HKSAR v. So Wai Keung

DCCC 14/2018

[2018] HKDC 1111

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 14 OF 2018

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Reasons for Sentence

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1.I convicted the defendant after trial on one charge of causing death by dangerous driving. I found that on 17 June 2017 he drove a vehicle, belonging to his employer, on Tolo highway just before 10 pm dangerously, and as a result, directly caused a traffic accident and the death of Leung Tze-ching.

2.I found that the prosecution could prove beyond reasonable doubt that the defendant drove a Maserati in the third lane of Tolo Highway approaching Tai Po near Kwong Fuk Estate and drove up to and behind PL 4507 driven by Lee Wai-fung.  Lee Wai-fung, PW1, was driving at about 70 kilometres an hour at that time, not fast enough for the defendant so he flashed him with his high beam headlights several times, indicating for him to get out of the third lane. 

3.PW1 saw the high beam flashes and said he knew that the car behind wanted him to move out of that lane because he was too slow, so he looked to move left into the second lane but there were continuous white lines between the lanes.  He also said he was scared by the flashing and slowed down to about 40 kilometres an hour as he tried to negotiate changing lanes.  His actions can be explained by the fact he had only just passed his driving test a month earlier, had only driven a few times since and the road conditions were treacherous that night.  It was an amber rainstorm warning and raining very hard.  He said the visibility outside the vehicle was very low.

4.The defendant was not to know that PW1 was basically a learner driver.  He flashed an LGV driver to indicate for him to move and the LGV responded by slowing down; obstructing him even more.  I am sure he thought that was deliberate and provocative.  His response was to change lanes and pass the LGV, but he became stuck behind a truck in that other lane and the LGV went past him again.

5.I found the prosecution proved beyond reasonable doubt that he then made his way into the fastest lane and caught up with PW1, drove past him with the intention of cutting him up.  I believed PW1’s evidence that he saw a car coming up on his right in the fast lane in his right side mirror at speed, pass him and then immediately cut into his lane.  I believed him when he said he then recognised it was the Maserati driven by the defendant and that it braked almost immediately after it cut into his lane so that PW1 had to brake too.  I described this in my verdict as a tit-for-tat by the defendant.  It was an ego issue.  Sadly, what the defendant thought was an antagonistic move by PW1 earlier when he slowed down in response to his flashing him was actually a scared nervous response by an inexperienced driver.

6.As a result of the defendant “getting back” at PW1, PW1 probably braked too hard for the wet road surface and the car spun, he lost control as he described and the tragic accident occurred.  The defendant should have seen the accident occur in his rear view mirror if he had looked. After all, the LGV hit the right road divider first, according to PW1 and PW2, and then must have spun across four lanes and hit the left road dividers and railings and overturn.  There is no need to repeat the tragic consequences of the accident.  A young man senselessly and needlessly lost his life and his family lost a son.

7.I gave full details in my verdict of how PW1 saw the Maserati after it overtook him the first time.  This is when he saw its colour and number plate which was how he was able to identify it later to the police.  There was no denying the defendant in that purple Maserati was on that road at that time.  The other witnesses, his passengers, gave less specific details, but I would not expect passengers to be as attentive as a driver, especially in this situation.  That is why I did not find the described discrepancies so material that I did not believe PW1’s evidence.  I do not intend to repeat my reasons here.

8.In mitigation, I have heard the defendant is not a man with a clear record.  He is now 43 years old.  He has many previous convictions.  They start from a young age, at 13, with burglary.  He has been sentenced to Detention Centre, Drug Addiction Treatment Centre and been sent to prison on numerous occasions.  He has 17 court appearances where he has secured 20 convictions; his last conviction was 2014, engaging in bookmaking.  The defendant obtained his driving licence in 1999 and has only one conviction for careless driving in 2015 where he was fined $1,000.

9.When arrested, he was employed as a personal assistant earning $20,000 a month.  As I have said, it was his employer that owned the Maserati and on the material night the defendant was driving it from a garage on behalf of his employer.  Mr Boyton has nothing to say in mitigation except to adopt the police antecedent statement.  There is one correction; the defendant is divorced, not single.  He has a girlfriend who has been in court throughout the proceedings.

10.As the Court of Appeal said in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, adopting the general principles found in the English case of R v Cooksley and Others [2003] 3 All ER 40:

“In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly. This is important to bear in mind because, while it may be right in some instances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may 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.

“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.

It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect ... A motor vehicle, many may often forget, when not driven to the requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and their lives are not endangered.”

11.I considered the various aggravating and mitigating features identified in the case of Cooksley: 

“Aggravating factors:-

A. Highly culpable standard of driving:

i) 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’;

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

iii) disregard of warnings from fellow passengers;

iv) a prolonged, persistent and deliberate course of very bad driving;

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

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

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

viii) driving when knowingly deprived of adequate sleep or rest;

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

B. Driving habitually below acceptable standard:

x) 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;

xi) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving;

C. Outcome of offence:

xii) more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable);

xiii) serious injury to one or more victims, in addition to the death(s);

D. Irresponsible behaviour at time of offence:

xiv) behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape;

xv) causing death in the course of dangerous driving in an attempt to avoid detection or apprehension;

xvi) offence committed while the offender was on bail.

Mitigating Factors”

At the same time the court must also take into account mitigating factors, such as:

“i) a good driving record;

ii) the absence of previous convictions;

iii) a timely plea of guilty;

iv) genuine shock or remorse (which may be greater if the victim is either a close relation or friend);

v) the offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence), and

vi) the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.”

12.In sentencing offences of this nature, the culpability of the defendant is the dominant factor in the sentencing exercise and the courts in Hong Kong have adopted the approach of Cooksley. Deterrence is obviously important; drivers must keep in mind that vehicles can become dangerous weapons on the road when misused.  This case in my view is a prime example.

13.In Secretary for Justice v Liu Kwok Chun CAAR 3/2009, the court suggested at paragraph 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 paragraph 15.”

Those aggravating factors I have just quoted above.

14.The court in Liu Kwok Chun explains the four categories of culpability and gave a range of sentencing within those categories.  That is, no aggravating circumstances would be 12 to 18 months’ imprisonment; intermediate culpability, which is where the momentary dangerous error of judgment or a short period of bad driving aggravated by a habitually unacceptable standard of driving, and the death of one or more victims or serious injury to other victims or by the defendant’s irresponsible behaviour at the time of the offence, leading to sentences within a range of 2 to 3 years’ imprisonment; thirdly, higher culpability where the standard of the offender’s driving is more highly dangerous, referring to the presence of one or more factors of (i) through to (ix) as set out above, where the sentence would range between 4 to 5 years’ imprisonment; and then finally the most serious category, which would be a starting point for a sentence of imprisonment of 6 years onwards.

15.In assessing the degree of culpability, this accident did not occur as a result of a momentary error of judgment by the defendant but because of a deliberate, intentional antagonistic move by him on PW1; a payback for what I am sure he perceived as PW1’s previous disrespect. As I have said, it was all about his ego and it was tit-for-tat.  I find that in this case there is an aggravating factor of aggressive driving by the defendant when he chased after PW1 and cut into his lane after overtaking him and then braked suddenly when very close to him causing PW1 to brake suddenly and hard.  This caused him to lose control of his vehicle completely.

16.Defendant, please stand up.

17.All that is left for me to do is to decide what category of culpability applies, and where there is the presence of an aggravating factor as I have found there is here, then I find this case comes within the third category of culpability, the higher culpability category as described above.  Having considered the background of the defendant, the facts of the case, the aggravating factor of the aggressive driving manner and the tragic outcome, I find a term of imprisonment of 4 years appropriate.  There are no mitigating factors I can see to take into account, therefore I impose a term of imprisonment of 4 years.

18.Have a seat, please.

19.I also see no special reason not to disqualify the defendant.  The defendant is disqualified from driving all classes of vehicles for a period of 5 years.  He must also complete a driving improvement course within the last three months of the disqualification period at his own cost.  I make it clear that the disqualification period starts from today.