HKSAR v. Ko Siu Hung

DCCC254/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 254 OF 2012

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of causing death by dangerous driving and one charge of causing grievous bodily harm by dangerous driving, contrary to sections 36(1) and 36A of the Road Traffic Ordinance, Cap.374, respectively.

The Facts

2.The defendant was driving a light goods vehicle along the Yuen Long Highway towards Tuen Mun at about 9.30 am on 4 September 2011.  There was ultimately no evidence that he was speeding on this highway where the maximum speed limit is 80 kilometres per hour.

3.A private vehicle driven by a Mr Chan, PW1, had broken down on the same highway some distance ahead of the defendant’s vehicle.  Mr Chan had his elderly mother-in-law sat in the front passenger seat whilst his two young sons and a 41-year-old female relative sat in the backseat.  Mr Chan had broken down in the middle lane of this three-lane highway.  As soon as Mr Chan had come to a standstill, he switched on his hazard lights and applied his handbrake.  A short time after that, tragically, his vehicle was hit square on from behind by the defendant’s vehicle.

4.After the collision, the two vehicles travelled some 67.2 metres before stopping at the hard shoulder.  Mr Chan’s vehicle was seriously damaged.  The rear boot collapsed inwards.  The rear offside passenger door detached from the vehicle.  Three of the four tyres deflated. All windows and windscreens shattered.  In short, the structure of his vehicle was seriously deformed.  As a result, Mr Chan’s female relative who was sat in the rear of the vehicle was severely injured.  She did not respond to any resuscitation and died that same day from multiple injuries.  Mr Chan’s mother-in-law also suffered multiple injuries and remained in a semi-conscious state for about six months before she passed away.

5.The defendant was arrested at the scene and subject to a breath test which was negative.  He told the police that he was travelling at about 80 kilometres per hour and he had seen Mr Chan’s vehicle in the distance but was not sure if it was moving or not.  By the time he noticed it was stationary, it was too late.  He came from behind without braking, swerving to change lanes nor did he honk his horn.  He took no action and ploughed straight into the back of Mr Chan’s vehicle without any reduction in his speed.

6.The prosecution investigated the accident and a forensic scientist concluded that Mr Chan’s parking brake was on and his hazard lights switched on, yet defendant did not slow down or apply any emergency braking prior to the impact.  He also concluded, as determined by a field test, that the defendant would have been able to see Mr Chan’s vehicle from a distance of 410 metres; and if he had been travelling at 80 kilometres per hour, the stopping distance would have been 64.1 metres. Since the stopping distance of the defendant’s vehicle is significantly less than the line of vision from his vehicle to Mr Chan’s vehicle, the accident could have been avoided if he had applied emergency braking at the speed of 80 kilometres per hour. 

7.In short, the defendant fell well short of a careful and conscientious driver.  He could not have been paying attention to the road or other vehicles in front of him or around him.  He drove in a dangerous manner with tragic consequences.

8.I have been told in mitigation that the defendant is a 42-year-old man who is single, living alone.  He was working as a professional driver but lost his employment as a result of this accident. Defendant is not a man of clear record but his previous criminal convictions are not similar convictions.  He does have three traffic convictions, also not similar but he has been disqualified twice for accumulating too many driving offence points, once in 2006 and in 2010. 

9.Prior to these offences, the penalty for the offence of dangerous driving causing death was increased from 5 to 10 years’ imprisonment, and this court is now guided by several pertinent authorities, in particular, the Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660.  And I specifically refer myself to the principles derived from the passage at pages 667H to 668G, paragraph 10 of that authority, and I quote paragraph 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. This is important to bear in mind because, while it may be true in some instances 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. The impact on people’s lives ought to be taken into account in 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. 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. It is not a case of counting the number of aggravating or mitigating factors and then arriving by a 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 this present case) may still bring the case into a very serious category.”

10.Paragraph 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, we would add, of pedestrians) or with a degree of recklessness.”

11.The legislation and the courts emphatically stress that dangerous driving involves taking a risk whilst being in control of a potentially lethal machine.  Innocent life has been taken away as a result of an act that could and should have been avoided.  Suffering has been caused to Mr Chan’s mother-in-law that was so unnecessary.  The family of these victims will continue to suffer for a long time to come.  The defendant’s remorse and personal apology to the victims’ family in court today was palpable and genuine, but it counts for very little.

12.The serious view that the law and society takes for offences such as dangerous driving causing death has been reflected in the increase in sentences subsequently imposed by the courts.  Mitigation and remorse is always relevant in sentencing, but in the context of this offence and the pointless tragedy suffered, the defendant’s remorse will not be given undue prominence or weight.

13.Since the authority of Poon Wing Kay, a number of other cases have followed it and I have taken them into account, including Secretary for Justice v Fong Chai Man [2008] 3 HKLRD 493 and Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601.

14.To consider an appropriate starting point for these offences, I have taken into account the facts, defendant’s mitigation, the forensic scientist’s finding and his plea.  I also have taken into account the authorities I have referred to and the principles emanating from them.  I have also taken into account the driving manner of the defendant and the tragic consequences that resulted.  His lack of attention and concentration clearly caused the tragedies.

15.In relation to both Charges 1 and 2, I find a starting point of 3 years and 6 months appropriate.  I have reduced that because of the defendant’s plea today by one-third.  For Charges 1 and 2, the defendant is sentenced to a period of 2 years and 4 months’ imprisonment. Both charges will be served concurrently.  That is a total of 2 years and 4 months.  For Charges 1 and 2, the defendant is disqualified from driving all classes of vehicles for a period of 5 years, both orders to run concurrently.

(Discussion re starting point of disqualification)

16.I considered 5 years’ disqualification appropriate because I was of the view that I could order the commencement of that disqualification to be from the defendant’s date of release from custody. However, after further research, I agree that disqualification in the defendant’s circumstance should commence from today.  So I now order the defendant to be disqualified from driving all classes of vehicle for a period of 7 years from today for both Charges 1 and 2 to run concurrently.

17.I note that the defendant’s licence has already been handed into court.  The defendant is also required to apply for and complete a driving-improvement course.  That can only take place in the last three months of the defendant’s disqualification period.  If you do not apply and complete this driving-improvement course within that period of time, it will affect the return of your licence.  Do you understand all those points?

DEFENDANT: Understood.