HKSAR v. TSANG HO PONG

 DCCC2/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 2 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of dangerous driving causing death.  The facts he admitted may  be summarised as follows:-

2.  This tragic case arose from a collision on the southbound West Kowloon Highway which was a three-lane carriageway. 

3.  The defendant was driving a medium goods vehicle on the first lane.  The collision took place at about 2.50 pm.  Just prior to the incident, the defendant’s vehicle was running behind a motorcycle driven by the deceased.  The motorcycle was running about 10 feet behind a container truck driven by PW1.

4.  The weather was fine.  The road surface was dry and in good condition.  Traffic flow was moderately heavy.  The speed limit of that section of the road was 100 kilometres per hour but the speed limit applicable to medium goods vehicles or larger was 70 kilometres per hour.  The two lorries were running at a speed between 60 to 70 kilometres per hour.

5.  At the spot near Olympian City 1, the container truck began to slow down because of a traffic tailback in front.  The defendant applied his brake.  Whilst smoke emitted from the rear tyres of the lorry it failed to stop.  The lorry ran into the back of the container truck, crashing the motorcycle driven by the deceased in between.  The deceased died as a result.  The container truck was pushed forward.  Its driver, PW1, suffered tenderness at his neck.  The defendant also suffered injuries, bruising over the ulna aspect of dorsum of his right hand and features of right posterior cruciate ligament tear was present at the knees.  The fourth metacarpal bone of the right hand was fractured.  I am told that the defendant is still receiving treatment. 

6.  Under caution, the defendant said he was travelling at a speed of 70 kilometres per hour using the 6^th shift transmission.  The container truck in front was travelling slowly and the distance between the two lorries was about the length of two medium goods vehicles.  Near the location of the incident he felt sleepy and closed his eyes for about two seconds.  He did not shift to a lower gear or use the brake but simply released the accelerator a bit.  When he opened his eyes, he noticed the motorcycle in front for the first time.  It was about the distance of two to three private cars’ length in front.  He did not know how it came to his front.  He immediately applied the brake but still hit the motorcycle and pushed it forward until there was a collision with the container truck.  He did not know why the container truck was travelling slowly.  He went to bed the previous night before midnight and woke up at 7.00 am. 

7.  Upon examination subsequent to the incident, all the three vehicles were found to be in good working order prior to the collision.  Both lorries were not overloaded. 

8.  The Government Forensic Scientist who attended and examined the scene of the incident gave an opinion that the speed of the defendant’s lorry was 64 kilometres per hour.  This did not include the speed loss due to the collision.   Both parties accepted that the opinion meant that the estimated speed was 64 kilometres per hour when the defendant applied the brake.  It was also estimated that the defendant’s lorry was about 21 metres behind the motorcycle when it applied the brake assuming a 0.9 second reaction time.  I note that the distance was below what is recommended in the Road User’s Code. 

9.  Section 36(1) of the Road Traffic Ordinance provides that:

“A person who causes the death of another person by driving a motor vehicle on a road dangerously commits an office”. 

In subsection (4) it is provided that:

“A person is to be regarded as driving dangerously within the meaning of subsection (1) if:

(a) the way he drives falls far below what would be expected of a competent and careful driver, and

(b)  it would be obvious to a competent and careful driver that driving in that way would be dangerous”. 

In subsection (6) it is provided that:

“For the purposes of subsection (4) and (5) ‘dangerous’ refers to danger either of injury to any person or of serious damage to property.”

In subsection (7) it is provided that:

“For the purposes of subsections (4) and (5), in determining what would be expected or obvious to a competent and careful driver in a particular case regards shall be had to all the circumstances of the case including:

(a)  the nature, condition and use of the road concerned at the material time;

(b)  the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c)  the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.”

10.  On the facts which the defendant admitted, I was satisfied that it was a case of dangerous driving and the death of the victim was caused by it.  Learned counsel for the defence also accepted that all the elements of the offence were present.  Accordingly, I found the defendant guilty of the offence. 

11.  In sentencing I take into account the whole circumstances of the case including its nature and facts, personal background of the defendant, mitigation put forward on his behalf, as well as information and recommendation contained in the report compiled by a probation officer.

12.  The defendant is 31 years of age.  He was a driver by occupation.  I was told that he could no longer drive to earn a living because of the injuries he suffered in this incident.  He is the sole breadwinner in the family.  His parents are over 50 years of age and wholly dependent on him. 

13.  The following information is provided in the CSO report I will refer to later.  The defendant came from a working class family.  His academic achievement was not particularly good.  After Form Three studies, he shifted to study a Marine Mechanic Course in the Institute of Vocational Education.  He also started part-time work.  At the age of 16 he started taking up full-time employment.  The report sets out in much detail the working experience of the defendant.  It appears that the defendant had been in regular employment.  He did not have vice habits nor undesirable association.  Being the sole breadwinner of the family, the defendant sometimes took up a part-time job to supplement his earnings.  The defendant impressed me to be a hardworking man and responsible to his family. 

14.  He is not a first offender but all the offences he had committed were traffic offences.  On 17 September 2001 he was convicted of the offence of driving while disqualified and the offence of using a vehicle without third party insurance.  For the former offence a Community Service Order of 200 hours was imposed;  for the latter, a fine of $5,000 was imposed, he was also disqualified for 12 months.  Apart from these, the defendant has record of failing to comply with traffic signals or signs, speeding, careless driving, and using a mobile phone when the vehicle was in motion, etc.  The defendant does not have a good record of driving. 

15.  The maximum sentence for this offence as provided in Section 36(1)(a) is a fine at Level Five and an imprisonment term of 10 years. 

16.  It is further provided in Section 36(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 years in the case of a first conviction, unless the court for special reasons orders that person be disqualified for a shorter period or that the person not be disqualified. 

17.  The maximum imprisonment term was, with effect from 4 July 2008, increased from 5 years to 10 years.  The present offence was committed on 30 August 2008.

18.    Where the legislature increases the maximum penalty for an offence, the courts treat that as an indication of the legislative view that the offence is regarded as more serious than it used to be regarded and the courts will reflect that view by passing sentences more severe than the sentences that used to be passed before. 

19.  Road accidents can cause immense human suffering and bring about serious economic burden both to the victim’s family and the society.  I recall that at one time the government described vehicles as “tigers in urban area” in its road safety publicity.  Whilst vehicles bring us convenience and comfort, they can also be lethal if not driven and maintained in an appropriate manner.  Those who are in charge of vehicles quite often tend to forget that they owe other road users a heavy duty. 

20.  As the Court of Appeal said in Secretary for Justice v Poon Wing Kai [2007] 1 HKLRD 660, “Since sometimes there might be extremely grave consequences flowing from acts of dangerous driving, it is necessary to have in mind a deterrent effect.  The standards required by the law for motorists are there to ensure that all who come into contact with motor vehicles, including other drivers, passengers in the defendant’s car and pedestrians, etc are safe.  While it might be right in some instances not to treat violators of traffic laws as true criminals, for offences such as dangerous driving causing death, the offender might not necessarily be seen in quite such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous”. 

21.  Dangerous driving can result in serious outcome, as in the present case.  The driving conduct of the defendant has caused serious harm to the family of the deceased.  The community also suffers a loss for losing one of its useful and self-dependent members.  However, in deciding the appropriate sentence, the court should take care not to be overwhelmed by the outcome.  It is the culpability of the defendant which is the dominant factor.  Whilst understandably there are calls for tough sentencing and a consequence including the impact on the deceased’s family is a relevant sentencing consideration, I am sure that in the present case the defendant did not intend to cause death or serious injury.                                               

22.  Notwithstanding that I find the defendant did not have such an intent, the incident did cause one death.  In the circumstances of the case, the defendant must have contemplated that by what he did he was putting other persons at risk.  The motor cyclist in his front was obviously the most vulnerable to the risk of serious injury if there was a collision as a result of his poor driving.  The motor cyclist must have been there sufficiently long to catch the attention of an attentive driver. 

23.  I am told that the defendant is very remorseful now.  I have no reason not to accept this.  Indeed,I believe all drivers who have the conscience will feel extremely regret and remorseful if his driving causes a tragic result like this.  While it must be the consensus of the society that drivers should have the sense of being responsible to other road users, looking at it from another angle, to prevent himself from the grief of regret, it is itself a strong reason that a driver should exercise suitable caution in driving. 

24.  Learned counsel for the defence urged upon me that this was not the most serious case of this nature.  He is justified to say so.  The manner of driving, though dangerous, was at the low spectrum of degree of seriousness.  There is no evidence of aggressive driving on the part of the defendant.  It was not a case of speeding.  There was no overloading.  There is no evidence of any prolonged driving of the defendant with no regard for the safety of others.  The duration of dangerous driving was short.  There was no other contravention of traffic regulations.  The defendant was not under any influence of drug or alcohol.  There is no indication that his lorry was not properly maintained.  My attention was also drawn to the photographs which depicted that no serious damage had been caused to the container truck, thus showing the relatively low impact of the collision.

25.  A sentence of imprisonment should only be imposed if necessary and no longer than necessary.  I can appreciate that when a person starts to drive his vehicle, he can hardly contemplate that the driving will result in an imprisonment term.  However, people must bear firmly in mind his duty behind the driving wheel. 

26.  The court has a duty to drive home the message as to the dangers that can result from dangerous or other kind of irresponsible driving on the road.  It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standard of driving.  The correct attitude must be fostered in our driving culture. 

27.  The defendant said he closed his eyes briefly because of sudden onset of tiredness.  There exists no reason for me to reject the assertion of closing the eyes because of tiredness.  However, I do not accept that there was a sudden onset of tiredness to such a degree which could have caused such an irresistible closing of eyes.  In the English case of R v Cooksley [2003] 3 All ER 40, the England Court of Appeal in England accepted the view that falling asleep was more likely to aggravate than mitigate the seriousness of an offence because drivers do not normally fall asleep without warning and the proper course of action for a motorist who feels drowsy is to stop driving and rest.  I respectfully agree to this view.  I appreciate the difficulties faced by drivers, in particular those who are driving to earn a living, it can be tough.  However, we cannot for that reason sacrifice safety.  Vehicles are powerful nowadays and if they are not under proper control, very serious consequence can occur. 

28.  In the present case the defendant did not fall asleep.  He, however, not being in a state of automatism, could not resist closing his eyes.  Albeit it was brief, one cannot ignore the fact that the defendant was driving on a highway where the speed limit for ordinary vehicles was 100 kilometres per hour and for vehicles of the category as his, 70 kilometres per hour.  He also failed to keep a safe and proper distance from the vehicle in front.  A driver cannot afford to give up his concentration like that.  If a driver feels so tired that he is going to fall asleep or to lose his concentration, he should take a rest and avoid accident.

29.  Our legislature saw fit to provide in the Ordinance that in determining whether a competent and careful driver finds it obvious that driving in that way would be dangerous, regard shall be had to all circumstances of the case, including the circumstances of which the accused could be expected to be aware and any circumstances shown to have been within the knowledge of the accused, and that includes the physical condition of the accused.

30.  The offence of dangerous driving simpliciter carries a much lower sentence than the offence of dangerous driving causing death, thus indicating that the legislature regards the consequence of dangerous driving as being a relevant sentencing consideration, so that if death did result, this in itself can justify a heavier sentence than could be imposed for a case where death does not result. 

31.  Having considered the whole circumstances of the case, bearing in mind submission by learned defence counsel and having had regard to cases such as SJ v Poon Wing Kay [2007] 1 HKLRD, SJ v Fong Chai Man [2008] 3 HKLRD 493, R v Cooksley [2003] 3 All ER 40, HKSAR v Tam Kwok Choi HCMA700/2008, I am of the view that an immediate custodial sentence is called for in  a case like this. 

32.  Before I make a decision on sentence, I have asked for a Community Service Order report upon the request by learned defence counsel.  Before I adjourned the matter for the report I had already advised the defendant of the seriousness of the case and that a custodial sentence should be considered, the court had no obligation to follow the recommendation in the report, and the court was under a duty to impose the most appropriate sentence in the circumstances of the case. 

33.  Community Service Order is not recommended.  Having considered what the officer said, I agree with his opinion.  The defendant had already been given a chance of Community Service Order for another traffic offence.  In all the circumstances, I am of the view that there is no sentence other than an immediate custodial sentence which is appropriate for this case.  The defendant can hardly rely on a good driving record to ask for leniency. 

34.  As far as the imprisonment term is concerned, I accept that this is not a bad case for this nature of offence.  However, it is a case of dangerous driving resulting in the loss of a human’s life. 

35.  Having considered the whole circumstances, including the degree of culpability, the serious consequence, mitigation put forward on the defendant’s behalf, the defendant’s background including his driving record and the information contained in the report, I consider a starting point of 15 months appropriate.

36.  The defendant pleaded guilty, he is entitled to a one-third discount for this reason alone.  I appreciate that the family of the defendant will suffer if the defendant goes to prison.  However, this is strictly not a mitigating factor in the circumstances of the present case. 

37.  The defendant suffered injuries as a result of the incident.  The injuries are quite substantial.  In this regard, it was said in the case of R v Cooksley that the fact that the offender had been injured should not automatically be treated as a mitigating factor and that only very serious or life changing injuries should have a significant effect on the sentence.  I am told that as a result of the injury the defendant can no longer drive to earn a living.  I am satisfied that he is extremely remorseful.  I am prepared to give him a further 2 months’ discount. 

38.  Based on the matters aforesaid, I sentence the defendant to 8 months’ imprisonment. 

39.  Learned defence counsel asked me to consider suspending the imprisonment term.  Having considered very carefully, I do not consider there exist sufficient special circumstances to make such an order.  I order the sentence to have immediate effect.  Further, I order the defendant to be disqualified under Section 36(2) for 2 years.

40.  I am sure that the defendant has genuine remorse.  I wish that he, having served the term and recompensed his fault, can start his life afresh, not being burdened anymore by this incident.