HKSAR v. Lam King Sing
Read the full judgment text of DCCC 190/2015 on BabelCite. This District Court judgment.
1. The Defendant is convicted after trial of the following 3 charges:
Cites 1 case
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DCCC 190/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 190 OF 2015 -----------------------------------
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---------------------------- Charges 1.The Defendant is convicted after trial of the following 3 charges:
Case proved by the prosecution 2.At about 0659 h on 28/7/2014, the weather was fine, the traffic volume medium, the road surface dry and in good repair. A private car, ST 5635, (“the Car”) travelling on the slow lane of northbound Tai Po Road suddenly crossed the lane and bumped into the nearside rear of PW1’s (SZETO Wan-shing’s) taxi, LA 8039, which was travelling on the fast lane of northbound Tai Po Road. The location was near the junction of Fuk Wa Street. The Car did not stop after the collision but proceeded along northbound Tai Po Road. PW1 memorised the registration mark of the Car and gave chase. I shall refer to this as “the First Collision”. 3.The Car went past a traffic light in red at the junction with Shek Kip Mei Street. It went past another traffic light in red, which was at the junction with Nam Cheong Street. When it reached the junction with Nam Cheong Street, its offside front hit, almost head-on, the offside front of a taxi, KL 4335 driven by PW2 (CHENG Ying-ki). KL 4335 with a passenger PW3 (KWOK Wut-ho) on board had just gone through a traffic light in green from Nam Cheong Street to turn into Tai Po Road. The driver of the Car was apparently at fault for jumping the traffic light in red on northbound Tai Po Road. 4.The first taxi, LA 8039, arrived at the junction of Nam Cheong Street a brief moment later and stopped behind the yellow grid near the junction. PW1 saw the 2 cars stop still after the collision though he did not see how they had collided. The offside front of the Car was seriously damaged. The Car was stuck with KL 4335 at the junction after the collision. I shall refer to this as “the Second Collision”. 5.PW4 (LEUNG Wai-kuen) was the driver of a light goods vehicle, bearing registration marks HT 6687, on the adjacent lane of KL 4335 on Nam Cheong Street. After the Second Collision, he stopped his vehicle and went up to PW2 to complain that a jack from the boot of KL 4335 had hit the offside body of HT 6687. 6.PW1 saw the Driver come out of the Car from the driver’s door and walk against the direction of the traffic of Tai Po Road towards a Shell petrol station. There was not much traffic as it was early in the morning. PW5 (LI Kam-ha) was sitting by the pedestrian pavement in the vicinity of Wong Chuk Street and Fuk Wa Street. She was doing nothing in particular. A man (whom she later pointed out to the police as the Defendant) walked up to her and lay down on the road. He offered $100 to her if she would call the police for him. He told her that he was hit in a traffic collision on Tai Po Road. She did not take his money but dialed 999 for him. She asked him to talk to the police by himself. After he had talked to the police on her phone, he continued to lie down on the ground. He also closed his eyes. She walked up to Tai Po Road to see if there was a traffic collision. The police soon arrived. She identified the Defendant and recounted her encounter to the police. 7.The police also made enquiries from PW1 – PW4 on Tai Po Road. PW6 (SPC 1854) conducted a breath test on each of PW1, PW2, and PW4 with no alcohol indicated. PW7 (PC 7469) saw the Defendant’s face and the right orbit both red with a smell of alcohol in his breath. PW8 (PC 9767) walked along Tai Po Road with the junction of Nam Cheong Street against the traffic up to the junction of Fuk Wa Street to see if there were other traffic collisions at around that time. There was none. 8.PW8 took photos of northbound Tai Po Road and each of the 4 vehicles at the scene. He also drew 2 sketch plans of the scene. The first one was of the stretch of northbound Tai Po Road with the junction of Fuk Wa Street up to the junction of Nam Cheong Street. The second one was of the junction of Tai Po Road and Nam Cheong Street with the stopping positions of all 4 vehicles indicated. 9.At 0747 h, when asked to provide a breath test by PW7, the Defendant said:
10.At 0748 h, PW7 arrested him for failing to provide a breath test. After being cautioned, he remained silent. PW7 recorded the encounter on the form accordingly. The Defendant was sent to Caritas Medical Centre in Sham Shui Po. 11.At about 0840 h – 0905 h, PW7 requested the Defendant to have a blood test for alcohol in Caritas Medical Centre and recorded the encounter on the form accordingly. 12.At 0850 h on the same day, a specimen of blood was taken from the Defendant’s body by the medical practitioner for analysis of alcohol concentration. It transpired that there was not less than 253 milligrams of alcohol in 100 millilitres of blood. This exceeded the prescribed legal limit of 50 milligrams of alcohol in 100 millilitres of blood. 13.Except for the damage to the body work caused by the collision, the Car did not have any mechanical defects. 14.The fingerprint expert found the Defendant’s left palm print on the steering wheel of the Car. As at 0000 h on 28/7/2014, the Defendant was the registered owner of the Car. The Car’s licence had expired on 10/6/2014. Therefore it was an unlicensed vehicle when being driven on the road on 28/7/2014. 15.The Defendant suffered injuries on his head, chest, and right eye. He was granted sick leave from 28/7/2014 to 26/8/2014. 16.I find it the irresistible inference that the Defendant was the driver of the Car both at the First and the Second Collisions. 17.The Defendant was found to have alcohol in his blood over the prescribed limit by 4 times. This indicated that he was very drunk at the time of driving. The irresistible inference is that when he was driving the Car that morning it was obvious to him and he was aware that he was under the adverse influence of alcohol. 18.The prosecution has proved the ingredients of all 3 charges beyond reasonable doubt. He is convicted as charged. Mitigation 19.The Defendant is now aged 32. He worked as a cook before arrest. His father had passed away in 2006. He provided financially for his mother, who lived with him under the same roof. 20.He took to drinking since 2007 as a means to alleviate work pressure. There followed his drink driving problems manifested in 2 criminal cases. 21.The first was ST/9108/07 where he was sentenced in May 2008 for careless driving (fined $3,000), failing to stop in case of accident whereby damage was caused to a vehicle/an animal/any other thing (fined $3,500), failing to report as soon as reasonably practicable (fined $3,500), and failing to provide specimens of breath for alcohol analysis (fined $8,000 and disqualified from driving for 15 months). The second was ST/454/08 where he was sentenced in June 2008 for failing to comply with traffic signals (fined $750), and failing to provide specimens of breath for alcohol analysis (jailed for 6 weeks and disqualified from driving for 24 months). 22.He has a previous record for drunk and disorderly conduct, resulting in 7 days’ imprisonment in June 2011. 23.His traffic records kept by the police from January 2008 onwards do not present him as a responsible driver, either:
24.There is a letter from his employer which stated that he had been the chef of a restaurant for 5 years until recently. His personality and work performance were highly commended. Madam Law, a nurse in the Queen Elizabeth Hospital, wrote in to describe how he rendered various services to the patients after he was assigned to her voluntary section in 2012. A centre for the mentally handicapped was expressly grateful for his frequent voluntary services to the centre, such as preparing dessert and taking care of the inmates. Sentencing considerations 25.The statutory threshold for drink driving was set at 50 milligrams of alcohol in 100 millilitres of blood. According to section 39 (1)(a) of Road Traffic Ordinance, the maximum penalty for dangerous driving on conviction on indictment is a fine at level 4 and 3 years’ imprisonment. A first time offender will be disqualified for not less than 6 months. Section 37 (2D) regards the offence as committed in circumstances of aggravation where the proportion of alcohol in the driver’s blood is “tier 3”. Such aggravation leads to a 50% increase in the maximum fine and term of imprisonment as well as the minimum disqualification periods. Section 39A (1A) defines “tier 3” as a figure exceeding 150 milligrams of alcohol in 100 millilitres of blood. 26.The Defendant had not less than 253 milligrams of alcohol in 100 millilitres of blood. He is therefore subject to such aggravation of the maximum fine and term of imprisonment as well as the minimum disqualification periods. 27.There are no sentencing authorities provided by the defence. Sentencing this Defendant 28.The state of intoxication had very substantially incapacitated the Defendant from controlling the Car. The Car jumped 2 sets of traffic lights and bumped into 2 taxis, one serious damaged and the other slightly damaged. A passenger on board the second taxi was slightly injured on the head. A light goods vehicle was also damaged by the jack from the boot of the second taxi as an impact of the collision. He immediately left the scene after the Second Collision. 29.I am aware of his records for careless driving and repeatedly disobeying traffic signals; he had been jailed for drunk and disorderly conduct, as much as failing to provide breath test, leaving the scene of accident without stopping, and failing to report the traffic accident to the police as soon as reasonably practicable. Be that as it may, I do not regard these as aggravating factors for sentencing as he had received all the sentences for the major drink-driving-related convictions in 2008. There is no evidence that his driving manner or records subsequent to 2008 was related to any drinking problem. 30.The maximum penalty for dangerous driving has to be increased by 50% due to the level of alcohol in the Defendant’s blood. In the light of a revised maximum of 4 years and 6 months’ imprisonment, I take a starting point of 2 years and 3 months on the 1st Charge. He has rendered some voluntary services in the past. This warrants a discount of 3 months. There are no other mitigating factors. His sentence is 2 years. I order disqualification of 3 years. He has to attend and complete a driving improvement course before retrieving his driving licence. 31.I take a starting point of 2 years and 3 months’ imprisonment on the 2nd Charge. The relevant facts and mitigation for sentencing are the same as the 1st Charge. His sentence is 2 years. I order disqualification of 3 years. He has to attend and complete a driving improvement course before retrieving his driving licence. The imprisonment, disqualification, and the taking of the driving improvement course shall be concurrent with the 1st Charge. 32.I impose a fine of $2,000 on the 3rd Charge.
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