HKSAR v. Chan Chiu Hei

DCCC 656/2017

[2018] HKDC 1563

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 656 OF 2017

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REASONS FOR SENTENCE

1.The defendant stands convicted after trial of one charge of causing death by dangerous driving, contrary to section 36 (1) of the Road Traffic Ordinance, the maximum sentence for which is 10 years imprisonment[2].

2.Full particulars of the offence are set out in my verdict handed down on 28 November 2018.  In summary at about 3:15 a.m. on 10 December 2016 the defendant driving light goods vehicle GP 690 collided with the rear end of light goods vehicle HD 4836, which was stationary underneath an overpass on the first lane of Ching Cheung Road eastbound.  The collision was captured on CCTV.

3.At the time of the accident the driver of HD 4836, Mr Ting Tak Kwong, was outside the vehicle on the nearside kerb.  The vehicle hood was open and the hazard lights were on.  The impact of the collision pushed HD 4836 forward and trapped Mr Ting underneath the nearside rear wheel.  An ambulance was called and Mr Ting was certified dead. 

4.Under caution the defendant told the police that he did not notice HD 4836 which had stopped under the flyover until it was too late to avoid a collision because the vehicle did not have lights on.   

5.The weather was fine, the road surface was dry, there was no roadworks in the vicinity and the traffic flow was light.  The approach to where HD 4836 was stopped underneath the overpass was a straight stretch of road of about 120 m.  GP 690 did not have any mechanical defects and the braking, steering and lighting systems were all working properly. 

6.The headlights of GP 690 were on and the defendant had an unobstructed view of HD 4836 on the approach which was sufficiently lit for the defendant to see that HD 4836 was stopped under the overpass with the hazard lights flashing.  The defendant had sufficient time in which to brake and avoid a collision.

7.The defendant failed to pay attention to the road ahead and failed to notice HD 4836 was stopped under the overpass until it was too late to avoid a collision.  I was satisfied so I was sure that the defendant’s driving fell far below what would be expected of a competent and careful driver and that it would be obvious to a competent and careful driver that driving in that way would be dangerous[3].

Guidelines

8.In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[4].  These factors were revised in R v Cooksley[5]. 

9.Whilst in R v Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in R v Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another[6] emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  

10.In Secretary for Justice v Lau Sin Ting the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[7].

11.In R v Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability.  This has been adopted in Hong Kong[8].

12.In Secretary for Justice v Poon Wing Kay the Court of Appeal said: -

“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 when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to 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 can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

Mitigation

13.In passing sentence, I have carefully considered the written submission of Mr Tang and everything said by Mr Tang on behalf of the defendant today together with the mitigation letters written by the defendant’s family, neighbours and former classmates, all describing the defendant as a filial son, responsible and hard working. 

14.The family describe the post traumatic effect of the accident on the defendant, including how upset the defendant was about what happened and that he had lost a lot of weight.  Mr Tang describes that in the two months after the incident the defendant did not work because of the physical and mental impact resulting from the accident and that since resuming work the defendant starts at 7 a.m. instead of 2 a.m.[9] I accept that the defendant is genuinely remorseful for what happened.

15.I take into account that the defendant is only 23, 21 at the time of the offence and that he has since the age of 16 worked in the family business.  The defendant cannot however be given credit for a clear record.  The defendant was placed on probation in 2011 when he was 16 for offences of theft and assault.  In 2015 the defendant was convicted of careless driving and fined $1,000.  In the same year the defendant also received a fixed penalty for speeding.  

Sentence

16.Mr Tang relying on the fact that the defendant was travelling at a speed below the speed limit and that there was no deliberate risk taking submits that the defendant’s driving falls within the least culpable dangerous driving range for which the appropriate sentence is 12-18 months’ imprisonment[10]. 

17.In HKSAR v Lam Ying Yu the applicant failed to comply with a stop sign at a road junction and collided with a taxi which in turn hit three workers on the road, unfortunately killing one and injuring the other two.  The Court of Appeal held that by not concentrating and failing to keep a proper lookout the applicant’s dangerous driving placed her culpability at the higher end of the least culpable dangerous driving range for which the appropriate sentence was 18 months’ imprisonment[11].

18.I am satisfied by failing to pay attention to the road ahead and failing to notice HD 4836 was stopped under the overpass, which was clearly visible, until it was too late to avoid a collision, the defendant’s driving falls into the higher end of the least culpable dangerous driving range.     

19.Taking into account the circumstances of the collision; that the defendant was also injured in the accident although not seriously[12] and is genuinely remorseful for what happened; that the accident was two years ago and the defendant’s young age, I am satisfied that the proper starting point after trial is 15 months’ imprisonment.  There are no grounds to reduce the starting point.  The defendant is sentenced to 15 months’ imprisonment.

Disqualification

20.There is mandatory disqualification 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. I find there are no special reasons.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 5 years.  

21.Section 72A (1A) of the Road Traffic Ordinance provides that a court shall order a person convicted of causing death by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again I find there are no special reasons not to order the defendant to attend and complete a driving improvement course. 

22.The defendant is ordered to attend and complete a driving improvement course, at his own cost, within the period of 3 months ending on the date on which the disqualification expires.  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 the disqualification period may already have ended.