HKSAR v. LAU CHI SHING

DCCC 996/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 996 OF 2013

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Reasons for Sentence

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1.  The defendant pleads guilty to one charge of causing grievous bodily harm by dangerous driving. The facts admitted by the defendant can be summarised as follows.

2.  On 8 April 2013 a fully‑loaded cement mixer, V1, ran downhill along Tseung Kwan O Road towards the junction with Lei Yue Mun Road, resulting in a chain collision involving six other vehicles.  Five drivers and 11 passengers were injured.  Two of them sustained grievous bodily harm.

3.  The defendant was the driver of the cement mixer.  The cement mixer was a big, heavy vehicle.  It weighed 30,540 kilograms.  It was slightly overloaded by 540 kilograms, or less than 2 per cent.  There was a mechanical defect with the braking system of V1.  The braking efficiency of service brake was 33.2 per cent, which was less than the minimum requirement of 50 per cent by law.  The braking efficiency of the parking brake was 8.8 per cent, which was less than the minimum requirement of 16 per cent by law.  Insufficient braking force was generated due to the excessive clearance between the brake linings and the brake drum.

4.  The defendant was aware of the problem with the brake on the day of the accident.  Under caution, the defendant gave a full version of what he said had happened.  He admitted that the foot brake system did not respond when he was in Hang Hau outside Tseung Kwan O Hospital.  He planned to inform the registered owner about this after he returned to Yau Tong from Tsim Sha Tsui.

5.  The travelling distance from Hang Hau outside Tseung Kwan O Hospital to the accident scene was about 5.5 kilometres.  There was a junction with Kai Tin Road on Tseung Kwan O Road downhill.

6.  Under caution, the defendant stated that initially he was driving V1 at 50 kilometres per hour, which was the prescribed speed limit, and was in gear 6.  When V1 had reached the junction with Kai Tin Road, he started experiencing a problem with the brake in that the brake did not give any response and V1 got faster and faster.  He claimed that he had tried to shift down the gear and to set up the handbrake lever to slow down V1, but unsuccessfully.

7.  A video camera was installed on a private car driven behind V1 at Tseung Kwan O Road.  The video captured V1 when it was going downhill Tseung Kwan O Road.  It shows that the brake lights were on, lasting some seconds during the downhill journey, as opposed to being on and off intermittently.

8.  A driving examination officer of the Transportation Department viewed the said video.  He was of the opinion that the driving manner of the defendant travelling along Tseung Kwan O Road was dangerous, as the defendant was driving a heavy goods vehicle along a long downslope road, but was continuously using the foot brake.  Applying the brake for such a long time caused the brake shoes to overheat and reduced the effectiveness of the braking system.  On the other hand, while driving along such downslope territory, the defendant should use the appropriate lower gear to limit the speed of the vehicle.

9.  A forensic scientist also viewed the said video.  He made four reference points A to D along Tseung Kwan O Road downhill.  He estimated the speed of V1 as 57 kmh, 70 kmh and 63 kmh respectively in the three sections between the four reference points.  The speed limit of the road was 50 kmh.

10.  The sequence of V1 hitting the other vehicles is as follows.  V1 hit on a medium goods vehicle, V2, which was stopped in front of the red light at the junction with Lei Yue Mun Road.  The driver of V2 was not injured.  V1 then went on to hit a taxi, EJ-1968, V3, which was also stopped for the red light.  V3 was pushed to the nearside pavement and collided with the iron rails.  The driver of V3 was Mr Poon Wai-ming, PW5.  He was trapped at the driver’s seat.  He sustained fracture on his left hand, shoulder and chest.  He was admitted to the hospital until 27 April 2013, and was granted sick leave until 4 May 2013.  The passenger on V3 was PW6.  He sustained fracture on his right elbow, nose and rear head, and was admitted to the hospital until 10 April 2013, with sick leave granted until 3 May 2013.

11.  There was a public light bus, KP-9109, V4, in front of V3.  V4 was pushed forward and it collided with a light goods vehicle, V5, in front of it.  V4 was further hit by a medium goods vehicle, V7, which was travelling along Lei Yue Mun Road.  There were 16 passengers on board the public light bus, V4.  The driver and 10 of the passengers on board were injured.  They were aged between 4 months and 83 years.  Amongst these passengers, Madam Pang Yuk-lan, aged 83, sustained multiple injuries, with fractures on pelvis, right tibia and fibula, right distal radius and left ankle.  She was admitted to the hospital for some four months until 13 August 2013.

12.  The other injured persons in this chain collision sustained various degrees of injuries which were relatively minor, and I shall not go into details here.

Personal background of the defendant and mitigation

13.  The defendant is 29 years of age.  He has no criminal conviction record.  He obtained his driving licence in 2004.  Since then he had a traffic conviction for careless driving in July 2009, when he was fined $1,000.  He has also been issued with four fixed penalty tickets for other driving offences.

14.  In mitigation, Mr Ng, counsel for the defendant, tells the court that at the time of the offence the defendant had been working for a cement conveying company for 12 months as a cement truck driver earning $15,000 a month.  The employer had its own garage to maintain their cement trucks.  On the day of accident, the defendant was instructed to drive the cement truck in question.  He first noticed the brake not working properly in Hang Hau.  However, in a few seconds, the brake seemed to be working again.  The defendant was not sure whether it was working or not working.  He decided to take the vehicle to the garage after the trip.

15.  En route to the payment booth of Tseung Kwan O Tunnel, the vehicle had stopped for a few sets of traffic lights.  The defendant did not notice any further problem of the brake.  However, when the vehicle was going downhill, he became to feel that the brake was not working. The cement mixer was going faster and faster.  He panicked, and hence, as a natural reaction, he continuously applied the foot brake.

16.  Mr Ng relies on R v Cooksley [2003] 3 All ER 40 and HKSAR v Li Yau Wing CACC 282/2012.  He submits that the present case is not the worst kind of dangerous driving.  The defendant’s culpability should be the dominant consideration in sentencing him.  It is submitted that there are no aggravating circumstances in this case.  The defendant’s culpability falls into the band of 12 to 18 months as the starting point referred to in paragraph 21 of the judgment in Cooksley. 

17.  Mr Ng also refers me to the updated medical reports of the two victims named in the charge.  He says the victims’ conditions are now much better.

18.  It is also said that the defendant is now very remorseful.  He consulted a psychiatrist, Dr Peter Yu, on 22 April and 29 April in 2013 and was diagnosed to have developed symptoms typical of post traumatic stress disorder.  He suffered depressed mood, fearfulness and insomnia, etc. 

19.  A mitigation letter written by the defendant and one signed by his ex‑colleagues have been submitted and duly considered by the court.

Consideration of sentence

20.  Road accidents can cause tremendous human suffering.  Vehicles are potentially lethal machines.  Drivers must always bear in mind their duty owed to other road users.

21.  The maximum sentence for this offence as prescribed in section 36A(1) of the Road Traffic Ordinance is a fine at level 5 and an imprisonment term of 7 years.  The severe penalty reflects the intention of the legislature that the offence should be punished severely.

22.  In considering the appropriate sentence, it is the culpability of the defendant which is the dominant factor.  However, the outcome of the offence is also an important matter to be taken into account. 

23.  There is no reason why the approach discussed in R v Cooksley is not applicable to the offence of dangerous driving causing grievous bodily harm.

24.  In the present case, I accept that the defendant’s vehicle’s excessive speeding was only a result of loss of functioning of the brake and not a deliberate act of the defendant.  I would also accept that the prolonged application of foot brake was a reaction of the defendant out of panic.  Moreover, I will not attach too much weight to the slight overloading.

25.  The gravity of the culpability of the defendant in this case is his deliberate taking of the risk arising from the braking system while he was driving a big and heavy vehicle knowing that en route to his destination it had to go down Tseung Kwan O Road, a very long downslope road, after it had passed Tseung Kwan O Tunnel.  After realising that the braking system might be defective at Hang Hau, he should there and then cause the vehicle to be towed and repaired, yet he decided to take the risk and drive it to its destination at Tsim Sha Tsui.

26.  The risk of driving the fully-loaded cement mixer to go downhill along Tseung Kwan O Road was too obvious and serious to be ignored.  Moreover, while going down a long downslope road with a fully-loaded heavy vehicle is already an inherent hazard, the defendant did not use the appropriate lower gear to limit the speed of the vehicle.

27.  In my view, the defendant’s judgment in this case was seriously flawed. 

28.  I cannot agree with Mr Ng that there were no aggravating circumstances in the present case.  Serious damage to vehicles was caused as a result of the collision.  Five drivers and 11 passengers were injured.  In particular, grievous bodily harm was caused to a taxi driver, PW5, and an 83-year-old passenger, Madam Pang Yuk-lan, on board a public light bus. PW5 sustained multiple injuries, including fractures on his left hand, shoulder and chest.  He was admitted to hospital for 19 days.  As depicted in the photo album, his taxi was seriously damaged.  It was only by sheer luck that he could survive.

29.  The medical report dated 31 August 2013 written by Dr Lau Chi-yuen, Mike, reveals that PW5 still suffered residual pain and there will be a chance that he will need an operation of removal of metal implant.  A further course of physiotherapy will be required.  On the other hand, Madam Pang Yuk-lan, when last seen at United Christian Hospital on 9 September 2013, appeared to be recovering uneventfully.

30.  The number of victims injured in the accident and the serious injuries caused to two of them in particular in my view are aggravating factors in this case to bring the defendant’s culpability into the intermediate culpability band, if not the higher band, as classified in R v Cooksley.

31.  I take into account that there is no death in this case.  I take into account that the defendant is a person of good character.  I also accept that he is genuinely remorseful.

32.  However, the dominant sentencing principle for this offence is general deterrence with a secondary purpose of educating the public as to the potential danger to others involved in driving a motor vehicle.  It is important to drive home this message.

33.  With these principles in mind, I am afraid that the only inevitable sentence is immediate custodial sentence.  In my view, the appropriate starting point should be 27 months’ imprisonment.

34.  I accept that the defendant has developed symptoms of post traumatic stress disorder.  However, I am afraid that this is not a kind of injury that can justify reduction in sentence.

35.  Having considered everything said by Mr Ng, I am afraid that the only mitigating factor which can reduce the sentence is the plea of guilty, for which I will give the defendant one-third reduction of the sentence.

36.  The defendant is therefore sentenced to 1½ years’ imprisonment.

Disqualification

37.  There is mandatory disqualification of not less than 2 years for causing grievous bodily harm by dangerous driving unless the court, for special reason, decides not to make such an order.  In this regard, Mr Ng has not made any submission.

38.  I find there are no special reasons not to order the defendant to be disqualified.  I am satisfied that a period of 3 years’ disqualification is appropriate. 

39.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicle for a period of 3 years.

40.  By virtue of section 72A(1A) of the Road Traffic Ordinance, a court shall order a person convicted of causing grievous bodily harm by dangerous driving to attend and complete a driving improvement course unless the court, for special reasons, decides not to make such an order.

41.  There was no submission on this, and there are no special reasons not to make the order.

42.  The defendant is ordered to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period.

43.  Defendant, you are warned that it is an offence not to attend and complete the driving improvement course and that you remain disqualified until you attend and complete the driving improvement course notwithstanding the disqualification period may already have ended.