HKSAR v. Wong Kwok Chung

DCCC 850/2019

[2020] HKDC 1149

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 850 OF 2019

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REASONS FOR SENTENCE

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Introduction

1.The defendant (D2) was charged with causing death by dangerous driving, contrary to s 36(1) of the Road Traffic Ordinance (“RTO”), Cap 374.

2.He pleaded not guilty to the charge but admitted the lesser offence of careless driving at the outset of the proceedings.  The lesser plea, however, was not accepted by the prosecution and the trial proceeded as charged.  After trial, D2 was acquitted of the charge of dangerous driving causing death and he was convicted of careless driving, contrary to s 38 of the RTO.

Facts

3.The facts of the case were not in dispute and was already fully summarized in the Reasons for Verdict handed down two weeks ago on 17 November 2020.  I am not going to repeat the relevant paragraphs in details.  Suffice it to say the fatal traffic accident involved a collision between a stationary vehicle (“V1”) driven by D1 and the medium goods vehicle (“V2”) driven by D2 in Tolo Highway (Ma Liu Shui section), New Territories, in the early hours of 24 March, 2019.

4.V1 was seen speeding at about 150-160 kph on the fourth lane of the highway when it lost control and swerved to the left, zigzagging between the second and third lane of the highway before hitting the central divider of the highway and finally came to a halt stopping between the 2^nd and the 3^rd lane.  The drivers of a few vehicles which were following V1 were able to swerve away and drove past it.  D2, who drove to the scene later, failed to brake in time to avoid V1 and collided with it.  As a result of the impact, D2 lost control of V2 and swerved into the railings on the nearside of the highway.  Two sections of the railings on the nearside of the highway were damaged.  Mr Tsang Yuk Keung (“the deceased”), a male passenger sitting by the near side door of V2, was thrown out of the medium goods vehicle when the force of the impact was so great that the driving cabin of V2 was severely damaged by the railings and he was found lying on the hard shoulder of the highway 22 metres behind where V2 finally came to a stop.  The deceased died instantly and was certified dead by the paramedics on scene.

5.The decision to acquit D2 of the original charge of dangerous driving causing death was based on my agreement with the defence submission that before the collision, D2 was travelling well within the speed limit and there was nothing on the evidence presented by the prosecution to show that he was in anyway contravening any traffic regulation or conducting himself dangerously on the highway when he was approaching the accident scene at the material time.  The mere fact that D2 was unable to avoid a stationery vehicle crashed on the road in front of him would not make it obvious to a competent and careful driver that his driving in that way would be dangerous. 

Criminal records and background

6.D2 is 39 years old.  He was born in Hong Kong and received education up to Form 3 level.  He was working as a self-employed lorry driver with a monthly income of $20,000 - $30,000.  He was married for 7 years and the couple was living together with his 71-years-old father.

7.D2 has two criminal records. The first being possession of dangerous drugs in 2003 for which he was fined $3,000 and the second being assault occasioning actual bodily harm in 2006 for which he was sentenced to the Drug Addiction Treatment Centre (“DATC”) with conviction recorded.

8.For traffic records, in the past, D2 was convicted twice of one careless driving offence and another offence of defective braking system and a number of other minor fixed penalty traffic offences during the last 10 years.

Mitigations

9.In mitigation, Ms Draycott SC acknowledged that D2’s criminal record was not excellent but stressed the fact that as a professional driver, his traffic convictions were not that bad with mostly fixed penalty records only.  The deceased passenger was D2’s customer as well as his friend. He was fraught with guilty feelings over the accident and it has been a traumatic experience for him so much so that he was unable to drive for the first five months after the accident and he still sometimes woke up and cried during the night when he recalled the incident.

10.The defence also submitted a few mitigation letters for my consideration.  They were all written by friends and family members, including the wife and the father of D2 and I am not going to refer to the content of these letters in great details.  In short, all the letters spoke highly of D2’s as a responsible son, husband and driver.  Mr Zou (PW3), the other passenger travelling on V2 at the material time commented that D2 has been driving him and the deceased to the vegetable market in Fanling for the last 3 years and all along his manner of driving was described by him to be “gentle and smooth”.  He was driving with care and well within the speed limit. He attributed the cause of the accident to the drizzling and the wet condition of the highway at the time.  Both the father and wife of D2 said D2 really feels grief for causing the death of the deceased in the accident.  The father said he had suffered from cancers and the related medical expenses has already spent all the family savings.  D2’s wife is not working as she needs to take care of the ill-stricken father at home.  D2 is therefore the bread-winner of the family and they all asked the court to give D2’s a chance when it comes to sentencing.

11.Ms Draycott SC told the court that before the hearing, D2 has already resumed his work as a lorry driver as before.  She submitted that the present case is not a worst case of careless driving and there is no purpose to put D2 in prison and he has suffered enough. She asked for a non-custodial sentence.

Community Service Order(CSO) Report

12.Before sentencing, I obtained a suitability report for CSO and adjourned the hearing for 14 days.  In the report, which consists of 4 pages, the probation officer gave a detailed account of the background of D2 which largely confirmed with the mitigations advanced.  However, the probation officer was seemingly disturbed by D2’s past drugs record and the fact that he has also been sentenced to the DATC once.  The probation officer’s concern is understandable as a drug-free status was crucial for assessment on his suitability for being placed under a CSO.  She therefore investigated further into D2’s drug-taking behaviour and with his consent, two urine tests have been conducted and both indicated positive results of morphine, codeine, methadone and methamphetamine.  Further enquiry was made to the social workers concerned of the Society for the Aid and Rehabilitation of Drug Abusers (“SARDA”) for the history as well as the details of the methadone treatment received by D2.  The probation officer came to the conclusion that it was apparent that D2 has been abusing heroin for a long period of time for around 18 years since 2002 and with high dependency of dangerous drugs up to the present, which contradicted to D2’s alleged little dependence on the dangerous drugs in the past years.

13.D2 claimed to be determined to quit the drug habit and in order to take care of the aged old father and his wife, he asked for a chance to perform CSO and even committed to perform 240 hours of unpaid work for the community.  He claimed that he would work steadily as a lorry driver, lead a law-abiding life and attend regular methadone-treatment in the next 12 months during the CSO.  He also said he would move to Guangzhou together with the father and wife upon the completion of the CSO so that he could be completely free from the temptation of taking dangerous drugs and not to return to Hong Kong until he is completely drug free.  The probation officer however suggested D2 that he should consider voluntary drug-withdrawal treatment programmes at different residential drug treatment and rehabilitation centres in Hong Kong but he declined.  In the end, not surprisingly, D2 is considered not to be a suitable candidate for CSO and thus CSO is not recommended.

14.In response to the unfavorable content of the CSO report, Ms Draycott SC urged me not to consider sending D2 to the DATC as it would be too harsh as the maximum sentence for careless driving is only 6 months’ imprisonment and his drug-taking problem was not in any way related to the present offence.  Ms Draycott SC told me to consider imposing a short custodial term so that D2 could get back to his life and even go to Guangzhou with his family to kick the habit of drugs after serving his sentence.

Sentencing Consideration

15.In considering the question of sentence for careless driving, the first thing to note is that D2 was convicted of the lesser offence of careless driving after trial to which he has already pleaded guilty at the outset of the proceedings.  The maximum sentence is $5,000 and 6 months’ imprisonment.

16.Another equally important consideration is of course the actual consequence of the careless driving on the part of D2 which resulted in the tragic death of the deceased in this case.  The culpability of D2 remains the primary consideration and the court needs to decide whether the act of careless driving was serious.

17.In HKSAR v Ng Siu Bun[1], the applicant was a taxi driver, he struck a 91-years-old pedestrian at a pedestrian crossing as he turned right into the junction when the traffic signal governing the applicant was green in his favour.  At the material time, Typhoon signal No 3 had been hoisted, it was drizzling and the road surface was wet.  The speed limit was 50 kph and there is no suggestion that the applicant was either speeding or at any stage lost control of his vehicle.  The applicant was convicted of dangerous driving causing death in the District Court.  On appeal, the Court of appeal set aside the conviction and substituted it with a careless driving conviction. The Court of Appeal made the following comments[2]:-

“27. While it was, as we have observed, drizzling at the time and any prudent driver must have in mind how his vehicle and his driving may be affected by rain and a wet road surface, it was also 3 o’clock in the morning, a time at which one would not necessarily expect many pedestrians to be about. And while a green light in a driver’s favour does not provide a licence for him to drive through pedestrians whom he can see are jaywalking, he is entitled to assume that others, both motorists and pedestrians, are obeying traffic signals. As we have said, and we must stress, the applicant did not infringe any traffic regulation or provision in the RTO. Whilst we acknowledge, as Mr Boyton concedes, the applicant was careless in not keeping a careful lookout in the wet road conditions at a busy junction, particularly where his view of the road ahead was completely and then partially obscured, we cannot see how his driving can be said to have fallen far below what would have been expected of a competent and careful driver.”

18.Coming to reconsider the appropriate sentence of the applicant, the Court of Appeal emphasized the importance of the consequences as well as the culpability of the particular act of careless driving.

19.On the one hand, it mentioned the case of HKSAR v Leung Chiu Yu[3] where the respondent had hit and killed a 4-year-old child who had strayed onto a pedestrian crossing in circumstances where there was no evidence that the respondent was speeding, or that the traffic lights were not in his favour.  The respondent was only given a fine by the trial judge but the Court refused to disturb the sentence of a fine in the court below but did impose a 12 months’ disqualification order in addition to a fine.

20.At the other end of the spectrum of careless driving, the Court of Appeal referred to HKSAR v Li Chau Wing[4].  The applicant who was driving the lorry in question had braked on seeing an unexpected obstruction in the fast lane of the highway ahead and subsequently lost control of his vehicle when it ‘jack-knifed’ into the side of the bus.  The bus plunged off the highway through the safety barrier and down a slope.  21 people lost their lives in the tragic accident.  It may be noted that the lorry was travelling within the speed limit, but the road surface was wet. The Court of Appeal described the case as among the most serious of its kind under the offence of careless driving.  This is so given the consequence of the careless driving involving the tragic loss of life.  In the end the Court considered that the appropriate sentence for careless driving after trial should be 5 months’ imprisonment.

21.In Ng Siu Bun (supra), the Court of Appeal finally took the view that the appropriate starting point for sentence would have been 6 weeks’ imprisonment after trial.

22.In the present case, taking into account of the culpability and consequence of the act of careless driving of D2, I consider that his failure to pay sufficient regard to the traffic condition on the highway ahead and his failure to apply the brake in time to avoid the collision placed him on a higher culpability than the applicant in Ng Siu Bun (supra).  It was because if he was travelling at a speed of 70 kph as he claimed, he was in a better position in terms of time and distance to apply the brake in time to avoid the collision but he was apparently not paying sufficient attention and responding as quickly as he could.

23.Based on the above, I took the view that the appropriate starting point for this case should be 9 weeks’ imprisonment.  The sentence will be further reduced by one-third to 6 weeks’ imprisonment on account of his plea of guilty.  I shall further order a 9 months’ disqualification order imposing him a ban to drive all classes of vehicle during the disqualification period.