HKSAR v. Cheung Man Leung

DCCC 478/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 478 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has pleaded guilty to one count on the indictment of causing death by dangerous driving, contrary to Section 36(1) of the Road Traffic Ordinance, Cap. 374 and one count of causing grievous bodily harm by dangerous driving, contrary to Section 36A(1) of the Road Traffic Ordinance. Cap. 374.

Summary of Facts

Location of the Accident

2.The accident took place at the junction of Kam Sheung Road and Tung Wui Road in Kam Tin in the New Territories.  Northwest-bound Kam Sheung Road consists of three lanes, and only its first left and second left lanes permit vehicles to travel straight. Northeast-bound Tung Wui Road consists of three lanes, and only its first left and second left lanes permit vehicles to travel straight. Traffic at this junction is controlled by traffic lights. The speed limit is 50 km/h.

3.At the material time, the weather was fine. The road surface was dry. Traffic flow was normal. The traffic signals were operating properly in that when the traffic lights for northeast-bound Tung Wui Road were green, the traffic lights for northwest-bound Kam Sheung Road would be red.

The Accident

4.At around 4.38 p.m. on 18 December, 2015, the Defendant was the driver of a medium goods vehicle (MGV) with registration number HD8136 which was stopped in front of the stop line on the first left lane of northwest-bound Kam Sheung Road. The traffic light was red for northwest-bound Kam Sheung Road and the traffic in the second left and third left lanes of northwest-bound Kam Sheung Road had also stopped in front of the stop line for the red traffic light.

5.At around 4.39 p.m., when the traffic lights in its direction was still red, the truck in the second left lane of northwest-bound  Kam Sheung Road (i.e. the vehicle beside the Defendant’s vehicle) moved slightly forward and then stopped. Very soon thereafter, the Defendant suddenly drove his MGV forward and it entered the junction whilst the two vehicles in the two lanes next to it remained stationary.        A few seconds after the MGV had started moving forward, a bus with registration mark KC 8296 and a public light bus (PLB) with registration mark LT3691 entered the junction respectively from the third left and second left lanes of northeast-bound Tung Wui Road – the traffic lights for their direction was green.  The bus stopped to avoid collision with the MGV but as the PLB was passing the bus, the front of the MGV hit the right side of the PLB.  The PLB skidded, and then toppled over on its left side and its roof hit the railings at the north corner of the junction. 

6.The accident was captured by the car camera installed at the front of a vehicle stopped before the stop line in the second left lane of the southeast-bound Kam Sheung Road. The video footage was played in Court and viewed.  The Prosecution has also submitted an album of 9 photographs which are still photographs from the video footage – the Defence had no objection to this.   A sketch of the intersection showing the positions of the MGV and PLB after collision drawn by PC 53075 was also produced by the Prosecution.

7.Five passengers on the PLB died as a result of the collision between the MGV and the PLB whilst the driver and 12 passengers on the PLB sustained injuries. Of those injured, 5 have been listed in the particulars of charge 2, namely those listed as PWs 2 to 6 on the list of PWs, as their injuries were the most serious and amounted to ‘grievous bodily harm’.

8.Both the MGV and the PLB were examined and found to be operating properly at the material time.

9.The speed of the PLB was estimated to be about 64 Km/H at the material time.

10.Call records of the Defendant and the PLB driver’s mobile phones were obtained and showed that neither was using his mobile phone at the material time.  Nor was alcohol detected in the breath of the Defendant or the PLB driver.

11.During the investigation, the Defendant said he had stopped the MGV at the junction as the traffic light was red. After 2-3 minutes, when the traffic light turned green, he started his MGV and entered the junction at around 10-20 Km/h.  The PLB suddenly entered the junction at a high speed. The front of the MGV and the right side of the PLB collided – the PLB rushed forward and toppled over on its left side.  The Defendant was subsequently arrested.

12.The Defendant drove into a busy intersection when the traffic light was red for traffic travelling along northwest-bound Kam Sheung Road.  As a result, his vehicle collided with a PLB travelling along northeast-bound Tung Wui Road that drove into the intersection when the traffic light for traffic travelling along northeast-bound Tung Wui Road was green.  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. I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charge and accordingly I convicted the Defendant of the charges that he had admitted.

13.The Prosecution informed the Court that of the 5 victims named in the particulars of Charge 2, the Prosecution had been able to contact 4 in respect of their current health condition – they were all still recovering and had follow-up appointments and required physiotherapy.  Of the other injured persons, 5 had been contacted – they were recovering, carrying on with their lives but they still suffered stress and required psychiatric follow-up. In sentencing the Defendant, I bore in mind only the 5 persons named in the particulars of Charge 2.

Previous Convictions

14.The Defendant had one previous criminal conviction in 1991 for unlawful possession of dutiable goods. He was fined $300. For the purposes of the present proceedings, I attached no weight to his previous conviction.

15.In respect of his traffic record, he was first issued with a driving licence on 21/07/1973. He had no previous traffic convictions.  He had 5 fixed penalty tickets, of which 3 were for overloading, and two for failing to comply with traffic signals in 2013 and 2015.

Mitigation

16.The Antecedent Statement was read into the record by the Prosecution – no issue was taken on its contents by the Defendant.  It disclosed that the Defendant was now aged 71 years and was born in China.  He had been educated up to junior high school level on the Mainland.  He was a self-employed goods vehicle driver prior to his arrest and earned about $20,000 a month. His health condition was normal. He was married and lived with his wife.  He had 3 children.

17.Mr. Li on behalf of the Defendant expressed the Defendant’s deepest apologies to the deceased and injured, their families and friends for what had happened.  The Defendant accepted that this incident had caused stress and sadness to them.  The incident had also brought shock and sadness to the Defendant’s family, who were in Court to show their support to the Defendant.

18.The Defendant was aged 70 years at the time of the accident. He had received his driving licence in 1973.  He was a professional driver, and his driving record can only be described as good for a professional driver.  He has no previous driving convictions, and has received 5 fixed penalties, 3 being for overloading his vehicle.   He had planned to retire and spend more time with his family and to do charity work – he had been a Christian for many years.  This incident has shattered all his plans. As a result of this incident, the Defendant could not forgive himself and he has been receiving psychological treatment. He had not applied for bail because he could not forgive himself for what he had done. 

19.The Defendant came to Hong Kong from China in the 1970’s. He started work as a junior worker in a factory – he enrolled in an accounting class in evening school and was eventually promoted to accounts clerk.   In the 1980’s he quit the job and started his own transport business, hoping for better prospects for the family.  His first wife with whom he had 3 children passed away from nasal cancer. The 3 children are all grown up and live apart, 2 of them having married and having their own families.  The Defendant got married for a second time.  His second wife is a housewife and not in good health – she relies on the Defendant’s support. He was earning about $18,000 a month prior to his arrest.

20.Mr. Li submitted that the Defendant accepted that his driving manner was dangerous.  He had stopped for the red traffic signal as had the vehicles in the lanes beside his.  The vehicles in the the two lanes beside his moved, but then stopped again.  He was misled when he saw these vehicles moving and moved off as well and drove into the intersection.  He did not pay attention to the traffic signal – he thought it had changed to green.  By the time the Defendant and the PLB driver saw each other it was too late o avoid a collision.

21.Mr. Li submitted that the PLB itself was travelling at a speed above the speed limit on that stretch of road of 50 Km/H – it was travelling at about 64 Km/H.  Had it been travelling at a lesser speed, the impact might have been less and the PLB may not have toppled over, resulting in death and injury.  The Defendant had just moved into the intersection and was driving slowly – 10-20 Km/H.

22.Counsel submitted the case of Secretary for Justice v. Liu Kwok Chun [2011] 1 HKC 70 where the Court of Appeal said:-

“35. In Secretary for Justice v. Poon Wing Kay [2007] 1 HKLRD 660, [2007] 1 HKC 289 this Court (Ma CJHC, Stuart-Moore VP and Stock JA) adopted the approach discussed in R. v. Cooksley & Others [2003] 3 All ER 40 in respect of the sentence for dangerous driving causing death. The principle that emerged from Poon Wing Kay and the subsequent cases is that a deterrent sentence is called for because of the grave consequences flowing from this offence. At the same time the Court recognises that culpability of the defendant is the dominant factor in the sentencing exercise.

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37. In assessing the degree of culpability there are two extreme situations. The first is where the event occurred 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 para 15.”

23.Mr. Li submitted that the only relevant aggravating factor might be that set out in paragraph 38 of Liu Kwok Chun (supra) under sub-paragraph 3:

“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);”

24.Counsel also submitted that 5 of the 6 mitigating factors set out in paragraph 39 of  Liu Kwok Chun (supra) are also present herein:-

“39. At the same time the Court must also take into

account mitigating factors, such as,

(1) a good driving record;

(2) the absence of previous convictions

(3) a timely plea of guilty;

(4) genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);

(5) the offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence;

(6) the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.”

25.Mr. Li submitted the Defendant’s culpability to be ‘intermediate culpability’ as set out in paragraph 40 of Liu Kwok Chun (supra) – ‘momentary dangerous error of judgment’.

26.16 letters in mitigation were submitted – from the Defendant himself  as well as from his wife, children and siblings and other relatives, neighbour and a company that he had conveyed goods for.

Sentence

27.In sentencing the Defendant, 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 and Psychologist’s Reports that I had called for, and the letters   seeking leniency on behalf of the Defendant. The contents of the Background and Psychological reports have been explained to the Defendant by Counsel. I am informed by Mr. Li that the Defendant agrees with the factual matters in the Background Report but not the opinion of the Probation Officer at the end of paragraph 6 of the Background Report that ‘as a veteran professional driver without any vice habit of smoking or drinking, his impeccable driving record and customer loyalty might have led to his over-confidence even after undergoing surgery to remove cataract in 2009. Lacking self-awareness, he might or might not have noticed that aging has gradually been diminishing his brain’s visual information processing skill leading to the narrowing of useful field of view on his driving seat.’ Counsel has asked me to disregard this. He also submits that the Defendant did attend for follow-up at the Eye Hospital on 10 August, 2016, and was informed by the doctor that the cataract operation in 2009 was successful and his vision normal.  The Defendant also agreed with the factual contents of the Psychological Report.  In respect of Paragraph 10 of the Report, Counsel submitted that the Defendant felt he was aging and so had made retirement plans. But he did not feel that his aging had affected his driving skills – prior to the accident he had an impeccable driving record and his work was commended by a long-time customer. 

28.The Defendant is now aged 71 years.  Although he does not have a clear criminal record, his only previous conviction was in 1991.  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 1973. He has had only five fixed penalty tickets in all these years, but two of these are for failing to comply with traffic signals, most recently in 2015.  Clearly he has been a professional driver for many years and his driving record is to be commended. I am told by Mr. Li that he was so affected by the  accident and felt such deep remorse that he has had to undergo psychological counselling.  He did not seek bail in this matter prior to entering to entering his plea before me.

29.The maximum penalty for offences of dangerous driving causing death is 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.

30.The maximum penalty for offences of dangerous driving causing grievous bodily harm is 7 years’ imprisonment on conviction on indictment and a fine at level 5, namely$50,000. This is set out in Section 36A(1)(a) of the Road Traffic Ordinance, Cap. 373.  It is further provided in Section 36A(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 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.

31.Road accidents can cause immense human suffering and bring about serious economic burdens 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,  supra:

“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”.

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.

32.As the Court of Appeal has said 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.

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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.”

33.In Poon Wing Kay, supra, the Court of Appeal said in paragraph 10(4):

“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. In assessing the overall seriousness of a crime, culpability is often the dominant factor: - at page 47b (paragraph 14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. In some cases, the fact that only some aggravating factors exist, but not others (such as in the present case), may still bring the case into a very serious category.”

34.Although the Defendant did not exceed the speed limit, he drove into a busy intersection when the traffic light was still red.  The Defendant would have had an unobstructed view of the traffic signal had he looked at it before driving into the intersection rather than driving because the vehicles in the lanes next to his moved.

35.I accept that this incident is a tragedy also for the Defendant. There is no doubt that he is now deeply and genuinely remorseful as reflected by what is in the Background Report and the Psychologist’s 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, [2009] 5 HKLRD 601,  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).

36.The clinical impression of the psychologist who prepared the Psychologist’s Report was that the Defendant’s ‘intellectual functioning fell within the lower end of average intelligence. He was assessed to be comparatively slow in information processing. It meant that Mr. Cheung could perform the cognitive tasks put forth to him but the performance was slowed. Mr. Cheung also performed unsatisfactorily on the tasks requiring eye-hand coordination, visuo-spatial search, and divided attention. The under-performance observed in the above areas, which is possibly due to aging, may not affect Mr. Cheung’s daily functioning. But is has a bearing on his driving.’  Dr. Pau further said in his report ‘Mr. Cheung felt guilty for the present offences. He was full of remorse. He said that he would not drive again. In view of his criminal history, age and the nature of the present offences, his risk of reoffending was assessed to be low’.   Dr Pau also opined that no psychological treatment was recommended in the circumstances of the Defendant.

37.I find that the outcome of the Defendant’s driving - the number of deaths and persons injured – is the main aggravating factor in this case.  The danger herein was his inattention whilst driving.   Dr. Pau in his report concluded that the Defendant’s ‘intellectual functioning was found to be within the range of low average. His information processing was relatively slow, which meant he required extra time to perform a cognitive task. His reaction time to stimuli was extended.  Indeed, Mr. Cheung noticed the same before the current offences.’  The Defendant would have been aware that his reaction was slower than the norm.  He needed more time to process information.   I would place the Defendant’s culpability at the medium range of culpability.

38.On the other hand, there are plenty of mitigating factors. His good driving record, the absence of any traffic convictions (although I do bear mind that he has two fixed penalties for failing to comply with traffic signals), a timely plea of guilty, genuine shock and remorse and his advanced age. Counsel has indicated that the Defendant will not be driving in the future – he had planned to retire soon. From the letters submitted in mitigation, it is clear that the Defendant has been a good brother, husband and father.  He has also always worked conscientiously, as evidenced from the letter in mitigation from one of his long time customers.  

39.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, and the contents of the reports I have called for and the letters in mitigation submitted to me,  in respect of Count 1, causing death by dangerous driving, I take as a starting point 3 years’ imprisonment, discount this by one-third in recognition of the Defendant’s plea and sentence him to 2 years’ imprisonment.  In respect of Count 2, causing grievous bodily harm by dangerous driving, I take as a starting point 1 ½ years’ (18 months’) imprisonment, discount this by one-third to reflect his plea and sentence him to one year’s imprisonment, the sentences to be served concurrently.

40.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 in respect of Count 1 and 2 years in respect of Count 2, the disqualification orders are to be concurrent. 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, there being no special reasons against the making of an order, that in respect of Count 1, he must at his own expense attend and complete a driving improvement course within the last three months of the expiration of the period of disqualification of 5 years. In my view, it is unnecessary to make a separate order in respect of Count 2.  The Defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course, notwithstanding that the disqualification period may already have ended. I will also put on record my warning that the order places a duty on the Defendant to make arrangement to attend and complete the course on his own initiative.  No one will remind him to do so.