The Queen v. Yeung Kwok-keung

CACC000627/1983

Headnote

Dangerous driving causing death. Truck heavily overloaded causing brake failure. 4 persons killed, others injured. Good driving record and regretful but driver aware of overload. Immediate custodial sentence of 4 months held correct in principle.

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 627 of 1983

_____________

Between

Coram: Hon. Penlington, J. in Court

Date: 27th June, 1983

__________

JUDGMENT

__________

1. This is an appeal against sentence. On 2nd of December the appellant was driving a quarry truck which had a maximum permitted total weight of 13 tons. The unladen weight was 5 tons, therefore the permitted load was 8 tons. The appellant drove the vehicle out' of the quarry over a weighbridge which showed it to weigh 16.51 tons. That meant that the load was some 3.15 tons in excess, an overweight of 40%.

2. The appellant signed an invoice and it was not in dispute that he was aware of this overload. He went down the Chai Wan Road, down a slope which was familiar to him and indeed I imagine to most of us. It is a steep slope and the brakes seriously over-heated and failed. The defendant in his statement to the Police following the accident said that he was travelling at the speed of 10 miles per hour in 2nd gear. When he applied the foot brake near the junction with Ah Kung Ngam Road, the braking system was not effective, the vehicle jumped out of 2nd gear and went out of control.

3. The vehicle was in fact later found to be in 4th gear but the magistrate said in his finding of fact, which of course I must accept, that he believed the statement that the vehicle jumped out of gear and he did not accept the allegations suggested in the statements of facts that the appellant had not engaged a sufficiently low gear for the descent. I don't think there is any doubt that with a very heavy vehicle such as this, the gears, not the brakes, must be the primary means of controlling the speed.

4. The consequences of this brake failure were tragic indeed. The truck ploughed through a mass of pedestrians and four people were killed. A total of some twelve others were injured. There is, I think, no need to be to go into detail about those injuries or exactly what happened to the vehicle but it was quite clearly totally out of control and only stopped when it finally struck a private car.

5. On the same day of the accident a motor vehicle examiner tested the vehicle. He found the braking system had been overheated but was then working effectively. The following day he conducted a series of road tests and found the braking system to be satisfactory.

6. The magistrate, considered all these factors including the driving record of the defendant, who has been a professional driver for some 15 years and had virtually a clear record, and the fact that he pleaded guilty to the offence. I myself accept entirely the statement made by his Counsel that he deeply regretted what had happened. The magistrate sentenced the appellant to four months' imprisonment.

7. Here was a case where a driver knew that his vehicle was grossly overloaded, knew that he would have to be going down a steep slope and elected to take the risk. It is submitted that when vehicles are overloaded in a quarry such as this there is considerable pressure on the driver from the quarry workers not to unload and I can well understand that that is so. Nevertheless in this case the degree of overloading was very substantial indeed. I don't think the court can also ignore the very tragic consequences of that overloading.

8. I have been referred to several cases where the principles have been discussed as to the sentence in cases of dangerous driving causing death. However there do not seem to be any authorities in Hong Kong which are similar. It has been laid down in Mak Kau ⁽¹⁾ and followed in Chung Man kin ⁽²⁾ that there should be two categories of dangerous driving causing death; one is where the accident is caused by an error of judgment or mere foolishness, the second the deliberate taking of the risk or driving in an irresponsible manner. Only in the later category should an immediate custodial sentence be passed.

9. The magistrate was of the view that here the facts fell within that second category, the deliberate taking of the risk. In the case of Swain, which is referred to in Thomas Principles of Sentencing at P.190, a sentence of 12 months' imprisonment was upheld where a heavy lorry was driven down a slope the brakes failed and the lorry went out of control,.. causing death. There were two other factors there however which clearly made a difference. Firstly, and most important, the brakes were known to be inefficient and secondly the load was not properly secured. Here the brakes were efficient but failed because they could not take the load that were placed on them.

10. It has been pointed out here by Mr. Westbrook that the actual offence of overloading is normally met with a fairly modest fine which indicates that that offence is regarded as only regulatory. Each case must be treated on its own facts and merits but for myself I consider that the overloading of vehicles to the extent that they can't be properly controlled does affect safety and should be treated accordingly.

11. This sort of case is difficult because quite clearly the appellant had no intention whatever of causing the appalling damage that in fact occurred and I certainly accept that he is very regretful. However I am also satisfied that the magistrate was quite right in the sentence he passed. This was a case of a deliberate taking a risk and notwithstanding the accused's record I am unable to say that the sentence was wrong in principle. There is undoubtedly a great temptation in Hong Kong to overload vehicles, due undoubtedly to the economic pressures placed on drivers. Nevertheless, I think the public must be protected if the consequences of such overloading, as happened in this case, are to be avoided or at least minimised.

12. I consider that an immediate custodial sentence is correct in this sort of case and the appeal must therefore be dismissed.

(1) 1978 H.K.L.R. P.544

(2) 1977 H.K.L.R. P.37

Representation:

Simon Westbrook (Tsang, Chau & Shuen) for the Appellant.

Miss Crebbin, Counsel for the Crown/Respondent.