HKSAR v. SHEUNG KUN HOO, DANIEL

 DCCC568/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 568 OF 2009

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Reasons for Sentence

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1.  Defendant, you appear before me today for sentence, having been convicted after trial of an offence of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Chapter 374, Laws of Hong Kong.  This is the 1st count on the indictment.  In addition, I am to sentence you on Counts 2 and 3 which you have admitted, those being offences of using a defective vehicle, contrary to registration 28(2) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, and driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance. 

2.  The circumstances of the 1st charge were that at the material time, just before 3 o’clock in the morning of 7 November 2008, you drove your vehicle at speed in the middle lane of Wong Nai Chung Road at a time when your driving ability was impaired through an excessive intake of alcohol.  You collided with the victim, an expatriate male, who at the time was standing in the middle of the road, waving his arms in an attempt, one assumes, to flag down a taxi.  Despite the fact that the expatriate male was clearly standing in the middle of the road which of itself is highly dangerous, you failed to see him in time and the resulting collision tragically led to his death. 

3.  The particulars of Charge 2 are that your vehicle at the time had both side door glass and rear windscreen adhered with tinted film which caused a decrease of light transmission.  And the particulars of Charge 3 are that at the time, you drove your vehicle when the proportion of alcohol in your breath exceeded the prescribed limit of 22 micrograms of alcohol in 100 millilitres of breath, namely, 66 micrograms of alcohol in 100 millilitres of breath.  In other words, you were three times over the legal limit for driving.

4.  I have listened to the mitigation put forward on your behalf by your counsel this morning with great care, and I have also read the various reports, including the psychiatric report, the background report and various letters and testimonials.  Your counsel is right.  This, as far as you are concerned, is a tragedy.  You will have to live with what you have done for the rest of your life.  You are a hardworking, decent young man with a supportive family and friends and work colleagues who all speak highly of you.  I can tell you that it gives me absolutely no pleasure whatsoever to have to sentence you today.

5.  The case of course is also a tragedy for the victim, a 21-year-old American university student.  His family must be utterly devastated to have lost such a young son in these tragic circumstances.  These courts must never lose sight of the impact of such an offence on the family of the deceased.

6.  Regarding the 1st charge of causing death by dangerous driving, the maximum penalty for this offence was increased on 4 July 2008 from 5 years’ imprisonment to 10 years’ imprisonment on conviction on indictment.  This clearly reflects how seriously the legislature and society in general view this offence.  On any view, the standard of your driving that particular fateful morning was extremely bad.

7.  I repeat what I said in my reasons for verdict, that it was the combination of excessive speed and intoxication on your part that made your driving utterly dangerous at the material time.  I note in fact from your record of previous traffic convictions that you have a predilection for speeding, having three previous convictions for this offence, one of which involved you driving in excess of the speed limit by more than 45 kilometres an hour.

8.  With regard to your alcohol level, I do not accept your assertion that you only had three or four glasses of red wine that night.  In my view, that would not put you at three times over the legal limit.  I cannot speculate as to precisely how much you had drunk, but I emphasise that I sentence you only on the basis that you had 66 micrograms of alcohol in 100 millilitres of breath.

9.  With regard to the 1st charge, this is clearly an aggravating feature.  You were three times over the legal limit and had no business getting behind the wheel of a car.  The evidence of the expert was clear: at this level of intoxication, your driving ability would be impaired, affecting both your thinking time and your muscle co-ordination.

10.  There is another aggravating feature which manifested itself during the course of evidence from PW1 that I accepted in the trial, and that was his evidence that when he spoke to you immediately after the accident and told you that you should make a report to the police, you replied that a report should not be made just yet.  In fact, it was not until 3.44 am that a report of the accident was received as a result of a 999 call.  You were aware that you were still a little drunk, you admitted as such to the police, and I have no doubt that you wanted to delay the arrival of the police in order to allow yourself to sober up somewhat.

11.  In sentencing you, I take account of all that has been said on your behalf by way of mitigation.  On the 1st charge, I adopt a starting point of 3 years’ imprisonment.  For the aggravating features that I have identified, I enhance this starting point to one of 3 and a half years’ imprisonment.  On Charge 1, you are sentenced to 3 and a half years’ imprisonment.  You are also to be disqualified from holding or obtaining a driving licence (all classes of vehicles) for a period of 3 years.

12.  On Charge 2, you will be fined $1,000.  On Charge 3, you will be fined $4,000 and disqualified from holding or obtaining a driving licence (all classes of vehicles) for 12 months.  This period of disqualification is to run concurrently to the disqualification that I have ordered on Charge 1.  The fines can be taken out of your bail.