The defendant reversed his car into a car parking space at the side of the house at a point which was immediately in front of a water meter which was set into the wall of the house. The space which he left behind his car, measured later from CCTV film and by an expert, was exactly 1.4 metres - that is to say the space between the water meter set into the house and the back of his car. In other words, this was a perfectly normal piece of parking.
During the course of the morning, two renovation workers went to fix a hinge on one of the doors protecting the water meter. These two men were Chong Wing-hang, who I shall call ‘the deceased’, who was aged 45, and his 24-year-old apprentice Chen Zisen. Mr Chen was the second victim of what was later the defendant’s dangerous driving. Both of these men had to squat down to work on the door hinge. The deceased was working immediately behind the middle of the defendant’s car and Mr Chen was to the left of the back of the defendant’s car.
The defendant, I am totally satisfied, knew full well that the men were immediately behind his car when he got into his car to move it. It is said that he had decided to move his car in order to give the men more space in which to work. What then happened is not capable of any rational explanation and what has been described as the actions of a man acting in panic does not explain satisfactorily what then occurred when the defendant drove his car. Obviously, this was a situation where extreme care was needed. The two men squatting behind the defendant’s car were squeezed into a very small space and needed more room.
The defendant had at that stage been driving for 19 years and he had driven this particular car for three years. I have now viewed a CCTV recording of what the defendant did on numerous occasions and however many times that CCTV is watched, it is very difficult to describe the defendant’s actions to anyone who has ever driven a car. Any description of what is seen on that film defies belief. It is no small wonder that the police originally charged the defendant with murder.
The Department of Justice, however, reduced that charge to manslaughter by negligence and very sensibly now have accepted the defendant’s pleas to death by dangerous driving and causing grievous bodily harm by dangerous driving. That decision was very sensible because if there was ever a case where driving in a dangerous manner leading to death and grievous bodily harm was as serious, if not more so, than negligent manslaughter, this case provides a prime example.
The dangerous driving in this case was of a magnitude which was truly terrible. It is quite different in type to racing on the roads or other more usual examples calling for lengthy sentences of imprisonment. I am bound to say that I have never before encountered a case which can be compared to the present one. Insofar as I am aware, there is no similar example to be found in any law report.
The result of the defendant’s driving was such that he crushed the deceased to death between the car and the wall of the house and caused such serious injuries to Mr Chan, the deceased’s apprentice, that he has been unable to work ever since and may never work again, judging from the victim impact statement he has made. Both families, from the impact statements I have seen, have been completely devastated by what has happened.
What the defendant said to the police soon after the incident was that he wanted to leave the two workmen with more space and knowing that they were working behind his car, he decided to drive forwards. He went on to say that he had accidentally put the car into reverse gear; the car then reversed and hit the two workers at the back of his car. He said he heard a noise and so he then drove forwards and, after that, he then described getting out of the car.
That explanation was utterly untrue. It is possible to say this with complete certainty because, by good fortune, as it so happens, these events were recorded on a CCTV camera attached to the house where this occurred. If it had not been for this film, it would not have been possible to imagine what the defendant actually had done and his explanation to the police might have enabled him to get away with careless driving.
His automatic Toyota Picnic(?) car was mechanically faultless subject to a defect on his gear stick which I will come back to later. With his long experience of driving and with a beeping sound device that tells the driver of this car when the car has been put into reverse gear and a beeping device which goes off again when it comes close to other objects, what the defendant actually did was this: he had first of all looked behind his car where the two men were working, that is to say, before he got in. This is described by Dr Cheng Yuk-ki at paragraph 9.6 of his expert report on accident investigation. He had, of course, had the advantage of seeing the film which records these events.
The defendant then got into his car which was on a slight incline, sloping downwards away from the house; in other words, the car would need to have a handbrake on to prevent it, if in neutral, from rolling forwards. The defendant paused at the driving wheel for some time before he engaged forward gear, not as the defendant told the police, putting it into the wrong gear by mistake and reversing into the men behind him. He moved slowly forwards at 6 kilometre an hour for a distance of 1.8 metres which was considerably more than he really needed to in order to leave a reasonable space for the workers behind his car.
In any event, that’s all he needed to do. All he had to do was put on the handbrake and get out of his car. But without any braking at all, or hand, the car was suddenly put into reverse gear and it accelerated, having regard to the comparatively short distance involved, at a very fast speed, reaching 12 kilometres an hour. In that short space and at that speed, Mr Chen, the survivor of this incident, had no time to move or even shout out a warning to his colleague, the deceased.
The car hit both men and also the wall behind them. The car bounced off the wall, coming forwards by half a metre and immediately then went back into reverse, hit the wall again and bounced again, and then it came to a halt. All of those facts put together are what the vehicle accident investigator, Dr Cheng, describes as ‘the first hit’.
The car then stood stationary for 2.1 seconds. Once again, all the defendant had to do at that stage was to put on his handbrake or keep his foot on the footbrake, but then, very slowly, this time at 3 kilometres an hour, the car moved forwards again. It reached a point which was 3.1 metres away from the wall of the house and, at that point, the defendant once again engaged reverse gear, reaching a speed of 12 kilometres an hour which, over that distance, is fast, and it looks fast in the film, and once again he collided with both those workmen and the wall in what Dr Cheng describes as ‘the second hit’.
The victim of Count 3, who received terrible injuries, Mr Chen, was at that point able somehow to get himself away from the wall and to a point behind the car, slightly to the side of the car. Meanwhile, the defendant moved his car forward yet again. It moved forward at 8.9 kilometres an hour and then, once again, without using his brakes, the defendant put his car into reverse and accelerated backwards at 12 kilometres an hour. So it is that the defendant, at speed, reversed a third time at the deceased and it was his body which apparently seems to have prevented the car this time from hitting the wall of the house because the car stopped just short of the house.
After that, the defendant moved his car forwards a short distance at very slow speed, 2.2 kilometres an hour and his footbrake on this occasion was applied. He got out and went to where the deceased was lying on the ground behind his car. He then drove a little further forwards, stopped and got out again.
By the time a security guard arrived at the scene where this house is situated, the defendant could be seen pulling the deceased’s body to the side of the car and he was seen then to cry, to kneel and to apologise and the defendant asked the guard to call the police.
On the other side of the car, Mr Chan had by now fallen to the ground at the side of the car where his injuries were very numerous. In due course, he went to Queen Mary Hospital where he was put in the Intensive Care Unit and he was not able to leave the hospital for some nine days in total. Amongst his injuries there were fractures to six of his ribs, his left scapula, or shoulder-blade, more commonly referred to, was also fractured and there were injuries to his kidneys, spleen and there was a bilateral pneumothorax.
The deceased’s injuries included a 19 centimetre skull fracture and his death was the result of this and multiple other fractures. The heart sac had been ruptured; the aorta showed a few tears and was completely torn at the aortic arch. The breastbone was fractured and all the ribs between the second and eleventh were fractured.
These and other injuries were, the pathologist found, consistent with a crushing impact between the car and the wall. The back of the defendant’s car was left with clear impact damage and the bumper in particular was badly damaged. So were the doors to the water meter where hair and blood from the victims were found.
With all of these factors in mind, I turn now to what was said in mitigation. One of the main factors put forward, which is to be found in the mitigation bundle at paragraph 29, and I quote: “The defendant genuinely thought that there was nobody behind his car before he drove and he only realised there was someone injured after the first hit”.
I have already said that I do not accept this. It is abundantly clear from the CCTV film and from what the defendant said to Senior Police Constable Chan at the scene that he did know that two men were working behind his car. More importantly perhaps than that, it is quite clear that the defendant had taken a look for himself just before he drove the car. Indeed, he said that was the reason he was moving his car. And on the CCTV film, for some time before the car is moved, it is perfectly apparent that the defendant was standing by his car as the workmen went to and fro from the place where they were working to the toolbox just at the side of the car.
When the defendant was talking to a contractor at the scene after this incident, he was overheard by a caretaker to give almost the same explanation as he had given to the senior police constable, Mr Chan. When the contractor had asked what had happened, the defendant said, “Shifted into wrong gear”.
Similarly, one of the officers to attend the scene a little later, PC Yeung, had asked the defendant what had happened and he had replied that he had wanted to drive away but had accidentally put the car into reverse gear. He said that he knew that men were working behind his car, so that when he reversed, he had hit them, and then he moved forwards and got out and saw that there were two injured men on the floor.
The next matter raised in mitigation was the reason which was alleged by the defendant for his manner of driving, because it is now said on his behalf that he reversed three times into the workmen in panic. It is also said that the defendant did not realise that his gear lever had become defective until this all happened. In other words, it is being said that he had no knowledge until the moment that these events occurred that he could go from forward drive straight through neutral on the gears and into reverse because he had not, until that moment, realised that the button on the gear stick was defective.
You are asked to accept that, coupled with the coincidence of timing over what was described by Mr Raymond Yu as the latent defect in the gear lever, the defendant accidentally put his foot on the accelerator pedal instead of the brake pedal, and he did that not just once but three different times and that he also managed to throw the car into reverse by mistake, not once but three different times.
I fully take into account that the defendant has hitherto lived an honest and hardworking life for the 30 years that he has been living in Hong Kong. I also accept that he has driven without any important blemish for 19 years and has pleaded guilty to these charges. There are letters of reference which I have read that speak well of his previous character. In addition, he voluntarily paid $150,000 of his own money to the family of the deceased and $50,000 to Mr Chen.
Furthermore, there is no evidence of any previous dispute between the deceased and the defendant, or between Mr Chen and the defendant, and he appeared to be remorseful immediately after this incident, despite the wholly untrue account he gave to people who arrived at the scene shortly afterwards. I should add that when later interviewed at the police station, and quite within his rights, he declined to give any account about what had happened, so that there is nothing beyond the account given in mitigation, that the defendant was acting out of panic, to account for this extreme case of dangerous driving.
So it is that the defendant’s actions are beyond any sensible understanding. All he needed to do was to move his car forwards, put the footbrake on, put his car into park, put the handbrake on and turn off the engine. It’s the sort of manoeuvre that every learner driver can do as almost the first exercise in driving. There was absolutely no reason for any panic, even if the car did go into reverse accidentally the first time.
Importantly, after the first hit, the defendant was able to stop his car, knowing full well that he had hit the workmen behind him, yet he went on to repeat twice more the actions involved in the first hit by moving slowly forwards and then reversing at speed.
I adjourned sentencing for a psychiatric report to make quite sure that there was not some reason beyond my understanding for what had taken place, bearing in mind also that the defendant had, in any event, following the incident, been seeing a psychiatrist and a psychologist privately. Dr S H Lui of the Siu Lam Psychiatric Centre has indicated that, at the time of the offence, the defendant was not suffering from any psychiatric condition which might have affected his driving ability.
The most that can be said about the mitigation advanced, that all of these events were caused by the sudden failure of the gear lever not preventing the gears from going from neutral into reverse is, as Dr Cheng said: “This could put a driver in an unexpected situation”. Having said that, it is obvious that this would depend on whether the defendant was aware beforehand of the fault on the gear lever. Equally, a driver could then press the accelerator instead of the brakes if the situation was unexpected.
Hence it was said that there were two major coincidences which came together at precisely the same time. The first was that the gear lever went from drive through neutral and straight into reverse without the defendant meaning to do that as he was unaware of the fault until that moment. Secondly, he then put his foot on the accelerator pedal when he meant to brake.
Many people hearing of this button which prevents a gear lever from going through neutral straight into reverse may be surprised because there are, according to Dr Cheng, many cars without such a safety device at all. Old cars often do not have such a device and some new cars do not either. He went on to say that he did not regard the fault on the defendant’s car presented an “imminent danger”, as he put it. Although, as I have said, he accepted that it could put the driver into an unexpected situation.
He did not regard the button on the gear lever as a vital safety measure but, very importantly, he added this: a person’s speed of reaction is normally about 1.2 seconds, but in this case, Dr Cheng said that the defendant had kept his foot on the accelerator, continuously depressed, for six seconds on the first reversing of the car, so that when the car bounced off the wall the very first time, it went forward half a metre and immediately went backwards again and bounced again because the defendant’s foot had stayed on the accelerator.
There was no normal reaction here to the unexpected situation. Of course it is possible for a person to put his car into reverse by mistake. No one would suggest otherwise. It is equally possible for a person to put his foot on the accelerator pedal when mistaking it for the brake pedal. It is possible that a driver might do both things, having discovered, for the very first time, that the gears were shifting straight into reverse through neutral without any safety lock in between. But having hit the wrong pedal, most people react in just over a second and put it right.
In this case, the defendant did bring his car to a complete halt after the first hit, that is after the car had bounced twice off the wall, and yet, what he had done once, he went on to do twice more. In the context of two men working right behind his car to his certain knowledge, this was driving of a highly dangerous kind.
There are, of course, worse cases that can be imagined, though they are likely to be very different in style. The immediate thought is of deaths caused by racing drivers on public roads, or where drugs or alcohol have aggravated the offence. For the latter kind of offence which involves drugs or alcohol, the Road Traffic Ordinance, Chapter 374, provides for sentences to be increased by 50 per cent above the 10 year maximum prescribed for death by dangerous driving.
There is absolutely no suggestion of alcohol or drugs in this case. There were, however, two victims and not just one, and the 3rd count of causing grievous bodily harm by dangerous driving carries a maximum sentence of 7 years’ imprisonment. It has to be said that by the manner of the defendant’s driving, he left those two men he knew were just behind his car with no realistic chance of avoiding really serious injury.
There is one last matter, I think, that does require mention. I inquired as to the reasons for the comparatively long delay in this matter. Mr Yu has, very properly, accepted that a large proportion of this was due to a request in January this year for a lengthy delay and also, last year, there was a delay at the request of the defence.
In all the circumstances of this case, I propose to take a starting point of 8 years’ imprisonment. That is on Count 2, dangerous driving causing death. You have paid some compensation voluntarily which I shall take into account and, of course, you have pleaded guilty. The same considerations apply on Count 3, causing grievous bodily harm by dangerous driving, where I shall take a starting point of 6 years’ imprisonment.
Mr Pang, would you stand, please. You will receive full credit for your pleas of guilty which will reduce the sentence that you would otherwise have received on Count 2 to 5 years and 4 months. In addition, I am going to reduce that sentence by a further 4 months for the compensation paid as a token of your remorse, so that, on Count 1, the total sentence is 5 years’ imprisonment.
In addition, you will be disqualified from driving any motor vehicle of any description for 10 years following your release from prison. This is pursuant to section 69A of the Road Traffic Ordinance.
I bear in mind that you have indicated through your counsel that you never wished to drive again. Nevertheless, in the event that you change your mind, I am going to order that you complete a driving improvement course pursuant to section 72A of the Road Traffic Ordinance. That, of course, must be completed before you are allowed back on the roads of Hong Kong, if at all.
On Count 3, your sentence will be reduced to 3 years and 10 months’ imprisonment to run concurrently with the sentence on Count 2. There will also be a concurrent order of disqualification for 10 years.
In total, therefore, your sentence is 5 years’ imprisonment and a 10-year disqualification from driving.
Please refer to CACC410/2013 for the relevant appeal(s) to the Court of Appeal.