HKSAR v. CHAN KA KIT

DCCC 124/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 124 OF 2014

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Reasons for Sentence

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1.  A tragic incident took place in the afternoon on 14 July 2013 at Texaco Road, Tsuen Wan. A 7-seats private car driven by the defendant, was travelling downhill in the direction of Tsuen Wan and Shek Kong. While negotiating the bend near lamp post No. 3178, the private car failed to turn at the bend but went straight forward across the continuous white lines into the opposite carriageway on which a light goods vehicle was travelling. The private car rammed into the offside body of the LGV.

2.  After the impact, the LGV was caused to spin clockwise with the nearside rear body rammed into a traffic sign erected on the concrete divider.  The LGV then side-turned on its left side and landed on the Tsing-Yi-bound carriageway.

3.  Meanwhile, the private car continued to dash forward for 35.5 metres before coming to a complete halt on the Tsing Yi bound carriageway.

4.  Mr. Wong Man-leung was the driver of the LGV, he and five members of his family on board the LGV were all injured.  They sustained different levels of injuries.  Wong Chun-lok, aged 10, the son of Mr. Wong Man-kwong and Mrs. Tam Mei-chung, sustained severe head injuries and fracture on limbs.  He was first conveyed to Yan Chai Hospital and then transferred to Princess Margaret Hospital on the same day.  Chun-lok was certified dead upon transfer to Princess Margaret Hospital.

5.  Upon vehicle examination, both vehicles were found to be in good working condition prior to the accident.  However, the private car of the defendant was found to have three mechanical defects. 

6.  The defendant, the driver of the private car, appeared before me facing four charges:

Charge 1: Causing death by dangerous driving;

Charge 2: Using a motor vehicle with an illegal visual display unit;

Charge 3: Using a defective vehicle; and

Charge 4: Using a defective vehicle.

7.  Charge 1 concerns the death of boy Wong Chun-lok; Charge 2 concerns the visual display unit with DVD function installed in the front of the driver’s seat; Charge 3 concerns the four passenger windows and the rear windscreen, which were all fitted with glass material of such transparency that the view to the interior of the private car was obscured; and Charge 4 complains that the private car was not fitted with reflectors in accordance with the statutory requirements.

8.  The defendant pleaded guilty to all four charges and admitted the facts pertaining to those charges.

9.  The Tsing Yi and Shek Kong bound traffic lanes were separated by double white lines with widening hatched area and isolated plastic poles erected between the lines.  At the time of the incident, the weather was fine.  The road surface was dry and the volume of traffic was light.  The speed limit governing that stretch of Texaco Road was 50 kilometres per hour.

10.  No brake mark was found at the scene.  The drivers of both vehicles passed the screening test for alcohol. 

11.  The LGV was seriously damaged whereas the offside of the private car was damaged.  One traffic sign and four plastic poles were also damaged during the incident. 

12.  The defendant and all six passengers on board the private vehicle survived this accident unscathed. 

13.  The whole course of the incident was captured by the car cameras installed on the private car and the LGV.  The video clips were played in court.

14.  Dr. Cheng Yuk-ki examined the video footage retrieved from the car camera recorders of the vehicles and conducted investigation at the scene.  He concluded that:

(1) The private car was travelling at a speed of about 60 +/- 6km/h along the accident location whereas the LGV could probably be travelling at a speed of about 65 +/- 7 km/h at the time when the incident took place;

(2) The accident could have been caused by the driver of the private car, who should have a clear view of the bend at least seven seconds prior to the impact, running a straight path at the bend.

15.  PC10406 arrested the defendant for causing grievous bodily harm by dangerous driving at the scene on the date of the offence. 

16.  Under caution, the defendant said:

“I drove the private car RX 2296 down Texaco Road flyover in the direction of Tsuen Wan. When coming up to here, I felt very tired and closed the eyes. Then feeling/sensing a collision, I opened my eyes and realised that I had driven into the opposite lane.”

His statement was simultaneously recorded by the officer in his notebook.

17.  At a subsequent interview held on 16 July 2013, the defendant, in the presence of his lawyer, tried to clarify his previous statement made under caution.  He said he was not sleepy at the material time.  When he told the officer at the scene that he “felt very tired and closed the eyes,” he actually meant to say that he felt discomfort in his eyes.  He further stated that, at the time of the accident, he was on a return journey from the Asia Expo of the airport.  Due to the long journey, his eyes became uncomfortable.  When he was approaching the location of the incident, he felt nose itch and wanted to sneeze.  But he worried that the sneezing would affect his driving and it would be dangerous.  He therefore tried to wink his eyes to alleviate the discomfort to his eyes and the urge to sneeze.  Once he had winked his eyes, the accident occurred.

18.  The defendant is now 37 years old.  He is a clerical assistant at the Housing Authority.  A married man, he resides with his wife and 2 years old son at a village house in Yuen Long. 

19.  Mr. Bernard Yuen, who appears for the defendant, has kindly prepared a written mitigation.  In gist, Mr. Yuen submits that the defendant is the sole bread winner of the family.  The property where the defendant’s family resides is still under mortgage.  The defendant supports his retired parents financially.  I am told it is very likely that upon conviction, the defendant would face disciplinary proceedings and would lose his job and pension.  

20.  The defendant has never been convicted of any criminal or traffic offence in the past. 

21.  For the incident in question, I am told that it was caused by a sudden attack of fatigue despite the fact that the defendant had sufficient sleep the previous night. 

22.  Mr. Yuen submits that the defendant has been a fervent advocate of vegetarianism, environmentalism and a keen promoter of green life.  He is also a practising Buddhist and Taoist.  He has been serving as a volunteer at his Taoist sect for a number of years. 

23.  He has been very remorseful and he felt sorry for the young victim and his family after the accident.  He arranged a permanent memorial tablet for the deceased at the altar of his religious association. 

24.  As a result of the incident, the defendant has been emotionally disturbed and he has to be counselled religiously by his Taoist master.  He also suffers from insomnia and post-traumatic stress disorder and is receiving treatment from the Castle Peak Hospital.   

25.  I have gone through the mitigation letters written by the friends and acquaintances of the defendant, all speak highly of him.  I have read the letters written by the defendant and his wife.  From the information placed before me, I accept the defendant has a positive good character. 

26.  The incident that took place on 14^th July claimed the life of an innocent boy, shattered the dreams of two families and broke the hearts of many. 

27.  No term of imprisonment, short or long, could bring Chun-lok back to his parents. 

28.  As Lord Taylor of Gosforth CJ said in R v Shepherd, R v Wernet [1944] 2 All ER 242 at 245, [1944] 1 WLR 530 at 536:

“… we wish to stress that human life cannot be restored, nor can its loss be measured by the length of a prison sentence. We recognise that no term of months or years imposed on the offender can reconcile the family of a deceased victim to their loss, nor will it cure their anguish.”

29.  I am not at all sure that the permanent memorial tablet that the defendant set up could ease the pain of Chun‑lok’s parents.  Likewise, I am not at all sure if the claim by the defendant in his mitigation letter that henceforth Chun‑lok shall become part of his life, that for each and every meal to come, he would prepare the best food for Chun‑lok can alleviate the suffering of Chun‑lok’s parents.  I am sure Chun‑lok’s parents would want to see Chun‑lok grow up, they would want them to be the ones who provide the best for Chun‑lok.  All that Mr. and Mrs. Wong had hoped for Chun‑lok was made impossible by the defendant.

30.  It is of course true that the defendant did not want the tragedy happen.  He had five of his family members on board his private car.  Only an insane driver would deliberately run a straight path at the bend across the continuous double white lines and enter into the opposite carriageway.  The tragic incident was caused by the dangerous driving of the defendant.  He drove when he was too tired to do so.  Before the defendant embarked on his return trip, he must make sure that he was physically fit to do so, particularly when the journey from the Asia Expo to Tsuen Wan was a long one.  The fact that he had sufficient sleep the night before does not mean that he was physically fit to drive a long journey at 3 pm after a family excursion at Tung Chung.  Given that the defendant should have a clear view of the bend at least seven seconds prior to the impact, and that the defendant still ran a straight path at the bend, obviously there was a sustained period of time during which the defendant was not doing what was expected of him: namely to pay attention, be alert and concentrate on his driving.  

31.  In HKSAR v Wu Yat Cheung, CACC 450 of 2012, the applicant, a PLB driver, was convicted after trial of one count of dangerous driving causing death and one of dangerous driving causing grievous bodily harm to three persons.  The trial judge found that immediately before the accident the defendant had lost concentration due to fatigue.  The judge took a starting point of 4 years’ imprisonment in respect of the 1st charge and 2 years and 6 months’ imprisonment in respect of the 2nd charge.  He ordered the sentences to be served concurrently.

32.  The Court of Appeal was satisfied that the sentences imposed upon the applicant were entirely appropriate and the application for leave against sentence was refused.  The Court of Appeal observed at paragraph 27 of the judgment that:

“The applicant’s culpability for failing to respond appropriately to the onset of fatigue such that, in the result, he became unconscious/asleep for a period of about 10 seconds as the vehicle travelled across no less than three lanes of a road, into and across two lanes of a junction and into railings on the pavement was serious. He put many people at grave risk of life and limb. Sadly, he killed one person and injured many others, some seriously. We endorse the observations made by the judge in imposing sentence:

‘Road accidents can cause immense human suffering. Vehicles are potentially lethal machines. Those who are in charge of vehicles must bear in mind the duty they owe to other road users.’

The offences call for deterrent sentences.”

33.  The defendant, as did the applicant in CACC 450/2012, failed to respond appropriately to the onset of fatigue.  The defendant should have a clear view of the bend for at least seven seconds prior to the impact, obviously he had become unconscious/asleep as his private car ran a straight path at the bend across the continuous white lines into the opposite carriageway where the LGV was travelling, hence no brake mark was found at the scene of the accident.  He put all those on board his private car and the LGV at grave risk of life and limb.  He killed one boy and injured five others.  Wong Ngo-yin, a boy aged 4 years old, sustained tenderness on right shoulder and fracture on right clavicle.

34.  In R v Cooksley [2003] 3 All ER 40, it was noted that the aggravating factor of driving when knowingly deprived of sleep or rest:

“...usually involves a period during which a driver is conscious of drowsiness and difficulty keeping his eyes open and the fact that proper course for a driver in such a position is to stop driving and rest.”

35.  As soon as the defendant felt that he was tired, he must stop and rest.  The closing of his eyes in a state of tiredness was a most dangerous act to do while he was still driving, he should never have allowed that to happen.

36.  I find the presence of three aggravating features in the present case. 

37.  Firstly, the dangerous driving of the defendant, apart from killing Chun-lok, had also injured five persons. 

38.  Secondly, the private car was travelling at a speed of about 60 +/- 6km/h, which exceeded the speed limit, though not greatly. 

39.  Thirdly, two days after the incident, when the defendant was interviewed by the police, accompanied by his lawyer, the defendant lied about the course of the incident. He claimed his driving was affected by itchy nose and winking of his eyes in his attempt to suppress sneezing.  It was an irresponsible behaviour on the part of the defendant to dilute the initial admission made at the scene with lies.

40.  The maximum penalty for the offence of dangerous driving causing death is 10 years’ imprisonment. 

41.  The Court of Appeal observed in Poon Wing Kay CAAR No. 2 of 2006 and CACC 536 of 2005 that:

“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…A motor vehicle, many may often forget, when not driven to the requisite standard, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere 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.”

42.  All matters taken into account, a starting point of 3 and a half years’ imprisonment is appropriate for Charge 1.  The defendant is entitled to one-third reduction for his guilty plea.  As I accept the defendant has a positive good character, I shall allow the defendant an additional 2 months’ reduction.  Mr. Yuen submits that it is very likely that the defendant will lose his job and his pension.  While I accept that inevitably the defendant will lose his job, in the absence of evidence, I am not prepared to accept that it is very likely that he will also lose his entitlement to pension.  After all, the offences that he stand convicted of have nothing to do with his job duties.

43.  Charge 2 to 4 call for a financial penalty.  A fine of $2,000 for each offence is appropriate. 

44.  For the reasons given, on Charge 1, I sentence the defendant to 26 months’ imprisonment.  The defendant is also disqualified from driving all classes of vehicles for a period of 5 years.  He must attend and complete a Driving Improvement Course at his own cost within the last three months of the disqualification.

45.  On Charge 2 to Charge 4, I impose a fine of $2,000 for each offence.