HKSAR v. CHAN MAN HANG

DCCC430/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 430 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to four charges before this court.

2.  The 1st charge is a charge of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, whereby you admitted on 16 October 2010 at Pak Hoi Street near the junction of Shanghai Street, Yau Ma Tei, Kowloon, you drove a public light bus on a road carelessly.

3.  The 2nd, 3rd and 4th charges relate to using a defective vehicle, 2nd charge contrary to section 5(1)(a), and 3rd and 4th charge to regulations (5)(1)(b); and in relation to those 2nd to 4th charges, all in relation to regulation 12(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance.

4.  The charges all relate to the same date and the same minibus which you were driving.  The 2nd charge refers to an interior mirror fitted behind the windscreen which was not suitable for use, as the edges of the mirror were not wrapped with protection material and did not have proper backing plate.  As can be seen from the photographs, this was an enlarged rectangular mirror tied onto the original mirror inside the minibus.

5.  The 3rd charge relates to an engine cooling expansion reservoir which was altered, as it was installed inside the passenger compartment.

6.  The 4th charge relates to the emergency exit of the public light bus not being readily accessible, in that it was blocked by a seat, which was not, as can be seen from the photographs, a proper minibus seat.

7.  In this case, as a result of your careless driving on the day in question, you, very sadly and unfortunately, knocked down and killed a 78-year-old lady, who was at that time walking along the curb on the nearside road toward the junction.

8.  On the material day, at about 4 pm, you were driving along the first lane of Shanghai Street and had intended to make a left turn into Pak Hoi Street.  You had, however, moved from the first lane of Shanghai Street to the second lane, to pass a stationary vehicle.  You then moved back into the first lane and made your left turn into Pak Hoi Street and, as you failed to keep your PLB under control while making your left turn, the middle front of the PLB hit the old lady, causing her to fall to the ground and bump her head.

9.  At the time, you immediately and abruptly halted your PLB, and it can be seen that your PLB was stopped diagonally across Pak Hoi Street with the nearside of your PLB front intruding onto the nearside pavement, which is where the old lady was walking.

10.  The speed limit was 50 kilometres an hour.

11.  Pak Hoi Street was a one-way only street, and at the material time, the weather was fine and the road surface was dry and in good repair.

12.  An eyewitness witnessed the incident.  He had been a professional driver of over 20 years and he estimated your speed at about 20 to 30 kilometres at the material time.  He observed there was no vehicle parked at either side of the road at Pak Hoi Street at the material time.

13.  The Homantin Vehicle Examination Centre on 19 October 2010 downloaded the data from the speedometer of the PLB.  It was found from the data that the estimated speed of the PLB was about 17 kilometres an hour at the time of the collision.

14.  It was said the victim lady had walked along the curb on the road at the material time because there were building materials placed on the pavement blocking the passage.

15.  She was immediately sent to the hospital and certified dead at 12.32 the following morning; 17 October.  Her cause of death was head injuries and cardiac arrest. It was admitted that your driving manner caused her death.

16.  After the accident, the minibus was towed to the Homantin Vehicle Examination Centre and the defects, as I have stated earlier in the charge, were found by the mechanic vehicle examiner.  The examiner had also found the front body panel was dented and the nearside front lamp lens and nearside washer nozzle was damaged.  He found the dented position of its front body panel was 1.3 metres height from the ground and 0.6 metres away from its left front corner.

17.  He also found there were a total of five 22-millimetre-long cards placed at the  bottom of the minibus’ windscreen which were 1.3 metres height from the ground.  These cards will have, therefore, blocked the view of the driver to a certain extent.

18.  It was clear that you were not driving in a competent and careful manner, and did not keep your vehicle within the correct lane when making a turn into Pak Hoi Street.  You were far too close to the curb and had deviated from the middle of the road.

19.  Mr Alex Ng, your counsel, has mitigated fully and thoroughly on your behalf this morning.  I am very grateful for his written submissions.

20.  In summary, you are 35 years of age.  You have a criminal conviction of possession of dangerous drugs back in 2003 and you have three traffic convictions of careless driving between 2009 and 2011, and one other of overloading in 2010.

21.  I am informed that you have been working as a minibus driver since July 2010.  Prior to this time, you were a driver of lorries, but as you fell from a container, you had spinal injuries and stopped your professional driving career and took up clerical duties.  However, due to you finding that work unsuitable, you returned to driving.

22.  I am informed by Mr Ng that shortly after you commenced driving the minibus in July 2010, you had two careless driving convictions in September 2010, as you were not acquainted with the passengers and the general day-to-day driving of the minibus routes, and hence you infringed the law and had these two convictions.

23.  Mr Ng further submitted that you had hired this minibus for two days on the day in question, but were a salaried driver.  Therefore, in respect of the alterations and the defectiveness of the vehicle, this was not in your control, as you had no right to alter these installations.

24.  But in any event, I accept what Mr Ng says, that there is no suggestion that these alterations contributed to the occurrence of the accident, and the prosecution was not relying upon it in any event.

25.  Mr Ng has referred me to various witnesses in respect of this case, who were either passengers or on the street, and  has explained to me from your eyes why this accident occurred.

26.  In summary, he says that when you made the left turn into Pak Hoi Street, there was a stationary vehicle on the right-hand side of the road and coming towards you was a man pushing a handcart loaded with goods.  The handcart was being pushed from your left side to the right side. You were unable to see behind the handcart.

27.  As you tried to avoid the handcart moving towards you, you then veered more to your left side, hence drove very close to the pavement and, as you were unable to see the lady emerging towards you because of the handcart, it was too late and you knocked her down.

28.  Mr Ng has submitted that the speed that you were travelling was not fast.  The reason for you knocking down the lady was because you were unable to see behind the man with the handcart.

29.  It does appear that there was a man with a handcart there, but I do not know whether there was a vehicle parked on your right-hand side, as it appears that a witness, Mr Wong Yui-wa, who was an eyewitness, observed there was no vehicle parked at either side of the road at the time.

30.  Nevertheless, even if there was any vehicle there, at no time should your vehicle ever be over the pedestrian curb, as there is every likelihood that somebody may be knocked down.

31.  Furthermore, if you are unable to see behind a man pushing a handcart, then you certainly should not be continuing to drive ahead, knowing that your vehicle is going to be very close to or over a pedestrian pavement.

32.  It does appear that the dent on the front of your minibus was at about 1.3 metres from the ground and the placards at your windscreen were also 1.32 metres from the ground.  It may be that these also blocked your view.

33.  What I do have to sentence you on, however, is your manner of driving.

34.  In my view, your manner was not so serious an example of bad driving such as to warrant any disqualification.  However, I do consider that, in view of your past record of driving, particularly of careless driving, you should attend a driving improvement course.

35.  I note that you have completed one already in February 2011, I think some six months ago now, but that was voluntary and as a result of your acquiring, I believe, at least 10 penalty points and upon the suggestion of the Transport Department.

36.  I am informed by Mr Ng that the penalty points that you will be up to now with this careless driving will be about 12.  I do, therefore, think that you should attend the improvement course.

37.  In regard to section 72A of the Road Traffic Ordinance, I also bear in mind that in view of me imposing a driving improvement course, the penalty I impose under the careless driving charge may be a lighter penalty and I take that into account when sentencing you.

38.  This case does, is more serious because, as a result of your careless driving, a death has occurred, and in those circumstances, Defendant, I shall adopt a higher financial penalty.

39.  Defendant, for the careless driving charge, I would have originally imposed a financial penalty of $3,000.

40.  However, I am told that the driving improvement course costs $700, so I shall deduct that amount from your penalty, so on the careless driving charge, you are fined $2,300 and you will be ordered to attend and complete a driving improvement course under section 72A(1)(b).

41.  You must complete that driving improvement course, to my understanding, within three months from today.  If you do not or if you fail to comply with my order without reasonable excuse, you will commit an offence.  Do you understand?

A. I understand.

42.  And for the other charges, 2 to 4, I am informed by the prosecutor Miss Ku that the usual sentence in the Magistrates’ Court is one of a $600 fine, so I shall impose $600 as a fine on each charge, 2 to 4.

43.  So the total is $4,100.