HKSAR v. Chan Chung Shun

DCCC 649/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 649 OF 2013

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REASONS FOR SENTENCE

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Introduction

1.The defendant pleads guilty to one charge of causing death by dangerous driving (Charge 1) and one charge of using a motor vehicle without third party insurance (Charge 2).  The two charges relate to a fatal traffic accident occurred in the morning of 27 January 2013 at about 6:26  am in which the private vehicle driven by the defendant, which was travelling downhill along the first lane of Hong Ning Road in the direction of Kwun Tong, hit the deceased Mr Chow who was 73 years old and caused the latter’s death.  It later transpired that the defendant had no third party insurance to cover his use of the private vehicle. 

Facts

2.According the agreed Summary of Facts, the material section of Hong Ning Road is a four-lane two-way carriage with two lanes going uphill in the direction of Sau Mau Ping and two lanes downhill in the direction of Kwun Tong.  There is a T-junction with Chun Wah Road. Immediately after the T-junction is a traffic light controlled pedestrian crossing.  The spot at which the collision occurred is said to be “very close” to but beyond the pedestrian crossing.  In fact, it is agreed by the prosecution and the defence in court that the width of the pedestrian crossing is 3.7 meters and that the distance between the pedestrian crossing and the spot of collision is 12 metres. 

3.The deceased was hit on his left by the private vehicle when he was crossing Hong Ning Road from its downhill side.  The impact of the collision was so great that he was thrown up and turned three full circles before landing on the road, as a result of which he suffered multiple injuries.  The ambulance was summonsed and it arrived soon. However, the deceased was found to have died before reaching the hospital.  At the time of the accident, the weather was fine, the road was dry and in good repair.  There was not much traffic.  The speed limit of that part of Hong Ning Road was 50 km per hour.

4.The defendant said under caution that when he saw the traffic light was turning from green to amber, he accelerated to 80 km per hour and drove past the T-junction at that speed.  He claimed that he suddenly noticed the deceased appearing between two cars on the opposite lane.  He said that he did not apply the brake in time and thus hit the deceased.  According to the Summary of Facts, in fact the defendant did not apply the brake at all and he did not sound the horn.

Antecedence

5.The defendant is aged 40.  He has 10 previous involving 12 criminal offences, many of them are drug-related and none of them are similar to the present offences.  He was last released from prison in 2012 after serving an imprisonment term of 4 years and 4 months for an offence of trafficking in a dangerous drug.  He also has a traffic record of failing to comply with traffic signals in 2008 for which he was fined $1,200. 

6.For the present case, I will not treat the defendant’s records as an aggravating factor.  On the other hand, he is not a man of clear record or impeccable driving record and therefore cannot be treated as such. 

Mitigation

7.In order to allow me to have a fuller picture of the case for the purpose of sentence, both the prosecution and the defence invite me to have regard to a sketch of the scene prepared after the accident by the Police. 

8.On the sketch, there were two traffic lights shown on the downhill side of Hong Ning Road, the first one shortly before the T-junction and the second one immediately after the T-junction.  Immediately after the second traffic light was the pedestrian crossing.  It is agreed that the distance between the two traffic lights is 27 metres. 

9.Mr Wong, who acts for the defendant, says that when the defendant passed through the first traffic light, it was still green.  However, when the defendant was still inside the T-junction, the second traffic light was turning from green to amber.  Seeing this, Mr Wong says, the defendant accelerated and passed through the second traffic light before the deceased was hit. 

10.For the sake of completeness, I should also mention that there was another private vehicle shown on the sketch which was travelling on the first uphill lane.  That vehicle was driven by the off-duty woman police constable who, as mentioned in the Summary of Facts, happened to witness the accident.  The witness observed that the defendant was travelling at a speed of about 70 to 80 km per hour prior to the accident. 

11.The main plank of Mr Wong’s mitigation is that the overall culpability of the defendant is low and that the accident occurred as a result of his momentary error of judgment or inattention. 

12.Firstly, Mr Wong referred to me to a letter written by the defendant who says that he is remorseful.  The defendant says that he had planned to turn over a new leaf after his last release from prison and had set up a business with two friends.  However, as a result of the traffic accident, his mood was badly affected and his partnership with the friends was dissolved.  The defendant says, however, he has not given up on himself and he is determined to a lead a worthy life in the future.

13.Secondly, Mr Wong relies on the fact that after the accident, it was the defendant who summonsed the ambulance.  The defendant had also tried to comfort the deceased at the scene. Mr Wong submits that the defendant had acted responsibly by taking positive steps to assist after the accident. 

14.Thirdly, Mr Wong, whilst not denying that the defendant had driven dangerously which caused the death of the deceased, drew my attention to the fact that the deceased had not used the pedestrian crossing and had apparently failed to notice or obey the pedestrian traffic light which should have still been red at the time when the deceased was crossing the road.  Mr Wong submits that the accident could have been avoided if the deceased had crossed the road properly.

15.Fourthly, in relation to Charge 2, Mr Wong says that the defendant borrowed the car from his friend “Ah Ming”. However, “Ah Ming” was not the registered car owner.  Mr Wong says that the defendant did not know that the defendant’s use of the private vehicle was not covered by any third party insurance.  Mr Wong agrees that a custodial term is appropriate but submits that it should run concurrently to the sentence on Charge 1.

Sentence

16.In relation to Charge 1, there is no tariff as such.  The sentence depends very much on the facts of each case.  I note that the maximum sentence in Charge 1 has been increased by the Legislature from 5 to 10 years’ imprisonment since July 2008.  The maximum sentence should, of course, be reserved for the most serious category of its own type: see SJ v Poon Wing Kay [2007] 1 HKLRD 660, at 670D-E.  For cases below that level of gravity, it is well-established that the court should pass a sentence which it feels is commensurate with the gravity of the offence: see Ho Mui v R [1963] HKLR 364, at 367.  Moreover, appropriate proportionality requires that given the level of sentence in cases of the utmost gravity was significantly increased, there should be some corresponding increase in sentences immediately below this level of gravity, continuing down the scale to the cases where there were no aggravating features at all: see HKSAR v Chan Kwok Fai [2012] 2 HKLRD 25, at paragraphs 11-14. 

17.In SJ v Poon Wing Kay, supra, the Court of Appeal adopts the sentencing considerations listed in R v Cooksley & Ors [2003] 3 All ER 40, and says the following:-

“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 … are there to ensure that all who come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

In SJ v Wong Wai Hung, CAAR 7/2010 (unreported), the Court of Appeal also emphasises the importance of having in mind a deterrent effect when sentencing in cases involving dangerous driving and that culpability is the determining factor.

18.In the present case, the culpability of the defendant lays in the fact that he chose to zoom through a changing traffic light at a speed exceeding the applicable speed limit in circumstances under which it was wholly unnecessary to do so and without regard to any pedestrians.  As a result, he took away the life of another.  Although the deceased appeared to have not used the pedestrian crossing and not obeyed the pedestrian traffic light, this, in my view, only reduces the defendant’s culpability to a limited extent, but not significantly.  This is because the defendant still had a duty to take proper care to avoid having accident with pedestrians and to keep a proper lookout.  However, as the defendant admits, he drove past the T-junction at 80 km per hour, which was about 22 m per second. When he accelerated, he had already driven past the first traffic light and was inside the T-junction.  Travelling at that speed, it would take him only about 1 second or even less to move from where he was to the point of collision which was very close to the pedestrian crossing.  The defendant simply had not allowed any time to respond to contingencies.  In the event, there was not even an attempt to slam on the brake or to sound the horn before the deceased was hit.  Besides, when the deceased was hit, he had already crossed 3 lanes from the other side of the road until he reached the lane that the defendant was travelling.  The deceased was a 73 years’ old man.  The inference to be drawn was that he could not have walked very fast.  As can be seen from the sketch, the relevant section of Hong Ning Road is a straight road.  Therefore, the defendant should have been able to notice the deceased much earlier and in any event before he decided to accelerate and speed through the changing traffic light.  If the defendant had noticed the deceased much earlier, he could have at least sounded the horn to warn the deceased.  I do not accept the defendant’s claim that the deceased appeared between two cars.  That is contradicted by the evidence of the independent witness whose evidence, stated at paragraph 4 of the agreed Summary of Facts, is that there was no traffic ahead of her on any of the uphill lanes or the two downhill lanes, save and except the defendant’s private vehicle which was travelling at a high speed of about 70 to 80 km per hour.  I do not accept that the accident occurred because of a momentary error of judgment or inattention of the defendant.  In my view, the dangerous way in which the defendant had driven is reflective of a poor driving attitude and a selfish disregard for the safety of other road users with a degree of recklessness.  

19.That said, the present case cannot be said to fall in the most serious category of its own type.  There was no racing, showing off or competitive driving.  The duration of the dangerous driving was short.  Moreover, I accept that the collision could have been avoided if the deceased had crossed the road in a proper way.  In my view, the present case falls within the intermediate culpability range under Cooksley.

20.Having considered all the circumstances of the present case, the mitigation advanced on behalf of the defendant and the cases relied upon by Mr Wong, namely, HKSAR v Cheuk Pui Kuen, DCCC 475/2012, HKSAR v Chan Kwok Fai, supra, HKSAR v Lei Tin Seng [2011] 1 HKLRD 341, HKSAR v Chung Hung Pan, DCCC 84/2012, HKSAR v Wong Miu Lin, DCCC 11/2013 and  HKSAR v Yeung Siu Lung & Anor, DCCC 89/2013 and also the case of HKSAR v Tsoi Leung Chit, CACC 88/2012, I adopt 33 months as the starting point of Charge 1.  After deducting the customary one-third for the plea, it comes to 22 months.  I also give an additional discount of 2 months for the positive steps which the defendant had taken after the accident which is a specific mitigating factor: see R v Richardson [2007] Crim LR 315.  The resultant sentence on Charge 1 is therefore 20 months imprisonment. 

21.By virtue of s 36(2A) & (2B) and s 72A(1A) of the Road Traffic Ordinance, Cap 374, I order that the defendant be disqualified from holding or obtaining a driving licence for a period of 5 years and I also order the defendant to attend a driving improvement course.  I reject that Mr Wong’s submission that the fact the accident might have been avoided if the deceased had crossed the road in a proper manner constitutes a special reason for not making the aforesaid orders.

22.In relation to Charge 2, although it arose from the same incident as Charge 1, its criminality is separate and distinct from that of Charge 1 in that the offence in Charge 2 has nothing to do with the dangerous driving manner of the defendant.  Charge 2 is about the defendant’s failure to see that his use of the private vehicle was covered by a third party insurance.  The offence is a serious one in that a death has in fact been resulted and the absence of insurance would mean that the family of the deceased would be left with no or not sufficient compensation from the defendant.  The result can be catastrophic.  If the defendant knew that his driving was not covered by any third party insurance, that would be an aggravating factor.  However, the absence of knowledge is not a mitigating factor as such.  In all the circumstances, I adopt 3 months’ imprisonment as the starting point and reduce it to 2 months’ imprisonment for the plea. 

23.By virtue of s 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272, I order that the defendant be disqualified from holding or obtaining a driving licence for a period of 12 months, there being no special reasons for not making the order. 

24.I do not accept Mr Wong submission that the imprisonment terms on Charge 1 and Charge 2 should run concurrently.  Such a course would mean that there is no additional penalty for the offence in Charge 2 which is separate and distinct.  That would also be unfair to a person who is sentenced on an offence similar to Charge 1 only but whose driving was covered by a third party insurance.  Having considered the question of totality, I order that the sentence on Charge 2 be served wholly consecutively to the sentence on Charge 1.  Therefore, the overall imprisonment term of the defendant is (20 + 2), that is 22 months’ imprisonment, a sentence which, I am satisfied properly reflects the overall criminality of the defendant in the present case.

25.Finally, as regards the disqualification orders, they are to run concurrently: see R v Bain [1973] RTR 213.