HKSAR v. YUEN SEU HOI

DCCC309/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 309 OF 2011

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Reasons for Sentence

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The Charge

1.  The Defendant pleaded guilty before me to one charge of “dangerous driving causing death”, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374.

The Facts

2.  The facts admitted by the Defendant were these : In the early hours of 14 October 2010, three drainage workers, together with other colleagues, were carrying out road work around a manhole on the third lane of the three-lane carriageway of Tseung Kwan O Road. At the time, a light goods vehicle (KP 3708) displaying a flashing lane diversion indicator lamp was positioned near the workers and there were traffic cones separating the 2^nd and the 3^rd lanes. It was clear from the photographs produced by the prosecution, and the defence did not dispute this, that the manhole was located near the dividing line of the 2^nd and the 3^rd lanes. Other than KP 3708 which was positioned behind the workers, there were also two other vehicles parked in front of KP 3708.

3.  The Defendant was driving a taxi at the material time. His car collided with the nearside of KP 3708 and knocked down the three workers. Some lighting equipment and traffic cones placed around the road work were also damaged. After the accident, the Defendant’s taxi veered onto the nearside pavement of the carriageway. The taxi left some skid marks on the ground which extended from near the manhole to the final resting position of the taxi, with the off-side skid mark measuring 30.4 m in length.

4.  Upon police enquiry, the Defendant said that he was travelling along the 2^nd lane towards Kowloon at the time but he fell asleep and hit on something before he awoke. He then swerved to one side at once and got off from his taxi for a look. After the accident, the Defendant felt pain on his right eye and was later found to have conjunctivitis. His eyesight was normal.

5.  Based on the skid tests result, it was calculated that the speed of the Defendant’s taxi at the time was at least 60 kph. It was also the expert’s opinion that a driver travelling along the 2^nd lane of that carriageway could have a clear view of the flashing diversion indicator lamp on KP 3708 from a distance of 257 meters. Moreover, it was concluded that the Defendant’s taxi first hit against the traffic cones, it then grazed along the nearside rear of KP 3708 and knocked down the three workers. The taxi then started to skid and swerve towards the nearside when it was adjacent to the manhole.

6.  At the material time, the weather was fine, the visibility was good and the traffic was light. The speed limit governing that section of the road was 70 kph. The Defendant’s taxi was also examined and found to be in good working condition prior to the accident.

7.  As a result of the accident, two of the three workers were injured and one of them was killed. One of the injured workers sustained abrasion, laceration and tenderness on his left upper limb, left loin and left knee while the other sustained abrasion on his right arm and tenderness on his lower back. This morning, I was told by the prosecution that both injured workers have fully recovered from their injuries.

8.  Insofar as the deceased worker is concerned, he was certified dead upon admission to the hospital. The cause of death was multiple injuries which included deformity over the skull, the left hip and the left shoulder.

Mitigation

9.  The Defendant is now aged 43 and is single. He has elderly parents and 6 siblings. He is residing with one of his elder brothers. The Defendant was educated up to Form 2 level and he started to work as a night-shift taxi driver since about 7 years ago, earning a monthly income of HK$13,000 roughly and he contributed about HK$1,000 to his parents. After the accident, he has worked as a helper in a poultry stall, earning about HK$4,000 per month. Since mid-April 2011, he has become unemployed.

10.  The Defendant has two previous criminal convictions. One was “gambling in a place not being a gambling establishment”. The other was “possession of a dangerous drug”. These offences dated back to 1989 and 1994. He was fined on both occasions. I should state here that these are relatively minor and rather dated conviction records and they have no bearing on the sentence which I am going to impose on the Defendant.

11.  As regards traffic convictions, the Defendant has a total of 23 records. Between 2004 and June 2010 (that is, roughly after the Defendant has become a taxi driver), he has been convicted of 15 speeding offences, 8 of those were in excess of speed limit by 15 kph or less; 5 were in excess by more than 15 kph but not more than 30 kph (one such speeding offence was committed in the Eastern Harbour Crossing); the remaining 2 were in excess by more than 30 but not more than 45 kph. In addition, the Defendant has been convicted of 5 offences of failing to comply with traffic signals or road markings; one offence of driving a taxi without wearing a seat belt; and one careless driving. He also attended the driving improvement course on three occasions, completing the first one in January 2005, the second one in April 2008 and the most recent one in July 2010, that is, less than 3 months before the present accident.

12.  In mitigation, it was said that the Defendant merely felt sleepy at the time and he then momentarily closed his eyes for a few seconds. He was not driving at an excessive speed and there were no other aggravating factors. Mr. Ng acting for the Defendant also submitted that the Defendant did not have an appalling driving record and he should be treated more leniently than the Respondent in the case of SJ v Tsang Ho Pong CAAR 6/2009 (unreported).

Sentencing Considerations

13.  In SJ v Poon Wing Kay [2007] 1 HKLRD 660, the Court of Appeal expressed general agreement with the sentencing considerations detailed in R v Cooksley & Ors [2003] 3 All ER 40, and stated, inter alia, that :

“10(3) It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists … are there to ensure that all who come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

14.  Further, the Court of Appeal observed in Poon Wing Kay that,

“17. This case is … illustrative also of the need to deter those who, in the pursuit of commercial gain, or indeed for any other reason, place at risk the lives of members of the public who entrust their safety to drivers of public transport vehicles. … and we say at once that in any case of dangerous driving the fact that the driver is driving a public transport vehicle is an aggravating feature and that traffic violations in such circumstances will be met with no sympathy whatsoever by the courts.”

15.  In SJ v Wong Wai Hung CAAR 7/2010 (unreported), the Court of Appeal noted that,

“21. In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving.

22. … Culpability is the determining factor.”

The Defendant’s Culpability

16.  Although it is true that a lot of the aggravating factors mentioned in SJ v Liu Kwok Chun CAAR 3/2009 (unreported), a case to which Mr. Ng for the Defendant referred, are absent in this case, it remains that the Defendant was a professional driver and he should be extra cautious when driving his taxi.

17.  Moreover, the Defendant should be well aware of his own physical condition at the time and if he felt tired or sleepy, he should have stopped driving rather than falling asleep or closing his eyes while driving.

18.  The fact that the indicator lamp should have been seen a long distance from where KP 3708 was parked and that, from the photographs adduced, that section of the road is relatively straight, all go to prove that the Defendant must have fallen asleep for some time before the accident for if not, he could not have failed to notice the road work and could not have collided with KP 3708 without being aware of what had happened.

19.  As observed by the Court of Appeal in Tsang Ho Pong,

“7(2) … if a driver is feeling so tired that he is no longer concentrating, he must stop driving. To continue to do so is obviously very dangerous. … It is the sheer danger caused by being effectively unconscious that makes this an aggravating factor.”

The Defendant’s Driving Record

20.  In sentencing, I also take into account the Defendant’s driving convictions. He is one who does not pay much respect to the traffic rules and from his record, he is one who is rather used to speeding. Although this accident was not caused by speeding, it remains a fact that despite the Defendant’s attending the driving improvement course three times, the most recent one being in July 2010, that did not appear to have reminded the Defendant to drive with caution and care. In my view, a strong deterrent sentence should be imposed.

The Sentence

21.  Clearly, no matter what the sentence to be imposed is, the deceased could not be brought back to life. If the Defendant had stopped driving when he felt he was tired or exhausted, this accident could have been avoided and the deceased’s life saved.

22.  Taking into account the facts of this case and the aggravating factors mentioned above, I consider that a starting point of 27 months is appropriate. The Defendant pleaded guilty and he should be given a one-third reduction in sentence. Other than his plea, I see nothing which would warrant any further reduction in sentence. The Defendant is therefore to serve a term of 18 months’ imprisonment.

23.  I am also going to order a disqualification for 3 years.