HKSAR v. TSE WING HANG

  DCCC199/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 199 OF 2009

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Reasons for Sentence

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1.  This is the type of case where it is very difficult to consider sentence. There are no guidelines, but the court has to view very seriously this type of offence, especially where a death occurred as a result.

2.  It has been said that a car in the hands of a reckless or inexperienced driver is like a gun and it could cause untold tragedies. In this case the defendant had driven at a speed which has been found to be excessive for that stretch of the road. The road had a speed limit of 50 kilometres per hour and understandably so, because looking at the video one could see that it was a winding stretch of road, and therefore the distance in which the driver could see is also low.

3.  The defendant drove at a speed which was not below 50 but it was considered by the expert to be somewhere over 78 kilometres per hour. So in this case when considering sentence, I have to consider whether he was deliberately taking a risk or driving in an irresponsible manner as was considered by Bewley J in the case of The Queen v Chow Tai [1990] 1 HKLR 341.

4.  The accident happened on a stretch of road as I have said which is winding, and there is however no evidence to suggest that had the defendant been driving at 50 kilometres per hour, he would have been able to avoid rolling over the deceased. It is clear that the deceased had driven at a speed which caused him to lose control of his motorcycle and he then crashed into the side of the hill and then rebounded back onto the road. At that time he separated from his motorcycle, he fell on the opposite lane and his motorcycle fell on the Luk Keng bound lane, the lane on which the defendant was driving.

5.  The defendant came round the bend, seeing the motorcycle in front of him, then took the correct avoiding action in the circumstances and went onto the opposite lane but in that moment had failed to see the deceased’s body lying on that lane, rolled over the deceased’s body and finally coming to a stop somewhere ahead. The quality of the brakes having been decreased by the fact that the body of the deceased was under the car, so the car of the defendant had to roll a distance before actually coming to a stop. And by that time the deceased subsequently was found to have died.

6.  It is a string of unfortunate events which led to the conclusion when the defendant’s car rolled over the deceased’s body. Clearly, the defendant, prior to the accident, had, according to the friends of the deceased, who were on motorbikes, had followed the motorbikers into a car park and made a U-turn out of the car park prior to the accident. There is no evidence to suggest any reason for this, maybe it was because the defendant being of a young age was looking for some racing challenge. But it is unproved and it is merely a suspicion and that suspicion, I will not take into account in assessing sentence.

7.  But whatever the reason, it is clear that the deceased after making the U-turn out of the car park had gone on ahead and the defendant had followed in his car, and the events then took a tragic turn when the deceased lost control of his motorbike.

8.  The defendant is a young man of 21 years old, and he has only had his driving licence for two years. He has had minor driving offences before this, but nothing to suggest that he -- of any nature as serious as this present offence.

9.  So taking into account the string of events leading up to the accident, the defendant’s own background, I am not prepared therefore to send him to prison although I must say that this is one of those cases where it could have gone the other way. But taking into account all the facts that I have just said and the defendant’s own background, I am prepared to give him this one chance.

10.  And also I take into account the defendant’s remorse. He did plead guilty and I am told that he did offer to plead prior to the trial to a lesser offence but the prosecution was not willing to accept it. So it is an indication of his remorse and I do accept that what Mr Lee has said on his behalf that as a result of this tragic experience, it has put him off driving and he has no objection to himself being disqualified from driving.

11.  So under the circumstances, I therefore will not consider a custodial sentence. But however it is still very serious because the defendant did take a risk in driving at an excessive speed. And I do also take into account that he had a regular job as a scaffolding worker earning about $7,000 to $8,000 a month, and so I would have to fine him $4,500.

12.  And I think an appropriate penalty in this case is also to disqualify him for one year and that to order that he take a driving test before he is allowed to drive again because it is clear that he still is not aware of the consequences of excessive speeding on that kind of road and driving appropriately.

13.  So this is my sentence, therefore, he be fined $4,500, disqualified for one year and having to take a driving test again before being allowed to drive.