HKSAR v. Tsoi Leung Chit

DCCC1234/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1234 OF 2011

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

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

Reasons for Sentence

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

1.The defendant in this case has pleaded guilty to a charge of causing death by dangerous driving.

2.The accident relates to a fatal road traffic accident which occurred on 6 May 2011 on Castle Peak Road near Tai Lam Castle Peak.  The defendant was the driver of a public light bus and the deceased was a 23 year old cyclist. 

3.The place where the accident occurred on Castle Peak Road was a divided dual carriageway with two lanes in each direction.  The lanes were separated by broken white traffic lane lines and each lane was about 3.6 metres wide.  There was no cycle track nearby and the speed limit was 70 kilometres per hour.

4.At the time of the accident, the weather was fine and the street lighting was good.  The road surface was dry and in good repair and the traffic density was light.

5.The accident occurred shortly after 11.27 pm. The defendant was driving in the direction of Tuen Mun and the deceased was riding his bicycle together with 10 friends.  They were proceeding in the same lane and same direction as the defendant’s vehicle.  The bicycles in the group were all equipped with front and rear lights and they were all switched on at the material time.  

6.The deceased was riding in the middle of the first lane and maintained a speed of about 50 kilometres per hour.  He rode steadily in a straight line without swerving from side to side and he wore a helmet. 

7.The passengers on the minibus noticed the cyclists when they were some 100 metres ahead of them.  The defendant’s vehicle was travelling at a speed of around 96 to 118 kilometres per hour, it did not slow down or sound its horn but continued to move forward.  When the defendant’s vehicle came within about 30 metres of the bicycles, one of the passengers on the public light bus shouted out.  The defendant then began to brake but still rammed into the rear of the deceased’s cycle.  There were skid marks 77 metres long left by the defendant’s vehicle and  white smoke was emitted during the braking.       

8.The deceased was recovered from underneath the light bus and his cycle was found on the right-hand side of the bus. 

9.The matter was reported to the police and the deceased was rushed to hospital.  He was unconscious and there was no spontaneous circulation or breathing and no heartbeat.  He suffered multiple abrasions to his arms and legs, his face and his scalp.  He was sent to ICU for management and certified dead at 10.30 pm the following day.

10.The defendant claimed on enquiry that he was travelling at 108 kilometres per hour at the time.  He claimed that the deceased’s cycle had moved out from the left to the middle of the lane, he braked, but it was too late.  He said his vehicle hit the rear of the bicycle, which was pushed forward for about 50 metres. 

11.Skid tests were later conducted by forensic examiners and it was estimated that the travelling speed of the light bus at the material time was around 96 to 118 kilometres per hour.  The forensic examination revealed that the accident could have been avoided  had the light bus been travelling at or under the speed limit of 70 kilometres per hour.  The record of the speed display installed on the public light bus revealed that the vehicle was travelling at a speed of 123 kilometres per hour at the material time. 

12.The police found that the red LED light was fitted below the seat of the cycle and it was operative.

13.The defendant has some minor convictions recorded a long time ago which I propose to ignore and some more recent traffic matters which I also propose to ignore for sentencing proposes. 

14.The defendant is aged 42.  He was a PLB driver at the time, earning some $12,000 per month.  He was divorced some 7 years ago but now has a relationship with a girlfriend who lives on the Mainland and has a son by that relationship.  The son is aged 4 and the defendant is the sole breadwinner of the family.  The defendant was educated to Form 3 level. The defendant fully accepts his responsibility for the offence and admitted his actions to the police when he was arrested.  The defendant is very remorseful for what happened. 

15.In my view this was an appalling piece of driving and it puts it into the most serious category.  The speed which the defendant was driving along this dual carriageway was very excessive.  This was a minibus in which there were passengers and there was a risk, not only to other road users, but to the safety of passengers on board the light bus.           

16.The passengers on the PLB noticed the cyclists when they were some 100 yards from them.  This was not one cyclist, it was 11 cyclists riding along the road.  The defendant admits to driving at 108 kilometres per hour.  At the time the passengers noticed the cyclists the defendant did not slow down, brake or sound his horn.  When the vehicle was 30 metres from the cyclists, one of the passengers shouted out and only then did the defendant started to brake.  Skid marks of 77 metres were found on the road and white smoke came out from the tyres. 

17.In July 2008, the legislature increased from 5 to 10 years the maximum sentence of imprisonment for offence of this kind. The Court of Appeal said in the case of SJ v Poon Wing Kay [2007] 1 HKLRD 660, since sometimes there might be extremely grave consequences flowing from the acts of dangerous driving it is necessary to have in mind a deterrent effect.

18.The standards required by the law for motorists are there to ensure that all who come into contact with motor vehicles, including other drivers, passengers in the defendant’s car or pedestrians 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, and particularly so in cases where it was obvious to the offender himself that his driving was dangerous.

19.I bore in mind that in deciding the appropriate sentence the court should take care not to be overwhelmed by the outcome.  It is the culpability of the defendant which is the dominant factor.  Whilst the impact on the deceased’s family is a relevant sentencing consideration, it must be remembered that the defendant in the case did not intend to cause death or serious injury.

20.I am told that the defendant is very remorseful now.  I have no reason not to accept this.  Indeed, all drivers who have a conscience will feel extreme regret and remorse where their driving causes a tragic result like this.            

21.In my view, the defendant in this case demonstrated a conscious disregard for the traffic conditions and it is that that puts this offence into the more serious category.  An innocent life has been taken away and good character and remorse may count for very little as against that.  The main determining factor is culpability.

22.I have taken into account all the factors in this case and what has been urged upon me in mitigation. 

23.In respect of this offence, I take a starting point of 4½ years’ imprisonment and reduce that by one-third to reflect the guilty plea. 

24.The defendant will go to prison for 3 years. 

25.In addition, he will be disqualified for 10 years and I make an order under section 70(2) of the Road Traffic Ordinance that he must at his own expense pass a test of competence after the expiration of the period of disqualification.  What that means is this, is that if you drive during the period of disqualification you will commit an offence of driving whilst disqualified, an offence which will usually attract a sentence of imprisonment, and that is in addition to any other offence that would be automatically committed where you were driving whilst disqualified.   

Please refer to CACC88/2012 for the relevant appeal(s) to the Court of Appeal.