HKSAR v. Wong Siu Man

DCCC 305/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 305 OF 2010

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Reasons for Sentence

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1.The Defendant pleads guilty to dangerous driving causing death (1^st Charge), driving without a valid driving licence (2^nd Charge), and using a motor vehicle without third party insurance (3^rd Charge).

2.The Defendant drove his employer’s medium goods vehicle (“V1”) without his employer’s consent. He drove beyond the speed limit and knocked down a man standing near a light goods vehicle. The man soon died (hence, the 1^st Charge). The Defendant’s driving licence had expired (hence, the 2^nd Charge). He was not covered by any third party insurance (hence, the 3^rd Charge).

3.The incident happened at about 5:10 p.m. on 27 August 2009 outside Western Wholesale Food Market, Fung Mat Road, Sai Wan. The scene was a straight two-lane carriageway. There were parking meter spaces lining up along the southern side of the road. The speed limit of the road is 50 km/h. At the material time, the weather was fine and the road surface was dry.

4.Wong Wai-ho (“PW1”) had parked his light goods vehicle (“V2”) in the parking space no. 1936 of Fung Mat Road. Cheng Chun-kwong (“the Deceased”), aged 54, was PW1’s colleague. The Deceased had just finished his work and was about to get on to V2 from the offside rear door. He was standing on the line of studs marking the offside perimeter of the parking meter and putting his safety helmet and reflecting vest into the rear compartment of V2. Suddenly V1, which was driven by the Defendant with Chan Chung-kin (“Chan”) on board, approached the Deceased from behind at a high speed and knocked down the Deceased. V1 then stopped in the middle of the road when the Deceased was lying behind V1.

5.The Deceased was certified dead on the same day. The cause of death was “multiple injuries”.

6.When interviewed under caution, the Defendant said that he had asked Chan to pick him up at the Western Wholesale Food Market. He then asked Chan to let him drive V1 to his home. Chan agreed. Before the incident, he had seen the Deceased standing at the rear of V2. He immediately braked but V1 still hit the Deceased.

7.According to the forensic calculations, the speed of V1 before the incident was about 59 km/h with 10% deviation. The prosecution accepts that that means not less than 54km/h for the purpose of sentence. The defence does not dispute that.

8.The maximum gross weight of V1 was 9 metric tons. The prosecution accepts that it was not loaded at the time of the incident. There is no information of its actual weight at that time.

9.V1 belonged to Good View Fruit Company Limited. The Defendant was a delivery worker. The Defendant was not authorized to drive V1. Chan was the only authorized driver of V1. Under caution, the Defendant admitted that his driving licence had already expired in May 2008.

10.The Defendant was not a qualified driver. His driving of V1 was not covered by a valid third party insurance policy at the time of incident.

11.The Defendant is 26 years of age. He has a clear criminal and driving record. He received education up to F.3 level. He lived with his father, who is 67 years of age and retired. The address was in Kwun Lung House, Sai Wan. He worked as a delivery worker. He contributed $2,000 to his father as living expenses.

12.At the time of the incident, business had ended in the Western Wholesale Food Market. The location was not busy in traffic. He was trying to drive V1 to his home. It would take 5 minutes. The defence accepts that there would be more people and cars near his home at around that time.

13.Previously, he had attended 30 hours’ driving lessons for Classes 1 and 2 vehicles, namely private cars and light goods van. He failed in the road test and did not attend further driving lessons or renew his learner’s driving licence upon its expiry 1 year and 3 months before the accident. The prosecution informs this Court, and the Defendant does not dispute, either, that he has never held a learner’s licence for medium goods vehicles.

14.The focal charge here is dangerous driving causing death. The other charges are incidental to it. There are no sentencing guidelines for dangerous driving causing death as the facts in each case can vary tremendously. The leading case on the sentence of dangerous driving causing death, HKSAR v Poon Wing Kay [2007] 1 HKLRD 660, Ma CJHC adopted, among others, the list of aggravating factors outlined by Lord Wolfe CJ in R v Cooksley [2003] 3 All ER 40, 47 – 48. Of direct relevance to our present case is “(j)” under the heading “Driving habitually below acceptable standard”:

(j) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle”. (my emphasis)

15.Those underlined are the aggravating factors for the 1^st Charge in our present case.

16.The Defendant’s conduct was utterly reprehensible and irresponsible. He had no legal permission or actual competence to drive a medium goods vehicle. He was not supervised by anyone who was qualified to instruct him. He had no consent from his employer to drive the vehicle. Besides, he was driving at not less than 54 km/h, which was over the limit of 50km/h. The Deceased was not at fault or had not made any abrupt or unexpected movements into V1’s way.

17.For the 1^st Charge, namely dangerous driving causing death, the maximum sentence is 10 years’ imprisonment. The District Court jurisdiction is up to 7 years’ imprisonment. I take 4 ½ years as the starting point. Given his plea of guilty, I reduce it by one-third. There are no other mitigating factors. I sentence him to 3 years’ imprisonment. The defence has not put forward any special reasons for not disqualifying him. I disqualify him from holding any driving licence for 5 years.

18.The 2^nd and the 3^rd Charges arise out of the same facts. The sentence in the 1^st Charge has already taken into account the circumstances underlying the 2^nd and the 3^rd Charges. However, I have to specify the individual sentence for each charge.

19.For the 2^nd Charge, namely driving without a valid driving licence, the maximum sentence is 3 months’ imprisonment. I take 3 months as the starting point. Given his plea of guilty, I reduce it by one-third. The sentence is 2 months, concurrent with the 1^st Charge. There is no maximum disqualification period. The defence has not put forward any special reasons for not disqualifying him. I disqualify him from holding any driving licence for 5 years, concurrent with the 1^st Charge.

20.For the 3^rd Charge, namely driving without third party insurance, the maximum sentence is 12 months’ imprisonment. I take 9 months as the starting point. Given his plea of guilty, I reduce it by one-third. The sentence is 6 months, concurrent with the 1^st and the 2^nd Charges. The defence has not put forward any special reasons for not disqualifying him. The maximum disqualification period is 3 years. I disqualify him from holding any driving licence for 3 years, concurrent with the 1^st and the 2^nd Charges.