HKSAR v. Lo Wai Ming

DCCC 63/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 63 OF 2016

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REASONS FOR SENTENCE

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INTRODUCTION

1.The defendant first appeared before this court on 19 May 2016, on which occasion, he pleaded guilty to the first and second charges in a Charge Sheet containing a total of five charges.  Upon the defendant’s conviction of the two offences, the prosecution applied to have the remainder of the charges left on the court file.  The application was unopposed and was therefore granted. 

2.The two charges of which the defendant stands convicted are causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (the first charge), and causing grievous bodily harm by dangerous driving, contrary to section 36A of the same Ordinance (the second charge).

FACTS

3.On the afternoon of 1 June 2015, a motor vehicle accident took place at the T-junction of the southbound Pokfulam Road, a two-way carriageway consisting of four lanes, and an unnamed road providing access to a construction site.  The unnamed road was also a two-way carriageway but it consisted of two lanes only.  There was a broken give-way white line at the T-junction formed by the unnamed road and the first southbound lane of Pokfulam Road.  Regulatory traffic signs of “No Vehicle Over 3 Tonnes in Weight” were erected at both ends of the unnamed road.  The speed limit of the two carriageways was 50 km/h.

4.At about 5pm that day, the weather was fine, the traffic volume at the T-junction was normal.  The defendant drove a heavy goods vehicle along the unnamed road at around 25 km/h and, without stopping before the broken give-way white line, rushed into Pokfulam Road.  The defendant’s vehicle collided with a private car driven by Ms Mariana Chu on the first southbound lane of Pokfulam Road, with Madam RM Reolope (the deceased) sitting in the left front passenger seat, and pushed Ms Chu’s car onto another private car driving by Mr CB Leung on the second southbound lane.  As a result of the impact, Mr Leung’s car swung and swerved anti-clockwise.  It skidded about 17 metres along Pokfulam Road before it righted itself, straddling over both southbound lanes; the car suffered severe damage as a result.  Meanwhile, the defendant’s vehicle continued pushing Ms Chu’s car onto the second northbound lane.  The right side of Ms Chu’s car collided, therefore, with the right side of a private vehicle driven by Mr CK Ng.  Ms Chu’s and Mr Ng’s cars crashed onto and were halted in the end by the metal railing of the first northbound lane, and the defendant’s vehicle eventually stopped on the northbound lanes of Pokfulam Road, its left front portion having lodged into the left side of Ms Chu’s vehicle.  Ms Chu’s and Mr Ng’s cars were badly damaged and deformed, as a result.     

5.The police arrived shortly, and Ms Chu and the deceased were taken to hospital.  At the scene, the defendant told a police sergeant that he had reversed his vehicle out of the construction site and discovered that the brake was not working or that it did not have power, so his vehicle slid down the unnamed road.  He said also words to the effect that he had sounded the horns and had tried to avoid the accident without success.

6.Upon arrival at the hospital, the deceased was found to have severe head injuries and was certified dead that night.  According to the autopsy report, she died of head and chest injuries. Ms Chu, on the other hand, was found to have head tenderness and abrasion, together with chest wall bruising and tenderness.  She was admitted to the Intensive Care Unit.  A CT scan showed a small bilateral traumatic subarachnoid haematoma.  She was subsequently transferred to the Department of Neurosurgery. She continued to have amnesia and mild depressive symptoms and had since the accident been noted to have a significant behavioural and personality change. Her short-term memory, cognitive flexibility, information processing, and logical thinking were compromised, with marked disturbance in her condition compatible with post-concussion syndrome.  Abnormal head postures and right fourth nerve palsy were also noted.    She was put on sick leave up to 28 August 2015, with follow-up treatment to date. 

7.A government chemist attended the scene on the day of the offences and noted that the defendant’s vehicle had had the handbrake applied and that the vehicle was in high gear.  The service and parking brakes of the defendant’s vehicle were found to be operative.  The weight of the vehicle was 28.09 tonnes.  It did not exceed the vehicle’s loading limit, but it went well beyond the weight restriction of three tonnes in respect of the unnamed road concerned.

8.The prosecution has, in response to the court’s request, provided the court with the following information, which has been agreed by the defence, by way of Prosecution’s Submissions dated 28 July 2016.  First, it facilitates a vehicle to accelerate down-slope if it is in high gear, as the defendant’s vehicle was at the time of the accident.  Secondly, prior to the date of the incident, the defendant had operated the vehicle and had observed no problems with the braking system.  On the day in question, the defendant drove the vehicle from Tsuen Wan and noticed no problems until he went up a slope to the construction site.  Thirdly, given the speed of his vehicle, the defendant had had sufficient braking distance to stop his vehicle before the T-junction to avoid the accident.  Fourthly, the weight limit of a given road means that vehicles with a gross weight above the limit are prohibited from passing the weight-limit signs.  Fifthly, the unnamed road leading from Queen Mary Hospital to Pokfulam Road is steep, having a gradient of more than 1:8.  There is a sharp bend on the unnamed road, allowing but limited sight line.  So, a three-tonne limit is imposed.  Sixthly, the parties agree, in court, that the defendant’s vehicle was subsequently dismantled by his employer and was disposed of as scrap metal.

9.The defence admits in court that the manner in which the defendant drove his heavy goods vehicle has fallen far below that which would be expected of a competent and careful driver, and that it would be obvious to a competent and careful driver that driving in the way the defendant did would be dangerous.  

MITIGATION

10.The defendant was born in Hong Kong in June 1975 and is now 41 years old.  He has received education up to Form Two level and has joined the workforce at about 15 or 16.  From February 2013 to June 2015, he has worked for a construction company as a concrete truck driver, making about $18,000 a month.  He has had one unrelated criminal record prior to his current convictions.

11.According to his background report, the defendant was brought up in a family of disharmony.  His own marriage broke down after only a year.  In 2006, he started a new family with his cohabitee and together, they raise a daughter, who is now nine years old.  He is devoted to his family, but a “wrong estimation” has, he said, resulted in the present offences.  The defendant’s cohabitee and his daughter are saddened by the defendant’s present predicament.  They consider him a responsible, cautious, and diligent person who would never intentionally break the law or act dangerously. 

12.In his plea in mitigation, Mr Jeremy Cheung appearing for the defendant relays his client’s sincere apology to the deceased’s family and friends.  Mr Cheung submits that the defendant has driven the same type of vehicles for delivery of concrete for some time.  He explains that on the day of the offences, the defendant’s truck was blocking the traffic and was preventing other vehicles from leaving the construction site, so he had to drive his truck away via an unfamiliar route which took him to the unnamed road with the tonnage restriction.  At the time of the accident, as soon as the defendant noticed something had gone wrong, the brake did not respond.  Mr Cheung agrees to the defendant’s utterance as recorded in paragraph 9 of the Chinese summary of facts, namely, the brake did not have “wind”. Mr Cheung complains that the defendant has not had a chance to examine the truck before its destruction by his employer.  The court notes in this regard the car examiner’s findings that the brakes had been operative.  Lastly, in respect of the two offences, Mr Cheung refers to a number of authorities, notably HKSAR v Lee Yau Wing[1]and HKSAR v Lui Chung Tak[2], together with a recent District Court case[3], and asks for a lenient sentence on his client’s behalf. 

REASONS FOR SENTENCE

13.In sentencing dangerous driving offences, it seems to be settled law now that the principal task of a sentencing court is to assess the degree of culpability of the defendant arising from the specific circumstances of the offence in question[4]. In the instant case, there can be no dispute that the defendant’s culpability falls within the most serious category: (i) the defendant has failed to pay heed, sufficient or at all, to the weight limit sign, (ii) he was driving a heavy goods vehicle many times the weight limit of a very steep road, down-hill, with restricted sight line, (iii) he has had sufficient breaking distance to bring his truck to a halt before the broken give-way white line, and yet, he proceeded in about 25 km/h across the white line, which was far too fast in all the circumstances, and (iv) he was approaching a T-junction, where a flow of traffic across his path was well within his contemplation.  The accident has resulted in the death of one person and in severe injuries to another, necessitating medical treatment to date.  There are however no obvious aggravating factors, such as driving under the influence of alcohol or drugs, road racing, avoiding apprehension by the police, etc.

CONCLUSION

14.Taking into account all relevant factors, it is the court’s view that a starting point of 21 months is appropriate for the first charge and 18 months is appropriate for the second charge.  The defendant is entitled to one-third discount for his guilty pleas and is therefore sentenced to 14 months’ and 12 months’ imprisonment for the two charges, respectively.  The two offences have arisen out of the same incident.  Applying the totality principle, it is ordered that two months of the sentence for the second charge be served consecutively to the 14 months’ imprisonment in respect of the first charge, making a total of 16 months’ imprisonment.

15.In addition, in respect of the first charge, the defendant is disqualified from driving all types of vehicles for a period of five years[5], and as to the second charge, he is likewise disqualified but only for two years[6]. The two disqualification periods are to run concurrently.[7] Lastly, the defendant is to attend and complete at his own costs a driving improvement course within the three months’ period prior to the expiry of his five-year driving disqualification period arising from his conviction of the first charge.[8]