HKSAR v. Lam Hung Chak

DCCC 549/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 549 OF 2011

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Reasons For Sentence

Introduction

1.  The defendant, Lam Hung Chak, pleaded guilty to one count of causing death by dangerous driving but his other offence of using a motor vehicle with an illegal visual display unit was ordered to remain on court file.

2.  The accident occurred on the morning of a clear fine day. For the purpose of carrying out some road maintenance work, three special purpose vehicles had stopped in single file on the slow lane of the eastbound 3-lane Kwun Tong Bypass with all the warning lights switched on such as the beacon lights, the hazard lights and the big arrow sign. Some workers including the deceased were out of the vehicles placing “road work” signs on the road. The defendant who was driving a lorry along the slow lane was approaching the fleet of vehicles; it was doing about 60 kmh (80 kmh is the speed limit) when the lorry was about 100 meters away from the stationary vehicles. Without slowing down at all, the defendant’s lorry rammed straight into the back of a vehicle of the fleet setting off a chain collision. As a result of the collision, the deceased and a fellow worker were sandwiched between two of the vehicles. The deceased died from head injuries on the following day after the accident while his fellow worker had to be hospitalized for a week but nevertheless survived the crash.  

Mitigation

3.  The defendant, a forty-year-old married man with a 7-year-old daughter, has 9 previous criminal convictions- most of them are to do with drugs. About 3 weeks after the fatal accident of the present case, the defendant was convicted of an offence of possession of dangerous drug for which he was sent to Drugs Addiction Treatment Centre (DATC) and was discharged in May 2011. The updated information from Correctional Services Department shows that the defendant is currently receiving drug addiction treatment at the DATC under a recall order.

4.  As far as his driving record is concerned, he has 3 records of careless driving respectively in 2003, 2004 and 2010; he was disqualified in 2004 for driving motor vehicle with marked oil in the fuel tank.

5.  The lorry belonged to his brother, the court was told, and he worked for him in collecting waste materials from construction sites and taking them to a refuse dump. He is a professional driver and has driven professionally since 2003; in May 2011 when he appeared in court for this case, he voluntarily surrendered his driver’s licence to the court and has not been driving ever since. Since the accident, the burden of maintaining the household was borne by the wife who had to take up part-time jobs whilst the defendant stayed at home looking after their daughter.  

6.  The defendant, it is submitted, is well aware that because of his driving he had caused the death of another and the tragic consequences that have had on the victim’s family. He is truly remorseful for what has had happened. 

7.  Defence counsel suggested that if there had been no injuries in the present case, it might have slipped into a careless driving situation of not paying proper care and attention on the road. The defendant’s driving prior to the actual accident was not dangerous, it is submitted, for he was doing well below the speed limit, he was not changing lanes or trying to overtake- he was maintaining his lane. There is no evidence of any intoxication at all. It would appear that he was in a daydream. Accordingly this is a case where there was a momentary error of judgment or lack of concentration; unfortunately this has caused tragic consequences.

8.  It wasn’t inevitable, it is further submitted, a death would occur for this collision. It is unfortunate that at that split second, the deceased was in the wrong position by which he then got struck by the vehicle- a foot or inches either way he would have avoided the death. It wasn’t the case where by his driving the death was foreseeable or inevitable. There were people in the vehicles that sustained no injuries at all.

Reasons

9.  It seems to me it is putting the cart before the horse when defence counsel suggested that the death could have been avoided had the deceased not been in the wrong position at the wrong time. I think it is more accurate to say that the death could have been avoided had the defendant kept his eyes on the road.

10.  It goes without saying that if a driver who failed to control his vehicle properly; the vehicle itself could become a weapon to kill or to maim other road users.

11.  In Tsang Ho Pong CAAR 6/2009, Mr. Tsang, a truck driver, while driving on a highway closed his eyes for 2 seconds only to find that he came too close to a motorcyclist when he opened them again, rammed into the back of the motorcyclist and then the back of a container truck killing the motorcyclist at the scene. Apart from this, everything else of his driving was unobjectionable. He was sentenced to 8 months after pleading guilty to the offence of dangerous driving causing death. His sentence was increased to 12 months on review by the prosecution and the court of appeal was of the opinion that such facts warranted an appropriate starting point of 2 years.

12.  In the same case, the court of appeal reiterated the importance of deterrence in sentencing cases which involve dangerous driving.

13.  It is not entirely clear as to the actual cause of the accident in the present case -no direct evidence to show exactly what the defendant was doing just moments before the impact; defence counsel put it down to daydreaming of the defendant.

14.  Judging from the content of the background report and his criminal record, the defendant is most probably a long-time drug abuser, but I like to make it clear that I would not conclude that he was under the influence of drug at the time of the accident because there was no such evidence before the court in support of that conclusion.

15.  In comparing with Tsang’s case, defence counsel pointed out two features which were lacking in the present case in that the driver in Tsang’s case had a much worse driving record and he was aware of himself being tired or sleepy at the time of driving. It was the contention of counsel for the defendant that the present case was akin more closely to the situation of a momentary lapse of concentration than a selfish disregard for the safety of other road users.   

16.  It is considered dangerous for not keeping eyes on the road for just 2 seconds as it was in Tsang’s case, the defendant in the instant case must have done so for a much longer time than 2 seconds.  The section of the road in question as can be seen from the photographs was a relatively straight road- the stationary vehicles must have been well within his field of vision even when the defendant was some distance, say 100 meters, from them.

17.  There were no vehicles traveling in front of him, nor was there anything distracting his attention at the time, he could not have failed to register the stationary vehicles in his traveling path. It is true to say he was not speeding at the time, but the facts that he had admitted show that he was not slowing down his lorry at all prior to the collision. He drove along as if the vehicles were not there and simply rammed straight into them.

18.  The facts of the present case are, in my view, more serious than that of Tsang’s in terms of the danger the defendant’s driving would pose to the safety of other road users. As I said before, he must not have kept his eyes on the road for more than 2 seconds. If he was doing 60 kmh at the time, it would take him about 6 seconds to travel 100 meters. Not keeping eyes on the road while driving even just for a few seconds poses an extreme danger and the driving manner of the defendant in the present case was, in my view, more akin to a selfish disregard for the safety of other road users on his part.

19.  I do not agree with defence counsel’s submission that death was not foreseeable in the present case; it must have been obvious to any driver who would care to look at the traffic in front- they were there for road works and workers would be expected to be in the vicinity around the stationary vehicles.

20.  Taking into account all the mitigation put forward, I take 30 months as stating point, reduce it to 20 months to reflect his plea, and there is nothing for a further reduction, therefore the defendant is sentenced to 20 months imprisonment. The defendant is now sentenced to a term of imprisonment more that 9 months, his recall order will cease to have effect (Section 6A of the Drugs Addiction Treatment Centres Ordinance).

21.  Having been a professional driver for about eight years, his driving record, albeit not particularly appalling, is not a good one- he has amassed three records of careless driving in the past, the last one was in May 2010- that means only six months later his driving had gone from bad to worse when he admitted driving dangerously in the present case.

22.  As far as disqualification is concerned, defence counsel while not arguing against the imposition of such an order stressed that truck driving was the defendant’s only trade, he had no other way of earning his living. I am satisfied that there are no special reasons for not disqualifying him; I disqualify him for a period of 3 years from driving all classes of vehicles.

23.  Since the new law requiring that the period of disqualification should commence upon the term of imprisonment has been served came into effect (17 December 2010) after the present case, the disqualification order that I just imposed is to take effect as from today.

24.  Once a person is convicted of the relevant offences which include dangerous driving causing death, it is mandatory to order the person to attend driving improvement course unless the court for special reasons decides not to make such an order.  It was submitted that the defendant was not a bad driver and he did not need such a course to improve his driving skill. Having heard submission from defence, I find no special reasons for not ordering the defendant to attend a driving improvement course; he is to attend and complete such a course at his own cost within the last 3 months before the expiry of the disqualification order. Failing to comply with such an order is an offence and the maximum sentence is one of 2 months imprisonment (Section 72A of Road Traffic Ordinance).