HKSAR v. Chan Fung

DCCC 546/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 546 OF 2010

----------------

----------------

------------------------

Reasons for Sentence

------------------------

Charges

1.The Defendant pleads guilty to dangerous driving causing death (1^st Charge), overloading (2^nd Charge) and using a vehicle not in good and serviceable condition (3^rd Charge).

Facts

2.At 7:00 p.m. on 22 October 2009, the Defendant drove a light goods vehicle past a zebra crossing at Tai Lin Pai Road (Tsuen Wan bound) and knocked down a female (“the Deceased”) who was crossing the road. The accident was witnessed by the driver on the opposite lane and the passenger on the Defendant’s vehicle. The weather was fine. The road surface was dry.

3.The permitted weight of the vehicle was 5,500 kg whereas the actual weight of the vehicle was 6,670 kg at the time of the accident. Upon examination, the vehicle was found to suffer from:

(1)  Excessive travel on brake master cylinder control pedal due to improperly long clearance between brake linings and drums;

(2)  Rear registration mark plate lamp inoperative.

4.In the cautioned interview, the Defendant said as follows:

(1)  The lighting condition was good and he had a clear and unobstructed view of the zebra crossing at about 30 metres away;

(2)  The speed limit was 50 km/h and prior to the accident, his speed was 20 – 30 km/h;

(3)  Upon reaching the zebra crossing, he slowed down but he failed to notice whether there were any pedestrians at the zebra crossing;

(4)  It was only until he was 2 – 3 metres from the Deceased that he saw her crossing the road;

(5)  He braked at once but the vehicle still hit the Deceased;

(6)  He was tired as he had been working since 10 a.m.;

(7)  His vision was blurred as he was not wearing corrective lenses for long-sightedness at that time;

(8)  He knew the vehicle was overloaded;

(9)  He knew he was responsible for the maintenance of the vehicle.

5.The Deceased died on 3 November 2009.

Personal background and mitigation

6.The Defendant is 31 years of age. He is single and lives with his parents and younger brother’s family under the same roof. He set up a transport company with 3 others in April 2009. The company then bought the vehicle in question from the second hand market. The company had employed one regular driver to drive the vehicle. The turnover was quick, 3 – 4 drivers had joined and left in turn up to the end of 2009 when the Defendant left the company. Work was hard whilst pay was low. The Defendant usually drove it on that driver’s rest day in the week.

7.His counsel insists that the Defendant had applied the brake shortly before the accident but to no avail. The prosecution accepts that whether he had applied the brake (as stated in his cautioned interview) or not (as stated in the evidence of the other driver and the Defendant’s passenger) will have no impact on the sentence. So I adopt his version that he had applied the brake but to no avail.

8.It is an act of dangerous driving not to stop or slow down to give way to a pedestrian using the zebra crossing. His counsel in mitigation accepts that the aggravating features in our present case include:

(1)  Defective braking system;

(2)  Overloading of over 20%;

(3)  No proper corrective lenses;

(4)  Tiredness.

9.As regards (1) Defective braking system, he alleges that he was not aware of the defective braking system. According to the statement of the motor vehicle examiner Chong Shui-shing dated 3 August 2010, the travel on a properly adjusted brake master cylinder control pedal would be about one-third to half of the total travel. The vehicle did not even have one-third. It was 0, namely the length of the total travel. In the road test, the pedal could give 0% efficiency even at 80% of the total travel. The pedal could give a brake efficiency of 28% only when the travel on the brake master cylinder control pedal had run up to 85% of the total travel. In other words, the Defendant had to step on the pedal much harder so as to compensate for a start from 0% of the total travel (as compared with 33.3% of normal vehicles) to 85% of the total travel in order to give a brake efficiency of 28%. His counsel submits that he did not know about this problem. I do not accept this submission.

10.As regards (2) Overloading of over 20%, he loaded up the vehicle half an hour before the accident. He knew it was overloaded. His counsel accepts that that could ill-affect the steering and braking efficiency of the vehicle.

11.As regards (3) No proper corrective lenses, he had been aware of his long-sightedness since F. 3, at the age of 15, after being examined by an optometrist. There was no recommendation for wearing corrective lenses. Although his vision in the course of driving was blurred by his long-sightedness, he never procured any corrective lenses.

12.As regards (4) Tiredness, he had been driving for 3 – 4 hours before the accident. It was hard work and he felt tired.

Sentencing considerations

Dangerous driving causing death

13.The maximum penalty on conviction on indictment is $50,000 and 10 years’ imprisonment. The court shall order disqualification unless there are special reasons not to do so. Disqualification on first conviction shall be for not less than 2 years and on second or subsequent conviction for not less than 3 years.

14.There are no sentencing guidelines but virtually all cases result in imprisonment. The leading case on principle is The Queen v Pang Kwok Poon CACC 23/1985，Roberts CJ adopted the view of the English Court of Appeal in that there were 2 categories in sentencing dangerous driving:

7. We have been referred to a number of cases, in which the appropriate sentence for the offence of dangerous driving causing death has been considered. In particular, we have received some assistance from Guilfoyle v. R [57 Cr.App.R. 549]. Lawton, L.J. delivering the judgment of the Court of Appeal, suggested that cases of dangerous driving causing death might fall into two broad categories, those in which the accident has arisen through momentary inattention or misjudgment and those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers or with a degree of recklessness. (my emphasis)

15.The defence has put forward no authorities for my consideration. The prosecution has handed up 3 cases, 2 of which I think may illustrate the second category, i.e., “selfish disregard for the safety of other road users”.

16.In HKSAR v Chan Ying Keung Andy CACC 356/2009, the applicant drove a coach seated with 50 passengers downhill from Magazine Gap Road. The brake failed as it neared the Peak Tram Station on Garden Road. It collided with five taxis and three private cars. All were badly damaged. Four pedestrians standing on a safety island about to cross Garden Road were hit and injured. One of the pedestrians was a 15-year-old girl, who then died. The trial judge acted on the government chemist’s opinion that the accident was caused by inappropriate and prolonged braking of the coach fully loaded with passengers going downhill. There was not enough compressed air to sustain the continuous and prolonged braking with such load. The trial judge regarded it a consistent course of dangerous driving, leading to a lot of casualties and property damage. At that time, the maximum penalty was only 5 years’ imprisonment. A starting point of 4 years was affirmed on appeal.

17.In Secretary for Justice v Tsang Ho Pong CAAR 6/ 2009, the respondent, who was driving his MGV, closed his eyes for 2 seconds just before hitting the back of a motorbike and then the back of a container truck. The 27-year-old motorcyclist died. The Court of Appeal did not agree with the prosecution’s submission that it was a case of “selfish disregard for the safety of other road users” [in terms of Guilfoyle]. The original sentence of 8 months after trial was reviewed. The Court of Appeal regarded that, despite the aforesaid, it was a serious case and the proper starting point ought to have been 24 months but for its being a review of sentence. Disqualification was increased from 2 years to 3 years.

18.The last case handed up is HKSAR v Ho Kam Cheong HCMA 139/2010. The appellant swerved his PLB into another street to avoid colliding with a double-decker bus in the front which suddenly cut into his lane. His speed was too fast for the conditions and he hit an elderly pedestrian who then died. He was found guilty after trial. His sentence of 12 months’ imprisonment was affirmed on appeal. Disqualification was reduced from 3 years to 2 years. However, it does not resemble our present case.

Overloading

19.The maximum penalty is $5,000 fine and 3 months’ imprisonment on first conviction and $10,000 fine and 6 months’ imprisonment on second conviction.

Using a vehicle not in good and serviceable condition

20.The maximum penalty is $10,000 fine and 6 months’ imprisonment.

Sentencing this Defendant

21.There can be no compromise that pedestrians using the zebra crossing can rest assured that they can do so safely. Our present case sees a pedestrian lose her life while properly using the zebra crossing. Not only did the Defendant knock down the victim at the zebra crossing, there were other aggravating features, namely defective braking system, overloading of over 20%, no proper corrective lenses and tiredness. They all reflected a persistent course of dangerous driving, or, according to Lawton L.J. in Guilfoyle cited in Pang Kwok Poon above, “selfish disregard for the safety of other road users”. I take 3 ½ years as the starting point. I give a one-third discount because of the plea of guilty. There are no other mitigating factors. The sentence is 2 years and 4 months in the 1^st Charge. I also order disqualification of 4 years. I order re-test because the Defendant’s driving licence had been obtained without the condition of wearing proper corrective lenses.

22.For the 2^nd Charge, I order 1 month’s imprisonment. It shall be concurrent with the sentence in the 1^st Charge.

23.For the 3^rd Charge, I order 2 months’ imprisonment. It shall be concurrent with the sentence in the 1^st and 2^nd Charges.