HKSAR v. CHENG CHI KEUNG

DCCC 64/2020

[2020] HKDC 674

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 64 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant, a 52-year-old man, pleaded guilty before me to one count of causing death by dangerous driving contrary to section 36(1) of the Road Traffic Ordinance.

2.  The defendant was employed by a laundry company as a driver whose duty was to drive a lorry around various places during the night to collect laundry from customers and deliver the cleaned items to them afterwards. The deceased (Mr Chung), a 23-year-old young man, was his co-worker sitting in the front passenger seat at the time of the accident.

3.  The accident occurred on Fuk Hi Street (Yuen Long) which is a single carriageway with one lane in each direction.  The speed limit is 50 Kmh. On one side of the street, there were sparsely parked cars – some long vehicles like the container trucks and lorries; some private cars.

4.  At around 4 o’clock on 23 July 2019, the defendant was driving a lorry along Fuk Hi Street, as there were parked vehicles on his left, the defendant had to drive more or less in the middle of the road straddling both lanes of opposite direction.  The accident was captured by the camcorder fitted on the defendant’s lorry and the nearby CCTV systems of the street.

5.  As the lorry was approaching the T-junction with Fuk Wang Street, it just swerved to the left in a smooth manner hitting the back of a parked lorry. Consequently, the front passenger took the full force of the collision. As it turned out, the force of impact was so great that the front of the lorry was badly damaged resulting in both of them being trapped in the vehicle.

6.  They both sustained injuries to their head and body. Though being rescued alive by the firemen, only the defendant survived the collision– he was discharged from the hospital on the following day but his co-worker, Mr Chung, was not that lucky, he was admitted to ICU fighting for his life for about a month before being certified dead on 22 August.

7.  The police arrested the defendant for the offence of dangerous driving causing death. In the subsequent interview, he told the officers that he fell asleep at the time as he had not been sleeping well the day before due to the noise from the construction work near his home.

8.  The defendant, a married man with a teenage boy and a teenage girl, has some minor criminal convictions all of which are to do with gambling and all dealt with by way of a fine. His traffic records, however, don’t seem to be very good - he has been convicted of careless driving 5 times over the past 7 years plus some minor speeding violations.

9.  Counsel for the defendant, Mr Lai, said that the defendant had held a driving license for almost 30 years and had worked in the transport industry all along. It would mean he had accumulated about the same period of driving experience.

10.  In order to earn more to support his family, he gave up his day job as a taxi driver, and changed to work for a laundry company as a nightshift lorry driver about a year before. His employer has a very high opinion of his work, Mr Lai said.

11.  The accident has a negative impact on the defendant, Mr Lai continued, the defendant has a history of undiagnosed psychiatric problems in the past. Subsequent to the accident, the defendant was encouraged by his family to attend psychiatric consultation because he was showing signs of depression and had recurring suicidal attempts.

12.  Mr Lai stressed that the occurrence of the accident had nothing to do with the defendant’s mental illness and he put it down to sleep deprivation.

13.  Mr Lai fairly accepted the aggravating condition of being sleepy at driving by citing a passage in Cooksley:

In Cooksley, “driving when knowingly deprived of adequate sleep or rest” was identified as one of the aggravating factors under the heading of highly culpable standard of driving because falling asleep at the wheel “usually involves a period during which a driver is conscious of drowsiness and difficulty in keeping his or her eyes open and the fact that the proper course for a driver in such a position to adopt is to stop driving and rest”.

14.  The defendant did not want this to happen and he was truly remorseful for what had happened, Mr Lai said, describing how sorry his client was for the loss of his co-worker whom he had only partnered for a month and the lingering sense of guilt.

15.  I wouldn’t doubt for one moment the guilty feelings the defendant has for the loss of his co-worker and such feelings would probably stay with him for the rest of his life.

16.  Mr Lai has done his best to paint a picture most favourable to the defendant in that he said:

1)		The accident occurred as a result of the defendant’s lapse of concentration, i.e. he closed his eyes for about 5 seconds;
2)		His traffic records are not that appalling;
3)		Only one person’s life (Mr Chung) was put at risk by his manner of driving.

17.  It is worth bearing in mind in fatal accident cases, some people have lost their loved ones, it may be the deceased’s parents, or his siblings, his kids or even his close friends.  The matter is not over and done simply because the person is dead; those close to the deceased would nevertheless suffer and may never find closure.

18.  From the perspective of the deceased’s family, whatever sentence the court is going to hand down in the end would hardly satisfy them that the goal of justice is achieved. The hard facts are no sentence, however heavy, could have brought Mr Chung back to life.

19.  On the other hand, the offenders in this kind of cases are not truly criminals in the strict sense; very often the court is facing good-natured defendants most of them with impeccable background – it is a moment’s mistake or misjudgement on their part resulting in disastrous consequences.

20.  What I like to say to all drivers is this – the moment you get behind the wheel, you should always remind yourself driving is a dangerous business- if you fail to drive properly, the vehicle itself would likely become a killing machine- it could easily maim or even kill other road users.   

21.  According to Mr Lai, the defendant had had a few rough nights before the accident as a result of the noise from the nearby construction work. His shift starts at 10 o’clock in the evening and finishes at 7 o’clock the next morning, so by the time the accident occurred, he would have worked for about 6 hours.

22.  Obviously, he did not doze off suddenly, he must have felt sleepy at some point during his shift but he chose to continue without taking any rest – that was utterly irresponsible.

23.  Judging from his traffic records, he has not been a careful driver either– he was convicted of careless driving 5 times in the past 7 years.

24.  Although it is not clear what speed he was doing at the time of the accident, as the CCTV footage shows, he was not driving in a slow manner. I would not say speeding but certainly not slow in the circumstances. Perhaps this explained why the front of the lorry damaged so severely.

25.  Given the facts of the case and all the mitigation put forward, I would take 3 ½ years as the starting point, and reduce it to 28 months to reflect his timely plea. There being no reason for further reduction, the defendant is therefore sentenced to 28 months’ imprisonment.

26.  Mr Lai has no submission to make in respect of disqualification as well as driving improvement course (DIC). I therefore ban the defendant from driving any class of vehicle for a period of 5 years. As he has no prior conviction of any relevant offences (i.e. those offences carrying 10 points), so the disqualification order starts to run from today.

27.  Insofar as DIC is concerned, I order the defendant to attend such course at his own costs within the last 3 months prior to the expiry of the disqualification order.