HKSAR v. LEE SO TAI

DCCC1204/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1204 OF 2011

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Reasons for Sentence

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The Charge

1.  The Defendant pleaded guilty before me to one charge of “dangerous driving causing death”, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374.

The Facts

2.  In the morning of 21 April 2011, the Defendant, a full time driver of a garbage collection truck, was driving the truck and was reversing it into the service road, a cul-de-sac, at Tsui Tsz House, Tsui Ping (North) Estate, Kwun Tong in order to collect the garbage from the rubbish trolleys at the far end of the road.

3.  After the Defendant had reversed the truck for about 60 meters, its offside rear hit an elderly woman, aged 88, and rolled over her. Soon after the accident, the ambulance officer arrived and provided resuscitation to the woman. However, there was no sign of survival and she was found dead.

4.  When the police arrived, the Defendant told the officer that after he had started reversing the truck, he saw the deceased walking slowly behind it. However, as there was a taxi at the nearside back of the road, he focused on the taxi and carried on reversing the truck until he felt that he had hit something. He then alighted from the truck and found the deceased lying under the rear offside of the vehicle.

5.  At the time of the accident, PW1 was sitting in the front passenger seat of the truck. He said that the Defendant, after reversing for some distance, had stopped for 1-2 seconds to check the rear mirrors on the two sides before he continued to reverse the truck for some more time. Then, the Defendant stopped the vehicle all of a sudden. At that juncture, it was discovered that the truck had rolled over the deceased.

6.  PW1 admitted that normally, he would alight from the truck to check for the Defendant if there were any pedestrians. However, on the day of the accident, he was suffering from a flu and the Defendant let him stay on board the truck while reversing it.

7.  The accident was also witnessed by PW2 who was a pedestrian walking along the pavement at the offside of the road. He saw the Defendant reversing the truck slowly towards the end of the road. At the time, he also saw the deceased walking slowly towards the end of the road at the offside rear of the truck. The deceased was holding a walking stick and an umbrella. PW2 heard the reversing warning sound from the rear of the truck. However, it appeared to him that the deceased was not aware of it. When the truck continued its reversing course, it hit the deceased and rolled over her.  

8.  At the time of the accident, a camera was installed at the back of the truck which could help the Defendant monitor the situation behind the truck when reversing it. Upon examination, the police found that the CCTV device at the driver compartment of the truck could provide a view covering an area of at least a distance of 4.5 metres from the back of the truck.

Mitigation

9.  The Defendant is now aged 47. He is married with one son. His wife is a housewife and his son is a Form 6 student. At the time of the accident, the Defendant was earning about HK$15,000 per month. He was the sole bread-winner of the family and he had been driving the truck for 3 years.

10.  The Defendant has a clear criminal record. In respect of driving convictions, the Defendant has, in February and April 2010, twice been found “driving in excess of speed limit by 15 km/h or less”.  On each of those occasions, he was ticketed and fined HK$320.

11.  Mr. Chan emphasized the Defendant’s good driving record, saying that for a man with 24 years’ driving experience, the absence of any driving convictions, save the two speeding tickets, was illustrative of the fact that he had been a careful and law-abiding driver in the past two decades. 

12.  In mitigation, Mr. Chan also stressed that the Defendant was driving at a low speed at the time. Moreover, the Defendant was not under any influence of drug or alcohol and there was the absence of aggravating factors. Mr. Chan submitted that the worst that could be said of the Defendant was that he was “over-confident in using the road in that manner”. Given that the Defendant is unlikely to re-offend, Mr. Chan asked, on behalf of the Defendant, for as lenient a sentence as possible. 

13.  In particular, Mr. Chan relied on the case of SJ v Fong Chai Man [2008] 3 HKLRD 493 in which a fatal accident causing two deaths took place while the driver was reversing a lorry. Upon review by the SJ, the Court of Appeal upheld a starting point of 12 months but ordered a disqualification of 4 years in view of the driver’s driving record.

14.  I should pause here to mention that not only are the facts of each case different and therefore the sentence in a given case should be viewed in its particular factual matrix, I also note that the case of Fong Chai Man was decided prior to the increase in the maximum term of imprisonment from 5 to 10 years for this offence.

Sentencing Considerations

15.  In sentencing, I have taken into account all the relevant facts of this case and all that was said on behalf of the Defendant.

16.  In SJ v Poon Wing Kai [2007] 1 HKLRD 660, the Court of Appeal expressed general agreement with the sentencing considerations detailed in R v Cooksley & Ors [2003] 3 All ER 40, and stated, inter alia, that :

“10(3) 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.”

17.  In SJ v Wong Wai Hung CAAR 7/2010, 21 December 2010, (unreported), the Court of Appeal, while acknowledging that the trial judge had noted the increase of the maximum imprisonment term from 5 years to 10 years with effect from 4 July 2008, observed that the judge had, however, failed to take sufficient account of the fact that the accident took place at a zebra-crossing. The Court stated that,

“21. In recent years, the courts have repeatedly emphasized the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving.

22. … Culpability is the determining factor.”

18.  In the present case, although it is true that aggravating factors like the consumption of drugs and alcohol; driving at greatly excessive speed; or driving while knowingly deprived of adequate sleep or rest mentioned in SJ v Liu Kwok Chun, CAAR 3/2009, 2 September 2010, (unreported), are absent, it remains a fact that the Defendant, while being fully aware of the presence of an elderly woman who was walking slowly at the back of his truck, nevertheless, still engaged in dangerous driving which eventually claimed the life of his victim.

19.  Clearly, the accident could have been avoided if the Defendant, at least after noticing the presence of the deceased, decided to seek the assistance of PW1 and asked PW1 to help him ensure that the path was clear. Moreover, on the facts admitted, it was obvious that the Defendant had not paid sufficient attention to the situation captured by the camera installed at the back of the truck. If he had, he would have noticed the deceased when she was still at some distance away from the back of the truck, thus avoiding the accident.

20.  In the Summary of Facts, it was stated that the Defendant had reversed the truck for some 60 meters before the accident. Generally, reversing a vehicle for such a distance would be a cause for concern and a sign of alarm which calls for extra caution on the part of the driver. In this case, and as mentioned above, the Defendant should really have sought the assistance of PW1 when reversing the truck despite PW1’s discomfort, which would seem to be rather minor, at the time.

21.  Moreover, I have looked at the photos and the sketches showing the place of the accident. It would appear that there was sufficient space for the Defendant to maneuver turns, that is, to drive the truck towards the end of the cul-de-sac and then making the turns so that the back of the truck was facing the rubbish collection point. However, as this matter was not covered in the facts and there was not much evidence before me, I would not find this as a fact against the Defendant.

The Sentence

22.  Clearly, no matter what is the sentence to be imposed, the deceased could not be brought back to life.

23.  Taking into account all the facts of this case and the Defendant’s good driving record, I consider that a starting point of 24 months is appropriate. The Defendant pleaded guilty and he should be given a one-third reduction in sentence. Other than his plea, I see nothing which would warrant any further reduction in sentence. As observed by the court in SJ v Lam Siu Tong [2009] 5 HKLRD 601, good character and remorse count very little, or not at all, for the family of the deceased. The Defendant is therefore to serve a term of 16 months’ imprisonment.

24.  I am also going to order a disqualification for 3 years.