HKSAR v. Chung Wing Kwong

DCCC 991/2018

[2019] HKDC 549

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 991 OF 2018

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REASONS FOR SENTENCE

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INTRODUCTION

1.The defendant is convicted upon his own guilty plea of the charge of causing death by dangerous driving, contrary to section 36(1) of Cap. 374.

FACTS

2.The subject location was the cross junction of Ngau Pei Sha Street and Sha Tin Wai Road in Shatin.  Along Ngau Pei Sha Street and near the subject location, towards Kwong Yuen Estate, after crossing Sha Tin Wai Road, there was a pedestrian crossing (the “Pedestrian Crossing”).  The speed limit at the subject location was 50 km/hour.

3.At around 6 am on 18 April 2018, the defendant was driving a route N182 double-decker bus (the “Bus”) along Ngau Pei Sha Street towards Kwong Yuen Estate with 2 passengers aboard.

4.5 seconds before the Bus reached the Pedestrian Crossing, the traffic light at the cross junction well ahead of the Bus turned from green to amber, while the Bus kept travelling ahead at a speed of at least 49 km/hour. 2 seconds before the Bus reached the Pedestrian Crossing, the aforesaid traffic light turned to red while the Bus was moving forward at a speed of at least 52 km/hour.  The Bus then jumped the red light. When the Bus reached the Pedestrian Crossing, it hit Mr Yeung and his bicycle.  At that point the Bus was travelling at a speed of at least 54 km/hour.

5.Mr Yeung was sent to the hospital and was certified dead at 1:03 pm on the same day.

PREVIOUS CONVICTION RECORD

6.Prior to the commission of the present offence, the defendant had two convictions of dealing with property known or believed to represent proceeds of indictable offence.  Those two convictions came from the same case and the court imposed community service order on the defendant for those two convictions in 2010.

BACKGROUND AND MITIGATION

7.The defendant was born in January 1987.  He is now 32 years old.  He is married, lives with his wife, 6 months old daughter and other family members.  At the time of the offence, he was a bus driver with a monthly income of HK$19,000.  His employment as a bus driver was terminated in September 2018. He has been unemployed thereafter. 

8.Counsel for the defendant Ms Winnie Chu submitted written mitigation and a number of judgments. It was submitted that at the material time, the defendant’s wife was pregnant but she was told that her chance of miscarriage was high.  The defendant was therefore concerned about his wife.  On the offence day, the defendant’s wife complained to the defendant that she felt extremely worried about the unborn child and wished to see the defendant before she went to work that morning.  The defendant had driven the same bus route for almost 2 years before the incident and was very familiar with the route.  At the material time, it was his last trip of the day.  He was worried about his wife and therefore wanted to finish work as soon as possible so that he could see his wife at home.  Instead of slowing down at the Pedestrian Crossing where the traffic light had turned red, he sped up, continued at the speed of 54 km/hour and hit Mr Yeung as a result.

9.Ms Chu referred me to R v Cooksley[1], Secretary for Justice v Poon Wing Kay and Anor[2], Secretary for Justice v Lam Siu Tong[3] and Secretary for Justice v Wong Wai Hung[4].  This morning, Ms Chu further submitted the judgment of HKSAR v AU YEUNG Kwok-kin[5] for the court’s reference.

10.Three mitigation letters respectively from the defendant, his wife and his colleagues were also submitted to the court asking for leniency.

SENTENCE

11.I have carefully considered the cases submitted by Ms Chu.  I have also considered HKSAR v Hui Wang Chin[6] of which the facts were similar to the present case, except that in Hui Wang Chin the speed prior to collision was 47 km/hour which was below the speed limit.

12.In HKSAR v Lee Yau Wing[7], the applicant appealed against the imprisonment sentence imposed on him as a result of his guilty plea to the charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of Cap 374.  The Court of Appeal in paragraphs 33 to 39 of the judgment identified sentencing principles that must be accommodated when sentencing for an offence of that nature and level of seriousness.  They are the principles of retribution, deterrence and denunciation.  In paragraph 39 of the judgment, the Court of Appeal said:

“39. If the judge bears the principles of retribution, deterrence and denunciation in mind when considering the appropriate level of punishment for the offender then the sentence that he imposes should be a balanced, proportionate and just one. In this way the courts will contribute to the important objective of ‘maintaining public confidence in the sentencing system.’”

13.As the Court of Appeal said in Poon Wing Kay, the impact on people’s lives ought to be taken into account when sentencing.  The Court of Appeal also said that courts should have regard of the fact that there might sometimes be extremely grave consequences flowing from acts of dangerous driving and it was therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving, and that one major factor to be considered as an aggravating factor justifying a heavy sentence was where a person had driven with selfish disregard for the safety of other road users or of his passengers (or of pedestrians) or with a degree of recklessness.

14.In the present case, when the defendant was approaching the Pedestrian Crossing, the traffic light was changing from green to amber and then to red.  Instead of decelerating the Bus to bring it to a halt, the defendant gradually sped up the Bus against the red light to 54 km/hour which was in excess of the speed limit of 50 km/hour.  That resulted in Mr Yeung’s death which no doubt caused grave distress to Mr Yeung’s family.  I note that the defendant was worried about his wife and so he wanted to hurry back home to see his wife.  But that was not an excuse to justify or mitigate his driving against the red light at a speed above the speed limit in selfish disregard for the safety of other road users or pedestrians. 

15.In light of the facts of this case and bearing in mind the principles identified in Lee Yau Wing, I will adopt a starting point of 3 years’ imprisonment.  I give one-third discount to the defendant for his timely indication of guilty plea.  The imprisonment sentence is therefore reduced to one of 2 years’ imprisonment.  There being no other valid mitigating factors justifying further reduction in sentence, the term of imprisonment is 2 years.

16.In addition to the 2 years’ imprisonment, I also order the defendant be disqualified from driving for 5 years, and to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.