HKSAR v. Man Chun Kei

DCCC 1082/2023

[2024] HKDC 2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1082 OF 2023

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to a charge of driving causing death to his girlfriend on 19 November 2022.

2.The Tuen Mun Road has 4 lanes:-

(a)  lane 1 and lane 2 go to Lam Tei (藍地)  direction, (speed limit is 70 km/h);

(b)  lane 3 and lane 4 is a slip road go to Fu Tei (虎地)  direction (speed limit is 50 km/h).

3.Between lane 2 and lane 3, there was a piece of land to mark the divergence of the road directions.  On this piece of land, there were big road signs to indicate the road directions and the speed limits.

4.Before approaching this piece of land, there was a clear chevron marking on the road surface between Lane 2 and Lane 3.

5.At the material time, the weather was fine, road surface was dry and the traffic flow was busy.

6.The Defendant was the driver of a 5.5 tones goods vehicle which was fully loaded with Chinese restaurants’ tablecloths.  His girlfriend was a passenger on board of the vehicle. 

7.At the material time, the vehicle was travelling along the lane 1 of Tuen Mun Road towards Lam Tei direction.

8.Upon reaching the divergence between lane 2 and lane 3, the vehicle travelled from lane 1 towards the kerb of that piece of land on the  lane 3.

9.The passenger side of the vehicle collided with the traffic sign posts:-

(a)  causing one of the sign posts to be uplifted from the ground surface; and

(b)  lower right corner of a bigger sign was also damaged.

10.When the ambulance man arrived at the scene, the Defendant was found sitting on the road next to the vehicle, while the body of his girlfriend was “squashed” (壓)  underneath the vehicle.  Subsequent investigation could not ascertain how did the deceased end up under the vehicle.  She was declared death at the scene.  Autopsy report said that her direct cause of death was due to “multiple injuries”.

11.Upon initial enquiry from the police, the Defendant said that when he looked at the oil gauge and saw that there was no fuel, he got distracted and rammed onto it.

“我嗰時望一望個油錶，見到無油，就分咗心，撞埋去。”

12.Under further caution, the Defendant said that:-

“當時我揸住部貨車，沿屯門公路左一線行緊，車速大約70公里左右，揸到近藍地交匯處前分叉路，我低頭望吓標版時，架車突然撞到路邊嘅路牌，跟住架車就失控翻側。＂

13.As a result of the accident, the passenger side of the vehicle was severely damaged.  Weighing examination reviewed that there was a 200 kg overload as the maximum capacity was 5.5 tonnes (3.6% overloaded).

14.Forensics evidence:-

(a)  There was a 6 meter skid mark on the diverging chevron marking to the kerb behind the chevron marking.

(b)  There might be braking before colliding with the posts signs. It was highly likely that the near side front of the driving compartment collided with the traffic sign post. The passenger side back outer wheel of the vehicle then rolled over the collapsed traffic sign post and hit onto the other sign post.

(c)  The vehicle could have started toppling to its near side after collision and left the intermittent scratch marks behind the posts until its final position.

(d)  The expert could not determine whether the deceased was wearing seat belt before the accident.

(e)  Another expert prepared the examination report stated the “the possibility of the near side front door of the vehicle having come into contact with the collapsed post before the vehicle flipped to its near side could not be excluded”.

Conclusion

15.The Defendant failed to keep a proper lookout and failed to drive an overloading vehicle at an appropriate speed in view of the prevailing circumstances at the time.

Traffic record

16.The Defendant obtained full driving licence in February 2022.

17.He has 4 traffic records:-

(a)  Failing to comply traffic signs in 2020 and 2021;

(b)  Speeding in 2021;

(c)  Using a mobile phone while driving in 2022.

Background/Mitigation

18.The Defendant is 24 years old, single.  The Defendant moved to Hong Kong from Mainland China in 2017.  His father is now retired.

19.The deceased was the girlfriend of the Defendant and they lived together prior to her death.

20.On the day in question, the Defendant’s father was unwell.  The Defendant helped his father to drive those restaurant laundries from Ap Lei Chau to Tuen Mun.

21.This was the first time that the Defendant drove this vehicle.

22.The Defence said that the cause of the accident was due to the Defendant took a glance of the oil gauge on the dashboard and in 1 to 2 seconds, the vehicle bumped against the post and subsequently toppled its near side.

23.The Defendant suffered multiple abrasions on his chest and lower limbs.  He was hospitalised from 19 to 21 November 2022.

24.The Defendant was totally traumatised by the death of his girlfriend.  He is grateful that the mother of the deceased has already forgiven him.

25.He is currently a casual worker in a laundry factory with a daily wage of HK$600.00.  His employer submitted a letter to say that the Defendant has been living in grief, nonetheless he continued to carry on to work with dedication after this tragic incident.

Sentence

26.The maximum sentence for this charge is 10 years plus a fine at level 5.

27.As said in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, in passing sentence for the nature of this offence, the culpability of the defendant was the dominant fact.

28.In the judgement of Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771, Macrae V-P said:-

“53 …. this will involve two related assessments. The first is the objective dangerousness of the defendant’s driving; the second is his moral culpability.

55. There will of course, be an overlap or inter-twining of these two assessment, one of which focuses more on what the driver did, the other on why he did it. Both, however, are concerned with addressing the dominate question of culpability.

57. In assessing the issue of culpability and harm, a sentencing judge will have regard to the sort of aggravating factors described in the authorities, mindful that they do not represent an exhaustive list, and conscious that the value to be placed on any particular factor will vary according to the circumstances of each case.”

29.In assessing the overall culpability of the offender, it is not a case of counting the number of aggravating factor , as said by Ma CJHC (as he then was)  in the case of Poon Wing Kay [2007] 1 HKLRD 660:-

“10.(4)  …. 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 exists, but no others …, may still bring the case into a very serious category.” (emphasis added)

30.According to the judgment of Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 71, there are four categories of culpability, depending on the presence of the aggravating factors as referred in Cooksley [2004] 1 Crim App R:-

(a)  When there are no aggravating factors, the sentence range between 12 to 18 months imprisonment;

(b)  Intermediate culpability, 2 to 3 years’ imprisonment;

(c)  Higher culpability, 4 to 5 years’ imprisonment;

(d)  The most serious culpability, 6 years onwards.

31.With all these sentencing principles in mind, I proceed to sentence the Defendant according to all the available information before me and “to take into account the overall picture in order to arrive at an appropriate sentence”.

32.In the present case, the Defendant was driving an overloaded vehicle, albeit around 3.6% overloaded, it is a matter of relativity, the 5.5 tonnes of vehicle was loaded with a lot of laundries and thus the weight of the vehicle became 5.7 tonnes.  As such, I view this as an aggravating factor.

33.The speed limit on the lane 1 is 70 km/h.

34.When driving the heavy weighted vehicle in such a high speed, the contact with the stationary sign post would only produce a very powerful force.  The sign post was uplifted.  The base of the post was buried with concert, at least 2 feet deep, onto the ground level.  The vehicle basically turned into a lethal weapon.

35.When the vehicle ran over the collapsed sign post and hit one of the legs of the other sign post, that means the passenger side of the vehicle was higher than the driver side.  The heavy loaded vehicle became out of control and lost its balance.

36.After the accident, the back outer wheel on the passenger side came off and the metal wheel hub was mangled.

37.The contact point were on the passenger side and the front side.

38.For this reason, it explained why the vehicle on the passenger side was seriously damaged.  While the driver side of the vehicle remained untouched.  The door of the vehicle of the passenger side was totally deformed, it could not be able to shut again.  On top of the passenger door, there was a big tear and the shape of it corresponded with the dent of the “Fu Tei” (虎地)  road sign.

39.As to the roof of the storage compartment of the vehicle, on the passenger side as well, there was a big hole as it was torn, 80% of the roof was gone.  Almost all the laundries were thrown out from the compartment and landed a distance from the vehicle on the road side.

40.One can imagine the powerful force it created.

41.The windscreen was totally smashed and there was a huge hole in front of it.  Some of the tree trucks were hanging between the gap of the passenger front door and the body of the vehicle.  

42.Forensic examination said that it cannot be determined whether his girlfriend was on seat belt or not.

43.Assuming she was wearing the seat belt, she was simply thrown out from the vehicle and squashed by the body the vehicle itself.  She was killed immediately.

44.The Defendant said under caution that he looked at the oil gauge and got distracted as there was no oil left, he rammed onto the road sign, accident occurred.

45.The Defendant should have known how the accident occurred.  What the Defendant said under caution simply could not explain the causation of the accident.

46.He looked at the dashboard and his hand should be on the steering wheel. When a vehicle changed direction, it involved the movement of the wheels.  How does it explain that the heavy loaded vehicle would suddenly swerve from left to right diagonally?  His attention was on the dashboard, not on the lane 3.  He was supposed to drive along the lane 1, not to the lane 3.

47.As reported there was a 6 meter skid mark from the 1^st lane, crossed over the 2^nd lane and the chevron marking to the 3^rd lane.

48.Today, after clarification, the Defence informed me that the Defendant intended to go to the 3^rd lane.

49.Clearly, it was in the last minute, the Defendant decided to swerve the vehicle from lane 1 to lane 3.

50.When he changed lanes, it was too late, as his vehicle was 6 meter long, by looking at the photos and the sketch, there was not enough space for him to manoever in such a short distance and in such a high speed.  By doing so, any competent and prudent driver would say that it is extremely dangerous.

51.It is apparent to me, it is not just a “momentary lapse of attention” by looking at the oil gauge.  He has not been honest about the cause of the accident.

52.Driving a vehicle comes with a huge responsibility to his passenger and other road users bearing in mind that it was the first time that the Defendant was driving such a overloading vehicle.

53.The way he drove the heavy weighted, overloaded vehicle (aggravating factor)  in such a high speed was extremely dangerous especially the Defendant admitted that the road condition was busy at the material time (objectively dangerous).  He simply disregard the safety of his passenger (girlfriend)  and the roadusers, such as the vehicles on the 2^nd lane (moral culpability).

54.Despite the family of the deceased has already forgiven the Defendant, a sentence for this offence have to address the grief suffered by the deceased family, that a young and innocent life had been taken away by the Defendant’s dangerous driving manner.

55.On the other hand, the personal circumstances of the Defendant carry very little or even no weight at all.  Having said that, I am still obliged to take into account of the mitigating factors put before me, that the Defendant is a young man with a clear record and his timely plea to indicate his remorse.

56.To this end, I disagree with the Defence that the culpability of this case was at the mid range of the lowest category.  I considered that it should be put at the mid to upper range of intermediate culpability.  As such, I take 2 years and 9 months as the starting point.  Given ¹/₃ discount, it comes down to 22 months.

57.I accept that the Defendant has suffered a genuine shock as a result of this accident.  I reduce 1 month to reflect this mitigating factor.  The final sentence is 21 months’ (22 - 1)  imprisonment.

58.The Defendant is also ordered to be disqualified from driving all vehicle for a period of 5 years and to attend and complete a driving improvement course at his own costs within the last 3 months of the disqualification period.