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DCCC 668/2012
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 668 OF 2012
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| Present: |
Ms D. Crebbin, Counsel on Fiat, for HKSAR/Director of Public Prosecution.
Mr. LAM Shun-chiu instructed by Messrs. Chiu, Szeto& Cheng Assigned by D.L.A. for Accused. |
| Offence: |
1. Causing death by dangerous driving (危險駕駛引致他人死亡)
2. Causing grievous bodily harm by dangerous driving (危險駕駛引致他人身體受嚴重傷害) |
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REASONS FOR SENTENCE
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1. The defendant was convicted after trial of both charges. The charges arise as a result of a fatal traffic accident which occurred on the afternoon of 31 December 2011. At the material time, the defendant was the driver of a Public Light Bus registration number EK 3613(the PLB). At about 1442 hours he was driving his PLB along Kwun Tong Road in an easterly direction towards Kwun Tong. There were about 10 persons onboard the PLB. The speed limit is 70km per hour. The PLB travelled along the third lane of Kwun Tong Road in an easterly direction. Immediately before the accident the PLB was travelling at a constant speed of 61/2 km per hour. At a distance of 117 metres from the metal railings on the east side of Choi Shek Lane, the PLB, without warning, crossed in a diagonal straight line from the third lane, across the second land and into the nearside lane maintaining its speed at 61-62 km per hour. The PLB then mounted the pavement on the easterly side of Choi Shek Lane, smashed through the roadside railings, a speed sign and a street sign before coming to a stop after smashing into a bus shelter.
2. One elderly passenger on the PLB was killed, and another suffered grievous bodily harm. Another passenger sustained minor injuries. A female pedestrian, PW4, was walking towards the bus shelter carrying her 2 year-old grandson. She was struck by the PLB and both she and her grandson suffered grievous bodily harm.
3. After the accident the defendant was trapped inside the driving seat and firemen assisted in freeing him from the vehicle. The defendant was placed inside an ambulance where he was later spoken to by a police officer investigating the accident, PW5. He told PW5 that the accident occurred because he was forced to take evasive action in order to avoid a light goods vehicle which had swerved into his path. The defendant made a similar statement to PW10, a doctor from the United Christian Hospital who saw the defendant on the ward of the hospital at 2017 hours on the day of the accident.
4. Video footage of the accident taken by cameras inside the PLB and a private vehicle following behind made it clear that there the PLB was not impeded or obstructed by any other vehicle.
5. At trial the defendant denied having said anything to either PW5 or PW10 that his vehicle being impeded or obstructed. The defendant said in evidence that the accident was caused because, somehow, his right foot was trapped between the accelerator and brake pedals of the PLB. I was satisfied that the defendant lied to PW5 and to the doctor, PW10, about his vehicle being impeded. I was also sure that he lied to the court about his foot somehow becoming stuck between the accelerator and brake pedals.
6. No defects were found with the PLB which might have contributed to the accident.
7. The defendant said he had picked up the PLB at 0500 hours on the day of the accident. He said that he then had breakfast and would start work at 0540 hours. He said he had lunch at 1030 hours when he took a break of 15-20 minutes. The defendant said that this was his only break. He said that the accident occurred on his last run of the day. I was sure that the accident did not happen in the way described by the defendant in evidence. I was quite sure that immediately before the accident the defendant had lost concentration due to fatigue. I was sure that this was a physical condition of which he could be expected to be aware and which was within his knowledge. I was sure that it would be obvious to a competent and careful driver that driving in these circumstances would be dangerous.
8. I took into account that the defendant was driving within the speed limit and there was no evidence of incapacity due to drink or drugs. I was, however, satisfied so that I was sure that the defendant was not concentrating on the road for a significant period of time before he crashed into the metal railings on the east side of Choi Shek Lane. I was satisfied so that I was sure that his condition was such that he should not have continued driving and that to continue driving in that condition was obviously very dangerous. I was sure that at the relevant time the defendant was effectively unconscious. I was sure that 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.
Background of the defendant
9. The defendant has a number of convictions recorded against him relation to criminal offences committed between 1974 and 1999 many of which were drug related. There was no evidence that the current offences are in any way drug related. His traffic record shows that he has attracted 11 fixed penalty tickets during 2010 and 2011, 6 of which were for speeding or failing to comply with traffic signals and he was required to attend a driving improvement course as ordered by the Transport Department and completed on 30 December 2010.
10. The defendant is now aged 68. He was born on the mainland and came to Hong Kong when he was 4. He worked as a construction worker until 2005 when he became a PLB driver. He is married with two daughters and a son. All his family members were in court to show their support. His wife now works as a security guard but when the family were growing up the defendant was solely responsible for supporting the family financially. His eldest daughter is now aged 25 and is a graduate social worker. He second daughter completed Form 5 education and is also a social worker. His son is aged 21, he was educated to Form 5 and is currently serving an apprenticeship in the construction industry.
11. Three letters were submitted. The first from his employers, the Public Light Bus Association. They describe the defendant as a good employee and ask for leniency. Very moving letters were submitted by both daughters. They are obviously very concerned about the situation. They describe their father as being a good, hard-working and caring man who was very supportive of their endeavours. They describe him as being a kind-hearted, very caring and supportive neighbour especially to those old-aged neighbours and those in financial difficulties. They ask for leniency for their father.
12. It was urged upon the court that the culpability involved in this case was not of the worst kind. There was no sustained period of bad driving, just momentary inattention.
Sentencing considerations
13. The maximum sentence for an offence of dangerous driving causing death as provided in Section 36(1)(a) of the Road Traffic Ordinance Cap 374 is a fine at Level Five and an imprisonment term of 10 years.
14. It is further provided in Section 36(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 years in the case of a first conviction, unless the court for special reasons orders that person be disqualified for a shorter period or that the person not be disqualified.
15. The maximum imprisonment term was, with effect from 4 July 2008, increased from 5 years to 10 years.
16. Where the legislature increases the maximum penalty for an offence, the courts treat that as an indication of the legislative view that the offence is regarded as more serious than it used to be regarded and the courts will reflect that view by passing sentences more severe than the sentences that used to be passed before.
17. 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.
18. As the Court of Appeal said in Secretary for Justice v Poon Wing Kai [2007] 1 HKLRD 660, adopting the general principles found in the English case of R v.Cooksley and Others [2003] 3 All ER 40:
In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly. This is important to bear in mind, because, while it might be right in some instances not to treat violators of traffic laws as true criminals, for offences such as dangerous driving causing death, the offender might not necessarily be seen in quite such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous
Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased. The impact on people’s lives ought to be taken into account when sentencing.
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 their lives are not endangered.”
19. In sentencing the defendant, I bore in mind that at the time of the accident he was not exceeding the speed limit and there was no suggestion of drink or drugs having been taken.
20. However, as I have stated above, I was satisfied so that I was sure that his condition was such that he should not have continued driving and that to continue driving in that condition was obviously very dangerous. I was sure that at the relevant time the defendant was effectively unconscious. I was sure that 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.
21. The defendant was driving a PLB onboard which there were 10 passengers. Their safety was literally in his hands.
22. In my view the appropriate starting point in respect of Charge 1 is a sentence of four years imprisonment. As regards Charge 2, I take a starting point of 2 years and 6 months imprisonment and order that both sentences should run concurrently. I disqualify the defendant from driving any class of vehicle for a period of 5 years and the defendant must at his own expense pass a test of competence after the expiration of the period of disqualification.
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