HKSAR v. Woo Wai Ming

DCCC 169/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 169 OF 2017

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REASONS FOR SENTENCE

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Charge

1.Defendant pleads not guilty to Charge 1, causing grievous bodily harm by dangerous driving.  He pleads guilty to Charge 2, ie careless driving, which is an alternative to Charge 1.  Prosecution accepts the lesser plea.  Defendant is finally convicted of careless driving upon his own plea.

Facts

2.The incident took place on 8 August 2016.  The location was a downward road near the entrance of Kai Tak Tunnel, East Kowloon Corridor, Kowloon City. At that time the weather was fine.  The road surface was dry.  Traffic flow was normal.  The speed limit there was 70 kilometres per hour.

3.At about 5.18 pm, Mr Chik (PW2) was driving a light goods vehicle, the white lorry, TD3989 (V2), on the second lane of the road.  Behind him was PW1, Mr Li (the victim), who was riding a motorcycle, TP6833 (V1).  Defendant was driving a blue lorry, JG2143, behind the motorcycle (V3).

4.Near the entrance of Kai Tak tunnel, the white lorry tried to progress into the first lane.  The motorcycle slowed down.  At that time, Defendant’s lorry came from the back and paralleled with the motorcycle on the right. Defendant’s left-side mirror touched the helmet of the motorcyclist, causing him and the motorcycle to topple.  Defendant’s lorry then ran into the concrete divider, bounced leftwards and further ran into the back of the white lorry. It finally came to a stop after crashing into the back of the white lorry.

5.Under caution, Defendant told police that he was driving at about 50 to 60 kilometres per hour.  The preceding traffic was about five to six light goods vehicle length ahead of his lorry.  When the preceding traffic slowed down, Defendant tried to apply brakes but there was no effect on his brake.  He thus swerved his lorry into the concrete divider in order to reduce speed and to avoid colliding with the preceding traffic.

6.The motorcyclist, Mr Li, suffered serious right upper limb injuries.  (For details, see paragraph 6 of Admitted Facts.)

7.Mr Li underwent four surgeries.  He was granted sick leave from 8 August 2016 to 22 December 2017.  Now, due to nerve damage, Mr Li had no feeling from his right forearm to the right little finger.  He was followed serially in the outpatient clinic.  He was also referred to the clinical psychologist in August 2016 due to low mood about his open fracture of the right distal humerus and other wounds.  He showed acute stress reactions, emotional disturbance towards the injury and anticipatory changes in life.  He was further referred to the psychiatric services as he was impressed to have suffered from adjustment disorder.

8.Defendant’s lorry had no mechanical defect.  However, the MVE report showed that the gross weight of his lorry was 7,100 kilogrammes.  It exceeded the permitted gross vehicle weight by 1,600 kilogrammes (22.53 per cent).

9.The brake efficiency of the lorry was decreased from 67 per cent to 52 per cent when the lorry was so overloaded, ie by 1,600 kilogrammes.

10.The overloading of Defendant’s lorry resulted in a reduction in the braking efficiency, which disenabled Defendant to stop in time, thereby causing the accident and Mr Li’s injury.

11.Defendant was driving carelessly at the material time because he failed to notice that his lorry had been overloaded, when he should have been aware of it.

Record

12.Defendant is now aged 56.  He has two previous criminal convictions, which offences were committed at his young age of around 20.  They were not related to driving.

13.Defendant’s driving record shows that he started to hold his driving licence in 1987.  He committed careless driving in 2011 and 2014.  On those occasions he was just fined.  He also had a fixed penalty matter in 2016 for speeding. 

Mitigation

14.Defence Counsel has prepared a written submission.  He points out that Defendant is a married man, living with his wife and a pair of twins aged 3.  Defendant also has an aged mother living nearby to be taken care of.

15.Defendant obviously is the breadwinner of the family.  He earns $20,000 per month as a driver.  He has been a professional driver for the last 10 years.  Since 2011, he has been working for the same engineering company. Counsel says he is regarded as a valuable employee in the company.

16.Counsel says that for the last three months prior to the accident, Defendant had been instructed to convey a heavy machine to and from a working site daily.  He did it six times a week. 

17.Counsel says Defendant did check about the situation but he found there was no depression to the tyres and there was no adverse effect to the performance of the lorry, so Defendant just continued to perform his job without making further checks.

18.Counsel says Defendant therefore laboured under an honest belief that everything was in order. But, given the extent of the overloading as found, Defendant now accepts that such honest belief was unreasonable.

19.Counsel says Defendant is a responsible family man and a hardworking employee.  Counsel produces letters from defendant’s wife, his boss, his supervisor and his colleague.  All say good of Defendant.  Defendant himself also writes in to say he is deeply sorry for the accident and asks for leniency.  Counsel asks the court to impose only a financial penalty but no imprisonment or disqualification.  He says any term of punishment and disqualification would severely prejudice the life of Defendant and his family.

Sentence

20.In this case, Defendant drove an overloaded vehicle on the road, 1,600 kilogrammes over the maximum permissible weight of 5,500 kilogrammes. 

21.The braking efficiency was reduced by 15 per cent, from 67 per cent to 52 per cent.

22.The video record of a neighbouring car capturing the accident clearly shows how the accident occurred.

23.Although the charge is one of careless driving, there is no allegation that Defendant at the material time was driving poorly.  He was careless only due to his insufficient attention to the overloading condition of his lorry.

24.Although his lorry was overloaded by 1,600 kilogrammes, Defendant says through his counsel that he did not notice such overloading condition even though he had made preliminary check to his lorry. 

25.What Defendant said about his checking cannot be rebutted.  It might be true that he did not find anything wrong with his lorry even though it carried a heavy machine on it, but it was only because the check done was not meticulous enough.  If Defendant rendered more meticulous checks or more frequent checks on his vehicle to assess the situation, then he might be able to find out there was problem with his lorry carrying such a heavy machine.  In that sense, Defendant is regarded as failing to pay due care and attention to his lorry that would run on the road.  He was careless.

26.However, at the time of the accident, Defendant was driving properly, apart from the overloading problem.  He was not speeding.  He was keeping a suitable distance from the preceding traffic.  He could not slow down or stop his vehicle in time because of the braking problem caused by the overloading, which he failed to detect earlier.  The incident was unfortunate.  The motorcyclist Mr Li suffered quite serious injuries, which affected much of his life.  He still requires treatment.

27.A driver is to be sentenced for his culpability.  In the circumstances of the case, I would think imprisonment is too harsh.  I can only fine Defendant. The maximum fine is $5,000.  I shall adopt $3,600 as a starting point. Defendant pleads guilty at the earliest opportunity.  He is entitled to a one-third discount.  The fine to be imposed is therefore $2,400.

28.However, I feel a short period of disqualification is appropriate to go with the fine in the circumstances.  That would lead to Defendant’s showing more care and attention to his vehicle that would run on the road, when Defendant chooses to drive again.  I therefore disqualify Defendant from driving all classes of vehicles for two months.  Such disqualification order is to take effect from today.