HKSAR v. Tam Cho Pui

DCCC 861/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 861 OF 2010

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Reasons for Sentence

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1.The Defendant has been convicted on his own pleas on 3 counts on the indictment, namely count 1 of dangerous driving causing death, contrary to Section 36(1) of the Road Traffic Ordinance, Cap. 374, and counts 2 and 3 of using a defective vehicle contrary to Regulation 19(1)(A) and 22(1)(E) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374.

2.Facts admitted by the Defendant disclose that at about 11.53 a.m. on 19 January, 2010, the deceased, a 29 year old housewife, and her 4 year old son left the Pui Yau Kindergarten at Ho Sheung Heung Road, Sheung Shui after the morning school session had finished.  They took a child’s bicycle which had 2 rear training wheels attached from the doorway of the kindergarten, walked to the front of a school coach with registration number GA 991 which was parked on the pavement outside of the kindergarten.  The deceased and her son stood on the pavement to watch for oncoming vehicles from her right i.e. from the northbound lane of Ho Sheung Heung Road.  At that time, the driver of the parked school coach was sitting in the driver’s seat and saw the deceased and her son on the pavement at the front of his school coach.  He looked in his rear view mirror and observed that there was no oncoming traffic in the northbound lane of Ho Sheung Heung Road.  He did not see the deceased and her son and presumed that they had crossed the road.  Two seconds later, he heard a loud screech that lasted for about 2 seconds.  He looked at his offside rear view mirror and saw a goods vehicle with registration number MG 1399, which was driven by the Defendant, coming from behind, about 10 meters away. It appeared to be out of control and skidded past his school coach to the opposite lane of Ho Sheung Heung Road i.e. the south bound lane.  At that time, another driver of a goods vehicle with registration number DV 1577 who was travelling in the southbound lane of Ho Sheung Heung Road said that he first saw the Defendant’s vehicle came out from a bend in the road and it appeared to be out of control and crossed into the southbound lane travelling towards him at 50 km/hr.  He immediately stopped his vehicle.  The Defendant’s goods vehicle knocked down the deceased and her son who were in the middle of the southbound lane of Ho Sheung Heung Road.  After hitting them, the Defendant’s goods vehicle swerved from the southbound lane back into the north bound lane and came to a stop near DV 1577.  The Defendant’s goods vehicle left a skid mark of about 49.4 meters long originating from the northbound lane to the southbound lane.

3.The deceased and her son sustained serious injuries.  The deceased was certified dead at 12.32 p.m. on 19 January 2010 upon arrival at the hospital.  The cause of death was multiple injuries.  Her son also sustained multiple injuries including fractures of the pelvis, right hand, upper arm, lung contusions, scalp haematoma, laceration wound of the left thigh, small laceration in his right kidney.  He was hospitalized until 19 March, 2010 and underwent 6 operations.

4.The speed limit on Ho Sheung Heung Road is 50 km/hr.  It is a dual carriageway, with one lane in each direction.  No speed limit signboard was erected at the location of the accident, which was slightly downhill immediately after a left bend. Before the bend, there were warning signboards of ‘school’ and ‘slow’.

5.The offside front panel and offside front wiper arm of the Defendant’s medium goods vehicle were dented.  The front number plate was cracked and displaced.  The offside front bumper was scratched.

6.At the scene, the Defendant said that he was travelling along the northbound lane at about 50 km/hr.  As he rounded the bend, he saw the deceased and her son crossing the road from left to right about 8 meters ahead of him.  He applied his brake and steered to the right to avoid them but they kept walking without looking around and he hit them.

7.When interviewed under caution, the Defendant said he had been driving at about 50 km/hr.  As he rounded the bend, he did not see the deceased and her son until he was 8 to 10 meters from them as they dashed out and were already in the middle of the road and were not looking at him.  He applied his brake and turned the steering wheel to the next lane to avoid them but the front offside of his truck hit them when they were about 1 meter from the kerb on the opposite lane.  He said he had been driving for 20 years.  He had driven MG 1399 on and off for a year and had driven it since mid-December, 2009, and there were no mechanical problems with the vehicle. That day, he had picked up the vehicle at the West Rail Station in Tin Shui Wai and intended to pick up frozen foods in Ma Tso Lung and then go to Ho Sheung Heung for a delivery.  He said he had braked hard but it could not brake to its maximum, the steering wheel went dead and the vehicle went out of control.  He alleged he was confused about the distance  when he first saw the deceased and her son.  He said he first saw them after he negotiated the bend when they were at the pavement, about 50 meters away.  At about 40 meters, he saw they were crossing the road and he applied his brakes and swerved to avoid them.  He then said when he saw them he was 8 to 10 meters from them.  When he rounded the bend, he had decelerated from 50 km/hr to 30-40 km/hr, and then when the road had straightened, he had accelerated back to 50 km/hr and he saw the deceased and her son when he was 10 metres away as they dashed onto the road.

8.The Defendant’s vehicle was examined and it was found that the offside front and rear wheel brake cylinders were leaking brake fluid to the brake linings/drums causing service brake efficiency of 36% which is below the legal requirement of 50%(Count 2).  The inner tyre of the offside rear wheel was worn so a portion of the tread cord structure was exposed (Count 3).

9.On 28 January 2010, a traffic accident reconstruction at the scene was conducted to determine the accident speed of the Defendant’s vehicle.  In order to determine the accident speed of the vehicle, the deceleration coefficient must be determined by skid tests.  In conducting the test, the vehicle was checked and it was found that the brake fluid reservoir was over-filled above the maximum level.  Upon starting the vehicle, SIP T.F. Greene immediately noted that he had to press the foot brake pedal all the way to the floor before getting a little if any braking effort and this was very apparent.  SIP Greene opined that the Defendant should have known of the defect of the foot brake when he was driving the vehicle.  Skid tests were conducted to obtain the deceleration coefficient and coefficients of tyre road friction.  After making a set of calculations and from the skid marks at the scene, the forensic scientist found that from the skid mark the point of impact would have been in close proximity to the front of the school coach.  The speed of the Defendant’s vehicle just before its commencement of skidding was found to be 47 km/hr ± 5 km/hr. At a distance of over 22m from the point of impact, the driver of MG 1399 noticed the danger and applied emergency braking and turned right in an attempt to avoid the accident.  However, the vehicle skidded for a distance of 22m and hit the deceased and her son.  If the brake system had been effective, the distance for the vehicle to skid to a complete halt would have been 13.9 m.  The forensic scientist opined that the accident could have been avoided if the braking system of the vehicle had been in a good condition.

10.Photographs of the scene as well as the damaged vehicle and a sketch depicting the skid marks of MG 1399 and its final stopping position after the accident  were produced by agreement and viewed.

11.Counsel for the Prosecution handed up a number of authorities – R. v. Cooksley [2003] 3 All ER 40, Secretary for Justice v. Lam Siu Tong [2009] 5 HKLRD 601, Secretary for Justice v. Liu Kwok-chun, CAAR 3 & 34/09, HKSAR v. Chan Ying-keung, Andy, CAAC 356/2009, Secretary for Justice v. Poon Wing-kay CAAR 2/2006 and Secretary for Justice v. Lau Sin-ting [2010] 5 HKLRD 318.  I have considered all the matters raised by Counsel for the Prosecution.  I have also carefully considered all that has been urged upon me in mitigation by Counsel on behalf of the Defendant, as well as the letters written by the Defendant and his brother, as well as from his former employer, which are before me, and the contents of the Background Report that I had called for.

12.The Defendant is now aged 48 years.  He has a clear criminal record.  He received his driving licence on 12 November 1986 – he has 3 previous fixed penalties, two in 2008 and one in 2009, for driving in excess of the speed limit by 15 Km or less, failing to display a valid licence and failing to comply with traffic sign.  For a professional driver, which the Defendant has been since 1989, this cannot be said to be a bad driving record.  He has been educated up to Form 3 in Hong Kong.  He is married. His wife is a housewife, and they have two children, a son aged 13 years and a daughter aged 16 years, both students.  He is the sole breadwinner of his family.  At the time of the accident, he was a driver, earning $10,000 a month.  Since the accident, he has resigned from his work as a driver.  I am told that he is now worried and frightened to drive, and over the past months, he has been relying upon his past savings and working as a casual transportation worker, working 6 to 7 days a week, and earning about $300 a day.  He is deeply remorseful for what has happened, and through his counsel extends his apologies to the deceased’s family.

13.The maximum penalty for offences of dangerous driving causing death was increased from 4 July 2008, from 5 years’ imprisonment to 10 years’ imprisonment on conviction on indictment and a fine at level 5, namely $50,000.  This is set out in Section 36(1)(a) of the Road Traffic Ordinance, Cap. 374.  It is further provided in Section 36(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 years in the case of a first conviction, unless the court for special reasons orders that person be disqualified for a shorter period or that the person not be disqualified.  This clearly reflects how seriously the legislature and society in general view offences of this nature. In particular, where the legislature increases the maximum penalty for an offence, the courts treat that as an indication of the legislative view that the offence is regarded as more serious than it used to be regarded and the courts will reflect that view by passing sentences more severe than the sentences that used to be passed before.  The maximum penalty for offences of using a defective vehicle as set out in regulation 121 of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374, is imprisonment of  6 months and a fine of $10,000. 

14.Road accidents can cause immense human suffering and bring about serious economic burden both to the victim’s family and the society.  Vehicles can be lethal if not driven and maintained in an appropriate manner.  Those who are in charge of vehicles owe other road users a heavy duty.  As the Court of Appeal said in Secretary for Justice v. Poon Wing-kay, supra:

“Since sometimes there might be extremely grave consequences flowing from acts of dangerous driving, it is necessary to have in mind a deterrent effect. The standards required by law of motorists are there to ensure that all who come into contact with motor vehicles, including other drivers, passengers in the defendant’s car and pedestrians, etc. are safe. While it might be right in some instances not to treat violators of traffic laws as true criminals, for offences such as dangerous driving causing death, the offender might not necessarily be seen in such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous”

The court also said that where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased. The impact on people’s lives ought to be taken into account when sentencing.

15.The court referred to the dictum of Lord Woolf CJ in R. v Cooksley [2003] 3 All ER 40.  It stated that while a list can be drawn up of aggravating and mitigating factors, a sentencing court must, however, look at the overall circumstances and the overall culpability of the offender.  The principles enunciated in Cooksley were considered with approval by the Court of Appeal in Hong Kong in Poon Wing-kay, supra.

16.In the headnote of the case in the All England Report, there is a list of what the court considered to be aggravating factors.  These factors included a number of matters such as the consumption of alcohol or drugs, excessive speed, racing, competitive driving, showing off, a disregard of warnings from fellow passengers, a prolonged persistent and deliberate course of very bad driving, for example, aggressive driving e.g. persistent inappropriate attempts to overtake or cutting in after overtaking, driving while the driver’s attention is avoidably distracted e.g. using a mobile phone, driving when suffering from a known medical condition, driving when knowingly deprived of adequate sleep or rest, driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns; other offences committed at the same time, for example, driving without holding  a valid driving licence, driving whilst disqualified, driving without insurance, and driving while a learner without supervision. The court goes on to cite other examples of aggravating features. I have had regard to those factors.

17.As the Court of Appeal has said recently in Secretary for Justice v. Lau Sin Ting, supra:-

“34. Sentencing decisions for an offence under s.36(1) of the Road Traffic Ordinance are by their nature difficult. As was said by Yeung JA in delivering the judgment in HKSAR v. Chan Wing Keung, Andy CACC 356/2009 at para. 36:

“...The court is not dealing with criminals, but normally law-abiding drivers, who, apart from their involvement in the offence which resulted in death, can be individuals who would not otherwise dream of committing a crime. However, their irresponsible driving attitude had led to extremely serious consequences, including death to innocent people and grave distress to their families, albeit they did not intend to cause any such death or serious injury.”

35. A principled approach to sentencing for the offence has nevertheless evolved. In Secretary for Justice v. Poon Wing Kay (2007) 1 HKLRD 660 this court approved a number of general principles set out in the judgment of Lord Woolf CJ in R. v. Cooksley & Ors [2003] 3 All ER 40. That judgment is also of considerable assistance in its reference to aggravating and mitigating factors which a court may, depending of course on the facts before it, take into account in sentencing for the present offence: see Secretary for Justice v. Liu Kwok Chun, CAAR 3/2009.

36. Recognising that Hong Kong road conditions may differ in many ways from those in England, nevertheless much of what is said in R. v. Cooksley has application to this jurisdiction. We emphasize however that each case is different and may vary greatly in circumstances and too formulaic an approach to sentence may result in injustice.

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42. But it must be borne in mind, as the judge states, that there is a considerable element of general deterrence involved in sentencing for this offence. The seriousness of the offence is underlined by the increase in the maximum penalty from 5 to 10 years’ imprisonment ....... No doubt the legislature in increasing the maximum penalty for this offence intended to reflect public sentiment that greater deterrence was called for in this sort of case.”

18.Counsel for the Prosecution has contended that the aggravating factors here include driving a defective vehicle where the brakes were defective and the inner rear tyre was worn out and exposed.  The foot brake pedal had to be pressed all the way to the floor before getting a little if any braking effort and it was very apparent.  The Defendant was a professional driver and he had been driving the vehicle since mid-December, 2009.  He must have known of the defective brakes but continued to drive the vehicle.  The accident occurred near a school/kindergarten.  There were signboards with ‘School’ and ‘Slow’ on them erected to warn drivers to be cautious when approaching this part of the road.  Although he did not exceed the speed limit, he drove at a speed incompatible with the condition of the vehicle and the nature of the road, in particular when he accelerated to 50 km/hr after negotiating the bend when approaching the school.  One person was killed and a child seriously injured in the accident.  They were already in the southbound lane and near the pavement when they were hit.  The Defendant’s vehicle was originally in the northbound lane.  When conducting tests on the vehicle to determine the speed of the vehicle at the material time, a speed higher than 40 km/hr was found to be unsafe and tests on the Defendant’s vehicle at a speed higher than 40 km/hour were not conducted because it was unsafe to do so.

19.Counsel for the Defendant submitted that many of the aggravating features referred to in the case of Cooksley are not present in the current case, and but for the defective brakes, it would not be dangerous driving.  As counsel has said, there was no excess alcohol, in fact no alcohol at all, the Defendant was not speeding, and he urges upon me that this was an error of judgment rather than a deliberate course of bad driving.  It was also urged upon me that as a result of this incident, the Defendant has now given up driving altogether.

20.The Defendant was a professional driver.  He had been driving the vehicle for a while prior to the day of the accident, and he would have been aware that the brakes of the vehicle were defective.  During the traffic accident reconstruction at the scene, SIP T.F. Greene immediately noted that he had to press the foot brake pedal of the Defendant’s vehicle all the way to the floor before getting a little if any braking effort and this was very apparent.  SIP Greene opined that the Defendant should have known of the defect of the foot brake when he was driving the vehicle.

21.I accept that many of those aggravating features referred to in Cooksley are not present in the current case.  I accept too that this incident is a tragedy also for the Defendant and his family.  But the Defendant would have been aware that he was driving a vehicle that had defective brakes and the inner rear tyre was worn and exposed as he had been driving the vehicle for a while even prior to the day of the accident.  He chose to drive the vehicle even though he must have been aware of these defects.  In paragraph 6 of the Background Report, when interviewed by the Probation Officer, the Defendant admitted his negligence in checking the vehicle’s condition such as the problem of leaking brake fluid from the wheel brake cylinders before driving on the morning of the material day.  He said the vehicle had had its regular check in May 2009.  He said he had detected the braking problem at the end of 2009 and had talked to the boss of the company where he worked, but the boss had not responded.  He attributed the accident mainly to the unsatisfactory braking system.  During the traffic accident reconstruction at the scene to determine the accident speed of the Defendant’s vehicle it was found that the brake fluid reservoir was over-filled above the maximum level – that may have been to compensate for the problem of the leaking brake fluid from the wheel brake cylinders.  Clearly he was aware of the defective brakes and had been aware for a while, and continued to drive the vehicle in that condition.  He must have considered the poor brakes before he drove the vehicle, and chose to do so knowing of the possible serious consequences should the brakes fail.

22.I have had regard to the various decisions which have been made available to me by counsel.  That said, it is unhelpful to attempt to compare, other than in broad terms, the conduct and consequences of one set of conduct with those of another for sentencing purposes in matters of this nature. Reference to sentences imposed in previous decisions do little more than provide broad guidance. Each matter is entirely dependant upon its own facts.

23.In sentencing, I take into account all that has been urged upon me in mitigation by Counsel on behalf of the Defendant.  He pleaded guilty at an early opportunity.  There is no doubt that he is genuinely remorseful and was a man of clear criminal record at the time of the offence. He is a family man, with two children in school, and he is the sole breadwinner.  But I must take into account the view expressed by the Court of Appeal in Secretary for Justice v. Lam Siu Tong, supra, to the effect that previous good character and genuine remorse of a defendant who has committed this offence must not be given undue prominence (para 13 (c) and (d) of the judgment).

24.By driving a vehicle knowing that the brakes were defective, the Defendant drove with selfish disregard for the safety of other road users. I find here that the culpability of the Defendant is that of higher culpability.

25.On count 1, I take as a starting point 5 years’ imprisonment, discount this by one-third to reflect his plea, and other mitigation put before me, and sentence him to 3 years and 4 months’ imprisonment.  I can see no special reasons not to disqualify the Defendant.  He is also disqualified from holding or obtaining a driving licence for all classes of vehicles for 5 years.

26.On counts 2 and 3, on each I take as a starting point 4 1/2 months’ imprisonment, discount this by one-third to reflect his plea and mitigation, and sentence him to 3 months’ imprisonment, to be concurrent but consecutive to the sentence on count 1.