HKSAR v. Chow Pui Yeung

DCCC 929/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 929 OF 2010

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REASONS FOR SENTENCE

1.The Defendant has been convicted on his own pleas on 2 counts on the indictment, namely count 1 of dangerous driving causing death, contrary to Section 36(1) of the Road Traffic Ordinance, Cap. 374, and count 2 of driving a motor vehicle with alcohol concentration in blood exceeding the prescribed limit, contrary to Section 39A(1) of the Road Traffic Ordinance, Cap. 374.

2.Facts admitted by the Defendant disclose that the Defendant picked up Miss Chan Tsz-ying at 4 a.m. on 24^th December, 2009, after she had finished work in Tsim Sha Tsui, and he brought her to a bar in Granville Road, Tsim Sha Tsui, for a drink.  On arrival, she and the Defendant went to a table where there were 2 bottles of whisky and another bottle of whisky diluted with water. One whisky bottle was empty whilst the other was two-thirds empty.  The Defendant continued to drink with Miss Chan and another friend. Soon after, the Defendant took the bottle with remaining whisky to another bar on Granville Road, and they had more drinks.  He ordered another bottle of whisky and one bottle of whisky diluted with water, and continued to drink – he drank 10 odd cups of whisky diluted with water and one-third of a bottle of whisky.  At about 7.35 a.m., the Defendant left the bar with Miss Chan and another friend, and boarded the vehicle with registration number MJ 7003, with the Defendant driving the vehicle. They drove from Tsim Sha Tsui to Ngau Chi Wan to drop off the Defendant’s friend. After dropping off his friend at Ngau Chi Wan, the Defendant drove his car to Shun Tin  Estate, with Miss Chan seated in the front passenger seat.  He drove along eastbound Clear Water Bay Road, then along eastbound New Clear Water Bay Road, and turned left into Sun Lee Street, and then turned right into Lee On Street at high speed towards Shun Tin Estate. Miss Chan asked the Defendant to slow down, but he responded casually and continued to drive at high speed. Upon turning into the southbound section of the road, there was a white vehicle about one to two vehicles’ lengths ahead. The Defendant steered MJ 7003 into the opposite, i.e. the northbound section of the road, to overtake the white vehicle. Once in the northbound lane, he saw a lorry coming towards him in the northbound lane – the Defendant immediately accelerated to complete overtaking the white vehicle  and then steered sharply to the left back into the southbound lane.  The Defendant lost control of MJ 7003, and it ran towards the nearside pedestrian pavement on the southbound section of the road.  Miss Chan fell to the right and heard the loud sound of collision. The glass of the front windscreen was broken and she saw the car hitting the boards erected along the reinforcement wall at the left hand side of the pavement. On hitting the boards, the vehicle bounced back and swung to the right until it came to a halt on the pedestrian pavement, facing the north.  A number of pedestrians who were walking towards the junction of Shun King Street and the road just prior to the accident observed the speed of MJ 7003 when it ran onto the pavement to be about 80 km/hour. Upon mounting the pavement, it  knocked down a few metal railing erected along the pavement and then hit the deceased, Chu Chi-shing, at his back as he was walking toward Shun Tin Estate on his way to teach at the Ning Po No. 2 College at Shun Tin Estate. It then hit the reinforcement wall, bounced back in an anti-clockwise direction and finally came to a halt on the pavement. In the course of bouncing back, the nearside rear of the vehicle hit Ms. Law Oi-fung, who was jogging on the nearside pavement in the direction of Shun Lee Estate.  Ms. Law was subsequently admitted to the United Christian Hospital and discharged on 2^nd January, 2010.   Mr. Wong was certified dead at the scene of the accident by the ambulance men who arrived shortly afterwards. He leaves behind a wife and two children.  Miss Chan also sustained injuries in the accident to her right waist and back.

3.MJ 7003 was badly damaged at the front and nearside, and the front windscreen was also badly damaged.  An album containing 48 photographs of the scene as well as the damaged vehicle and a sketch depicting the route of MJ 7003 from Clear Water Bay Road until the scene of the accident was produced by agreement and viewed. No skid mark was found on the road after the accident.

4.Four railings that were erected on the pavement  and  8 metres of the boards erected along the reinforcement wall were also badly damaged.

5.Where the accident occurred, the speed limit was 50 km/hour. The weather at the material time was fine. The road surface was dry and in good repair.  The traffic flow was low as it was  the early morning of Christmas Eve, 2009. The road in question was a single carriageway, carrying two lanes of traffic, with one lane in each direction. The road was divided by hazard warning lines and double lines, which markings depicted the nature of the road.

6.When questioned about the cause of the collision, the Defendant said he was driving at a speed of about 60-70 Km/hour. A screening breath test conducted on the Defendant at the scene soon after the accident showed a reading of 65 ug of alcohol in 100 millilitres of breath.   The Defendant was arrested for dangerous driving causing death and driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit.  He remained silent under caution. A blood sample was obtained from the Defendant shortly after the accident and found to contain not less than 144 milligrams of alcohol per 100 millilitres of blood.  The prescribed limit is 50 millilitres of alcohol per 100 millilitres of blood.

7.The Defendant had bought the vehicle MJ 7003 in early December, 2009. As he was a newly qualified driver, having obtained his driving licence in March, 2009, he asked Mr. Fan Cheuk-kwan to be the registered owner of the vehicle, and  Mr. Fan agreed.

8.Dr. Poon Wai-ming, a forensic pathologist, opined that a driver with an alcohol  blood level  of 144 milligrams per 100 millilitres of blood would have suffered from a loss of inhibitions and an impairment of judgment.  He would also have signs of slurred speech and unsteadiness of gait.  The combination of these factors would impair one’s ability to control a motor vehicle properly in response to emergency and unanticipated events.

9.Counsel for the prosecution handed up an extract from ‘Road Traffic offences in Hong Kong’ by John Saunders, as well as 3 authorities – R. v. Cooksley [2003] 3 All ER 40, HKSAR v. Law Siu-kuen, HCCC 188/2009, and SOJ v. Poon Wing-kay CAAR 2/2006. I have considered all the matters raised by Counsel for the Prosecution. I have also carefully considered all that has been urged upon me in mitigation by Counsel on behalf of the Defendant, as well as the letters written by the Defendant and his mother, which are before me, and the contents of the Background Report that I had called for. Counsel for the Defendant also handed up 2 authorities,  HKSAR v. Sheung Koon-hoo, Daniel, CACC 56/2010 and HKSAR Cheng Ho-chow, CACC 111/2009, which I have considered as well.

10.The Defendant is now aged 24.  He has one previous criminal conviction – he was convicted of possession of dangerous drugs in July, 2009 and placed on probation for 24 months. However, he failed to comply with his probation order and was convicted of breach of the said probation order on 9 August, 2009 and the probation order was discharged and he was sentenced to 12 months’ imprisonment.  He is currently serving this period of imprisonment.   He received his driving licence on 12 March, 2009 – he already had one previous conviction for careless driving, and fixed penalty tickets for failing to comply with traffic signs and speeding.  He also had 3 other traffic convictions that relate to the vehicle he was driving on 24 December, 2009. I am told that in respect of this traffic accident, the Defendant was released on police bail of $20,000 and had to report back to the police on 7 June, 2010. He failed to answer his bail, and also because he had breached his probation order, he was placed on the wanted list. He was subsequently arrested on 26 July, 2010 for the offence of possession of dangerous drugs, and has been remanded in custody since. He therefore still has an outstanding case of possession of dangerous drugs.

11.Counsel for the Defendant submitted that the Defendant failed to answer his bail on 7 June, 2010 because he knew he had to go to jail for a long time, so he used that period to work two jobs to earn more money to support his mother. Apart from that, he got arrested for another offence of possession of dangerous drugs.

12.The Defendant was brought up by his mother alone.  His parents divorced when he was about 5 years old, and his mother was granted custody of him – he has had no contact with his father since, nor did his father make any financial contribution to them, and they relied on CSSA.  When the Defendant started working in 2001 after completing Form 3, they stopped relying on CSSA.  He was able to maintain a stable work pattern and make regular financial contributions to his mother, but mingled with undesirable peers that he met at bars and karaoke lounges since March 2009, and he even used dangerous drugs. He told the probation officer who interviewed him for the Background Report that he attributed his serious misdeed to the bad influence of alcohol. He claimed to be a social drinker and said he had taken half a bottle of whisky at the material time celebrating Christmas with friends.  He said he was deeply remorseful and ready to face the legal consequences.

13.The maximum penalty for offences of dangerous driving causing death was increased from 4 July, 2008, from 5 years’ imprisonment  to 10 years’ imprisonment on conviction on indictment and a fine at level 5, namely $50,000. This is set out in Section 36(1)(a) of the Road Traffic Ordinance, Cap. 374.  It is further provided in Section 36(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 years in the case of a first conviction, unless the court for special reasons orders that person be disqualified for a shorter period or that the person not be disqualified. This clearly reflects how seriously the legislature and society in general view offences of this nature. In particular, where the legislature increases the maximum penalty for an offence, the courts treat that as an indication of the legislative view that the offence is regarded as more serious than it used to be regarded and the courts will reflect that view by passing sentences more severe than the sentences that used to be passed before. The maximum penalty for offences of driving with alcohol concentration above the prescribed limit upon conviction on indictment pursuant to Section 39A(1) of the Road Traffic Ordinance, Cap. 374,  is imprisonment of  3 years and a fine at level 4, namely $25,000. There is also provision for disqualification.

14.Road accidents can cause immense human suffering and bring about serious economic burden both to the victim’s family and the society. Vehicles can be lethal if not driven and maintained in an appropriate manner. Those who are in charge of vehicles owe other road users a heavy duty.   As the Court of Appeal said in SOJ v. Poon Wing-kay, supra:

“Since sometimes there might be extremely grave consequences flowing from acts of dangerous driving, it is necessary to have in mind a deterrent effect. The standards required by law of motorists are there to ensure that all who come into contact with motor vehicles, including other drivers, passengers in the defendant’s car and pedestrians, etc. are safe. While it might be right in some instances not to treat violators of traffic laws as true criminals, for offences such as dangerous driving causing death, the offender might not necessarily be seen in such a benevolent light, in particular so in cases where it was obvious to the offender himself that his driving was dangerous”

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The court also said that where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased. The impact on people’s lives ought to be taken into account when sentencing.

15.The court referred to the dictum of Lord Woolf CJ in R. v  Cooksley [2003] 3 All ER 40.  It stated that 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. The principles enunciated in Cooksley were considered with approval by the Court of Appeal in Hong Kong in Poon Wing-kay, supra.

16.In the headnote of the case in the All England Report, there is a list of what the court considered to be aggravating factors.  These factors included a number of matters such as the consumption of alcohol or drugs, excessive speed, racing, competitive driving, showing off, a disregard of warnings from fellow passengers,  a prolonged persistent and deliberate course of very bad driving, for example, persistent inappropriate attempts to overtake or cutting in after overtaking, using a mobile phone, driving when suffering from a known medical condition; other offences committed at the same time, for example, driving without holding  a valid driving licence, driving whilst disqualified, driving without insurance, and driving while a learner without supervision.  The court goes on to cite other examples of aggravating features. I have had regard to those factors.

17.Counsel for the Prosecution has contended that the aggravating factors here include a consumption of alcohol, driving at speed, disregard of warning from his passenger Ms. Chan, a prolonged, persistent and deliberate course of very bad driving, in that he kept overtaking, aggressive driving, in that there were persistent inappropriate attempts to overtake, driving when knowingly deprived of adequate sleep or rest – he had been drinking from before 4 a.m. until about 7.35 a.m. when he got into his vehicle to drive Ms. Chan and his friend home, he had just got his driving licence and was a newly qualified driver, driving a recently purchased vehicle he would not have been too familiar with,  and therefore should have driven with more care. Counsel for the Prosecution submits that here, it is a case of the most serious culpability, and a starting point of 6 years or more is appropriate.

18.Counsel for the Defendant accepted on behalf of the Defendant that the aggravating factors submitted by the Prosecution were present save for one – she contended  that although the Defendant was drunk, he was not tired  - it was a Christmas holiday for him on 23 December, 2009, and therefore he would not have been tired when he got into his car to drive at 7.35 a.m. on 24December, 2009.  I do not accept that.  Common sense dictates that a person who has been up all night drinking would be tired by 7.35 a.m. the following morning. 

19.On any view, the standard of the Defendant’s driving in the early morning of 24 December, 2009, was very bad.  It was the combination of excessive speed and intoxication on his part that made his driving utterly dangerous at the material time.  I note from his traffic record that despite having only received his driving licence on 12 March, 2009,  he committed an offence of driving in excess of the speed limit by more than 15 km/hour but not more than 30 km/hour on 19 October, 2009, for which he was given a fixed penalty ticket and fined $450 on 2 November, 2009, and on 5 May, 2009, he committed an offence of failing to comply with traffic signs, for which he was given a fixed penalty ticket and fined $450 on 5 June, 2009. He also has a previous conviction for careless driving. For the short period of time that he has had his driving licence, he does not have a good record of driving.

20.Mr. Justice Wright in his reasons for sentence in HKSAR v. Law Siu-kuen. HCCC 188/2009, referred to Richardson & Others v. R [2006] EWCA Crim 3186, in which the English Court of Appeal was asked to revisit the guidelines it had enunciated in Cooksley:

“22......The consumption of alcohol is deliberate. Everyone knows, or should know, that the consumption of even small quantities of alcohol undermines the ability of any driver to apply his full concentration to the road. Where the consumption is high, it is effectively extinguished. Alcohol makes a driver personally unfit to drive, and the car of which he is in control becomes as dangerous with him at the wheel as if it were subject to a serious known, potentially fatal, mechanical defect. Looking at the matter broadly, there is never any acceptable excuse for driving a vehicle when the ability to do so properly is impaired by alcohol or drugs....[The] depressing feature [of the offence] is that it is often committed by men and women who are otherwise responsible drivers, of positive good character, who in the normal course of events would never contemplate committing any criminal offence. After the accident their remorse is instantaneous and genuine. Their own lives are scarred with the knowledge that they have killed another human being when, if they had been completely sober, the fatal accident would probably not have occurred.

23. The message however is stark and unequivocal. Driving under the influence of drink or drugs is a serious offence. If there is a consequent road traffic accident in which death results, the consequences are catastrophic for the deceased and his or her family, and however excellent the character of the offender, and genuine his remorse, for all effective purposes, a custodial sentence is inevitable....”

These remarks are entirely appropriate herein.

21.I have had regard to the various decisions which have been made available to me by counsel.  That said, it is unhelpful to attempt to compare, other than in broad terms, the conduct and consequences of one set of conduct with those of another for sentencing purposes in matters of this nature. Reference to sentences imposed in previous decisions do little more than provide broad guidance. Each matter is entirely dependant upon its own facts.

22.I find here that the culpability of the Defendant is that of the most serious culpability.  Dr. Poon Wai-ming, a forensic pathologist, opined that a driver with an alcohol  blood level  of 144 milligrams per 100 millilitres of blood, the level of alcohol the Defendant had,  would have suffered from a loss of inhibitions and an impairment of judgment.  He would also have signs of slurred speech and unsteadiness of gait.  The combination of these factors would impair one’s ability to control a motor vehicle properly in response to emergency and unanticipated events. To get into a car and drive when in that condition  is absolutely unacceptable.

23.In sentencing, I take into account all that has been urged upon me in mitigation by Counsel on behalf of the Defendant.  In  my view, the only mitigation of weight is the Defendant’s pleas. There is little else. I also bear in mind the totality principle of sentence as he is currently serving a term of imprisonment.

24.On count 1, I take as a starting point 6 years’ imprisonment, discount this by one-third to reflect his plea, which is the only mitigation of weight before me, and sentence him to 4 years’ imprisonment.  He is also disqualifies from holding or obtaining a driving licence for all classes of vehicles for 5 years.

25.On count 2, I take as a starting point 18 months’ imprisonment, discount this by one-third to reflect his plea, and sentence him to 12 months’ imprisonment, and disqualify the Defendant from holding or obtaining a driving licence for all classes of vehicles for 12 months.

26.The terms of imprisonment and disqualification orders on both charges are to run concurrently, but are consecutive to the term he is presently serving.