HKSAR v. Cheng Lai Chun, Jane

DCCC 913/2019

[2020] HKDC 659

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 913 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of causing death by dangerous driving[1], one charge of using a motor vehicle with an illegal visual display unit[2] and one charge of using a vehicle with fitting other than in good and serviceable condition[3].

Admitted Facts

2.On 26 May 2019, at around 2:40 pm, the defendant was driving along the middle lane of Kwun Tong Road, towards Kwun Tong. This section of Kwun Tong Road has three lanes and the speed limit was 70 km/h.

3.The car belongs to the deceased, Kwan On-fat (Kwan), aged 85 years old. Kwan was sitting at the front passenger seat and defendant’s daughter, aged 25, was sitting at the rear passenger seat.

4.Upon reaching a mild curve of the road near Kowloon Bay MTR station, the car suddenly ran out of control and spun towards the pavement. It, eventually, ramped into a bus stop shelter and stopped.

5.At the material time of the incident, it was drizzling. The road surface was slightly wet but with good condition. The traffic was smooth and visibility was good.

6.Subsequent investigation revealed that defendant’s average speed during the 13.4 seconds, covering a distance of 331.4 m, was 89+/−9 km/h just before the accident, and nothing suggested that she had slowed down when approaching that curve. Police found no skid mark on the road.

7.The defendant sustained abrasion to her limbs while her daughter sustained head injuries but not serious. Kwan was conscious right after the accident. He was conveyed to Queen Elizabeth Hospital. However, his condition deteriorated on the way and became unconscious when he reached the hospital. He was certified dead later in the hospital. The cause of death was found to be “traumatic rupture of the right ventricle”.

8.Four other pedestrians also sustained slight injuries in this incident.  They received medical treatment for abrasions to their limbs and they were all discharged from the hospital on the same day.

9.Motor vehicle examination revealed there was no mechanical defect with the vehicle.  However, two disorders were found:

i) A visual display unit was installed inside the vehicle (Charge 2); and

ii) Both sides of the front seat belts’ straps were fully extracted from their retractors and then clipped in place (Charge 3).

Mitigation

10.The defendant is 49 years old and married.  Her husband is a hair stylist, aged 52 and daughter works in customer service, aged 25.    The defendant has one unrelated criminal record in 1988. Given the nature and time of record, I treat the defendant as a person of clear criminal record.  She also has a clear traffic record. 

11.The defendant is an accounting clerk in Driving Instructors Merchants Association Limited, earning approximately HK$11,000 per month.  The defendant came to know Kwan when she started working in the company in 2005.  At that time, Kwan was the finance officer of the company and senior of defendant. Soon they became good friends.

12.Kwan retired in 2016. The defendant and Kwan kept contact and frequently had meals together. From time to time, defendant would meet Kwan to have meals. After meals, the defendant would drive Kwan back home. The defendant offered to drive because she wanted Kwan to be safe, as he was over 80 years old and suffered from various kinds of disease.

13.At the time of the accident, they had finished lunch and were on the way back to Kwan’s home in Kwun Tong from Sai Kung. Nothing unusual happened during the journey until the defendant reached the mild curve near Kowloon Bay MTR station in Kwun Tong Road. The defendant was travelling in the middle lane. Suddenly, the defendant felt that the car was out of control and it started to spin towards her right. Instinctively, she tried to remedy the situation by turning the wheel to the left, yet the car just spun around and eventually rammed against the bus stop at the pavement.  The defendant could not explain why the car suddenly ran out of control because she was so familiar with that section of road as she had frequently travelled along it, and it was basically a long stretch of straight road with mild curves.  However, after being explained the result of police investigation, she agreed that it might be because she had inadvertently driving at an excessive speed, coupled with the wet surface of the road at the material time, the car ran out of control and spun around because of her momentary lapse of control of the car.

14.The visual display was turned off at the time of accident.  The clipped safety belt was the habit of Kwan. The defendant felt embarrassed to ask him to remove the clip. Both the visual display and the safety belts clipped did not contribute to the cause of accident. 

15.The defendant pleaded guilty and had a clear criminal and driving record. The loss of her good friend for 14 years, driving master and ex-boss who took care of her at all times, was a trauma to the defendant.  She felt deeply guilty to Kwan’s family. She has never stopped blaming herself for her recklessness since the accident. This itself is a tremendous punishment to her. Further, the defendant had been waiting for the result of this case for over one year, which caused extra stress to her.

16.Two mitigation letters were submitted and I have read both of them. 

Sentence

Charge 1

17.In the judgment of the case for Secretary for Justice v Ng Hop Sing also known as Ng Hop Shing[4], the Court of Appeal stated in paragraph 35 to 40 of the judgment that:-

“It is never an easy task to sentence a defendant convicted of dangerous driving causing death. In these cases, most of the defendants are persons of good character and in normal circumstances they have never thought of going to jail.

The courts have emphasised many times that a vehicle in control by an irresponsible driver could be a deadly lethal weapon that could cause great loss of human lives and property damage.

And, in order to deter dangerous driving by irresponsible drivers and in order to avoid loss and injury to human lives and property damage, the court would generally sentence defendants convicted of dangerous driving causing death to immediate custody sentence.

As Lord Woolf CJ in the case of R v Cooksley [2003] 3 All ER 40 on page 46 of the judgment stated:

‘A factor that courts should bear in mind in determining the sentence which is appropriate is the fact that it is important for the courts to drive home the message as to the dangers that can result from dangerous driving on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standard of driving. Motor vehicles can be lethal if they are not driven properly and this being so, drivers must know that if as a result of their driving dangerously a person is killed, no matter what mitigating circumstance, normally only a custodial sentence will be imposed. This is because of the need to deter other drivers from driving in a dangerous manner and because of the gravity of the offence.’

….

The Court of Appeal in Hong Kong, in the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, adopted the sentencing principle and guideline in Cooksley. The Court of Appeal emphasised, due to the serious consequence of the offence, there is a need for deterrent sentence.”

18.In R v. Cooksley and Others[5], it sets out a number of aggravating features of dangerous driving causing death.  It also sets out a number of mitigating factors. 

19.In  Security for Justice v POON Wing Kay[6], paragraph 10(4), the Court of Appeal said

“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. 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…”

20.In Cooksley, it classified the dangerous driving causing death cases into four categories:

(1) For cases with no aggravating circumstances, the starting point should be 12 to 18 months’ imprisonment;

(2) Two to three years’ imprisonment for offences of intermediate culpability;

(3) Four to five years’ imprisonment for offences of higher culpability; and

(4) Six years’ imprisonment or over for offences of the most serious culpability.

21.In the present case, the causes of accident were the defendant driving in excess speed for a long stretch of the road and turning a blind eye to the damp road conditions.  I have watched the videos of the car camera which captured the incident. 

22.I accept defence’s submission that although there was excessive speed, it was not “greatly excessive speed”.  From position A – G, the average speed ranges from 88 – 94+/−9 km/h.  If interpreting the forensic evidence in a way which is most favorable to the defendant, it ranges from 79 – 85 km/h.   When the defendant’s vehicle approached the material location, the average speed most favorable to the defendant is 70 – 76 km/h.  Given the speed limit of 70 km/h, even though the road condition was wet at the time, I do not find they are “greatly” excessive.

23.I also have considered the duration that the defendant was travelling.  From the available evidence, the defendant was driving at excessive speed for 13.41 seconds, for a distance of 331.4 m.  At the highest speed, it lasted for less than 7 seconds and over a distance of 178 m. The defendant was all along kept in the middle lane.  It is not a “prolonged, persistent and deliberate course of very bad driving”. 

24.Therefore, I accept there is no aggravating circumstances in this case, and the starting point should be 12-18 months.  I have considered the fact that beside the deceased, other people were injured (including 4 pedestrians and the defendant’s daughter). I have also considered the excessive speed in the damp road condition. For Charge 1, I adopt a starting point of 15 months. The defendant has pleaded guilty and is entitled to a one-third discount which reduces that sentence to 10 months.

25.The victim was the defendant’s driving master, ex-boss and good friend for 14 years. The loss of Kwan’s life because of her own serious mistake would cause extra trauma and guilt to the defendant. Along with her clear record, I will reduce the sentence by one more month, to a total sentence of 9 months.  

Disqualification Order

26.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.  

27.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. 

28.The defendant is ordered to attend and complete a driving improvement course, at her 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 she remains disqualified until she attends and completes the driving improvement course notwithstanding disqualification period may already have ended.

Charge 2 and 3

29.For Charge 2, given the fact the illegal visual display unit was not turned on and no evidence to suggest it have caused the accident, I will impose a fine in the sum of $500.

30.For Charge 3, even though the clipped seat belt did not contribute to the cause of accident, it certainly contributed to the extent of injury.  Therefore, I will impose a fine in the sum of $2,000.

31.The fines in Charge 2 and 3 to be served consecutively, for a total of $2,500.  Fines will be deducted from bail money.

[1] contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374

[2] contrary to regulations 37 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374A

[3] contrary to regulations 5(1)(b) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374A

[4] CAAR 1/2017

[5] [2003] 3 All ER 40

[6] [2—7] 1 HKLRD 660