HKSAR v. Tsui Wan Lung

DCCC 928/2019

[2021] HKDC 251

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 928 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of causing death by dangerous driving, contrary to section 36 (1) of the Road Traffic Ordinance and to one charge of using a motor vehicle fitted with a pneumatic tyre that had its portion of the cord structure exposed, contrary to regulations 22(1)(e) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations[1].

2.On 27 April 2019 the defendant was driving a dump truck RK 9222 when he knocked down and ran over a motorcyclist. Full particulars of the offences are set out in the summary of facts admitted by the defendant today. 

3.In summary at about 8:25 a.m. Mr Lo was riding his motorcycle in the first lane of Cheung Pei Shan Road, Tsuen Wan bound.  The weather was fine, the road was dry and in good repair, visibility was good and traffic was moderate.

4.As Mr Lo approached the junction with Tsuen Kam Interchange he was followed by the defendant with no other vehicles in between.  Both Mr Lo and the defendant were travelling within the speed limit. 

5.The defendant failed to notice the presence of the motorcycle and collided with the rear of the motorcycle which toppled over.  The dump truck rolled over Mr Lo who sustained multiple injuries.  Mr Lo was taken to Yan Chai Hospital where he was certified dead at 9:22 a.m. 

6.CCTV footage captured both Mr Lo and the defendant approaching the junction to the intersection. The junction is not however captured in the CCTV footage.  

7.Dr Tam, Government Forensic scientist, viewed the CCTV footage and conducted a traffic accident reconstruction test.  Dr Tam is of the view that the defendant had an unobstructed view of the motorcycle from a distance of 30 meters from the point of collision.  I have read the expert report of Dr Tam.

8.Photographs of the location and the final position of both the motorcycle and the dump truck together with two sketches have also been submitted to court.  The photographs show that the collision was just after the give way lines as shown by the broken pieces of the rear light of the motorcycle[2].

9.Under caution and in a video-recorded interview the defendant claimed he did not see the motorcycle until he entered the roundabout and heard the sound of collision whereupon he immediately stopped and found that he had rolled over somebody.

10.Examination of the dump truck revealed the nearside outer tyre tread of the third axle was skive failure and tyre cord structure exposed.  Photographs of the defective tyre have also been submitted to court.

Mitigation

11.In passing sentence, I have carefully considered the oral and written submission of Ms Chan, including that the defendant, aged 59, is married with two children and is the sole breadwinner of the family working most of his life as a driver[3]. 

12.I have read the mitigation letter written by the defendant in which he expresses his remorse and apologises for the pain inflicted upon the family of the deceased.  The defendant is also overcome with remorse for the psychological and economic pressure faced by his family and that he now needs to look after his mother who has difficulty in moving after suffering a stroke last year.

13.I have read the mitigation letters written by the defendant’s wife and brothers who describe the defendant as hard working; spends all his money on bringing up the family; is a filial son and a very supportive brother.  The family, who are in court today to support the defendant, asks for a lenient sentence. 

14.I take into account the defendant has one minor conviction in 2002 which is regarded as spent under the Rehabilitation of Offenders Ordinance.  I treat the defendant as having a clear criminal record.  The defendant however has a poor traffic record.  Since 2013 the defendant has three convictions for careless driving; two fixed penalties for speeding and fixed penalties for crossing a continuous double white line and failing to comply with road markings.  The defendant has also attended two driving improvement courses in 2014 and 2019.

Causing death by dangerous driving

15.This is a serious offence the maximum sentence for which is 10 years’ imprisonment.

16.In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[4].  These factors were revised in R v Cooksley[5]and have been adopted in Hong Kong[6]. 

17.Whilst in R v Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in R v Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another[7] emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  

18.In Secretary for Justice v Lau Sin Ting the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[8].

19.In R v Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability.  This has also been adopted in Hong Kong[9].

20.In HKSAR v Lee Yau Wing, the court emphasised that the focus on the culpability of the driving has been adopted notwithstanding that it is sad feature of these cases that the offender is usually not a person of a criminal background but is a law abiding citizen of good character[10].

Sentence

21.In Secretary for Justice v Poon Wing Kay the Court of Appeal said: -

“It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

22.Ms Chan submits the defendant’s driving falls into the least culpable category warranting a short custodial sentence[11].

23.In the written submission Ms Chan places emphasis on the fact that there was a blind spot zone due to the high position of the dump truck and that the motorcycle would have fallen into the blind spot zone when the defendant stopped behind the motorcycle at the junction[12]. In court Ms Chan clarified that the defendant almost came to a stop but did not stop at the junction[13].

24.I have considered the defence expert report of Ir P.W. Wong.  In his supplemental report Mr Wong refers to the blind spot zone.

25.The prosecution case is that the defendant failed to see the motorcycle on his approach to the junction and not just when entering the junction.  In court Ms Chan accepts that the defendant failed to see the motorcycle on his approach to the junction. 

26.Ms Chan explains that on approaching the junction the defendant, assuming there was no vehicle in front of him, checked the traffic on the right to see that it was safe to enter the junction.  Having checked the traffic, the defendant moved into the junction at which time he did not check the fish-eye mirror to see if there was anybody in the blind spot zone. 

27.The accident was clearly avoidable.  If the defendant had paid attention to the road ahead as he approached the junction, he would have seen the motorcycle and the accident would not have occurred.  In addition, had the defendant checked his fish-eye mirror before entering the junction the accident would have been avoided.

28.Ms Chan informs the court that since the accident the road has been redesigned[14].  The change is best seen in figure 18 attached to Mr Wong’s report[15]. The parties are unaware whether the change was as a result of the accident. Whilst I accept that the accident may not have occurred if vehicles in the left lane did not have to give way, the fact remains the accident occurred because the defendant failed to see the motorcycle on his approach to the junction and not just at the junction. 

29.Ms Chan also informs the court that after the accident the defendant stopped a passing vehicle and asked the driver to help him call the police and an ambulance.  This is accepted by Mr Kong. 

30.I am satisfied by failing to see the motorcycle on the approach to the junction, the defendant’s driving falls into the higher end of the least culpable dangerous driving range.     

31.Taking into account all the circumstances of the accident including that the defendant, a professional driver, failed to see the motorcycle on his approach to the junction; the defendant was driving within the speed limit; the defendant sought the assistance of a passing motorist to help him call the police and ambulance; that since the accident the design of the road has changed and that the defendant is genuinely remorseful for what happened, I am satisfied that the proper starting point after trial is 18 months’ imprisonment. 

32.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 12 months’ imprisonment.  I am satisfied there are no grounds to suspend the sentence or impose a community service order.

Disqualification

33.There is mandatory disqualification of not less than 5 years in the case of a first conviction unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified. I find there are no special reasons.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 5 years.  

34.Section 72A (1A) of the Road Traffic Ordinance provides that a court shall order a person convicted of causing death by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again I find there are no special reasons not to order the defendant to attend and complete a driving improvement course. 

35.The defendant is ordered to attend and complete a driving improvement course, at his own cost, within the period of 3 months ending on the date on which the disqualification expires.  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 the disqualification period may already have ended.

Charge 2 - Using a motor vehicle fitted with a pneumatic tyre that had its portion of the cord structure exposed

36.The prosecution accept that the defective tyre was not a contributory factor to the accident.  In the circumstances I am satisfied a financial penalty is appropriate.  Giving the defendant full credit for his plea of guilty he is convicted and fined $2,000 for using a vehicle with a defective tyre.  The defendant having consented to any financial penalty being deducted from his bail money, I order the fine of $2,000 to be deducted from bail.