now working as a cleaning worker.

14.The defendant has a daughter and a son. The son is married and has moved away. The daughter is living with the defendant and working as a part time receptionist earning $5,000. The defendant’s wife is also working as a receptionist earning about $7,000.

15.It was pointed out in mitigation that the defendant frankly admitted his guilt in his cautioned statement, that it was his eighth run of the day at the time of the incident and he did not have time to take a rest, that the distance when the defendant saw the victim was actually further away than 2 Public Light Bus’s distance, that it is not a case of the defendant taking his eyes off the road for a long time, and that the defendant’s speed was at most 51kmh at the time of the collision.

Medical condition of the defendant

16.After the accident, the defendant suffered from depression. He was put on anti-depressant and is still on anti-depressant and will continue to rely on it. He has been receiving counselling to help him deal with his ordeal. According to the report from his counselor, the defendant feels remorseful and suffers a great deal psychologically. There are suicidal thought and the defendant has since the incident been unable to drive.

17.Lastly, the defendant has always been a responsible and honest person, a loving father, and a law abiding person. He has been a professional driver for about 43 years. The defendant’s traffic records are nothing short of exceptional.

Sentencing cases

18.The collision happened at a pedestrian crossing, which is an aggravating factor in a charge of causing death by dangerous driving.

19.In the case of Secretary for Justice v Wong Wai Hung, CAAR 7 of 2010 an 87 year old man was crossing slowly at a zebra crossing with his domestic helper when he was knocked down by the respondent’s vehicle and died from his injuries. The Court of Appeal referred to an earlier decision and said the following:

“19. In Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, CAAR 2 & 4 of 2009, this Court (Ma CJHC, Hartmann JA and Saw J) made clear that it would be a serious aggravating feature that dangerous driving causing death occurred at pedestrian crossings, and that a conscious disregard for traffic lights would be likely to put the case into the most serious category. This court also said one must not overlook the fact that an innocent life has been taken away, and that good character and remorse may count for very little.”

20.Having referred to Lam Siu Tong, the Court of Appeal stated that “a conscious disregard for pedestrians is equally, if not, more reprehensible” than a conscious disregard for traffic lights, which would put a case into the most serious category of dangerous driving. 

Sentence

21.The maximum sentence on conviction on indictment for causing death by dangerous driving under s.36(1) is that of a fine at level 5 and imprisonment for 10 years.

22.The defendant was going downhill, traffic was smooth and visibility was good, he could have seen Mr. Wong from 122 meters away but he did not. He was obviously going too fast in the circumstances when getting near the uncontrolled pedestrian crossing and not paying sufficient attention. The defendant had been driving the same route for about a year and must have known it well. He knew pedestrians usually cross at the crossing. The deceased was crossing the road slowly, as opposed to running across the road. The defendant drove at an inappropriate speed and approached in such a callous manner that by the time he saw the deceased it was too late to avoid hitting him. Although there were no traffic lights to control the crossing, any competent driver when driving through such a pedestrian crossing should anticipate pedestrians coming out from the pavement to cross the road and the driver must approach the crossing at such a speed and in such a manner that the driver would be able to take immediate avoidance action if such a pedestrian does appear.

23.I find that there is only one aggravating factor in this case, which is that the collision happened on a pedestrian crossing. I place the defendant’s culpability at the medium range of culpability.

24.On the other hand, there are plenty of mitigating factors. The defendant’s good driving record, the absence of similar convictions, a timely plea of guilty, genuine shock and remorse as indicated in the psychologist reports, and the defendant’s age. He can no longer drive because of his mental condition. From the letters submitted in mitigation, it is clear that the defendant has always been a good person and loving father.

25.Taking all the circumstances into consideration, including the aggravating and mitigating factors, I adopt a starting point of 2 and a half years’ imprisonment, discounting it by one-third in recognition of the defendant’s guilty plea and sentence him to 20 months’ imprisonment.

Disqualification

26.Pursuant to s.36(2A)(a) of the Road Traffic Ordinance, given that this is a first conviction for a s.36(1) offence, the defendant is disqualified for a period of 5 years.

Driving improvement course

27.Pursuant to the requirement under s.72A(1A) of the Road Traffic Ordinance, there being no special reasons against the making of an order, the defendant is ordered to attend and complete a driving improvement course. Pursuant to s.72A(3B)(b), the defendant must attend and complete the driving improvement course within the last 3 months of the said disqualification period of 5 years.