HKSAR v. Lau King Ho
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DCCC 176/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO.176 OF 2013 ---------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendant pleaded guilty to one charge of ‘Causing death by dangerous driving’[1] and one charge of ‘Driving a motor vehicle with alcohol concentration in blood exceeding the prescribed limit’[2], at 129 milligrams of alcohol in 100 millilitres of blood. Summary of facts 2.The defendant was the driver of private vehicle HU8781 (“the vehicle”). At around 7:55am on 4th August 2012, when the vehicle was going along the Tai Po bound carriageway of Tai Po Road towards the direction of Fanling near Tai Po Mei Tsuen, it ran off course and grazed against the nearside kerb and crash barrier. The vehicle went out of control and dashed forward, stopping only after it hit a lamp post, which was then uprooted and damaged. 3.As a result of the crash, Mr. Ho, who was sitting in the front passenger seat, suffered multiple injuries and died. The defendant and the two passengers in the back seat suffered minor injuries. 4.Upon Police enquiry, the defendant said he was driving at around 80kmh when he lost control of the vehicle. He also told Police officers that he had a can of beer with his colleagues and friends at his workplace after work at around 6am and stayed there until 7:30am. 5.A screening breath test came back with result of 74 micrograms in 100 millilitres of breath. The defendant was arrested. At the hospital where he was treated, blood was collected from the defendant and tested, with the result showing not less than 129 milligrams of alcohol per 100 millilitres of blood. 6.The speed limit of the section of road where the accident happened was 70kmh. It is in a straight stretch with a ‘Bend to the right’ traffic sign. The road then bend towards the right and further down the carriageway was a ‘Sharp deviation of route’ sign and crash barrier erected along the nearside lawn verge rounding the curve. 7.At the time of the accident, the weather was fine, road surface was dry and traffic was light. Police found no skid marks on the road and the vehicle was inspected and no mechanical defect was found. The 3 passengers in the defendant’s car were all his colleagues. Previous convictions 8.The defendant is of previously clear record. He has never been convicted of any traffic offences either. Mitigation 9.The defendant is 22 years old. Various letters from employers, parents, girlfriend and colleagues are submitted and they show the defendant as a responsible employee and a filial son and that he and the deceased Mr. Ho were very close friends and the defendant looked up to him. Mr. Ho was 48. 10.On the day of the accident, the defendant worked an overnight shift, 8pm to 6am the following day. It was part of his job that the defendant would drink with his customers in the karaoke. 11.After work, he had one more beer and then stayed until 7:30am. He intended at first to go play video games but the deceased invited him to drive to mainland China. They were to park the car in Sheung Shiu and then to go from there to Shenzhen. 12.The defendant was very tired when the accident occurred. The defendant slept for about 5 to 6 hours before going to work the night prior to the accident. 13.The defendant maintains that he was driving at 80kmh. Because he was very tired, he had fallen asleep and when he opened his eyes the crash happened. It is the defendant’s case that the accident was due to his tiredness and not the alcohol. 14.The defendant’s father is 52, mother is 48 and his brother is 25. The defendant has been working for Neway Karaoke for 4 years. He feels extremely sorry for the victim. He pleaded guilty, realizing that he will face a penalty. Mr. Yuen submits that the accident could be avoided if the deceased did not invite the defendant to go to China for fun after work. 15.The defendant is a hard working young man, worked from waiter to captain. He is still in the employment of Neway. 16.In relation to charge 2, Mr. Yuen submitted that the defendant’s working environment required that he drinks and so the court should regard his drinking as involuntary. The defendant thought he was capable to drive and that the alcohol was not affecting him. Sentence Charge 1 17.The maximum sentence for ‘Causing death by dangerous driving’ is a fine at level 5 and imprisonment for 10 years. The alcohol contents in the defendant’s blood at the time of the commission of the offence as particularized in charge 2 was at not less than 129 milligrams of alcohol in 100 millilitres of blood. According to s.39A(1A) of the Road Traffic Ordinance, this level is classified as ‘tier 2’. The defendant therefore did not commit the offence in circumstances of aggravation. The culpability of the defendant 18.Applying HKSAR v Lee Yau Wing CACC 282/2012, the court must make a finding on the culpability of the defendant’s driving in arriving at the correct sentence. 19.In the earlier case of Secretary for Justice v Liu Kwok Chun CAAR 3/2009, the Court of Appeal considered the English case of R v. Cooksley & others [2003] 3 All ER 40 and confirmed that in gauging the culpability of the driver in a case of dangerous driving causing death, the court should have regard to various factors. 20.For the purpose of our present case, the 2 relevant aggravating factors which would amount to a highly culpable standard of driving are the consumption of alcohol, and driving when knowingly deprived of adequate sleep or rest. 21.In relation to alcohol, I was told that the defendant had been working at the Neway Karaoke for 4 years. Due to the job nature, he would consume alcohol whilst on duty. There is no denying that he would have had some alcoholic drinks during his shift before the accident. It is also part of the summary of facts that he had a can of beer with his colleague after he had come off work. What I find worrying is that, the defendant knew that he will be drinking during his shift, yet he had chosen to drive to and from work. He did not stop drinking after his shift, but chose to consume at least one more beer after his shift ended and before he was driving his car to leave work. 22.In addition to the consumption of alcohol, the defendant also knew that he would be tired after a night shift and just 5 to 6 hours’ sleep the night before. Yet he chose to go on a relatively long drive with his friends and colleagues to go to mainland China to seek entertainment. According to his legal representative, the defendant thought he might have fallen asleep at the wheel momentarily which had caused the accident. That would also explain his perception that he was going at just 80kmh while the damage to the car and the lamp post would suggest a much faster speed. 23.There is no direct evidence as to the speed of the defendant’s vehicle at the time he lost control of it. The fact that there were no skid marks does not disclose much since the vehicle “went out of control and dashed forward” and the defendant probably never had a chance to brake and even if he did, judging from the angle the car hit the lamp post, the braking would not have caused skid marks to be left on the road. 24.Bearing in mind what the Court of Appeal said in the case of HKSAR v Chan Chi Chiu Louis CACC 249/2012 about the dominant sentencing principle being general deterrence and at the same time taking into consideration the relevant principles of retribution and denunciation, and having regard to the two aggravating factors in relation to the defendant’s culpability in his driving, the death of his colleague as a result of the accident, the previously impeccable record of the defendant, the shock the defendant must have suffered in getting his mentor Mr. Ho killed and the overall circumstances of the case, I will adopt a starting point of 4 years’ imprisonment. Since the defendant pleaded guilty to the charge, the sentence is discounted by one-third to that of 32 months’ imprisonment. Disqualification 25.Pursuant to s.36(2A), the defendant is disqualified for a period of 5 years. The defendant is also to complete a mandatory driving improvement course within 3 months prior to the end of the disqualification period. Charge 2 26.The maximum sentence is a fine at level 4 ($25,000) and imprisonment for 3 years. The alcohol content found in the defendant affects the minimum period of disqualification but not the maximum sentence. The alcohol content was at ‘tier 2’. 27.In relation to charge 2, I find that the defendant’s consumption of alcohol would warrant a term of imprisonment. I find that an appropriate starting point is that of 2 years’ imprisonment. I grant the defendant the full one-third discount for his guilty plea and sentence him for charge 2 to 16 months’ imprisonment. Disqualification 28.Pursuant to s.39A(2A), for a ‘tier 2’ alcohol content, this being the defendant’s first conviction under the section, the defendant is to be disqualified for a period of 12 months for charge 2. The defendant will also have to complete a driving improvement course. Totality Imprisonment 29.I find that the offences committed by the defendant in charges 1 and 2 must be regarded as to be connected to each other. The tiredness of the defendant would have been compounded by the presence of alcohol in his blood, resulting in the dozing off and the crash. 30.Mr. Ho was a friend, colleague and mentor of the defendant and it is obvious that the defendant is highly remorseful for causing his death. The defendant is of previously impeccable record and he had been engaged in gainful employment for the past few years. 31.I find that an overall sentence of 32 months’ imprisonment in the circumstances is sufficient punishment for the defendant and would send out an adequate message to the general public that the consequences of mixing drinking and driving is very serious. I order the sentences of imprisonment in charge 1 and 2 to be served concurrently. Disqualification 32.For the same reason, I find that the disqualification period for charges 1 and 2 should also be served concurrently. The sentence regarding the mandatory driving improvement course is also to be served concurrently, meaning that the defendant will complete the course within 3 months prior to the end of the 5 year disqualification period.
[1] Contrary to s.36(1) of the Road Traffic Ordinance, Cap.374 (“RTO”) [2] Contrary to s.39A(1) of the RTO |
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