DCCC 188/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 188 OF 2010

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REASONS FOR SENTENCE

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1.  The defendant stands convicted after trial of one charge of dangerous driving contrary to section 37(1)(a) of the Road Traffic Ordinance, Chapter 374 (charge 1). At the outset of the trial the defendant pleaded guilty to one charge of using a motor vehicle with a defective braking system, contrary to Regulation 17(1)(b)(ii) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Chapter 374A (charge 2) and one charge of using a motor vehicle after transfer of ownership when the new owner had not been registered, contrary to Regulation 17(6) and 60(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Chapter 374E (charge3).

2.  Full particulars of the dangerous driving are set out in my verdict delivered on the 14th October. Briefly at 10.24 a.m. on the 12th August last year, at a time when it was drizzling and the road surface was wet, PC 1902 (PW1) was on duty riding police motor cycle AM 7248 on the Kwun Tong Bypass when he saw a heavy goods vehicle JV 876 driven by the defendant. The defendant was driving the HGV to the land fill at Tseung Kwan O. The HGV was moving slowly and emitting black smoke causing PW1 to suspect the HGV was overweight.

3.  PW1 put on the police blue and red flashing lights and drove alongside the offside of the HGV indicating the HGV to follow him. PW1 then accelerated and after passing the HGV moved into the first lane in front of the HGV. When reaching near to the junction with the Wang Chiu Road slip road the HGV ran into the rear of the motor cycle. PW1 was trapped under the HGV. Eventually PW1 was freed and taken to hospital, where he underwent a number of operations, including amputation of his right leg.

4.  On examination the HGV was found to have a defective braking system, in that the efficiency of the service brake was only 38%, whereas the legal requirement is 50%. The service brake had been defective for at least five days, the motor vehicle examiner finding rust on the brake drum. Whilst the HGV could be stopped in the normal course of driving the defective brake meant that a longer stopping distance was required, a fact a responsible driver of heavy goods vehicles would have been aware. The driving of the HGV with such a defective braking system wasin itself dangerous driving.

5.  The HGV was also found to be 21.40% over the permitted gross weight. The defendant had earlier the same morning delivered a load to the Tseung Kwan O fill bank. The weight of the HGV, together with the load, weighed in at the fill bank just under the permitted gross weight of the vehicle. At the time of the accident the load of the HGV was just over 50% heavier than the earlier load thus resulting in the HGV exceeding the permitted gross weight.

6.  The driving of the HGV on a wet road surface without keeping a safe distance from the motor cycle in front, at a time when the HGV had a defective braking system and was overweight was also dangerous driving.

7.  The HGV also had a defective parking brake, in that the HGV could not hold a stationary position on a gradient of 1 in 6.25 without the assistance of stored energy (charge 2). The defective parking brake did not contribute to the accident. The defendant purchased the HGV in June last year but by the time of the accident had not registered his ownership with the Transport Department (charge 3).

8.  In R v Boswell [1984] 3 All ER 35 the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death. These factors were revised in R v Cooksley [2003] RTR 32. Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksley as applied in the Secretary for Justice v POON Wing-kay & another [2007] 1 HKLRD 660 emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.

9.  This principle has been repeated very recently in Secretary for Justice v LAU Sin-ting CAAR 3/2010 where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice (see paragraph 36 of the judgment).

10.  I note also that in POON Wing-kay the Court of Appeal pointed out that the sentencing guidelines for dangerous driving causing death in the United Kingdom cannot be used in Hong Kong not least because the maximum sentence in the United Kingdom was at the time 10 years rather than 5 years. In contrast perhaps somewhat surprisingly where death is not a consequence of the dangerous driving the maximum sentence is lower in the United Kingdom, namely 2 years rather than 3 years.

Aggravating features

11.  The aggravating features in this case are driving a HGV which had a defective braking system and at the same time was overweight. I accept this was not a prolonged, persistent and deliberate course of very bad driving. Driving a defective vehicle hoping no emergency arises however shows a gross degree of disregard for public safety. In R v PANG Kwok-poon [1985] HKLR 348, a case of death by dangerous driving, the court said this must be reflected in a substantial custodial sentence.

12.  Serious injury is also an aggravating feature to take into account. PW1 as earlier stated had his right leg amputated. In evidence PW1 stated that mentally speaking he was all right but he still feels great pain.

Mitigating features

13.  I have taken into account everything said on behalf of the defendant by Mr Woon. I have considered all the letters of support and the reports placed before me. In my view the most potent mitigation is the defendant’s good driving record. The defendant aged 62, has no criminal convictions and a completely clear driving record. He has been a driver for 38 years, 22 as a professional HGV driver and not a single traffic contravention. This is somewhat rare in the cases which come before the court, especially for a professional driver. I also note on two occasions the defendant in order to improve his driving skills has attended the Alert Defensive Driving Course run by the Hong Kong School of Motoring in the years 2000 and 2003.

14.  I do however note that said by the Court of Appeal in Secretary for Justice v LAM Siu-tong [2009] 5 HKLRD 601 that undue prominence should not be given to good character. That of course was said in a case of dangerous driving causing death where the maximum sentence is now 10 years imprisonment. As noted earlier the maximum sentence for dangerous driving is 3 years imprisonment.

15.  Whilst the defendant pleaded not guilty to dangerous driving I accept from the reports that he is deeply shocked by what happened. He is haunted by the scene of the victim lying in front of his vehicle as a result of which he could not feel at ease and peace (see paragraph 5 of the background report). All the reports detail that since the accident the defendant has suffered depression and post-traumatic stress disorder, for which he is being treated at the East Kowloon Psychiatric Centre.

Sentence

16.  As has been recognised by the courts sentencing decisions in these cases are by their nature difficult. The court is not dealing with criminals, but normally law-abiding drivers, who apart from their involvement in the offence, can be individuals who would not otherwise dream of committing a crime (see paragraph 34 of the judgment in Secretary for Justice v LAU Sin-ting).

17.  The court in R v Gray [2008] 2 Cr. App. R (S) 72 acknowledged the difficult balance that had to be struck between the consequences on the one hand, and the culpability and mitigation on the other. In Gray the defendant aged 18, pleaded guilty to dangerous driving when he straddled the white line in the middle of the road as he went round a bend, partly in the wrong lane. Remaining on the opposite carriageway for about 100 yards after the bend the defendant collided with a motor cycle resulting in the motor cyclist being severely injured, including one leg amputated and indefinite pain and arthritis in his other leg. The motor cyclist was wheelchair bound and in need of constant care by his wife.

18.  On appeal the court reduced the sentence in Gray from 13 months to 8 months. I have also considered the cases referred to in Gray, namely R v Stokes [1998] 1 Cr. App. R (S) 282 and R v Stevens [2003] EWCA Crim. 2823 in which sentences of 8 months and 10 months were said to be appropriate. In the case of Stevens the victim also had one leg amputated.

19.  I am satisfied a deterrent sentence is required not only to deter the defendant but other drivers like minded to drive poorly maintained and dangerously loaded vehicles, in particular where there are defective brakes. I am satisfied a community service order is not appropriate.

20.  I am satisfied for the dangerous driving the proper starting point after trial is one of 12 months imprisonment. By reason of the defendant’s excellent driving record, his voluntary work for the elderly in the Choi Wan community where he lives together with shock suffered as a result of the accident I reduce that sentence to 9 months imprisonment. I am satisfied there are no exceptional circumstances warranting suspension of the sentence.

21.  The defendant is also disqualified from driving all classes of vehicles for a period of 15 months. I am satisfied this period of disqualification will enable the defendant, if he chooses to do so, to resume his occupation as a driver within a reasonable time after he has served his sentence. The defendant is also ordered to attend and complete a driving improvement course, which he is to do at his own cost, withinthe period of 3 months ending on the date on which the disqualification expires.

22.  Taking into account charge two in no way contributed to the accident and giving the defendant full credit for his plea of guilty and clear record he is fined $2000 for using a vehicle with a defective parking brake. Again full credit for the plea of guilty the defendant is fined $500 for not registering the change of ownership of the HGV.