HKSAR v. Mak Kin Pan

DCCC 498/2020

[2020] HKDC 1191

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 498 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 1 charge of "Causing death by dangerous driving" (Charge 1) and 1 charge of "Drink driving" (Charge 2). He pleaded not guilty to Charge 3, a regulatory offence[1] which was not related to the present traffic accident. The prosecution applied to leave Charge 3 in the court file; not to be proceeded against him without leave of court. I granted the application.

Summary of Facts

Location of the accident

2.Tai Tong Road in Yuen Long is a 2-lane road with two-way traffic.  The accident occurred on its southbound lane outside Phase 1, Chun Wah Villas near the junction with Nam Hang Tsuen Road.

3.At the time of the accident, the weather was fine with sufficient street lighting.  The road surface was dry, flat and in good repair.  The volume of traffic was light.  The speed limit of the relevant road segment was 50 km/h.

The accident

4.About 11:04 p.m. on 9 December 2019, the defendant was driving a light goods vehicle GF489 ("the LGV") on the southbound lane of Tai Tong Road at high speed.  Subsequent expert calculation showed that the LGV was travelling at 101 ± 10 km/hour right before the accident.

5.As the defendant negotiated the right bend outside Yuk Ming Garden, the LGV lost control and rammed onto the sidewalk knocking down a 27-year-old pedestrian Madam Chan (the deceased).  The LGV continued to slide forward and crashed into some trees, a notice board and other objects, including 3 private cars parked inside Chun Wah Villas.

6.The LGV came to a halt when it toppled at 47 metres away from the point of impact.  The deceased was bounced off onto the ground about 7 metres away from the LGV.

7.The accident was captured by the CCTV cameras of Chun Wah Villas and Yuk Ming Garden from different angles.

8.The paramedics found the deceased lying on the ground unconscious.  She was certified dead at 0021 hours on 10 December 2019.  The medical cause of death was multiple injuries.

9.The defendant was also sent to the hospital.  He sustained minor head injuries and abrasions to his limbs.  He also claimed to have suffered from a transient loss of consciousness and amnesia.

10.The defendant's blood sample was found to have an alcohol concentration of 94 mg/100 ml, whereas the statutory prescribed limit is 50 mg/100 ml.

11.The prosecution alleges and the defendant admits that he was driving the LGV dangerously on the following basis :-

(i)  driving at an excessive speed;

(ii)  driving with a blood alcohol concentration exceeding the prescribed limit; and

(iii)  making a turn at high speed on a narrow 2-lane road with two-way traffic.

Mitigation & Sentence

12.The defendant is 34 years old and has a clear record.  He has been licensed to drive since 2006.  For traffic records, he received 1 fixed penalty ticket for speeding in August 2019.

13.Defence counsel Mr. Lam informed me that the defendant is married with 3 children (aged 9, 4 and 1).  He works as a renovation worker earning $17,000 per month.  His wife is a Chinese medicine dispenser earning $12,000 per month.

14.In mitigation, Mr. Lam explained that in the evening of the accident, the defendant had dinner with his colleagues and consumed alcohol. He then foolishly decided to drive the LGV to deliver some ceramic tiles to Tai Tong.  Mr. Lam submitted that the defendant is truly remorseful for what he has done.  Although he cannot bring the deceased back to life, he has tried to comfort her soul by paying for religious rituals for her benefit.  A mitigation bundle was placed before me; its contents are duly noted.  I accept that the defendant is an upstanding citizen.

15.To the victim(s) and their families, a traffic accident which involves fatalities or serious personal injuries must be one of the most catastrophic events which could happen to them.  It must be a devastating and daunting experience.  It saddens me each time when I need to deal with a case in which someone has lost his/her life or has been seriously injured as a result of a traffic accident.

16."A picture speaks a thousand words" and "a video shows a thousand pictures".  I have viewed the footage captured by each CCTV camera.  The deceased was walking along the sidewalk on southbound Tai Tong Road, a place which was designated for pedestrians and was supposed to be safe.  She did not try to cross the road at any stage.  Suddenly, the LGV rammed into her from behind.  The CCTV footage carried no sound, but I can safely assume that the deceased received no warning that she was going to die, not even the slightest degree of anticipation.  She lost her life without knowing what happened.  It is beyond tragic and sad.

17.The duration of the accident took about 2 seconds.  But in those 2 seconds, the deceased lost her life.  That is the reason why the court must instil into the minds of the general public that driving (whether in a professional or recreational capacity) is a privilege ‒ a privilege with great responsibilities attached.  It is a message which cannot be stressed enough.

18.In the course of sentencing, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just[2].  I must also consider the hardship caused to the deceased's family as a result of her death as well as their grievances and resentment[3].

19.The courts have repeatedly emphasized the importance of a deterrent effect when sentencing in cases involving dangerous driving.  I have reminded myself of the sentencing principles[4] set out by the Court of Appeal in SJ v POON Wing Kay [2007] 1 HKLRD 660, in particular paragraph 10(4) "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 HKSAR v LEI Tin Seng [2011] 1 HKLRD 341, Yeung JA (as he then was) held :-

"17.   This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.

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19.  The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.

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22.  This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment."

21.When determining the starting point for Charge 1, I treat the defendant as a law-abiding citizen and having a fairly good driving record.  I note that he received a speeding ticket[5] just 4 months before the present accident.  I would also interpret the forensic evidence in the way which is most favourable to him, namely that he was driving the LGV at 91 km/h in a       50 km/h zone.

22.It is not an easy task to send someone like the defendant, who has never lost his freedom, to prison.  I have considered long and hard what the appropriate length of imprisonment should be.  I understand the traumatic effect of a prison term would have on the defendant and his family.  The court, however, must send a clear message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.

23.The defendant was driving at 41 km over the speed limit; and his blood alcohol concentration almost doubled the prescribed limit.  These 2 aggravating factors put him directly in the higher culpability category on the Cooksley's scale[6]. At the same time, I am aware of his clear criminal record and almost clear driving record.  Having considered all relevant factors, I adopt a starting point of 4 years' imprisonment for Charge 1.  With the timely guilty plea, the sentence is reduced to 32 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 32 months' imprisonment for this charge.

24.In addition to imprisonment, I make a disqualification order for a period of 5 years[7], which will start to run from the date of sentencing[8].  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[9].  In my view, it is unnecessary to order him to re-take his driving licence test.

25.In relation to Charge 2, I have reminded myself not to punish the defendant twice.  When sentencing him for Charge 1, I have already factored in the drink driving element as well as the its seriousness.  I understand that for a person of similar background as the defendant's, a 1^st conviction of Tier 2 drink driving simpliciter would normally attract a heavy fine in the magistrates' court.  In my view, even a fine would amount to double jeopardy against the defendant.  I consider it just and appropriate to impose a short prison term[10] to be served concurrently with Charge 1.

26.I adopt a starting point of 3 months' imprisonment for Charge 2.  With the timely guilty plea, the sentence is reduced to 2 months.  I sentence the defendant to 2 months' imprisonment for this charge, to be served concurrently with Charge 1.

27.For Charge 2, I also make a disqualification order of 12 months[11], which will also start to run from the date of sentencing.  Since I have already made an order for a driving improvement course in Charge 1, it is unnecessary to make a 2^nd order in Charge 2.