HKSAR v. YEUNG CHUNG LIM

DCCC 768/2019

[2020] HKDC 974

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 768 OF 2019

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REASONS FOR SENTENCE

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The Charge

1.  The defendant was convicted after trial of one charge of Causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.

The Facts

2.  The vehicle involved in this case was a special purpose vehicle bearing registration number UM8803.  It was fitted with an elevating work platform (EWP).  This EWP was capable of being raised and lowered.  A driver must be in possession of a driving licence with code 21 endorsed by the Transport Department before he could drive such a vehicle.

3.  At the time material to this case, UM8803 was owned by Cheong Wan Construction Company, the employer of the defendant.  The vehicle was hired out to another company since 5 February 2019 to perform streetlight cleaning work.  The defendant, who was qualified to drive this vehicle since about March 2018, was the driver pursuant to his employment of Cheong Wan.  Mr Chan Siu Tin (the deceased) was the worker employed by the contractor responsible for the streetlight cleaning work on the EWP.

4.  The fatal accident occurred shortly after 11 pm on 10 February 2019.  At the time the defendant and the deceased were cleaning the streetlights along an unnamed road in Nam Wa Po, Tai Po, New Territories.  According to the defendant, it was the second day the two worked together for this streetlight cleaning operation.  The streetlights were mounted on lampposts which were 8 meters in height.

5.  After completing the cleaning of the streetlight at Lamppost GE8056, with the deceased remained on the EWP which was still in a raised position, the defendant drove towards the next lamppost, GE8055, which was 38.6 meters away.  After having travelled for 26 meters, the EWP hit against 3 overhead cables which were hanging across the road at about 6.4 meters above ground.  As a result, the EWP was deformed and the deceased received fatal head and neck injuries.  He was sent to hospital and was certified dead at 1:04 am.

6.  At the time of the accident, although it was night time, the road was lit with streetlights.  The weather was fine and the road surface dry and in good condition.  The unnamed road was adjacent to a low-rising residential area.

7.  Both the Transport Department and Cheong Wan had issued Guidance Notes to drivers of special purpose vehicles like UM8803 which included guidelines, inter alia, that the driver should assess the surrounding circumstances, must lower the EWP to its cradle (lowest) position with no worker(s) on it before the vehicle should be driven.

8.  In the circumstances of this case, it is clear that had the defendant made proper assessment of the surrounding circumstances, or the EWP been lowered to its cradle position, the platform would not have hit the overhead cables and the accident could have been avoided.  Had the deceased been alighted from the EWP before the vehicle was driven forward, he would not have received the injuries which took away his life.

Background of the defendant

9.  The defendant is 36 years old, born in HK on 31 January 1984.  He is married with 2 children, aged 7 and 6 respectively.  He was a special purpose vehicle driver with a monthly salary of HK$17,000.  He received secondary level education.  He has 1 previous criminal record of Shoplifting back in 2005, and was given a small fine.  He was first issued with a driving licence in November 2007.  He has 7 fixed penalty tickets with no traffic conviction record.

10.  The background report provided a very positive picture of the defendant. He is a responsible father and the sole bread-winner of his otherwise happy family. 5 mitigation letters by friends and organizations, including 1 by his wife, all written in Chinese, were submitted for my consideration.  They all echoed the background report, describing the defendant as a hard-working, law-abiding person with a strong sense of responsibility, in particular to his family.

Mitigation

11.  Mr Boyton for the defendant submitted that this is a unique case involving a special purpose vehicle.  The principles in R v Cooksley & Others [2003] 3 All ER 40 does not apply.  There was no breach of any traffic regulations, and asked the Court to be as lenient as possible to the defendant.

Sentence

12.  It is always difficult for the Court in assessing the appropriate sentence in this kind of cases.  The CA has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon.  A driver should always be careful when he drives so as to avoid killing innocent citizens (see HKSAR v Lei Tin Seng [2011] 1 HKLRD 341, 345 paragraph 17).  For offences of dangerous driving causing death a deterrent sentence is called for because of the grave consequences flowing from the offence.  The culpability of the defendant is the dominant factor in the sentencing exercise (SJ v Liu Kwok Chun [2011] 1 HKC 70, 80 paragraph 35).  However, the Court must not overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment (Lei Tin Seng supra p 346 paragraph 22).

13.  In SJ v Poon Wing Kay [2007] 1 HKLRD 660, the CA adopted the approach discussed in Cooksley supra in respect of the sentence for this type of offence.  I see no reason why the principles discussed in these cases should not be applicable to the present case.

14.  The manner in which the defendant had driven UM8803, with the deceased on the EWP which was raised to over 6.4 meters above ground level, at night in the vicinity of a low-rising residential area in the New Territories, was obviously dangerous to any driver.  The reason why a driver was required to obtain special permission with a code 21 endorsement before he was qualified to drive such special purpose vehicle was exactly to avoid accidents like the one in this case.  The defendant was in blatant disregard of the guidelines given to him when he became qualified to drive UM8803.

15.  The defendant told the police officers at the scene that he received a signal from the deceased to drive forward before he did so.  The speed of the vehicle was very slow at the time of the accident.

16.  From what the defendant told the police, and the CCTV footage of a nearby household which captured the movement of UM8803 during the material times, it is clear that the manner in which the defendant had driven UM8803 leading to the accident was not a momentary error of judgment.  It was the norm when the vehicle was engaged in the streetlight cleaning work, at least along that stretch of the unnamed road.  It is obvious that the reason behind such a dangerous driving manner was for the sake of convenience, to save time to complete the streetlight cleaning work at hand.  It is most likely that the deceased was also complicit in the defendant’s dangerous driving manner.  Unfortunately, that had cost the life of the deceased.  I consider the culpability of the defendant to be at the lower end of the intermediate culpability category as described in Cooksley.

17.  In Liu Kwok Chun supra, the appellant was convicted after trial of, inter alia, a charge of dangerous driving causing death.  The learned trial Judge reduced the starting point of 2 years by 4 months because of his previous good character.  The CA stated that as the appellant showed no remorse at all and did not plead guilty, it was wrong in principle to give him such further discount on account of his clear record.  This was recently re-affirmed by another division of the CA in SJ v Cheng Tsz Hin [2020] 1 HKLRD 1057, [2020] HKCA 45, (at 1078 paragraph 74).  However, in HKSAR v Chan Cheung Oi [2017] 2 HKLRD 458 (475 paragraph 47), yet another division of the CA reduced the sentence from 21 months to 18 months for the previous good driving record of the appellant.

18.  In Cheng Tsz Hin supra, the appellant suffered from post traumatic stress disorder (PTSD) through a sense of guilt.  The CA considered a 1 month discount from the 10 months sentence was appropriate (1079 paragraph 80).

19.  According to the probation officer’s report, the defendant is suffering from this mental problem after the accident and is currently undergoing medical assistance.  Given the circumstances as described in the report (paragraphs 9-10), I am prepared to accept that it was a result of genuine remorse as described by the CA in Cheng Tsz Hin.

20.  Having taken all relevant factors, both aggravating and mitigating, and submissions by counsel into consideration, I adopt 21 months as the starting point.  I reduce the sentence by 2 months for the PTSD and a further 1 month for his previous good traffic record.  There is no other factor warranting further discount.  The defendant is sentenced to 18 months’ imprisonment.

21.  Pursuant to section 39A(2)(a) of Cap 374, the defendant is disqualified from driving for 5 years.  The defendant must complete a driving improvement course at his own cost within 3 months prior to the end of the disqualification period.