HKSAR v. CHAN CHI PING

DCCC 415/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 415 OF 2014

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Reasons for Sentence

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1.  The defendant pleads guilty to one count of causing death by dangerous driving.

2.  The fatal accident occurred shortly after 8 pm on 2 November 2013 near Chainage 13.1E of the Kowloon-bound side of Kwai Chung Road.  That section of the road was a straight dual carriageway of three lanes.  The speed limit of the road was 70 kilometres per hour. At that time, No 1 typhoon signal was on, but the road was dry.  It was lit by street lights.  The collision occurred on the fast lane.  The prosecutor in court draws a circled cross on Exhibit A to indicate the collision spot. Exhibit B is a bunch of photos.  Photos 1 to 48 depict the scene after the accident.  Photos 49 to 63 were taken afterwards in daylight.

3.  The deceased was one Madam Lee, aged 35.  For unknown reasons she had stopped her wagon, V1, on that fast lane, and she stood next to it.  V1 was the only stationary vehicle on the road at that time.  Its rear lights had already been turned on.

4.  The defendant’s taxi, JV-5613, “the taxi”, was the next vehicle on the fast lane.  It was coming at a high speed.  There were two passengers sitting at the back.  Mr Ng was sitting on the left side, while his aged father was sitting on the right.

5.  When the taxi was about 80 metres behind V1, Mr Ng noticed V1.  Mr Ng estimated that the taxi was travelling at about 80 kilometres per hour.  The taxi however did not slow down. When it was only about 30 to 40 kilometres behind V1, Mr Ng, between 20:05:47 to 48 hour, shouted out six times “睇車” which means “Watch out for the car”.  The defendant, however, still failed to react.  At that juncture, Mr Ng could see somebody present next to the right rear of V1.  No doubt that person must be Madam Lee.  As the defendant failed to take any avoidance action, the taxi quickly rammed into the rear of V1 at 20:05:50 hour.

6.  Photos 1 to 48 of Exhibit B show the crash scene.  The taxi stopped across the fast lane and the middle lane.  V1 was overturned and remained in the fast lane.

7.  The two taxi passengers were slightly injured. Madam Lee lay on the road at about 3 metres from the right rear of the taxi. She was taken to the hospital and admitted to ICU.  Two days later, she died of traumatic head injuries suffered during the accident.

8.  At the scene, the defendant told police that he was travelling on the fast lane at 70 to 80 kilometres per hour.  He did not notice that V1 was stationary, nor did he notice the presence of Madam Lee. The defendant said he could not apply his brakes in time, and his taxi rammed into V1.

9.  The taxi had been fixed with a camera, which captured the movement of the taxi.  The footage in Exhibit E from 20:00:30 to 20:05:51 hour was played in court.  A few still photographs are made out of the footage and comprise Exhibit C, photo 1 to 8.

10.  In those slightly over five minutes of footage in Exhibit E, the defendant can be seen driving fast from 20:04:20 and more so after 20:05:26, when his taxi went onto Kwai Chung Road.

11.  At 20:05:41, the taxi came onto the fast lane of that straight stretch of Kwai Chung Road in question.  There was no vehicle or obstacle on that lane except V1, which had already had its rear lights turned on.  The traffic around was normal and not busy.  There was nothing on the road that should cause distraction to a driver there.

12.  Defence counsel submits that the upper lights of V1 were not visible in the footage until 20:05:45 hours.  I disagree.  As can be seen in the footage in Exhibit E, they were visible as early 20:05:41 hour. Photo 2 of Exhibit C clearly reveals such rear lights.  The time of that photo was 20:05:43 hour.  I would say it is reasonable to expect a prudent and competent driver to be able to see such lights in that circumstance within one or two seconds after he came onto such a straight road.  One should also bear in mind that photo 2 of Exhibit C was only of 4R size.  In reality, the driver could see larger and more distinctive images of things around.  It is beyond dispute that a normal person’s eyes are more perceptive and efficient than a vehicle camera.  The defendant’s own optometrist says the defendant has some abnormal rod cell and cone cell functions, but not to the extent as to cause poor vision.  The optometrist opines that the defendant’s vision is good.  Defence counsel also confirms that he is not seeking to say the defendant had poor vision which contributed to the accident.

13.  There was no vehicle or obstacle on the fast lane between V1 and the defendant’s taxi at the material time.  If the defendant was looking to the front, there was no reason why he could not notice the more prominent upper rear lights of V1 within one or two seconds after he began to encroach on that straight stretch of the road since 20:05:41 hour. Counsel says the defendant should not be expected to notice the upper lights earlier than 20:05:45 hour.  There is no basis for saying that.  V1 was stationary.  Its rear lights would be more apparent as the taxi was closing in from behind if the defendant was paying attention to the front at all. Apparently he was not.

14.  At 20:05:47 hour, the less prominent lower rear lights of V1 were also visible in the footage.  See Exhibit E and photograph 4 of Exhibit C.  Again, the defendant did not notice that.  He still failed to take action to avoid V1, which was so close in front.

15.  Between 20:05:47 to 48 hour, the taxi passenger at the back seat, Mr Ng, shouted out “睇車” which means “Watch out for the car” loudly and rapidly for six times.  It can be seen in the footage in Exhibit E that even so, the defendant did not brake or swerve immediately but just moved on.  He only swerved his taxi a bit to the left when it really almost reached V1.  Inevitably, the taxi rammed into V1 at 20:05:50 hour.

16.  The Government Forensic Scientist, Dr Wong, attended the scene.  He found, among other things, that:

(a) There were skid marks attributed to the taxi which showed the taxi veered towards the main lane from the right lane and stopped;

(b) the right front of the taxi was significantly dented. Its windscreen was cracked; and

(c) the most severe damage on V1 was at the left rear corner.

17.  Dr Wong calculates the taxi’s speed to be between 93 to 99 kilometres per hour when it was approaching the accident spot and leading up to the moment of collision.

18.  In his report, Exhibit D, Dr Wong defines the point where Mr Ng shouted out to the defendant as point C.  There are other defined points in his report, ie, points A, B, D and E.  (See paragraph 9 of the report.)  The distance between point A and point B was 436 metres; point B to point D, 190 metres; point C to the point of collision – ie, point E - 64 metres.  (See paragraph 11 of the report.)  Dr Wong calculates the speed of the taxi as follows:

point A to point B, 93 kilometres per hour;

point B to point D, 99 kilometres per hour.

(See paragraph 13 of the report.) In paragraph 15 of the report, Dr Wong gives his calculated speed of 99 kilometres per hour a deviation of plus or minus 10 kilometres per hour.

19.  Dr Wong opines that if the taxi only travelled at the top of the road speed limit of 70 kilometres per hour and the defendant reacted normally when Mr Ng shouted out at point C, the taxi would only require a total stopping distance of 45 metres.  As such, the taxi would stop about 19 metres behind V1 and thus avoid colliding. However, if the taxi travelled at 99 kilometres per hour, the total stopping distance required from point C would be as much as 80 metres.  (See appendix of the report.)

20.  As Dr Wong has given his speed calculation a deviation of plus or minus 10 kilometres per hour, to give the defendant the benefit of the doubt I adopt the lower figure as his speed when his taxi approached from point B to point D, ie 89 kilometres per hour.  Adopting Dr Wong’s formula stated in the appendix of his report, such speed of 89 kilometres per hour would require a total stopping distance of 66-odd metres.  That would still be greater than the distance between point C and point E of 64 metres.  Thus it is clear that the defendant’s speeding and his failure to take avoiding action before point C were responsible for the collision.

21.  The defendant is aged 55 now.  He has no previous criminal record.  He has held his driving licence since 1980.  He had one careless driving conviction in July 2011.  Between 2012 and 2013 he had three fixed penalties: two for failing to comply with traffic signs and one for speeding by 15 kilometres per hour or less.

22.  Counsel says the defendant left school after Form 2, when his family could not support him any more.  Since then, the defendant had taken on different jobs.  He attended night school to complete Form 5 education at the age of 26.  The next year he got married.  The couple now have one son aged 20.

23.  Counsel says the defendant is a good husband and father.  He works hard for the family.  He had been a professional driver for many years, first driving a van, and later driving a taxi.  He had become a full-time taxi driver since 2009 until the accident.  After the accident he drove no more.  Counsel says the defendant might not ever drive again.  He now works as a courier, earning only $3,000 to $4,000 per month.  Due to the loss of income, the wife now has to take up part‑time employment to support the family as well. 

24.  Counsel says the defendant has been a law-abiding citizen throughout his life.  He is also a civic-minded person and has been involved in community service for some years.

25.  There are 11 letters written by the defendant’s wife, son, relatives and friends.  All speak of him as a good and responsible person.  They describe the defendant’s remorse and suffering after the accident.  All beg mercy for him.

26.  Counsel produces an optometrist’s report, Exhibit F.  The defendant went for eye examination in July this year.  The optometrist says the defendant has some rod cell and cone cell malfunction, but he said that the defendant’s vision is still good.  Counsel wants to establish that the defendant has not had perfect eyesight, but counsel makes it clear that he does not seek to say the defendant had impaired eyesight that might affect his perception while driving.

27.  Counsel cites one old case, Pang Kwok Poon CACC 23/1985, where the English case of Guilfoyle was mentioned - 57 Cr App R 549.  There, the English Court of Appeal suggested that dangerous driving causing death could be broadly categorised on one end as momentary inattention or misjudgement, and on the other end as selfish or reckless disregard for the safety of other road users or passengers.”

28.  Counsel admits that the defendant was driving fast at times on the night in question, but it was not too fast.  Counsel also says the defendant was inattentive to the front on the road for a matter of a few seconds only since as late as 20:05:45 hour.  He says the defendant might be distracted by something to his left.

29.  Counsel says he would not go so far as to blame Madam Lee for stopping V1 on the fast lane and standing next to the vehicle. Nevertheless, he refers to the Transport Department guidelines, Exhibit G, on what a driver should do when his or her vehicle breaks down on the road. Counsel says if Madam Lee stood at a safe spot or remained in her vehicle, her life might be spared, even though the vehicles would still collide with each other.  Counsel says the case was an unfortunate incident rather than a true crime.  He emphasises that the defendant never intended to bring harm to anyone.

30.  Counsel submits on the case of Cooksley [2003] 3 All ER 40, which case lists out a number of mitigation and aggravating factors in dangerous driving causing death cases.  Counsel says in the present case there are mitigating factors in the defendant’s favour, ie good driving record, absence of criminal conviction, timely plea and genuine remorse.  On the other hand, there are no truly aggravating factors.  Counsel says though the defendant was speeding that night, he was not travelling at a greatly excessive speed.  The defendant had been driving fast at times, but it cannot be said to be a prolonged, persistent and deliberate course of very bad driving.  Counsel says the present case should be regarded as one of the defendant’s momentary inattention and misjudged speeding.  The defendant’s culpability is therefore of the low type according to the Cooksley categorisation, or at most, only on the lower end of the intermediate category.

31.  As to disqualification, counsel makes no particular submission.  He says the defendant might not drive any more.

32.  The prosecutor makes no particular submission on the law relating to sentencing.

33.  In the present case, the defendant committed a double fault:

(a) he did not pay attention to the traffic in front;

(b) he was speeding.

Of these two faults, the defendant’s inattention was the factor more responsible for the collision. He failed to heed the presence of V1, which was stationary on the fast lane with prominent rear lights switched on. It was night-time but the road was well lit by street lights. The road was a very straight stretch. There was no excuse why the defendant could not notice V1 ahead with the lapse of time. Even if defence counsel were right to say that the rear lights of V1 were too tiny to notice from a distance in the first instance, such lights would surely catch the eye of an attentive driver coming up on that lane. The driver should be aware that the separation distance between the two vehicles was constantly decreasing. Yet the defendant failed to notice the rear lights of V1 and that the separation distance was ever shortening. He even failed to take remedial action when his passenger, Mr Ng, alerted him repeatedly as late as between 20:05:47 to 48 hour. Why that was so, only the defendant knew.

34.  Counsel says the defendant might be distracted by something on the road to his left, but the footage in Exhibit E shows nothing of that kind.  The traffic on the road was all normal except for V1 remaining stationary on the fast lane.

35.  Counsel also submits that the defendant’s inattention was only for a few seconds, at most three seconds counting from as late as 08:05:45 hour.  He talks about the looming effect and relies on the two reports prepared by Dr Terence Lee, Exhibit H1 and H2.  Basically, Dr Lee says it would take time for a driver to realise the object in front of his approaching vehicle was stationary, and it would be more difficult to make such perception at night-time.  When the driver became so aware, he might just have less than three or four seconds to take action to avoid colliding into the front vehicle.  Dr Lee opines in his first report that in the present case, the defendant only had a slim probability to attain successful perception of V1 and thereby apply the brakes effectively.  In his second report Dr Lee states that the collision was difficult to avoid in the circumstances.

36.  The Government Forensic Scientist, Dr Wong, for prosecution, however, disagrees.  He says in his report, Exhibit I, that the rear lights of V1 would be fairly visible in the dark.  Had the defendant braked earlier or swerved to the left on time, the collision could have been avoided.

37.  The looming effect refers to the situation that a driver would only realise an object in front was stationary if he came nearer and close enough to it.  How far was the distance left between the two vehicles or what time would be lapsed before the oncoming vehicle would collide onto the stationary object in front would depend on the speed of the oncoming vehicle, the size of the stationary object, and the perspective convenience of the circumstances.

38.  Defence counsel tries to argue that the defendant could not realise V1 was stationary as soon as he saw it.  I accept that the defendant could certainly not discern whether V1 was moving or stationary at first sight when he came onto that straight stretch of the road at 20:05:41 hour.  But as his taxi closed onto V1, the defendant should be aware of the ever‑decreasing distance if he had been looking to the traffic in front.  A prudent and competent driver would slow down or even brake his vehicle when that separation distance was ever decreasing.  It’s repugnant to common sense to say a driver need not take slowing down or braking action unless he realised the preceding vehicle was stationary.  It is not the motion of the preceding vehicle that created the sense of danger.  It is the ever-shortening distance that should make the defendant aware.  Unfortunately, he was not so aware until his taxi almost rammed into V1.

39.  The defendant came onto that straight stretch of the road at 20:05:41 hour.  The collision occurred at 20:05:50 hour.  The time span was nine seconds.  The taxi was at a high speed; V1 was stationary, so the distance between them was decreasing fast.  The defendant might be excused for not being aware of the ever-shortening distance during the first one or two seconds, but after that he could not be further excused.  Thus the lapse of his inexcusable inattention should be counted from around 20:05:43 hour to very shortly before 20:05:50 hour, say 20:05:49 hour.  That was about six seconds.  Remaining inattentive for such a period while travelling at the overspeed stated by Dr Wong was obviously a very dangerous act to take.  It is certainly well below the standard required of a prudent and competent driver.

40.  The defendant’s other fault was speeding. Dr Wong says the taxi’s speed was 99 plus or minus 10 kilometres per hour when it was travelling from point B to point D.  I give the defendant the benefit of the doubt and adopt the lower figure as his speed then.  It was still 89 kilometres per hour, ie 19 kilometres per hour over the speed limit of 70 kilometres per hour.  That amounted to a speeding by about 27 per cent.  It was significant speeding, though not highly excessive. It certainly contributed to the collision and the harm or damage resulting.  It is an aggravating factor in the case.

41.  Counsel agrees that when assessing the defendant’s driving manner, the court is entitled to take into consideration how the defendant drove shortly before the collision.

42.  In Exhibit E, we can see the defendant had been driving fast, particularly from 20:04:20 hour.  Between 20:05:20 and 20:05:26 hours, it moved quite close to the preceding vehicle.  Then it went out onto Kwai Chung Road and entered onto the fast lane.  It then travelled even faster.  The defendant’s taxi came onto that straight stretch of the road at 20:05:41 hour.  Nine seconds later, the collision occurred at 20:05:50 hour. I would regard the defendant’s driving on that night from 20:04:20 hour up to his colliding with V1 as a prolonged, persistent and deliberate course of bad or aggressive driving.  This is another aggravating factor in this case.

43.  When it comes to sentencing in cases involving dangerous driving causing death, the driver’s culpability is the dominant factor.  The English case of Cooksley divides culpability into four types:  lower, intermediate, higher and most serious.

44.  Counsel says the defendant’s culpability in this case was only of the lower type or at most on the lower end of the intermediate category.  I however regard the defendant’s culpability to be between the intermediate category and the higher category due to the presence of the aggravating factors mentioned above.  The original starting point should therefore be one of 3½ years’ imprisonment.  This bids well with the decision in Tsoi Leung Chit CACC 88/2012.  There, the appellant pleaded guilty to one count of dangerous driving causing death.  The Court of Appeal upheld the imprisonment term of 3 years

45.  The facts in Tsoi Leung Chit were quite similar to the present case.  In that case the appellant was driving a public light bus.  The deceased was a cyclist.  The accident spot was a dual carriageway with a speed limit of 70 kilometres per hour.  The deceased and 10 friends were cycling at about 50 kilometres per hour, with front and rear lights on. They were travelling in a straight line.  The appellant drove his PLB at around 96 to 118 kilometres per hour when closing in.  The passengers on the PLB had noticed the cyclists at some 100 metres behind the cyclists, but the PLB just moved on.  When the distance was reduced to about 30 metres, one passenger shouted out.  The appellant only braked then, but his PLB rammed into the deceased’s bicycle.  Forensic evidence showed that the accident could have been avoided if the PLB travelled within the speed limit of 70 kilometres per hour.  The appellant had two careless driving convictions, two records for failing to comply with traffic signals and one record for speeding and one for not taking all reasonable precautions to ensure safety of passengers.  The sentencing judge adopted a starting point of 4½ years.  He finally sentenced the appellant to 3 years’ imprisonment.  The Court of Appeal upheld the prison term but reduced the disqualification period from 10 years to 5 years.

46.  Defence counsel says each case must depend on its own facts when it comes to sentencing, and Tsoi Leung Chit is not a guideline case.  Counsel is right, but the facts of Tsoi Leung Chit were quite similar to the present case.  I agree with counsel that Tsoi had a higher culpability because he sped more in that case.  His traffic record was also a bit worse than the defendant’s in the present case.

47.  Counsel says the defendant is a man of previous good character, but the Court of Appeal in Lam Siu Tong CAAR 2/2009 says this factor counts for little.

48.  Counsel also submits that the defendant’s traffic record was good.  It is indeed not a bad record given that the defendant has been a professional driver for so many years, but again, this counts for little in sentencing in such case.

49.  The only mitigation factor is the defendant’s timely plea and genuine remorse.  I am sure the defendant’s weeping at some stage during counsel’s mitigation was not pretentious.  For his genuine remorse, I reduce the original starting point of 3½ years by 3 months to one of 3 years and 3 months.  I give him one‑third discount for his plea of guilty.  I thus sentence him to a prison term of 2 years and 2 months.

50.  I also disqualify the defendant from driving all types of vehicles for a period of 4 years starting from today.  According to the law, he is to attend a driving improvement course at his own cost and through his own arrangement within the last 3 months of the 4-year disqualification period.  Should he fail to do so, he will be further punished according to section 72A of Cap 374 of the Road Traffic Ordinance.