HKSAR v. LUN YU HOI

DCCC 240/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 240 OF 2017

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REASONS FOR SENTENCE

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Introduction

1.  This case involves a fatal accident. The defendant, a taxi driver, admitted driving a taxi dangerously which occasioned the death of 3 road workers.

2.  The defendant, a 55-year-old man, pleaded guilty before me to one count of causing death by dangerous driving contrary to section 36(1) of the Road Traffic Ordinance.

Facts

3.  In the small hours (4:25a.m.) of 28 June 2016, the defendant was driving an empty taxi along the Tsing Kwai highway towards Kowloon. The section of the highway where the accident occurred is a 4-lane straight stretch of road and the speed limit is 80 Kmh. The road surface was slightly wet because of the rain earlier on.

4.  There was certain road work going on in the 2nd lane, a multi-sequence signaller stopped on the same lane with light signals from a gantry giving warnings to incoming cars. At the time of the accident, the road work was just finished and the workers were packing up to leave; they were loading traffic cones onto the signaller.

5.  A truck was following behind the defendant’s taxi and there were no other vehicles in the vicinity. The truck driver, Mr Mak, had witnessed the whole accident. The taxi was travelling along the 3rd lane, when it came near the stationary signaller which was on the 2nd lane; all of a sudden, the taxi swerved to the left hitting the 3 workers, sending at least two of them flying, and then the taxi bounced off to the other direction hitting the central divider, and came to a halt about 80 metres in front.

6.  One worker died instantly, another later in the hospital and the third 2 days later. At least one worker was found lying on the 3rd lane about 30 metres away from the point of impact. Both vehicles were damaged but the taxi’s damage was a lot more serious.

7.  CCTV at the scene captured the defendant walking to the hard shoulder in a suspicious manner after the accident; later police went to the same spot to have a look and discovered the flu medications dumped by the defendant – they were medicine bags bearing the name of the defendant with drugs in it.

8.  It turned out that the defendant had visited a doctor, Dr Mak, with a flu complaint the day before and was given some medicine for treatment. Among the medications, there are two types of pill which could cause drowsiness - they are Dimetapp and Celestamine. In fact, the defendant’s blood was sent for examination after the accident and was found to contain the ingredients of the two above-mentioned drugs.

9.  Dr Mak confirmed the defendant’s consultation. Knowing the defendant a taxi driver by profession, the doctor reminded him of the drowsy effect of the medicine he prescribed for him, and so did the clinic assistant. The defendant was specifically told not to drive or operate any machines after taking the medications.

Mitigation

10.  The defendant has no prior criminal convictions, and as far as his traffic record is concerned, he has 3 careless driving (one in 2014, 2 in 2016) and quite a number of minor speeding offences. He got a 3-month driving ban in March 2017 under the Driving Offence Points Ordinance.

11.  The defendant is a married man with a 19-year-old son who is going to university this September. He first obtained his driving licence in 1986 and has been a taxi driver for over 10 years. Counsel for the defendant has submitted several letters written by the defendant’s relatives and friends pleading leniency on his behalf, they all speak highly of the defendant and describe him as a kind and hard-working person.

12.  In his letter to court, the defendant expressed great remorse and apologised to the victims’ family members. He told the court that he too sustained injuries in the accident - part of his spine dislodged - as a result he could not work again at all.

13.  Being jobless, plus the incessant pain from the injuries, and the sensation of numbness, all this makes his life miserable. Fortunately, defendant said, he could draw comfort from his family, friends and relatives.

14.  Counsel for the defendant has taken the court through the leading case “Cooksley”, in particular the aggravating factors mentioned therein, and submits that the instant case probably falls into the intermediate culpability category and that would attract a starting point of 2 to 3 years.

Reasons

15.  Sentencing in this type of cases has never been easy. More often than not the court is facing good-natured defendants with impeccable background. Most of them are not hard-core criminals as such, but a moment’s mistake on their part always leads to dire consequences.

16.  Driving a car is dangerous business, if you fail to drive properly, it may easily maim or even kill other road users. The instant case is a case in point. Even though the legislature doubled the maximum penalty for this type of offence from one of 5 years’ imprisonment to 10 years in 2008, the number of car accidents including fatal ones did not seem to have dwindled much. We still hear news of car accidents, some with serious casualties, almost day in day out.

17.  Defendant described how miserable his life has become after the accident, I have no doubt about that, but what about the victims’ families? Were their lives not ruined by the defendant? These men were very likely the main bread winner of their individual family; now with them gone, the surviving family members are left to their own devices.

18.  The defendant was utterly irresponsible when he acted against the advice of his doctor not to drive after taking the medications with full knowledge of the possible effect of the drugs. The court heard that he started the night shift from 5:30p.m. working through the night until 5:30a.m. the following morning. The accident occurred at around 4:25a.m., only about an hour shy of the end of his shift. Without considering the drug issue for the moment and even allowing some rest by the defendant during the night, he should have been tired by then, to say the least.

19.  The drugs found in his blood would have the effect of causing drowsiness (it’s described in the facts – “could cause slight drowsiness”, but we all have experience what it’s like after taking those flu medications with drowsy effect – it would make you feel tired), when taking this into account and the fact that he had been driving for long hours, it is not too difficult to work out the cause of the accident.

20.  The truck driver, who was directly behind the defendant, described vividly how the accident happened. The taxi was travelling on the 3rd lane while the stationary vehicle on the 2nd lane, in the normal course of event, a collision between the two vehicles could hardly occur in a situation like this unless the taxi driver dozed off the moment just prior to the impact. What we have seen is a sudden swerve to the left by the taxi, and in the circumstances the only explanation for this is the defendant dozed off at the time, and suddenly moved the steering wheel to the left, but by the time he realized it, it was too late – collision already occurred. I have no doubt in my mind this was what happened. And I call this drowsy driving.

21.  It is not clear how fast the taxi was travelling at the time, but judging from what had happened after the impact, such as the serious damage of the taxi, some of the victims being thrown far away and the taxi’s final stopping spot, it all showed that the force of the impact must have been very strong indeed, so the taxi’s speed at the time couldn’t have been slow.  

22.  In Tsang Ho Pong CAAR 6/2009, the cause of the collision was the defendant driver closing his eyes for 2 seconds while driving a medium goods vehicle on a highway. According to the defendant, he felt sleepy and therefore closed his eyes. By the time he opened his eyes, his vehicle had collided with the back of a motorcycle, and then rammed into the back of a container truck, killing the motorcyclist instantly.

23.  The defendant was originally given an 8-month prison term for a guilty plea; not being satisfied with it, the Attorney General took the case to the Appellate Court for a review of the sentence. The trial judge adopted a starting point of 15 months, reducing this by one-third for the plea of guilty, and giving a further reduction of 2 months for the injuries the defendant suffered in the accident and the remorse shown by him.

24.  In allowing the A-G’s application, the Appellate Court was of the        opinion that for a case like this, a more appropriate starting point ought to have been 24 months. Their Lordships also made a point of disallowing any discount for the injuries suffered by the defendant driver in the accident, nor could his remorse entitle him to a further reduction than the usual one-third discount for the plea of guilty. Since this was a review by the A-G, the Appellate Court finally passed a 12-month term on the defendant instead.

25.  In arriving at their decision, the Appellate Court have the following considerations in mind:

(1)	The increase in penalty for the offence of dangerous driving causing death (from 5 to 10 years’ imprisonment);
(2)	The overall culpability of the respondent. While we agree with Mr Kwan that the facts of the present case fall within the lower categories of seriousness of this offence, it was nevertheless still dangerous driving. We do not accept the submission that the standard of driving displayed only “marginally” fell below the requisite standard and that it was only “marginally” caught by the definition of the offence. Closing one’s eyes through drowsiness or sleeping (there really is no difference) poses an extreme danger when driving a motor vehicle, even to the point of being reckless. That said, we do not agree with the way Mr David Leung (who represents the applicant) classified in this incident, namely, as one involving a “selfish disregard for the safety of other road users”.
(3)	The deterrence element in sentencing for an offence such as the present. In Poon Wing Kay, the court said this:- “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 when sentencing in many cases involving dangerous driving. 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 can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

26.  Turning now to the instant case, the defendant clearly wasn’t focusing his attention on the road at the time of the accident through drowsiness or sleeping. Borrowing the words of their lordships – “that poses an extreme danger when driving a motor vehicle even to the point of being reckless.” But it’s different in our case because the defendant deliberately ignored the warning from his doctor not to drive after taking the medications. Obviously, he had his own interest in mind, and because of his selfishness, 3 innocent lives lost.

27.  In Hung Ling Kwok CAAR 7/2009, the Appellate Court in commenting the serious casualties of a car accident said this:-

“……The fact that a large number of people were killed or injured certainly is a relevant factor in the consideration of the appropriate sentence, and will be reflected in the sentence. However, as pointed out in Cooksley, a sentence should not be multiplied according to the number of persons who were killed or injured. In the final analysis, the defendant’s culpability should be the basis of the sentencing exercise and on this basis an appropriate sentence is to be determined. This is particularly so in cases where there is no evidence which shows that the defendant intended to injure any road users or passengers……”

28.  Given the facts of the instant case and for the reasons given above, I’d take 3 ½ years as starting point and as far as mitigation is concerned, there isn’t any substantial mitigation apart from his guilty plea. After deducting one-third for plea of guilty, the starting point is reduced to 28 months’. There being no reason for further reduction in sentence, the defendant is therefore sentenced to 28 months’ imprisonment.

29.  The law provides that for a first offender, in the absence of special reasons the offender should be disqualified from driving for a period of not less than 5 years. Counsel for the defendant indicated to the court that they had nothing to argue against the making of a driving ban on special reasons, so I order that the defendant be disqualified from driving all classes of vehicle for a period of 5 years. As he has no prior conviction of any relevant offences (those offences carrying 10 points), so his disqualification starts to run from today.

30.  Counsel also provided no special reasons for not attending the “Driving Improvement course” as required by the law, I therefore order the defendant to attend such a course at his own costs within the last 3 months prior to the expiry of the disqualification order.