HKSAR v. Leung Ho Wai

DCCC 912/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 912 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to the following charges:-

1^st Charge - Causing death by dangerous driving, contrary to Section 36(1) of the Road Traffic Ordinance, Cap 374;

2^nd Charge - Failing to stop after accident whereby personal injury was caused to other person, contrary to section 56(1) (a) and (5) of the Road Traffic Ordinance, Cap 374; and

4^th Charge - Concealing evidence of a serious accident causing death, contrary to section 57(1) of the Road Traffic Ordinance, Cap 374.

On the other hand, the defendant pleaded not guilty to the 3^rd charge of “Failing to report an accident involving personal injury to another person” and the prosecution applied the same to be left in court’s file. Granting the application, the court also ordered the 3^rd charge could not be proceeded with without court’s leave.

Summary of Facts

2.The accident took place at small hours on 5 December 2015 near Chainage 32.6 (A), San Tin highway, Lok Ma Chau, New Territories, Hong Kong (“The Road”).  The Road is a 3-lane dual direction expressway with speed limit of 100 km/hour.  At the material time, the weather was fine and the road surface was dry and in good repair.  Lighting was sufficient.

3.At about 1:56 am on 5 December 2015, the defendant was driving the heavy goods vehicle bearing registration number RD 3900 (“the HGV”) along the first left lane of the Road towards Lok Ma Chau Station at a speed of 60-70 km/hour.  The taxi driven by the deceased (“the Taxi”) was stationing on the same lane, with its hazard lights flashing, at a distance in front of the defendant’s vehicle.  The deceased was standing at the rear part of the Taxi, opening the cover of the boot at the back of the Taxi. Without noticing the Taxi and the deceased, the defendant was not able to stop the HGV and the same rammed into the deceased and the back of the Taxi.  The Taxi was hit and pushed to move to the hard shoulder of the first lane. However, the defendant did not stop at the scene and drove the HGV away.

4.At around 2 am on the same day, Mr Ng Ka Wai of the Fire Services Department received a report about the accident and arrived at the Road with his colleagues.  Mr Ng found that the Taxi was stopping at the hard shoulder on the first left lane.  It was also found that the rear of the Taxi was severely damaged and that the gear of the Taxi was in “Parking” mode. The deceased was found lying unconsciously inside the boot of the Taxi.

5.A pair of skid marks was found along the first left lane of the Road.  Deceased’s bloodstains were found inside the boot of the Taxi and yellow smears from the HGV were found on the cover and off-side surface of the boot of the Taxi.

6.The deceased was immediately sent to the hospital and was found showing no sign of life and having scalp haematoma at occuiput and multiple fractures on all limbs.  He was certified dead shortly after arriving at the hospital.

7.The defendant drove the HGV leaving Hong Kong via Lok Ma Chau Control Point at 2:11 am on 5 December 2016 during which Custom Officer Law Po Ping had made enquiries with the defendant of the HGV as there was no registration number plate displayed at the front of the HGV.  It was only upon the officer’s request when the defendant showed the registration number plate to him.  The front of the HGV was noticed to have been damaged as well.

8.Later on the same day, the defendant who was still in the Mainland was located by the police and the defendant admitted to SGT 51357 over the phone that he had left the scene as he was too scared after the accident.

9.At 10:15 am on the same day, the defendant drove the HGV back to Hong Kong via Man Kam To Border Control Point.  Upon checking, it was found that the nearside front part and the front windscreen of the HGV and the nearside from lamp and its cover were damaged.  Deceased’s bloodstain was also found on the nearside front bumper of the HGV.

10.Having been arrested, the defendant made some admission under caution, in gist, he stated that:-

- Before the accident, he was driving the HGV from Cheung Sha Wan to Lok Ma Chau on the first lane of the Road;

- He first noticed the Taxi when he was about 30 meters away from it but he only realised it was stationary when he was only 3- 4 meters away from it; he tried to stop the HGV but it was too late already causing the HGV to ram into the back of the Taxi; there was no other vehicle obstructing his view on the Taxi before the collision;

- After the accident, he got off from the HGV and saw the deceased lying inside the boot of the Taxi unconsciously. He also found the back of the Taxi damaged;

- He thought the deceased was likely to be dead and he left the scene without making a report to the police as he was scared;

- He returned to the scene with a view to checking the driver and found he was still lying inside the boot of the Taxi;

- He found the car plate of his HGV at the rear of the Taxi. He then pick it up and left the scene;

- He had little sleep before he drove HGV and he was tired when driving.

11.Dr Tao Chi hang, Forensic Scientist having conducted a traffic accident reconstruction and studied the evidence collected by the police made the following observations:-

(a) According to the record retrieved from the Taxi, the Taxi was stationary. Its engine was idle and the gear shifted to “P” position before the impact. Upon impact, the longitudinal acceleration from the rear towards the front of the Taxi was recorded, which had reached a maximum speed of 55.4 km/hour in about 0.2 seconds after the impact;

(b) During the reconstruction, a saloon vehicle, with its trunk lid opened and rear lights and emergency lights turned on, was stopped at the impact point. The emergency lights of the stationary saloon could be observed from the driver seat of a vehicle along the 1^st lane at a distance of 500 meters away. For a vehicle travelling at 70 km/hour, it would take about 25 seconds to travel a distance of 500 meters;

(c) With reference to the video, it was found that the HGV was travelling along the 1^st lane and approaching the Taxi, which had its hazard lights on, at an average speed of 68 ±7 km/hour;

(d) The HGV probably reduced its speed from 68 km/hour to 55 km/hour before the impact as the driver of the HGV perceived the Taxi and decided to apply hard braking before the impact, leaving the skid marks at the scene; and

(e) By taking a reaction time of 0.9 seconds as inferred in the Road Users’ Code by the Transport Department and assuming the speed of the HGV at 68 km/hour at the commencement of the skidding, the driver of the HGV could have perceived the Taxi when the front of the HGV was about 20 meters away from the rear of the Taxi.

Mitigation

12.The defendant is 42 years’ old and married with a son (aged 10) and a daughter (aged 16).  He has been working as a truck driver earning HK$ 16,000 per month.  Most of his income has been spent to support his own family and he also gave a few thousand dollars a year to his elderly parents.

13.The defendant has 5 previous criminal records. He was convicted of possession of dangerous drugs in 2002, 2004 and 2014.  He was lastly sentenced to a suspended sentence in 2014 for a drug related offence.  In 2007   , he had a same previous criminal record of dangerous driving and was fined $3000 and disqualified from driving for 6 months.  In respect of his traffic record, he was firstly issued with a driving licence in 1996.  He had 5 previous traffic convictions as follows:-

2007	Dangerous driving
2013	Careless driving
2015	Careless driving
2016	Using vehicle without insurance
2016	Careless driving

14.Ms Lau, Counsel for the defendant, expressed the defendant’s deepest apologies to the deceased and his family for what had happened and the irreparable loss.  It was mitigated that the incident had also brought shock and sadness to the defendant and his family as well, who was in court to show their support to the defendant.  It was also said that the defendant has suffered from the severe pain of fistula-in-ano but refused to receive treatment after the incident as he was deeply depressed and felt he should be punished.  He lost almost 50 pounds after the incident and only recently received medical treatment on his illness after unfailing support by his family and friends.  The defendant was hospitalized and was diagnosed to be unfit to attend court hearing on the last occasion.

15.The defendant was delivering goods to the mainland at the material time and his judgment was impaired by his tiredness due to lack of rest as said by the defence counsel.  After the accident, he was too scared and therefore left the scene leaving the deceased unattended.  It was mitigated that the defendant did surrender himself after completing his duty and having composed himself.  He is deeply regretful for what he has done.

16.A number of mitigation letters were submitted to this court.  His wife and children commended the defendant as a loving husband and caring father and son, working hard to provide for his family, and taking care of his elderly parents at the same time.  There was also a letter in mitigation from his former colleague speaking highly of him as a hardworking and responsible man and seeking leniency for the defendant.  It was disclosed in the letter that the defendant was obviously noticed by his family and friends to have been deeply depressed after this accident.  He lost sleep and weight and even had the idea of losing his life due to the immense sense of guilt. 

17.Defence Counsel submitted a number of authorities for the court’s consideration as to sentence regarding the offence of dangerous driving causing death, especially where the vehicle the defendant driving was a heavy good vehicle.

Sentence

18.In sentencing the defendant, I have carefully considered the facts admitted by the defendant, all that has been put forward in mitigation by Counsel on behalf of the defendant, as well as the contents of the letters seeking leniency on behalf of the defendant and the authorities submitted by Counsel. 

1^st Charge-Dangerous driving causing death

19.The maximum penalty for the offence of dangerous driving causing death is 10 years’ imprisonment on conviction on indictment and a fine at level 5, namely $50,000[1]. It is further provided that a person convicted of the offence shall be disqualified for a period of not less than 5 years in the case of a first conviction, unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.  The Ordinance also provides that the court shall also order that the person attend and complete a driving improvement course.

20.There is no sentencing guideline for the offence and each case must be decided on its own facts.  Road accidents can cause immense human suffering and bring about serious economic burdens both to the victim’s family and the society.  Vehicles can be lethal if not driven and maintained in an appropriate manner.  Those who are in charge of vehicles owe other road users a heavy duty.  As the Court of Appeal said in Secretary for Justice v Poon Wing-kay [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 law of 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 such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous”.

21.The Court of Appeal in SJ v Poon Wing Kay, [2007] 1 HKLRD 660 has set out the relevant sentencing principles and the matters that a sentencing court must take into account when considering an appropriate sentence.  Deterrence is a key sentencing principle as the law imposes a standard on a motorist to ensure that all who come into contact with motor vehicles are safe, be they motorists, passengers or pedestrians.  The court must look at the overall circumstances and overall culpability of the offender.  A major aggravating factor justifying a heavy sentence is when a person has driven with selfish disregard for the safety of other road users or his passengers or of pedestrians.  The court also said that where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased.  The impact on people’s lives ought to be taken into account when sentencing. 

22.On the other hand, the Court of Appeal observed in Secretary for Justice v Lau Sin Ting, CAAR 3/2010 that:-

“34. Sentencing decisions for an offence under s.36(1) of the Road Traffic Ordinance are by their nature difficult. As was said by Yeung JA in delivering the judgment in HKSAR v Chan Wing Keung, Andy CACC 356/2009 at para. 36: “...The court is not dealing with criminals, but normally law-abiding drivers, who, apart from their involvement in the offence which resulted in death, can be individuals who would not otherwise dream of committing a crime. However, their irresponsible driving attitude had led to extremely serious consequences, including death to innocent people and grave distress to their families, albeit they did not intend to cause any such death or serious injury.”

35. A principled approach to sentencing for the offence has nevertheless evolved. In Secretary for Justice v Poon Wing Kay (2007) 1 HKLRD 660 this court approved a number of general principles set out in the judgment of Lord Woolf CJ in R v Cooksley & Ors [2003] 3 All ER 40. That judgment is also of considerable assistance in its reference to aggravating and mitigating factors which a court may, depending of course on the facts before it, take into account in sentencing for the present offence: see Secretary for Justice v Liu Kwok Chun, CAAR 3/2009.

36. Recognising that Hong Kong road conditions may differ in many ways from those in England, nevertheless much of what is said in R v Cooksley has application to this jurisdiction. We emphasize however that each case is different and may vary greatly in circumstances and too formulaic an approach to sentence may result in injustice.

37. Considerable discretion must therefore be allowed a court in its approach to sentence. We bear in mind also what was said by Ma CJ (as he then was) in Poon Wing Kay at paragraph 10:-

“While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor: at p 47B (para. 14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. …

.......

42. But it must be borne in mind, as the judge states, that there is a considerable element of general deterrence involved in sentencing for this offence. The seriousness of the offence is underlined by the increase in the maximum penalty from 5 to 10 years’ imprisonment.......No doubt the legislature in increasing the maximum penalty for this offence intended to reflect public sentiment that greater deterrence was called for in this sort of case.”

23.In SJ v Liu Kwok Chun, supra,the Court of Appeal said:-

“37. In assessing the degree of culpability there are two extreme situations. The first is where the event occurred because of a momentary error of judgment. The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness. In between these two extremes, there are varying degrees of culpability depending on the presence of the aggravating factors which were referred to in Cooksley at para 15.”

24.I have carefully consider the list of aggravating[2] and mitigating[3] factors helpfully set out in LIU case as well the cross-check[4] table of suggested sentence in Cooksley in respect of the four categories of culpability based on the then applicable maximum sentence of 10 years’ imprisonment which had since been increased to 14 years in England.  It should be emphasized that the Cooksley range of sentence has Not been adopted by Poon Wing Kay as the tariff but just reference for consideration of sentence in Hong Kong. 

25.There are certainly some aggravating features in the facts of the present case.  At the material times, the defendant drove on the highway at a speed without heeding the presence of the deceased and the stationary taxi on Road who would have been clearly visible at the material time.  As a result, the HGV hit the deceased and the taxi right in front of him.  The defendant’s driving fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.  The defendant admitted that he had been driving while he felt tired and the same has impaired his judgment and reaction. 

26.The danger herein was his failing to keep a proper lookout whilst driving.  The defendant should have stopped driving if he lacked sleep and felt tired.  He should not have taken such risk at the expense of safety of other road users.  His view was not obstructed and flashing light of the Taxi was on.  That said, I accept that there is no other aggravating features in the present case like influence by alcohol or speeding.

27.The defendant does not have an impressive traffic conviction record.  His record shows that the defendant has not learnt his lesson from past incidents and previous sentence was not able to deter him from driving carelessly or dangerously.

28.As a matter of fact, the defendant drove away the HGV without stopping in spite of knowing the deceased had been hit by his HGV and was seriously injured.  Worst still, the defendant did come back to the scene and checked the deceased finding him remained unconscious at the same position.  He then saw the registration number plate of the HGV being left at scene and he picked the same up and left the scene again.  The defendant excused himself as being too scared after the accident. 

29.As the defendant has been separately charged with two other offences for his having failing to stop and concealing the evidence after the accident, I am not going to take into account those two factors when sentencing for the offence of dangerous driving causing death.

30.I accept that this incident is a tragedy also for the defendant.  There is no doubt that the defendant is now deeply and genuinely remorseful.  This accident also caused enormous sadness and difficulty to defendant’s family.  He is highly regarded by his family, his friends and colleagues.  But I must take into account the view expressed by the court of Appeal in Secretary for Justice v Lam Siu Tong, [2009] 5 HKLRD 601, to the effect that previous good character and genuine remorse of a defendant who has committed this offence must not be given undue prominence (para 13 (c) and (d) of the judgment).  The focus of sentence is on the culpability of the Defendant’s driving.  The grief to the deceased’s family must also be sufficiently redressed by the sentence imposed on the defendant.

31.Having considered all the above circumstances, I take a starting point of three years’ imprisonment as the starting point for the 1^st charge.  Apart from the defendant’s timely guilty plea and his genuine shock and remorse after the accident, I do not see there is any real mitigating factor.  After the full one third discount on the starting point, the sentence is reduced to 2 years’ imprisonment.

32.I can see no special reasons not to disqualify the defendant. I now order him to be disqualified from holding or obtaining a driving licence for all classes of vehicles for 5 years.  I also make an order under section 72A(1A) of the Road Traffic Ordinance, Cap 374, there being no special reasons against the making of an order, that he must at his own expense attend and complete a driving improvement course within the last three months of the expiration of the period of disqualification of 5 years.  The defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course, notwithstanding that the disqualification period may already have ended.

2^nd Charge- Failing to stop after accident

33.In respect of the 2^nd Charge, that is the offence of failing to stop after the accident.  The maximum sentence for the offence is a fine of $10,000 and 12 months’ imprisonment.  The deceased was known by the defendant to be severely injured but the latter chose to leave the scene without stopping and making a report immediately.  He did come back to the scene at one stage but still chose to leave at the end.  The deceased was seen to be lying inside the boot of the car which could hardly be noticed by others.  Apart from causing the investigation more difficult, the defendant is leaving the deceased unattended in a highway at a hidden place at small hours.  I am not going to speculate whether the consequence would have been different had the defendant stopped and made a report immediately after the accident.  Although the deceased was attended to by the firemen not long after the accident, the defendant’s reaction was utterly irresponsible and selfish.  I consider the facts of the present case was among the worse type of scenario of the offence and I take 9 months’ imprisonment as the starting point.  After 1/3 discount for his guilty plea, the sentence is reduced to 6 months, 4 months of which is to be served consecutively to the sentence of 1^st Charge.

4^th Charge-Concealing evidence of a serious accident causing death

34.In respect of the 4^th Charge, the maximum penalty is fine of $10,000 and 6 months’ imprisonment.  The defendant took away the registration number plate of his HGV that was left at the scene after the accident.  That act was akin to pervert the course of justice.  I take a starting point of 3 month’s imprisonment which is reduced to 2 months after 1/3 discount due to his guilty plea.  The 2 months’ imprisonment is to be served wholly consecutively to the sentence of the 1^st and 2^nd charge.

35.As such, the total sentence imposed on the defendant for all the three counts he pleaded guilty to is one of 30 months’ imprisonment.