HKSAR v. Yiu Sin Hon

DCCC285/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 285 OF 2015

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

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

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

Reasons for Sentence

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

1.The defendant faces one charge of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Chapter 374. The defendant pleads not guilty to this charge, but pleads guilty to careless driving.

2.Upon the defendant’s plea to careless driving which was accepted by the prosecution, and upon his admission of the summary of facts produced by the prosecution, the defendant was found not guilty of dangerous driving, but he was convicted of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Chapter 374.

Facts

3.This case arose out of a road traffic accident that happened at around 4:30 a.m. on 28 September 2014 in Shek O Road.  In this accident, 3 consecutive collisions involving a total of 4 vehicles took place, and two persons died as a result.

4.The accident location was a section of Shek O Road near Lamppost 33805 which was a two-way two-lane carriageway with the northbound lane heading towards the direction of Chai Wan and the southbound lane heading towards the direction of Shek O.  The two lanes were divided by a continuous white line with a broken white line which allowed vehicles on the southbound lane to cross the centre line into the northbound lane to overtake but not the other way round.  There were hill slopes on both sides of the road.  On approaching the accident scene from the north along the southbound lane, traffic would first pass a slight bend before reaching crest, and then there was a down-slope straight stretch of the road where the accident took place.  On the other hand, traffic along the northbound lane would first reach a slight right bend and then an up-slope straight stretch of the road where the accident occurred.

5.The speed limit of the accident location was 50 km per hour.  At the time of the accident, the weather was fine.  The road surface was dry.  The traffic condition was light.  Street light was on and visibility was good.

6.Prior to the occurrence of the accident, private car JZ55 (V1) and private car GC6883 (V3) were travelling along the southbound lane in this sequence towards the accident location.  V1 was driven by Mr. Cheuk with no passenger on board.  V3 was driven by the defendant with one passenger.  All of them were friends.

7.On the opposite lane, private car SX3844, private car SU4294 (V2) and private car SN1650 (V4) were travelling northbound in this sequence towards the accident location.  Private car SX3844 was driven by Mr. Yue (PW1).  V2 was driven by Mr. Huang with a passenger Mr. Li (PW2) sitting in the front passenger seat. V4 was driven by Mr. Yau with a front-seat passenger Mr. Cheung (PW3).  All of them were friends.

8.Immediately before the accident, PW1 who was driving his car on the northbound lane saw V1 approaching along the opposite lane at a high speed which PW1 estimated to be more than 80 km per hour.  He also saw V3 following V1 at about 4 vehicles’ space behind and travelling also at a speed estimated to be more than 80 km per hour.  After PW1’s car had passed V1 and V3, PW1 saw from his rearview mirror that V1 was skidding sideway and trespassing into the northbound lane.  At this moment, V2 was travelling along the northbound lane at a speed of about 50 to 60 km per hour (according to the estimate of PW2).  The offside fronts of V1 and V2 then collided heavily with one another (“the 1^st collision”).  The 1^st collision snapped off the engine compartment of V1 from its passenger compartment and jerked open the driver door of V1.  V1’s driver (Mr. Cheuk) was buckled up and remained on the driver seat of V1.  V2’s driver (Mr. Huang) was also trapped in the driver seat of V2.

9.At this juncture, V4 which was following V2 could not stop in time and hit the passenger compartment of V1 slightly across the centre dividing line (“the 2^nd collision”).  V4 was then pushed backward to the kerb of the northbound lane and spun clockwise, and finally stopped with its head against the traffic direction of the northbound lane.  In the course of the 2^nd collision, the offside bottom corner of the front windscreen of V4 came into contact with the head of the driver of V1 (Mr. Cheuk).

10.Immediately after the 2^nd collision, V3 came from behind at a high speed with its rear skidding sideway.  The nearside front fender of V3 came into contact with the head of V1’s driver (Mr. Cheuk) and bent the driver door of V1 forward, while its offside collided with V4 (collectively “the 3^rd collision”).  V3 finally came to a complete halt about 32 metres ahead of the damaged V1.

11.The passenger compartment of V1 was then on fire.  At that time, V1’s driver was still inside the compartment.  After the fire was put out by firemen, it was found that the entire body of V1’s driver was burned and he had no trace of life. 

12.V2’s driver (Mr. Huang) was sent to Eastern Hospital but was certified dead at 5:48 a.m. on the same day.

13.The police officer who first arrived at the scene noticed a large blood-like splash on the nearside front of V3.  He did not notice any obvious skid marks as the floor was wet with water after the rescuing operation.  Bloodstain samples were taken from the tank cover, nearside front fender, offside front door and bonnet of V3 for DNA examination.  Samples of human tissues were also found and taken from the bonnet of V4 for DNA examination.  The DNA examinations confirmed that the blood and human tissues were originated from the driver of V1 (Mr. Cheuk).

14.The defendant and the driver of V4 were found not to have consumed any alcohol prior to the accident in screening breath tests.

15.Vehicle examination confirmed that V1 to V4 were free from mechanical defects before the accident.

16.Dr. Lai Sai-chak conducted an autopsy on both deceased drivers.  He found the direct cause of death of V1’s driver (Mr. Cheuk) was “head injury” with remarks “severe head trauma with gaping laceration on forehead exposing cranial cavity, resulting in almost immediate death.  Burns were probably post-mortem”.  Dr. Lai found the direct cause of the death of V2’s driver (Mr. Huang) was “haemothorax” and the intervening antecedent cause was “traumatic rupture of right atrium of heart” with remarks “frontal impact with sudden compression of the chest, causing rupture of heart”.

17.Dr. Cheng Yuk-ki attended the accident scene at 7:45 a.m. on 28 September 2014 to collect relevant physical evidence to determine the cause of the accident.  He conducted an accident reconstruction at 10:05 p.m. on 2 December 2014 to determine the sight distance of a driver driving along the southbound lane towards a stationary vehicle at the accident locus.  He observed that a vehicle travelling at 50 km per hour along the southbound lane could see a dark vehicle (with no lights lit) stationing at the final position of V1 from a distance of 58 metres when the headlamps of the travelling vehicle were on, and 57 metres when the headlamps were off.

18.The reconstruction indicated that if the driver of V3 (i.e. the defendant) had kept a safe distance from V1 and driven at a speed within the speed limit imposed on the accident location, he would have been able to stop V3 without hitting objects at the accident location if he applied the emergency brake immediately after he had seen the collision between V1 and V2.  The fact that V3 stopped about 32 metres ahead of the final position of V1 indicated that the defendant had probably driven V3 at a speed above the speed limit.

Criminal and traffic records

19.The defendant has a clear criminal record. 

20.According to the traffic convictions record kept by the police, the defendant obtained his full driving licence in November 2013.  He has a number of traffic convictions, but only one of them is relevant to this sentencing exercise.  On 28 November 2011, he was convicted of the offence of driving in excess of speed limit by more than 45 km per hour, and he committed that offence on 18 September 2011.  He was fined $4,000 and disqualified from driving for 6 months. 

21.The defendant has also one fixed penalty record for driving in excess of speed limit by more than 15 but less than 30 km per hour on 7 June 2014.  Since he was dealt with by way of fixed penalty, he was not regarded as having been convicted of this offence as a matter of law.

Personal and family background

22.The defendant was born in Hong Kong in June 1988.  He is now 27 years old.  He received his primary education as well as part of his secondary education in Hong Kong.  He then completed his high school education in the United Kingdom. Since leaving school, he has been gainfully employed.  He worked as a vehicle sales agent in 2013.  He then worked and is still working as the marketing manager of a fashion company which was owned and operated by his family.  He is single.  He lives with his father, mother and a younger brother.

Mitigation

23.Learned counsel for the defendant, Mr. Graham Harris S.C. leading Miss Gigi Lo, submitted that their research into the previous cases showed that it appeared to be an established principle that a term of immediate imprisonment was contemplated only in cases where the bad driving which was the subject matter of the charge had itself caused or contributed to the death of one or more than one person.  Mr. Harris argued strongly that, on the facts of this particular case, an immediate custodial sentence was not called for because the defendant’s careless driving did not cause or contribute to the death of either of the two deceased drivers.

24.Mr. Harris pointed out that the 1^st collision between V1 and V2 was almost a head on collision at speed, and that the force of the impact was so significant that the engine compartment of V1 broke away from its passenger compartment, and that very extensive damage were done to the front ends of both V1 and V2.  Immediately afterwards, V4 collided into the scene of the 1^st collision, and the windscreen area of V4 made contact with the head of the driver of V1.  Mr. Harris highlighted that this impact was so serious that the body tissues of the driver of V1 were found on V4.  Mr. Harris further said that it was only after these two collisions that the defendant was unable to stop in time and collided with V1 and V4.  Mr. Harris emphasized that the defendant was not involved in the first two collisions, and that it had been established by forensic evidence to a high degree of probability that the drivers of V1 and V2 had already been dead by the time when the 3^rd collision occurred.

25.Mr. Harris submitted that the defendant accepted that he had been driving too fast in the circumstances of this case, and that he had not allowed a sufficient distance to his front to allow him sufficient time to brake his car, but the defendant had not caused or contributed to the death of either of the two deceased, and for this reason, a term of imprisonment was not called for.

26.Mr. Harris further submitted that the accident took place in a winding road, and that when the defendant was approaching the accident location, he had to negotiate a left acute bend with a high retaining wall on the left which to a certain extent obscured his visibility of the oncoming vehicles.  Hence, after the defendant had made the slight turn, he suddenly found that he was facing the collision site of three vehicles which was something unforeseeable and unforeseen by him, and for that reason, he was unable to stop in sufficient time to avoid the collision involving his car.

27.Mr. Harris also added that it was likely after the 1^st collision that oil and fuel had spilled onto the road which might have an impact on the defendant’s proper stopping distance, and caused the defendant’s car to continue on a little further than it otherwise might have been.  But Mr. Harris made it clear that the defendant accepted that his car was travelling at the speed estimated by PW1.

28.Mr. Harris stressed that there was no aggravating factor in this case.  He pointed out that the defendant had not taken any alcohol prior to the accident as evidenced by the zero reading in the breath screening test, and that his vehicle was in sound mechanical condition as revealed in the motor vehicle examination.

29.Mr. Harris informed this Court that the driver of V1 was one of the closest friends of the defendant.  Immediately after the collisions, the defendant was in a state of shock, but he was still very concerned with the well being of his friend.  He rushed towards V1 with a view to helping his friend, but V1 exploded and burst into flames and the defendant had to be pulled away from the scene.

30.Mr. Harris further submitted that the tragic consequences of the event that night could not have been foreseen and had an enormous shock on the defendant who has learned a lesson in the hardest possible way, given the death of his close friend and the grievances of it.  He submitted that the shock, the trauma and the sadness would live with the defendant for a very long time which might be said to be a punishment in itself.

31.Mr. Harris urged strongly upon this Court that a term of imprisonment was not called for in this case because of the very important factor that the defendant’s driving did not cause or contribute to the death of the two deceased, and it was not necessary for this Court to send the defendant to prison in discharge of its public duty.  He submitted that if this Court considered that a term of imprisonment was called for, that sentence should be suspended.  He made no submission on the financial penalty to be imposed.  He recognized that the Court might consider disqualifying the defendant from driving, and he only asked the Court to impose a term commensurate with the circumstances of this case.  He left it to this Court to decide whether the defendant should attend a driving improvement course.  He pointed out that the defendant had pleaded guilty and frankly admitted the facts of this case.  He had also the full support not only from members of his family but also from the close family of the driver of V1.  They were present in Court to show their support of the defendant.

Reasons for sentence

32.The maximum sentence for a careless driving offence is a fine at level 2 (i.e. $5,000) and imprisonment for 6 months. 

33.There is no sentencing tariff.  The sentence depends entirely upon the particular circumstances of each case.  The predominant factor that determines the sentence is the defendant’s culpability in his manner of driving at the material times.

34.In HKSAR v Ma Kwong Tak[1], the Court of Appeal stated, in paragraph 40 of the judgment that: -

“ Sentencing a driver who caused a traffic accident in contravention of the law is not an easy task. It is because the Court has to sentence a defendant who has never contemplated that he will be sentenced to prison. However, in cases of serious careless driving, especially in cases where some person was killed in the accident, it is appropriate to sentence the driver to a short term of imprisonment, or else drivers would not be reminded of the need to maintain his vigilance all the time in order to prevent the innocent from being harmed, and it would not be possible to redress the grievance and distress suffered by the family members of the deceased.” (unofficial translation).

35.On the other hand, even if the offender’s careless driving had resulted in the death of another person, when the degree of carelessness was assessed to be “at a low rung of the ladder of culpability”, it was held that it was appropriate to impose a fine coupled with an order for disqualification from driving rather than sending the offender to prison: see HKSAR v Leung Chiu Yu[2].

36.The main thrust of the mitigation put forward by Mr. Harris is that the defendant did not cause or contribute to the death of either the driver of V1 or the driver of V2. 

37.It is clear that the defendant was not involved in any collision with V2, and hence he could not have caused or contributed to the death of the driver of V2. 

38.As far as the death of the driver of V1 was concerned, Mr. Harris submission was premised on the result of the autopsy examination that the cause of death was head injury rather than burns after V1 had exploded in flames.  It was the opinion of Dr. Lai Sai-chak that the driver of V1 had suffered “a severe head trauma with gaping laceration on forehead exposing cranial cavity, resulting in almost immediate death”.

39.Mr. Jeffrey Fenton, learned counsel on fiat for the prosecution, submitted that while it was likely and probable that the driver of V1 had been dead before the 3^rd collision, the prosecution did not accept the proposition that it was definite that the defendant could not possibly have caused or contributed to the death of the deceased.

40.In my view, it was an accepted fact that both V4 and V3 (i.e. the defendant’s car) had come into contact with the head of the driver of V1 whose blood were found on the nearside front of V3 as shown in the photographs.  In other words, the severe head trauma to the driver of V1 could have been caused by V4, or by V3, or by a combination of both, but given the circumstances of this case and the evidence available, it would not be possible for the expert, not to mention this Court, to decide definitely which was which. 

41.In sentencing the defendant, I am duty bound to interpret the facts in a way that is the most favourable to the defendant.  I note the submissions of Mr. Fenton, but I agree with the submissions of Mr. Harris that I have to sentence the defendant on the basis that he did not cause or contribute to the death of the driver of V1 because it was possible that V1’s driver had already been dead by the time when the 3^rd collision occurred.

42.Nevertheless, in my judgment, it does not mean that I should not take into account the fact that the defendant’s car had come into contact with the head of V1’s driver. It is because while I should not and must not consider the death of V1’s driver to be a consequence of the defendant’s careless driving, it is one of the matters that I am entitled to take into account in assessing his culpability in the manner of his driving.

43.Mr. Harris informed me that the defendant accepted that he was driving carelessly because he was driving too fast in the circumstances and that he did not allow a sufficient space between his car and the vehicle in front so that he could have stopped his car in time.  When I asked Mr. Harris what the defendant had said about the speed he was travelling at that time, Mr. Harris informed me that the defendant accepted the estimate of PW1 that he was travelling at above 80 km per hour.  Mr. Harris also said that the defendant accepted the distances estimated.  PW1 had estimated that the defendant’s car was about 4 vehicles’ space behind V1 prior to the 1^st collision.

44.In my view, the defendant was definitely driving too fast in the circumstances of this case.  It was clear from the photographs and the submissions of Mr. Harris that the accident location was on a section of Shek O Road.  It was a winding road, and if I may add according to what I have seen from the photographs, that it was a narrow road as well.  There were hill slopes (as described in the summary of facts) or high retaining walls (as described by Mr. Harris in his submissions) by the sides of the roads that might obscure the views of drivers using the road of the oncoming vehicles.  I have no doubt the physical layout of the location caused the imposition of a speed limit of 50 km per hour and the marking of a continuous white line with a broken white line on the centre of carriageway dividing the southbound and northbound lanes.  It was because of the special characteristics of the road in question that the defendant should not have travelled at a speed in excess of the speed limit, not to mention that when he travelled at 80 km per hour if not more, he was driving at 1.6 times the imposed speed limit.

45.Not only the defendant was travelling too fast, it was clear that if he had travelled within the speed limit, he could have stopped his car without causing the 3^rd collision.  The accident reconstruction performed by Dr. Cheng Yuk-ki demonstrated that a driver on the southbound lane could see a stationary vehicle placed at the final position of V1 from a distance of 58 metres at night when the headlamps of the travelling vehicle were on, and 57 metres when the headlamps were off.  It meant that even if the defendant had to negotiate a turn before he came to the straight stretch of the road where the accident had occurred, he could still have a vision covering a distance of not less than 57 metres, and if he had been travelling at 50 km per hour (or 13.89 metres per second) or less at that time, he would have had not less than 4.1 seconds to notice what had happened in his front.  In other words, had the defendant been travelling within the speed limit, he would have more than sufficient time to stop his vehicle, and the 3^rd collision could not have occurred.  His excessive speed was of course compounded by the further error that he was driving only at a distance of 4 vehicles’ space behind V1, which was too close to V1 in the circumstances of this case.

46.In my judgment, driving a vehicle at the speed of at least 80 km per hour with only a distance of 4-vehicle length away from the car in front in a narrow and winding road by itself was already careless driving with a very high degree of culpability.

47.Of course, in the present case, I cannot ignore the fact that the defendant’s car had actually come into contact with the head of V1’s driver.  Even if the defendant had already tried to stop his car prior to the contact, the fact of the matter was the defendant’s car managed to stop only some 32 metres away from the final position of V1, thereby indicating that its speed at the time of contact had to be very high.  Hence, no matter its speed at the time of contact with the head of V1’s driver was 80 km per hour or less than that, I don’t think it needs expert evidence to tell that the driver of V1 could have sustained serious injuries to his head, resulting in serious bodily injuries or even death to him.  Of course, I have already said that in sentencing the defendant, I will not take into account the death of V1’s driver as a consequence caused by the defendant’s careless driving, but I am of the view that his careless driving was culpable of a substantial degree because his manner of driving had placed him in a position to cause serious bodily injuries or even death to the driver of V1.  The fact or the probability that the driver of V1 had been killed before the 3^rd collision was due to factors completely independent of the defendant’s careless driving.  In my view, it would not be correct, in a proper assessment of the defendant’s culpability in the offence, to ignore completely the fact that his careless driving had created the extremely dangerous situation of causing serious bodily injuries or threatening the life of V1’s driver.

48.The defendant’s car had of course further collided with V4 as a result of his careless driving.

49.When all these factors are taken into account, I am of the view that the defendant’s culpability in this careless driving offence, in the particular circumstances of this case, was substantial enough to exceed the threshold for imposing a custodial sentence.  I hold that the appropriate sentencing option is imprisonment. 

50.As to the length of the prison term, given the fact that I should not take into account the death of any driver as a consequence of the defendant’s careless driving, I am of the view that a term of 3 months’ imprisonment is the appropriate starting point.

51.The defendant has pleaded guilty.  He has also a clear criminal record.  He is therefore entitled to be given the full one-third discount of the sentence, thereby reducing it to a term of 2 months’ imprisonment.

52.The next question to consider is whether this term of imprisonment can properly be suspended.  Mr. Harris submitted that a person should not be sent to prison unless it was absolutely necessary to do so for the sake of public interest.

53.In the present case, I take into account the defendant’s clear criminal record and his guilty plea.  I take into account the fact that he has the support not only from his own family but also, and more importantly, the support from the family members of the deceased V1’s driver.  Furthermore, I also note there were some facts in this case that worked in favour of the defendant.  It has to be said that if V1 had not been travelling at above 80 km per hour (which was of course an excessive and dangerous speed in the circumstances as I have explained before), and trespassed onto the northbound lane, the chain collisions ending with the 3^rd collision might not have occurred.  I also note that the defendant is remorseful for his offence, and I agree that the shock and trauma of losing one of his closest friends in the circumstances of this case will cause the defendant to learn that he should never drive in the same manner again.  Taking all these factors into account, I am of the view that it will be proper to suspend the immediate operation of the prison term.  I therefore sentence the defendant to a term of imprisonment for 2 months which is suspended for 2 years.

54.As far as disqualification from driving is concerned, the authorities[3] make it clear the purpose of the order is forward-looking and preventive, rather than backward-looking and punitive, and that a driving ban is designed to protect road users in the future from an offender, who through his conduct on this occasion, and perhaps on other occasions, has shown himself to be a real risk on the road.  In general, the risk is reflected in the level of culpability which attaches to his driving offence.

55.In the present case, the defendant had undoubtedly demonstrated that he could be a risk to other road users in that he had driven too fast and too close to the vehicle in front.  I also note that this was not the first time when he drove in excessive speed.  In September 2011 (i.e. when he had not yet obtained his full driving licence in November 2013), he had driven in excess of more than 45 km per hour, but the fine and disqualification of 6 months could not ensure him to drive within the speed limit.  In addition, just about 3 months prior to his commission of the present offence of careless driving, he was given a fixed penalty ticket for speeding at more than 15 but less than 30 km per hour.  I am of the view that there is a substantial risk that he will drive in excessive speed thereby causing danger or potential danger to other road users in the future.  For these reasons, I find it appropriate to impose a driving ban on him.

56.Taking into all the circumstances of this case into account, I order that the defendant to be disqualified from holding or obtaining a licence to drive a motor vehicle of any kind for a period of 12 months.

57.I am of the view that the defendant should attend and complete a driving improvement course before he should drive again for the sake of public protection.  I therefore order that the defendant shall attend and complete a driving improvement course at his own costs within 3 months ending on the date when the fixed period of the disqualification order expires.

[1] CACC217/2014 (a judgment in Chinese).

[2] [2012] 2 HKLRD 313.

[3] such as The Queen v Cooksley [2003] 2 All ER 40; HKSAR v Chan Kim Ching (陳劍青) (CACC69/2014) (a judgment in Chinese).