HKSAR v. Kwan Chong Fu

DCCC 326/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 326 OF 2015

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to a charge of dangerous driving causing death. 

2.At around 11:15 pm on 15 September 2014, in response to a traffic accident report, policemen, firemen, and ambulance men arrived at the scene of a traffic accident at Lai King Hill Road near lamppost FB4077.  There was one uphill lane and one downhill lane, divided in the middle by an intermittent white line. 

3.The speed limit of the relevant road section was 50kmh.  There were street lights. No. 8 Gale Signal was hoisted.  The road surface was wet but it was not raining. 

4.Forensic investigations revealed the course of the accident.  WONG Wai-keung was driving a taxi NG 6071 (“the Taxi”) downhill when the Defendant was driving a private car RC 8058 (“the Private Car”) uphill.  The Private Car crossed the intermittent white line to hit the Taxi.  The impact caused each vehicle to spin before each came to a halt.  As the photos show, a very substantial part of the right front of each vehicle, further down the body work and the engine likewise, had become severely compressed and utterly deformed.  The damage to each vehicle was horrendous.  WONG Wai-keung was sent to the hospital for emergency treatment.  He soon died of the multiple injuries sustained in the collision. 

5.A passenger, who was the Defendant’s colleague and passenger of the Private Car, recounted that before the collision the Defendant had driven him to join other colleagues for food and alcohol in a food stall.  The group then went to a restaurant.  He got drunk and did not know what happened except that somebody told him that he would be driven home.  When he heard a bang sound, he woke up and felt pain.  He was on the front passenger seat of the Private Car. 

6.The Defendant did not answer the police enquiry as to whether he was the driver. However, there was DNA and clothing fibre contact evidence elicited from the surface of the steering wheel, the airbag, the driver’s seat, and the seat belt pinpointing him as the driver.

Personal background and mitigation

7.The Defendant is now 43 years of age, of secondary education level. He is divorced and lives with his mother and a 13-year-old daughter.  He has 5 criminal records, all unrelated to road traffic.  His traffic record summary shows different contraventions, including 2 careless driving records (offences dated in 2008 and 2012), 3 speeding records (offences dated in 2008 and 2012), using a mobile phone while the vehicle is in motion (offence dated in 2013), failing to comply with traffic signs (offence dated in 2014 before the present case), and failing to attend and complete a driving improvement course within the specified period (offence dated in 2013). 

8.His counsel Mr. Tong informs me that from the restaurant to the location of the accident was a 10 – 15 minutes’ drive. 

9.Mr. Tong argues that the adverse weather condition and the wet road surface were irrelevant to the sentence.  There is no submission on the issue of disqualification or re-test. 

Sentencing considerations

10.Mr. Tong has put forward 2 cases for comparison of sentences.  The first is HKSAR v Sheung Kun Hoo Daniel CACC 56/2010.  The defendant was drunk to the extent of 3 times over the legal limit while driving a car closely behind a taxi.  The taxi managed to steer past the victim walking on the road but the defendant failed to do so.  His car knocked down and killed the victim, a 21-year-old American student.  Appeal counsel’s submission that it was a case of momentary error of judgment was rejected by the Court of Appeal.  The trial judge took a starting point of 3 years for the act of driving plus an extra 6 months for the defendant’s delay in reporting the matter to the police.  The Court of Appeal affirmed the starting point of 3 years and 6 months. 

11.The second case is HKSAR v LAM Shen-hriung, Gilbert DCCC 978/2009.  On a drizzling night on a wet road surface, the defendant failed to notice the presence of a motorcycle travelling on his left.  His car cut abruptly into the motorcycle’s way and killed the motorcyclist.  A case of momentary error of judgment, the starting point was 1 year and 6 months.   

12.The English Court of Appeal in R v Cooksley and Others [2004] 1 Cr App R (S) 1 has identified a non-exhaustive list of factors relevant to the sentence .  These factors are adopted by the Court of Appeal in Secretary for Justice v Poon Wing Kay & Anor [2007] 1 HKC 289.  These factors are as follows:

“Highly culpable standard of driving at time of offence

(a) the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl’

(b) greatly excessive speed; racing; competitive driving against another vehicle; ‘showing off’

(c) disregard of warnings from passengers

(d) a prolonged, persistent and deliberate course of very bad driving

(e) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking)

(f) driving while the driver’s attention is avoidably distracted, eg by reading or by use of a mobile phone (especially if hand-held)

(g) driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills

(h) driving when knowingly deprived of adequate sleep or rest

(i) driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns

Driving habitually below acceptable standard

(j) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle

(k) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving.”

(My emphases underlined)

13.As a reminder, the court stated as follows:

“It was important to appreciate that the significance of the factors could differ. There could be a case with three or more aggravating factors, which were not as serious as a case providing a bad example of one factor. ”

Sentencing this Defendant

14.The Defendant had consumed alcohol to the extent of rendering himself unfit to drive (ie factor “a” in Cooksley). That was exacerbated by its being a 10-minute journey fraught with all the contingencies inevitably affecting the proper control of vehicle in an egregious weather on a wet road surface.  Factor “a” is of immense significance in his sentence.  For such conduct in persistent selfish disregard of the safety of other road users, I take a starting point of 3 years. 

15.Except for one record, his traffic record summary reflects invariably and many instances of bad driving (ie factor “k” in Cooksley).  The said exception unfortunately only further tarnishes his driving history as it was ordered by the Transport Department consequent to an excess of driving-offence points accumulated from his driving contraventions.  He had failed to attend and complete a driving improvement course within the specified period.  That suggested how he had snubbed his driving contraventions as well as the order to attend and complete the driving improvement course.   This prompts me to increase the starting point by 6 months to 3 years and 6 months. 

16.A one-third discount is given for his plea of guilty.  There are no other mitigating factors.  The sentence is 2 years and 4 months. 

17.He is to be disqualified from driving for 6 years.  I anticipate that upon the expiry of 6 years, his driving skill will necessarily be blunted.  For the safety of himself and other road users I order him to be re-tested.  There is thus no point in ordering him to attend and complete a driving improvement course to re-acquire a driving licence.