HKSAR v. CHAN CHUN FAI

DCCC 1042/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1042 OF 2011

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Reasons for Sentence

 

1.  The defendant pleaded guilty to one charge of causing death by dangerous driving and one charge of causing grievous bodily harm by dangerous driving, contrary to ss.36(1) and 36A(1) of the Road Traffic Ordinance, Cap.374 respectively.

Facts

2.  The defendant was the driver of a light goods vehicle that was travelling along Clear Water Bay Road. The vehicle was within the speed limit and there is no evidence at all that the speed was unreasonable in the circumstances.

3.  The defendant had been working since 10pm the night before, delivering newspapers and magazines. The defendant took a nap between 5 and 7:30am and then continued with his work.

4.  At around 09am, while the vehicle was along Clear Water Bay Road, the defendant fell asleep causing the car to veer left on to the pavement. Mr. Yeung and 3 other pedestrians were hit by the defendant’s vehicle. Mr. Yeung succumbed to his injuries and passed away while the other 3 suffered some injuries but was able to recover.

5.  The defendant was arrested and admitted that he had fallen asleep when his vehicle veered off the road. On that basis, the defendant was charged with the present 2 offences.

Previous convictions

6.  The defendant has no previous criminal convictions, but 2 minor traffic offences for speeding when he was fined $900 for each offence.

Mitigation

7.  The defendant is 27 years old and educated up to form 4 level in Hong Kong. He worked as a salesman between 2000 and January 2011. He started to work as a goods vehicle driver since 11^th January 2011. The defendant is single and lives with his father and elder brother in Tuen Mun.

8.  On the day in question, the defendant was working to deliver newspapers to the newsstands. His normal shift starts at 10pm and ends 12 hours later at 10am. The employer of the defendant had asked the defendant to work an extra four hours the day before. The defendant thus had worked until 2pm on 10^th March, gone off duty, and then was allowed to start his next shift slightly later at around midnight.

Cases

9.  Mr. Lok for the defendant referred to 2 cases. In HKSAR v Lei Tin Seng, CACC 271/2009, the Applicant was the driver of a good vehicle. Upon reaching the junction of San Fung Avenue and Tsun Fu Street and when the Applicant turned left into Tsun Fu Avenue, which was an one-way road, his goods vehicle suddenly turned sideways and rammed onto the pavement on the right of Tsun Fu Street. The goods vehicle driven by the Applicant first hit and damaged the iron railings at the pavement before it hit four pedestrians, one of them eventually died.

10.  Although there was no direct evidence as to the speed of the goods vehicle at the time, the Court found that from the circumstantial evidence, the only inference was that it was going at an “extremely high” speed.

11.  The Applicant was charged and was found guilty of causing death by dangerous driving. The learned trial judge adopted a starting point of 4 years’ imprisonment, reducing it by 6 months in view of the Applicant’s clear record and sentenced him to a total of 3 years 6 months’ imprisonment.

12.  On appeal, the Court of Appeal reduced this sentence to that of 2 years’ imprisonment, saying that this sentence “is sufficient to reflect his [the Applicant’s] culpability in this incident and is an adequate deterrent against similar acts of dangerous driving.”

13.  Mr. Lok for the defendant referred specifically to paragraph 23 of Lei and pointed out that none of the scenarios of dangerous driving mentioned by the Court there are present in our case:

“23. It goes without saying that for the sake of protecting the safety of the general public, any deliberate, prolonged acts of extremely dangerous driving that pose definitely foreseeable risks to other road users should be subject to severe sentences if anyone is killed in the accident. Such extremely dangerous acts of driving include drink driving, high-speed car racing on highways, speeding at a speed far above the limit over a prolonged period of time and contravention of traffic signs, jumping red lights at road junctions controlled by traffic lights and certain dangerous acts of cutting lanes at high speeds. The reason is that a normal driver can definitely foresee that it is very likely that such dangerous acts of driving will cause extremely great harm to other road users.”

14.  Mr. Lok then referred to the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 merely to support his submission that the sentences in both charge 1 and 2 in our present case should be made concurrent. The facts in Poon bear little similarity to our case and the proposition Mr. Lok seek to support is not disputed by Mr. Kwok for the prosecution, therefore I do not find it necessary to deal with the facts in Poon here.

15.  Mr. Kwok for the prosecution referred me to the case of Secretary for Justice v Tsang Ho Pong [2009] 6 HKC 389, CAAR 6/2009. The Respondent in that case was the driver of a medium goods vehicle. He was driving along the section of the highway just opposite Olympian City I in West Kowloon. His vehicle was well within the speed limit. What happened was that, for just 2 seconds, the defendant closed his eyes while at the wheel, causing his vehicle to hit the motorcycle that was in front as well as hitting the back of another truck in front. The motorcyclist died from his injuries sustained in the subsequent crash.

16.  The Respondent has about 15 previous convictions for offences including that of driving while disqualified, driving a motor vehicle without insurance, failing to comply with traffic signals or signs, speeding, careless driving, driving without using a seat belt, using a mobile phone while driving and failing to display a valid licence.

17.  The learned trial judge adopted a starting point of 15 months’ imprisonment, granting the full one third discount and then giving a further discount in view of the injuries suffered by the Respondent, resulting in a sentence of 8 months’ imprisonment.

18.  The Court of Appeal ruled that given the circumstances of the case and the Respondent’s appalling record, a more appropriate starting point was 2 years’ imprisonment.

19.  Mr. Kwok very fairly agreed that given the circumstances of our present case and in view of the sentences imposed in both Lei and Tsang, it is unlikely that this court can impose a higher starting point that those found appropriate by the Court of Appeal.

Sentence

20.  I find the case of Lei Tin Seng and Tsang Ho Pong of great assistance in our present case. I find that the facts of Tsang Ho Pong are more similar to our present case in that the Respondent had ‘closed his eyes’ at the time of the incident, resulting in the collisions.

21.  In our present case, the defendant had been asked to work an extra shift, it was not the case that he had been out partying all night and then driving home without regard to the safety of other people. It can be seen that the vehicle involved in the incident was in fact his work vehicle. Furthermore, I was told that the defendant had lost his job since this incident.

22.  The defendant was of clear record, he has only minor traffic offences. He had pleaded guilty at the earliest opportunity.

23.  Of course, to continue to drive knowing that one is sleepy is very irresponsible behaviour and as such needs to be punished.

24.  Bearing in mind the above mentioned cases and the circumstances of the case, I find that in relation to charge 1 an appropriate starting point is that of 21 months’ imprisonment. I have adopted a lower starting point because the defendant in our present case has a much better traffic record. I grant the defendant the full one third discount and sentence him to 14 months’ imprisonment.

25.  In relation to charge 2, I adopt a starting point also of 21 months imprisonment bearing in mind the number of injured person and their injuries. I grant the defendant the full one third discount and sentence him to 14 months imprisonment.

Totality

26.  I order that the sentences to be served concurrently. The defendant is therefore sentenced to a total of 14 months’ imprisonment.

Disqualification

27.  Pursuant to s.36 and s.36A, I order that the defendant be disqualified from driving for a period of 2 years in each charge.

28.  I order that the period of disqualification for both charges to be served concurrently.

29.  There was an application on Mr. Lok’s part for this court to certify that this case is of such length and complexity as to warrant Mr. Lok’s fees to be adjusted according to the relevant provisions. I refused his application on the ground that his case is neither lengthy nor complex.