HKSAR v. Wong Mun Ming

DCCC 740/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 740 OF 2014

____________

REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Causing death by dangerous driving". The defendant drove a tractor-trailer and the victim (aged 69) was a tractor driver as well.

Summary of Facts

Location of the Accident

2.Lung Fu Road is a 4-lane carriageway; 2 lanes being Lung Kwu Tan bound, and the other 2, Tuen Mun City Centre bound.  The road is separated by a concrete central divider.  The traffic of both directions is well segregated from each other.  The speed limit for the subject road segment was 70km/h.

3.The fatal traffic accident in this case occurred at a bend section (near Lamppost No.AD0339) of Lung Fu Road (Lung Kwu Tan bound). At the time of the accident, the following traffic signs and road markings were erected at or painted in the bend section as the road proceeded :-

(i) a pictorial "left bend" sign with the wording "100M" (meaning the road will bend to the left 100 metres ahead);

(ii) 2 markings on the road surface: "SLOW DOWN" in English and 「慢駛」in Chinese;

(iii) a pictorial "left bend" sign with the wording "Reduce Speed Now" (one on each lane);

(iv) 2 markings on the road surface: "SLOW DOWN" in English and 「慢駛」in Chinese;

(v) a pictorial "left bend" sign with the wording "Reduce Speed Now" (one on the left and one on the right); and

(vi) a total of 8 "chevron" signs on the right side (meaning the road bends sharply).

The accident occurred just beyond those "chevron" signs.

The Accident

4.About 11:55 am on 11 January 2014, the defendant was driving a tractor-trailer NA 7337 ("the Tractor") along the Lung Kwu Tan bound fast lane of Lung Fu Road.  As the Tractor approached the accident location, its trailer toppled over the central divider onto the fast lane of the opposite traffic.  The overturn of the trailer dragged the Tractor over to the central divider.  It then crashed and collapsed onto the tractor driven by the victim (Mr. TAM).  After impact, Mr. TAM was trapped in his tractor.

5.Mr. TAM sustained severe and extensive multiple injuries. He had no vital signs when the ambulancemen arrived at the scene.  He died as a result of the accident.  The defendant was hospitalized on the same day.

6.Right after the accident, 2 fresh yaw marks (38m and 14.2m in length respectively) were found behind the Tractor on the offside of the Lung Kwu Tan bound fast lane of Lung Fu Road.  Forensic Scientist Dr. TAM Cheok-ling concluded that the Tractor was negotiating the bend at the accident location at an estimated speed of 80km/h.  It ran out of control and its trailer/container side-turned to its offside onto the central divider.

7.The defendant now admits that the manner of his driving at the time of the accident was dangerous.  When he was negotiating the left bend on the subject road segment, instead of reducing speed, he contravened all the traffic signs and road markings and drove at an excessive speed, causing the Tractor to run out of control.

Mitigation & Sentence

8.The defendant is 45.  He has 3 criminal convictions, all of which took place during his teenage years.  He has been licensed to drive since 1988 and has 4 traffic convictions in 2011 (all related to vehicle maintenance only, such as reflectors and mudflaps).  For the purpose of sentencing, I will treat him as having a clear traffic record.

9.According to the defendant's antecedent statement, he has been a tractor driver since 1997.  Defence counsel Mr. SO informed me that the defendant is married with a 1.5-year-old son.  His wife and son both reside in the mainland since his son has no resident status in Hong Kong.

10.In mitigation, Mr. SO submitted that the defendant accepts that he should have reduced speed when negotiating the "left bend".  On the other hand, there are no aggravating factors present in this case.  His breathalyzer reading after the accident was zero and the Tractor was not overloaded.  Mr. SO stated that the defendant was trapped in his tractor after the collision.  He received orthopaedic treatment and physiotherapy and is still granted sick leave.  The defendant is unable to sleep at night and is truly remorseful.  He dares not to drive again.  A bundle of mitigation letters was placed before me; their contents are duly noted.

11.In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving. I have reminded myself of the sentencing principles[1] set out by the Court of Appeal in SJ v POON Wing Kay [2007] 1 HKLRD 660, in particular paragraph 10(4) "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.  In assessing the overall seriousness of a crime, culpability is often the dominant factor.  It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence…"

12.In HKSAR v LEI Tin Seng [2011] 1 HKLRD 341, Yeung JA (as he then was) held :-

"17. This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.

18. The Applicant made a sharp turn at high speed in an extremely busy street, killing/causing injuries to many innocent pedestrians and great pain and distress to the families of the victims.

19. The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.

20. However the Applicant did not have the intention to drive extremely irresponsibly and dangerously over a long period of time or when the risks of killing/injuring other road users were foreseeable. Those aggravating factors as set out in R v Cooksley are not present in this case. The accident happened because the Applicant made a wrong judgment and conducted the turn at a higher than reasonable speed over that brief moment of time. His criminality is not on the high side, and does not fall within the extremely serious category.

---

22. This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment.

23. It goes without saying that for the sake of protecting the safety of the general public, any deliberate, prolonged acts of extremely dangerous driving that pose definitely foreseeable risks to other road users should be subject to severe sentences if anyone is killed in the accident. Such extremely dangerous acts of driving include drink driving, high-speed car racing on highways, speeding at a speed far above the limit over a prolonged period of time and contravention of traffic signs, jumping red lights at road junctions controlled by traffic lights and certain dangerous acts of cutting lanes at high speeds. The reason is that a normal driver can definitely foresee that it is very likely that such dangerous acts of driving will cause extremely great harm to other road users."[2]

13.When determining the starting point in the present case, I treat the defendant as a law-abiding citizen and having maintained a good driving record.  The court, however, must stress that driving (whether in a professional or recreational capacity) is a privilege―a privilege with great responsibilities attached.  The offence committed by the defendant is a serious one.  In the course of sentencing, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just.[3]

14.It is not an easy task to send someone like the defendant, who, I believe, has determined to be a decent person after his early delinquent years, to prison.  I have considered long and hard what the appropriate length of imprisonment should be.  I understand the traumatic effect of a prison term would have on him and his family.  The court, however, must send a clear message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.

15.Mr. SO submitted that the present case does not fall within the higher culpability category of the Cooksley's scale.[4] I agree, but cannot overlook the defendant's flagrant disobedience of traffic signs and road markings for reducing speed.  Having considered all relevant factors, I adopt a starting point of 2.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Thus, I sentence the defendant to 20 months' imprisonment.

16.In addition to imprisonment, I make a disqualification order for a period of 6 years[5] (the disqualification period will start to run from the date of sentencing[6]).  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.[7]  In my view, it is unnecessary to order the defendant to re-take his driving licence test.