HKSAR v. Cheng Chi Lai

DCCC 1139/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1139 OF 2013

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REASONS FOR SENTENCE

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1.The defendant, Mr Cheng, pleaded guilty to one charge of causing death by dangerous driving. He admitted that on 1 June 2013, he drove a private car dangerously on a road on Lantau Island, thereby causing the death of Mr Gavin Tara Spier, who was driving a motor-cycle.

2.The accident occurred at around 1.25pm that day on South Lantau Road.  That part of the road is described as a two-way and two-lane carriageway.  The two lanes were separated by double white lines.

3.Mr Cheng was driving behind a bus climbing uphill.  The bus was travelling slowly at around 15 km per hour.  At the time, further in front was a right bend.  Mr Cheng decided to overtake the bus.  He drove his car across the double white lines into the opposite lane in his attempt to overtake the bus.  Right at the same time, the late Mr Spier was riding his motorcycle down from the bend on the downhill lane.

4.Mr Spier slid and almost immediately, Mr Cheng’s car crashed with him and Mr Spier was trapped underneath Mr Cheng’s car.  It appears that Mr Spier lost consciousness immediately and he died before arriving at the clinic.

5.Plainly, Mr Cheng was driving dangerously and his dangerous driving cost the life of an innocent road-user.

6.Mr Paulinus Lo, counsel for Mr Cheng, told the court in his most helpful mitigation about the many distinctions the defendant has earned.  Mr Cheng is a young man of 25 years.  He lives with his father, who has retired, and his elder brother. Mr Cheng is training to become an aircraft mechanical engineer.

7.Counsel also presents the court with documents demonstrating Mr Cheng’s many academic achievements.  It is clear that Mr Cheng must have been a very talented and diligent student.  Had this most regrettable accident not happened, Mr Cheng would obtain full qualifications as an aircraft mechanical engineer by the end of this year.

8.I have also read the mitigation letters handed up by Mr Lo.  There is no doubt in my mind that Mr Cheng has been a dutiful son and a young man of many good qualities.  The letters all describe him in glowing terms.

9.Mr Lo informed the court that Mr Cheng fully understood the grave consequences his mistake entailed.  The law in relation to this type of offences has been set out in a series of appellate decisions, starting from SJ v Poon Wing Kay [2007] 1 HKLRD 660, SJ v Lam Siu Tong [2009] 5 HKLRD 601, SJ v Lau Sin Ting [2010] 5 HKLRD 318 and HKSAR v Lei Ting Seng [2011] 1 HKLRD 341.  All these cases refer to the principles enunciated in the English case of R v Cooksley [2003] 3 All ER 40, which is a case also cited by learned counsel in his mitigation speech.

10.I remind myself of what the then learned Chief Judge of the High Court said in SJ v Lam Siu Tong at paragraph 13:-

“(a) Almost invariably in mitigation for the offence of dangerous driving causing death, the sentencing court is provided with details going to the good character of the accused. The court is also usually informed of the deep remorse that is expressed. The present cases provided no exception.

(b) And yet the one fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided. Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine. There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it……

(c) In these circumstances, good character and remorse may count very little. These certainly count very little, or not at all, for the family and all those connected with a victim who has died as a result of an act or omission that could entirely have been avoided. The serious view that society holds for offences such as dangerous driving causing death is reflected by the increase in the maximum sentence for this offence from 5 to 10 years’ imprisonment for convictions on indictment.

(d) The court must therefore be astute to bear in mind the above consideration when determining the appropriate sentence in any given case in the face of details provided to it about an accused and the remorse that is shown. This is not to say that remorse or good character are not relevant considerations in terms of sentencing – they must be – but in the context of the offence with which we are concerned, they must not be given undue prominence. Further, nothing of course detracts from the discount that ought to be given when a timely plea of guilty is entered.”

11.I am of the view that this wholly avoidable mistake was a totally isolated and out-of-character one.  Mr Cheng has an unblemished record.  I am also confident that Mr Cheng will forever exercise utmost care if he were to drive again.

12.On the other hand, the court has a duty to deter offences such as this one.  Mr Spier died in consequence of Mr Cheng’s dangerous driving.

13.The present case is certainly not a case with multiple aggravating factors.  Mr Cheng’s fault was crossing the double white lines in his attempt to overtake a slow-moving bus.  This was dangerous; moreover, he was heading towards a bend and therefore, it must have been hard for him to have a clear vision of approaching traffic from the opposite lane.

14.None of the aggravating factors referred to by Woolf LCJ in the case of Cooksley apply to the present case.

15.Bearing in mind the overall circumstances, I shall adopt a starting point of 21 months of imprisonment.  Given his timely guilty plea, I shall give the customary one third discount, reducing the sentence to 14 months of imprisonment.  In addition, I do believe that in this particular case, the positive good character and impressive achievements of Mr Cheng are relevant and they do justify a further discount of 3 months, reducing the final sentence to 11 months of imprisonment.

16.Furthermore, Mr Cheng will be disqualified from driving all categories of vehicles for a period of 5 years, as mandated under section 36(2) of the Road Traffic Ordinance.  I order the period of disqualification to start today.