HKSAR v. Tong Kin Wai

DCCC 949/2018

[2023] HKDC 427

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 949 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded not guilty to one count of causing death by dangerous driving, contrary to section 36 of the Road Traffic Ordinance, Cap 374. He was convicted after trial.

FACTS

2.The accident occurred near a Lookout, near lamppost N6964A at Tai Po Road-Sha Tin Heights, Sha Tin, New Territories, in Hong Kong (“the Location”). It was a three-lane-two-way carriageway, one lane going gently downhill towards Shatin (the northbound lane)  and 2 lanes going uphill towards Kowloon (the southbound lanes).  Lanes of opposite directions were separated by continuous double white lines.  The speed limit of the Location was 70 km/h.

3.On 3 April 2018 at around 1535 hours, the defendant was driving a private car bearing registration number PC3160 (“the Private Car”)  on the Shatin-northbound lane.  A male motorcyclist, was driving a motorcycle with registration number RS1488 (‘the Motorcycle”)  on the 2^nd southbound lane (counted from the left)  towards the Location. There was a collision between the Private Car and the Motorcycle at the location.

4.I found the prosecution proved beyond reasonable doubt that at the material time the defendant was driving at an excessive speed i.e. 131km/hr in a limit of 70km/hr about 6 to 3 seconds[1] before the collision and the defendant oversteered when it was 2 seconds before the collision. The defendant’s Private Car spin and crossed the double white lines and collided with the Motorcycle which was travelling along the opposite direction.  The collision happened right on the lane which the Motorcycle was traveling. The Motorcycle was then airborne.  As a result of the collision, the driver of the Motorcycle (‘the Deceased”)  died.

5.According to the prosecution expert, Dr Cheng Yuk Ki, it was found that the head of the Deceased with its helmet hit on the top edge of driver door of the Private Car and the Deceased further flew to right rear of the Private Car and the helmet further hit the top edge near the hatch door.   The body of the Deceased also hit the B column of the Private Car.  Suspected human tissues and remains were found in the B column and the floor panel of the Private Car[2].

6.According to autopsy report of the Deceased (aged 53), the cause of death was multiple injuries.  He was found dead on the way to hospital. The autopsy showed multiple injuries with right limb amputation, chest injuries, abdominal injuries and pelvic injuries.  The marks of violence and /or identification included, inter alia, right upper limb was transected with exposure of its fractured right arm bone. Abrasion on nose and cheek, right thigh, right side of neck, right trunk and lower abdomen. Fracture of shoulder, right elbow, wrist, hip and knee joints, arm and leg bones. No alcohol was detected in blood, urine and vitreous humor. 

7.According to the medical report of the defendant, upon arrival to the hospital, he was fully conscious. There were multiple small abrasions over face and tenderness over the abdomen.  There was mild bilateral proximal lower limb muscle weakness.  He remained stable and had good recovery during hospital stay.  He was discharged on the following day of the accident and would be having follow up in the Prince of Wales Hospital out-patient clinic in eight months’ time.

8.Numerous broken vehicle fragments were scattered inside the rest garden and the furthest one over 10 meters away from southbound lanes. Both the Private Car and the Motorcycle were damaged significantly.

9.It was sunny.  The road was dry and the traffic flow was smooth.

Criminal and traffic conviction record

10.The defendant has no previous criminal conviction record. 

11.He was first issued with a driving license in 2014. In respect of his traffic record, he had one previous conviction of failing to comply with traffic signals and was fined $600 in 2013. 

Mitigation

12.The defendant is now 32. His father and mother are now 67 and 65.  He is the youngest of the two siblings.  After having finished with the secondary education and the defendant further his studies at the Open University of Hong Kong.

13.The defendant is a police constable.  He joined the Hong Kong Police Force in 2011 and his service has been suspended in 2019.  After passing-out from the Police School, he had been deployed to the Patrol sub-unit of Tsing Yi Division for two years, Police Tactical Unit between 2013-2014 and Traffic Division of New Territories South until 2018.  The annual performance appraisal rating prior to his interdiction in 2018 had never been below “Highly Effective” level.

14.During the course of his service in the Police Force, he received training and obtained certificates in Multaradar CD Mobile Speed Measurement System, Laser Gun Operators (Model: UltraLyte 100LR and TruCAM LTI 20-20), Provida 2000 (HDR)  Operators Course and Drug Influence Recognition Observation (DIRO)  Operators.  He had received numerous commendations and compliments from Superintendents[3]. He was commended by a Legislative Councilor for his work in handling a bomb threat case at Ma On Shan in 2017.

15.The defendant is divorced and the custody of the 10-year-old son was given to the mother.  The defendant has to pay the maintenance every month.  It is submitted that because of the present case, the defendant would be unable to have income to maintain the payments.  Mitigation letters of the defendant, his parents, relatives and friends were submitted.

16.It is submitted by the defence that no sentence authority directly relevant to this case could be cited.  Nevertheless, the well-known cases referred to by the defence are Secretary for Justice v Poon Wing Kay and Another [2007] 1 HKLRD 660, R v Cooksley [2004] 1 Cr App R (S)  1 and Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771.  The aggravated fact, submitted by the defence, is the speed of the defendant’s Private Car[4].

Sentence

17.The maximum penalty for the offence is 10 years’ imprisonment and a fine at level 5[5].

18.I have carefully considered the nature of the offence, the facts of the case, the age and background of the defendant and mitigation submitted by the defence.

19.The prosecution handed up Secretary for Justice v Liu Kwok Chun CAAR 3/2009 on sentence.

20.For offences of dangerous driving causing death, a deterrent sentence was called for because of the grave consequences flowing from the offence.  The dominant sentencing principle is general deterrence with principles of retribution and denunciation[6]. The culpability of the Defendant was the dominant fact in the sentencing exercise. Secretary for Justice v Poon Wing Kay and Another [2007] 1 HKLRD 660, Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70 (para 35).

21.In Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70, the Court of Appeal listed the aggravating and mitigating factors[7] that the sentencing court must take into account for the offence of dangerous driving causing death.  I have considered the list of aggravating and mitigating factors set out in the case.

22.I have reminded myself of the sentencing principle set out by the Court of Appeal in Secretary for Justice v Poon Wing Kay and Another [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. In some cases, the fact that only some aggravating factors exist, but not others (such as in the present case), may still bring the case into a very serious category.”

23.In view of the facts of the case, the relevant aggravating factor in the present case, as the defence has mentioned in the submission, is the speed of the defendant.

24.On the day in question, the defendant was on sick leave because he was injured whilst he was on duty.  Nevertheless, he was physically well and the injury had almost recovered.  The defendant was familiar with the subject road as he had traveled the subject road often.  He knew the speed limit is 70km/hr.

25.At the material time, the defendant was traveling at a speed of 131km/hr, which exceeded 48km/hr[8] of the speed limit of 70km/hr.  He was driving in excessive speed. He blatantly ignored the speed limit of the road in question. 

26.Whilst driving at a high speed, defendant also failed to steer properly when he was approaching the pedestrian crossing traffic islands which was attaching to the double white lines.  He oversteered.  The Private Car spin and crossed the double white lines and collided with the Deceased.  

27.In addition, given the nature of the subject road, which the defendant was familiar, it was shown in the accident footage that the northbound single lane is undulating with up and downslopes and winding with some left and right bends.  Along the lane there were several pedestrian crossings with safety islands.  At the material time of the day and the Location of the road, motor vehicle and pedestrian could have been expected at any moment.  The driving manner of the defendant in the light of the circumstances of the case demonstrates a blatant disregard to the safety of other road users. 

28.In HKSAR v Lei Tin Seng [2011] 1 HKLRD 341, it is held that:

“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.”

29.Whilst the culpability is the dominant factor to be taken into account, the impact on the families of those killed was nonetheless a matter that should be taken into account.

30.In Secretary for Justice v Poon Wing Kay and Another, the Court of Appeal considered that a number of general principles as stated in the English case of Cooksley equally applied in Hong Kong, which they set out together with some of their own observations as follows:

“(1)  In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly: p. 45J (para. 11). This is important to bear in mind because, while it may be true in some stances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light.

(2)  Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased: at p. 46A (para. 11). The impact on people’s lives ought to be taken into account when sentencing.

(3)  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: at p. 46C-E (para. 11). 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.

(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: at p. 47B (para. 14). 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. In some cases, the fact that only some aggravating factors exist, but not others, may still bring the case into a very serious category.

(5)  One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers or of pedestrians or with a degree of recklessness: at p. 46F-D (para. 12).”

31.In Cooksley, it classified 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.

32.Given the nature and the facts of the case, an immediate sentence of imprisonment is warranted.

33.I have also considered that the defendant is a man of good record. However, good character carries little weight given the nature of the offence.

34.In Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, the Court of Appeal held that:

“13. We wish to make the following additional observations: ‑

(1)  Almost invariably in mitigation for the offence of dangerous driving causing death, the sentencing court is provided with details going to the good character of the accused. The court is also usually informed of the deep remorse that is expressed. The present cases provided no exception.

(2)  And yet the one fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided. Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine. There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it. As Yeung JA remarked in 香港特別行政區 訴 歐陽國堅 (HKSAR v Au Yeung Kwok Kin), unreported, CACC 21/2008, 25 August 2008, the courts will not show leniency to any driver who has endangered the lives and safety of other road users.

(3)  In these circumstances, good character and remorse may count very little. These certainly count very little, or not at all, for the family and all those connected with a victim who has died as a result of an act or omission that could entirely have been avoided. The serious view that society holds for offences such as dangerous driving causing death is reflected by the increase in the maximum sentence for this offence from 5 to 10 years' imprisonment for convictions on indictment (see paragraph 2 above).

(4)  The court must therefore be astute to bear in mind the above considerations when determining the appropriate sentence in any given case in the face of details provided to it about an accused and the remorse that is shown. This is not to say that remorse or good character are not relevant considerations in terms of sentencing – they must be – but in the context of the offence with which we are concerned, they must not be given undue prominence. Further, nothing of course detracts from the discount that ought to be given when a timely plea of guilty is entered.”

35.Having considered all the circumstances, I consider that this case falls within the intermediate culpability category in Cooksley.  I take 33 months’ imprisonment as the starting point for the charge.  The defendant was convicted after trial.  The sentence is 33 months’ imprisonment.

Disqualification order and driving improvement course

36.The Road Traffic Ordinance provides that a person convicted of the offence of causing death by dangerous driving shall be disqualified for a period 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.  The Ordinance also provides that the court shall also order the person to attend and complete a driving improvement course.

37.I have confirmed with the defence and that there was no submission to make in this regard by the defence.

38.I do not see there is any special reasons not to disqualify the defendant. I order that defendant be disqualified from driving all classes of vehicles for a period of 5 years.

39.I further order, under section 72A(1A)  of the Road Traffic Ordinance, Cap 374, there being no special reasons against the making of an order, defendant to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period[9]. Failure to comply with this order is an offence and defendant shall continue to be disqualified until he has attended and completed the driving improvement course.