HKSAR v. FUNG KA WAI ROGER

DCCC 102/2023

[2024] HKDC 510

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 102 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 4 charges:

(1)  Causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374 (Charge 1);

(2)  Failing to stop after accident whereby personal injuries were caused to other persons, contrary to section 56(1)(a)  and (5)  of the Road Traffic Ordinance, Cap 374 (Charge 2);

(3)  Dangerous driving, contrary to section 37(1)  of the Road Traffic Ordinance, Cap 374 (Charge 3); and

(4)  Failing to stop after accident whereby damage was caused to another vehicle, contrary to section 56(1)(b)  and (5)  of the Road Traffic Ordinance, Cap 374 (Charge 4).

SUMMARY OF FACTS

2.  The Summary of Facts admitted by the defendant is as follows:

(1)  On the evening of 13 April 2022 the defendant, at approximately 11:40 pm, arrived at the 218 Hotpot Restaurant located at 4-6 Tak Hing Street, Yau Ma Tei (‘the Premises’)  for a celebration with colleagues. The defendant’s colleagues had been at the Premises since approximately 7:30 pm on the same evening and those colleagues had consumed significant amount alcohol.

Accident 1

(2)  At approximately 01:13 am on 14 April 2022, LI Fen (PW3)  and PU Chun Yu (PW5)  left the Premises, and stood outside. Shortly after, at approximately, 01:15 am, the defendant and WAN Kong Leung (PW1)  left the Premises. The defendant got into the driver’s seat of his white Mercedes registration AD168 (the defendant’s car), which was parked outside the Premises, in a built-up area. PW1 then got into the passenger seat of the defendant’s car.

(3)  About one minute later the remaining people at the celebration left the Premises, and walked away down Tak Hing Street away from the defendant’s car. Approximately 30 seconds later, the defendant, having maneuvered out of the parking space, the defendant’s car accelerated along Tak Hing Street. The defendant’s car then swerved to the right onto the pavement striking PW3 and TANG Chun Pong (PW4)  from behind.

(4)  The defendant’s car then swerved back onto the roadway, striking NG YiuWah (PW2). These two collisions caused grievous bodily warm to PW2 and PW3. These injuries are accurately described for PW2 in the Medical Reports of Dr POON Kin Cheong dated 19 June 2022 and Dr LAI Yuk Ki dated 18 June 2022 and for PW3 in the Medical Reports of Dr POON Kin Cheong dated 28 May 2022 and Dr LIU Jian Feng, Karl dated 16 June 2022.

(5)  PW2’s injuries included a fractured skull, bleeding in the brain and loss of 6 teeth. PW3’s included a deformed and fractured right ankle and left fibular shaft fracture.

(6)  PW4 only suffered minor injuries, and was not hospitalized but given 4 days’ sick leave.

(7)  The defendant’s car did not stop at the scene, driving away after the two collisions. The scene is accurately depicted in the photographs of the ‘Sentencing Material’.

Accident 2

(8)  Approximately 1.3 km from Accident 1 and a few minutes later, at approximately 01:20 am, the defendant’s car, in the proximity of the junction of Austin Road and Nathan, drove at speed into the rear of a stationary taxi KF860. The taxi was driven by HO Kwok Chiu (PW9)  who had already stopped at the red light. This collision caused PW9 to be hospitalized with chest pains and discharged on the same day.

(9)  The defendant’s car, now badly damaged, did not stop but accelerated away from the scene of the accident as accurately shown in photos of the ‘Sentencing Material’.

Accident 3

(10)  The defendant’s car was discovered shortly after at Austin Road (eastbound)  near Chatham Road South, heavily damaged, stationary and sideways in the road, next to two damaged trees and a damaged signpost. Photographs of the ‘Sentencing Material’ accurately show the scene of the accident.

(11)  At the crash site, PW1 managed to escape from the car and notify the police. PW1 was found at the accident scene near the unconscious the defendant. The unconscious the defendant and PW1 were subsequently admitted to hospital, with various injuries including several broken ribs for PW1. A request from Police to the Hospital medical staff for blood samples to be taken from the defendant was declined due to the defendant’s physical condition.

(12)  The injuries to PW1 are accurately described in the Medical Reports of Dr LUK Man Ping dated 6 May 2022.

(13)  At all material times the road conditions were good and dry.

(14)  The videos produced of Accident 1 and Accident 2 are image accurate but not time stamped verified.

THE DEFENDANT’S BACKGROUND

3.  The defendant is 41 years old.  He was educated to Form 3 and was a construction worker who runs a business inherited from his late father.  He is single but has a six-year-old son.  The defendant’s former girlfriend was from the Mainland.  She could not visit during the pandemic and later gave up on the defendant and their son.

4.  The defendant and his son live with the defendant’s 68-year-old mother.  The defendant is the sole breadwinner and caretaker of the family.

5.  The defendant has a clear criminal record but was convicted of careless driving about 20 years ago.  He has a record of not complying with traffic signals and speeding, but his record is not the worst of its kind.  The defendant’s car was written off and he has not driven since the Accidents.

SENTENCING PRINCIPLES

Charges 1 and 3

Charge 1

6.  Section 36A of the Road Traffic Ordinance, Cap 374 provides that:

“(1)  a person who causes grievous bodily harm to another person by driving a motor vehicle on a road dangerously commit an offence and is liable-

(a)  on conviction on indictment to a fine at level 5 and to imprisonment for 7 years…

(2)  If a court or magistrate convicts a person of an offence under subsection (1), the court or magistrate must order that the person be disqualified in accordance with subsection (3)  or (4)  unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

(3)  Subject to subsection (4), the period for which the person is to be qualified is-

(a)  for a first conviction, a period of not less than 2 years…

(4)  If the court or magistrate has ordered the person to attend and complete a driving improvement course under section 72A(1A), the period for which the person is to be disqualified is -

(a)  for a first conviction, a period of not less than 2 years, or until the person has attended, and completed the course at his or her own course, whichever is the later…”

7.  Section 72A of the Road Traffic Ordinance provides:

“(1)  Where a court or magistrate convicts a person of an offence specified in Schedule 11, the court or magistrate may do either or both of the following-

(a)  impose any penalty that may be imposed for the offence;

(b)  Order the person to attend and complete a driving improvement course.

(1A)  Subject to subsection (1B), where a court or magistrate convicts a person of an offence under section…36A, 37…, the court or magistrate shall order the person to attend and complete a driving improvement course, unless the court or magistrate for special reasons decides not to make such an order.

(1B)  If a person, on being convicted of an offence in any proceedings, is ordered under subsection (1)(b)  or (1A)  to attend and complete a driving improvement course, the person is not to be ordered under that subsection to attend and complete a driving improvement course in respect of any other offence of which he is convicted in those proceedings…

(3)  A person who is ordered to attend and complete a driving improvement course under subsection (1)  or (1A)  must, at the person’s own cost, attend, and complete that course in accordance with subsection (3A), (3B)  or (3C)  as may be applicable to the person…

(3C)  The person must attend and complete the driving improvement course within 3 months beginning on the date the person finishes serving the term of imprisonment or detention if the person -

(a)  has been ordered to serve a term of imprisonment or detention, but is not the subject of a disqualification order; or

(b)  Has been ordered to serve a term of imprisonment or detention, and is also the subject of a disqualification order with a disqualification period that ends-

(i)  before the person finishes serving that term; or

(ii)  within a period of less than three months beginning on the date the person finishes serving that term…

(9)  A person who, without reasonable excuse, fails to comply with subsection (3)  commit an offence and is liable on conviction to a fine at level 2 and to imprisonment for 1 month…

70(2)  Where a person is convicted of an offence involving obligatory or discretionary disqualification the court or magistrate may, whether or not it makes any other order as to disqualification, and whether or not such a person has previously passed the test of competence to drive prescribed under this ordinance, order him to be disqualified until he has, after the date of the order, passed the test.”

Charge 3

8.  Section 37 of the Road Traffic Ordinance provides:

“(1)  a person who drives a motor vehicle on a road dangerously commits an offence and is liable-

(a)  On conviction on indictment to a fine at level four and to imprisonment for three years…

(2)  If a court or magistrate convicts a person of an offence under subsection (1), the court or magistrate shall order that the person be disqualified in accordance with subsection (2A)  or (2B)  unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

(2A)  Subject to subsection (2B), the person is to be disqualified-

(a)  in the case of a first conviction, for a period of not less than 6 months, and…

(2B)  If the court or magistrate has ordered the person to attend and complete a driving improvement course under section 72A(1A), the person is to be disqualified-

(a)  in the case of a first conviction, for a period of not less than six months, or until the person has attended and completed the course at his own cost, whichever is the later…”

9.  There are no tariffs or sentencing guidelines for Charges 1 and 3.  In R v Cooksley & Others [2003] All ER 40, the Court of Appeal identified some aggravating and mitigating factors in this type of cases.

10.  The principles set out in R v Cooksley were considered by the Court of Appeal in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660.  In that case, the defendants, public light bus drivers, were convicted after trial of causing death by dangerous driving, contrary to s  36(1)  of the Road Traffic Ordinance (Cap 374)  and causing harm to persons by racing vehicles, country to s 33 of the Offences Against the Person Ordinance (Cap 212). The defendants were driving their respective buses on King’s Road, North Point in the early morning. D1’s vehicle had eight or nine passengers and D2’s vehicle had 14 passengers.  At some stage, they began racing against one another, competing for passengers, including driving through sets of red lights.  At a junction, D1’s bus went through another red light and collided first, with a taxi crossing the junction, and then with D2’s bus, who was overtaking D1’s bus at the time. D2’s bus overturned.  Two passengers in D2’s bus died and 17 other people were injured.  Both vehicles were travelling at high speed.  The defendants had records for traffic offences: D1 had 10 convictions since 1996; and D2 had 27 convictions, including nine for failing to comply with traffic signals, since November 2002.  The Court of Appeal held:

“10. In sentencing the defendants, the judge adopted a starting point of 2½ years for the dangerous driving charges for both defendants. He found, as we have, great assistance in the English case of R v Cooksley & Others [2003] 3 All ER 40. There, the Court of Appeal laid down sentencing guidelines for the offences of dangerous driving and careless driving causing death, when under the influence of drinks or drugs. While admittedly the sentencing guidelines for the offence of dangerous driving causing death in that case cannot be used in Hong Kong, not least because the maximum sentence in the United Kingdom for the offence was at the time of that case 10 years (now 14 years)  rather than 5, a number of general principles found in the judgment of Lord Woolf CJ can be stated as being equally applicable in Hong Kong. (we also add some observations of our own):

(1)  In most cases of dangerous driving it will be obvious to the offender that his driving was dangerous, and he therefore deserves to be punished accordingly: at p.45J (para.11). This is important to bear in mind because, while it may be true, in some instances not to treat violators of traffic laws as two criminals. Nevertheless, for offences, such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light.

(2)  Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased: at p.46A (para.11). The impact on people’s lives ought to be taken into account when sentencing.

(3)  It is important for courts to drive home the message that that 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: at p.46C-E (para.11). 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 found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorist, passengers or pedestrians)  are safe, and that their lives are not endangered.

(4)  While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor: - at page 47b (paragraph 14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. In some cases, the fact that only some aggravating factors exist, but not others (such as in the present case), may still bring the case into a very serious category.

(5)  One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers (or, we would add, of pedestrians)  or with a degree of recklessness: - at page 46f-d (paragraph 12).

11. In his Reasons for Sentence, the Judge referred to the headnote in Cooksley which sets out the sentencing guidelines in England for various scenarios involving dangerous driving causing death. Some 16 aggravating factors are enumerated together with some mitigating factors. He then listed out the aggravating and mitigating factors in the present case to arrive at a starting point of 2½ years for each Defendant…

13. In our judgment, the sentences imposed by the Judge on the Defendants were manifestly inadequate and wrong in principle. We are of the view that for both Defendants, the maximum term of 5 years’ imprisonment should be imposed for the dangerous driving charges and the maximum term of 2 years be imposed for the racing charge… Our reasons for revising the sentences are as follows:

(1)  The conduct of both Defendants as outlined earlier showed an utter and selfish disregard, if not contempt, for the safety and well-being of all who came into contact with their driving: their own passengers, other passengers and other road users. Driving through red lights as if the lights did not exist and as if they were the only users of the road, racing against one another in an attempt to grab passengers, no attempts made to slow down at junctions (in fact quite the opposite)  were all indicative of this.

(2)  The Defendants’ conduct was without doubt reckless and in the words of the Judge “prolonged, persistent and deliberate”. These were not momentary lapses of judgment. The evidence indicated that the 1^st Defendant went through about 10 sets of traffic lights and the 2^nd Defendant, 6 sets (including those at the Healthy Street junction)  without stopping or slowing down.

(3)  The consequences of this driving, which both Defendants must have known was dangerous, were tragic. Two persons lost their lives, many more were injured. One can only shudder when thinking that the consequences could have been far worse. The pedestrian, Mr Tse (PW1), was about to cross the westbound lane of King’s Road to catch a tram and had he done so even though the pedestrian lights were in his favour, he would have sustained extremely serious injuries.

(4)  The Defendants were no doubt in a rush but in doing what they did, they deliberately took the risk not just of being prosecuted for breaching traffic laws, but, far worse, of endangering people’s lives.

(5)  The standard of driving of these Defendants was appalling and in our view totally unacceptable and must rightly be condemned. The safety and well-being of members of the public in Hong Kong are paramount and the public must be adequately protected from the type of driving the two Defendants displayed. It should not be forgotten just how many of the witnesses testified to the very real fear they felt at the time for their lives. In a letter from the 2^nd Defendant addressed to the court yesterday, he denies “absolutely” that he was risking any lives by racing. We disagree: he and the 1^st Defendant were doing exactly that.

(6)  The traffic offence records of the Defendants are also appalling. The 1^st Defendant has a record since 1996 of having been convicted of 10 traffic offences, one of which was committed after the present offence. Four were for careless driving. He has been disqualified twice. The 2^nd Defendant’s record is far worse. Since November 2002, there have been 27 convictions for traffic offences including 9 for failing to comply with traffic signals. Two of the convictions for failing to comply with traffic signals were committed after the present accident when he was driving a bus in Lantau. His record is truly appalling.

(7)  Additionally, it must not be forgotten that the Defendants were each driving vehicles for the carriage of members of the public. Such professional drivers must be acutely aware of the necessity to be safe and not to risk people’s lives and safety. This provides yet another aggravating feature in the present case.

(8)  In our view, what the Defendants did come within the worst category of the type of offences under consideration. In no other case cited to us have the facts been so bad. The utter disregard for the lives and safety of others may well have attracted manslaughter charges where upon conviction, sentences in excess of 5 years might well have been imposed. Be that as it may, although we suppose worse facts than the present case can conceivably exist, this does not mean that maximum sentences should not be imposed. It is to the category or type of seriousness or culpability that the court looks when sentencing.

(9)  In terms of the culpability of both Defendants, they are exactly the same. The periods of disqualification reflect the seriousness of the offences and their poor previous records. It is a disturbing fact that persons such as the 2^nd Defendant in this case find themselves in a position where they are enabled to drive public transport vehicles despite a simply appalling driving record. Before this accident this particular driver had accumulated since November 2002 along over 25 driving violations including a large number of failing to have regard to traffic signals, and indeed after this accident, as we have earlier mentioned, was still driving public buses and committing 2 further offences of failing to comply with traffic signs. The fact that this can occur should be a matter of grave public concern and we are comforted by Mr Leung’s assurance that he will raise in the appropriate quarters what measures exist, if any, to screen those who are permitted to drive public vehicles.

14. In our view the Judge erred by failing to consider the gravity of the overall circumstances of the offences. In some parts of his Reasons for Sentence, he seemed to regard as important the fact that only some of the aggravating features mentioned in Cooksley, but not others, existed and this perhaps might explain his low starting points. However, once account is taken overall of those aggravating features and other circumstances we have earlier identified, it is clear that the present offences are in the most serious category and that maximum sentences ought to be imposed. The Judge was also wrong to reduce the 1^st Defendant’s sentence by 6 months on account of his remorse and good character. In the circumstances of the present case, these factors are of little or no weight …”

11.  In Secretary for Justice v Fong Chai Man [2008] 3 HKLRD 493, the Court of Appeal set out the list of aggravating and mitigating factors mentioned in R v Cooksley:

“Highly culpable standard of driving at time of offence

(a)  the consumption of drugs (including legal medication, known to cause drowsiness)  or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl”

(b)  greatly excessive speed; racing; competitive, driving against another vehicle; ‘showing off’

(c)  disregard of warnings from fellow passengers

(d)  a prolonged, persistent and deliberate course of very bad driving

(e)  aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking)

(f)  Driving while the driver’s attention is avoidably, distracted, e.g. by reading or the use of the mobile phone (especially if hand-held)

(g)  driving when knowingly suffering from a medical condition which significantly impaired the offender’s driving skills

(h)  Driving when knowingly deprived of adequate sleep or rest

(i)  Driving a poorly maintained or dangerously loaded vehicle, especially when this has been motivated by commercial concerns

Driving habitually below acceptable standard

(j)  other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle

(k)  previous convictions for motoring offences, particularly offences, which involve bad driving or the consumption of excessive alcohol before driving.

Outcome of offence

(l)  more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable)

(m)  serious injury to one or more victims, in addition to the death(s)

Irresponsible behaviour at time of offence

(n)  behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape

(o)  causing death in the course of dangerous driving in an attempt to avoid detection or apprehension

(p)  offence committed while the offender was on bail.

Mitigating Factors

(a)  a good driving record;

(b)  the absence of previous convictions;

(c)  a timely plea of guilty;

(d)  genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);

(e)  the offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence); and

(f)  the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.

12.  In Secretary for Justice v Chu Wing Yin Christine （朱詠姸）[2020] 1 HKLRD 771, the Court of Appeal explained:

“78. First, the dominant factor to be considered is the offender’s culpability which will involve two related assessments:

(1)  the objective dangerousness of the offenders’ driving (see [48]-[50] of the judgment of Macrae V-P); and

(2)  The moral culpability of the offender (see [51]-[52] of the judgment of Macrae V-P).

79. Secondly, closely allied to culpability is the harm and impact caused to the victim(s)  (see paragraph 56 of the judgment of Macrae VP). This will involve an assessment of the nature and degree of the really serious injury to the victim or victims.

80. Aggravating factors may include:

(i)  the extent and nature of the injuries inflicted;

(ii)  the number of people put at risk;

(iii)  the degree of speed;

(iv)  the extent of intoxication or of substance abuse (see s.36A(7)  of the RTO;

(v)  whether there was erratic or aggressive driving;

(vi)  whether there was competitive driving or showing off;

(vii)  the length of the journey during which others were exposed to risk;

(viii)  whether there was any ignoring of warnings;

(ix)  whether the offender was escaping police pursuit;

(x)  the degree of sleep deprivation;

(xi)  whether the offender failed to stop;

(xii)  the fact that the offence took place at a pedestrian crossing (see Secretary for Justice v Lam Siu Tong); and

(xiii)  whether the offender was driving a public service vehicle (see HKSAR v Man Chun Pun)…

82. Fourthly, the sentence court will evaluate any mitigating factors with an appropriate adjustment to the sentence….”

13.  There is no dispute that the above principles apply to both Charges 1 and 3.

Charges 2 and 4

14.  Charges 2 and 4 both carry a maximum term of one year’s imprisonment and a fine at level 3 (See section 56(5)  of the Road Traffic Ordinance).

15.  In Sentencing in Hong Kong 10^th edition, App-165, the learned author explained:

“Cases: HKSAR v Lam Wai-ming [2014] 3 HKLRD 170…(failing to stop after accident causing injury and failing to report an accident involving injury; 6 months’ imprisonment, concurrent, on each offence, after guilty pleas).

Customary sentence: Much depends on the facts, with the situation of the victim being crucial. In Lam Wai-ming (above), Pang J noted that the sentence to be imposed should depend ‘on whether any further harm might be caused to the injured victim by reason of delay in rescue, or the victim being hit by other vehicles’ [15]. In the absence of personal injury, a more lenient disposal may be appropriate.”

16.  In Secretary for Justice v Liu Kwok Chun（廖國鎮）[2011] 1 HKC 70, the respondent was convicted after trial for, inter alia, one count of dangerous driving causing death, and one count of failing to stop after accident whereby personal injury was caused to another person. For the failing to stop charge, the Court of Appeal agreed that a one-year starting point was appropriate.

DISCUSSION

17.  As for the starting point, Counsel invited the Court to take reference adopted by the Court of Appeal in Secretary for Justice v Lau Sin Ting [2010] 5 HKLRD 318.  In that case, the defendant pleaded guilty to one count of dangerous driving causing death.  The defendant, aged 19, drove her 5 younger friends, with 4 sitting in the rear, in a car without third party insurance.  The defendant mistakenly entered a relatively narrow, dead end road in a 50 km/hr zone.  Anxious to leave, the defendant made a U-turn and drove back at high speed (between 87 and 107 km/hr).  She lost control of the car, which spun anti-clockwise and hit a parked goods vehicle.  Consequently, 2 rear passengers, both aged 14, died, while the other 2 suffered serious injuries, leaving one a paraplegic.  The defendant herself was severely injured, sustaining multiple broken bones and brain injuries resulting in a coma lasting 18 days and necessitating numerous operations and other medical treatments.  The defendant suffered permanent mental and physical injuries with impaired vision, hearing and thought processes.  She had a clear record and was traumatised by the loss of her 2 friends.  The defendant held a full driving licence for only 6 months before the accident.  The judge adopted a starting point of 15 months, reduced it for plea and sentenced the defendant to 10 months’ imprisonment and disqualification from driving for 2½ years.  The Secretary for Justice applied for a review of sentence.  The Court of Appeal allowed the application, substituting a sentence of 16 months’ imprisonment.

18.  The Court of Appeal held:

(1)  the defendant’s evidence at her sister’s trial that she had taken the car without permission, knowing it was not insured, was inadmissible for the purpose of providing a “more complete picture”. It could only be relevant to factors aggravating the defendant’s role and thus its use was prohibited by s 83V(5)  of the Criminal Procedure Ordinance (Cap 221);

(2)  The Judge took too low a starting point. There were a number of aggravating factors which were not given sufficient weight, perhaps the most important was the tragic reality that two young teenagers died and another was made a paraplegic as a result of the defendant’s driving. Additionally, a conscious degree of recklessness was involved: the defendant’s decision to speed at nearly twice the speed limit of 50 km/h must in the circumstances have created an obvious risk. Further, the car had no insurance, it was carrying more passengers than safely permitted by its design and consequently, there were insufficient seat belts for the rear passengers, two of whom died and one was made a paraplegic;

(3)  Yet, there was significant factors in the defendant’s favour: the incident of dangerous driving was an isolated one; the defendant had not embarked upon a continuous period of dangerous driving; the offence occurred during a relatively brief period of time; there was not a crowded traffic or pedestrian environment; and, importantly, the offence was not aggravated by drugs or alcohol;

(4)  Nevertheless, there was a considerable element of general deterrence involved. The seriousness of the offence was underlined by the increase in the maximum penalty from 5 to 10 years’ imprisonment six months before the present offence occurred;

(5)  In mitigation, the defendant had pleaded guilty at an early opportunity. She herself has suffered very significant and permanent physical injuries and the thought that she was responsible for her two friends’ deaths and for another becoming a paraplegic, would always remain with her;

(6)  Notwithstanding the defendant’s previous good character and genuine remorse, these mitigating factors must not be given undue prominence and where, as here, a full discount had been given for plea, such factors were subsumed into that discount;

(7)  An appropriate starting point in the circumstances would have been 2 years and 6 months’ imprisonment. Given the foregoing factors, the starting point would be reduced to 18 months. Bearing in mind the nature of these proceedings and that at the time of his judgement, the defendant was due for immediate release from custody in respect of the original sentence, there would be a further discount to 16 months’ imprisonment.

19.  Each case must be decided on its own facts.  The Court of Appeal has already pointed out on numerous occasions that apart from cases setting out sentencing principles, sentencing guidelines and tariffs, sentences in other cases are of limited guidance.  I also fail to see how the facts in Lau Sin Ting (supra)  are in any way analogous to those in the present case.

20.  As was pointed out in Chu Wing Yin Christine (supra)  and Poon Wing Kay (supra)  the dominant factor to be considered as the offender’s culpability is firstly the objective dangerousness of the offender’s driving.  In Lau Sin Ting, the accident occurred as a result of an error of judgment by the defendant.  In the present case, Counsel accepted that an overall assessment of the incident demonstrates that the defendant embarked on a course of dangerous driving (as opposed to momentary inattention or error of judgment).  There was no reason for the defendant to drive in that manner and no explanation has been offered for his behaviour.  The only and irresistible inference is that his actions were deliberate.

21.  Counsel conceded that there are a number of aggravating factors for all 4 Charges.  I am of the view that the aggravating factors are more serious than what was described by Counsel.  In fact, as in Poon Wing Kay, what the defendant did in the present case came within the worst category of this type of offences.  His conduct showed an utter and selfish disregard, if not contempt, for the safety and well-being of all who came into contact with his driving.  His conduct was completely reckless and these were not momentary lapses of judgment.  The consequences of the accidents were serious.

22.  The defendant was involved in a total of 4 accidents.  He was driving on a single carriageway, but he accelerated as soon as he came out of the “parking space”.  It was clear from the CCTV video that the speed of the defendant’s car was much higher than appropriate on that stretch of the road.

23.  The defendant then suddenly swerved to the right, drove onto a pavement where there was a number of pedestrians and struck PW3 and PW4.  The CCTV video footage showed that the victims were struck down like bowling pins and it would be obvious to anyone that the injuries would be serious.  The defendant then swerved to the left and struck PW2.  All 3 victims were injured; PW2 suffered a fractured skull with brain haemorrhage; he also lost 6 teeth.  PW3’s injuries included a deformed and fractured right ankle and left fibular shaft fracture.  Fortunately, PW4’s injuries were less serious.  Despite that, the defendant did not stop or slow down.  I accept that the traffic was light at the time and the probability of the victims being struck by another oncoming vehicle was low.  However, having regard to the injuries (especially the brain injury), further serious harm could have resulted from a delay in rescue.

24.  Not only did the defendant fail to stop after the first 2 accidents, he sped away and turned onto Jordan Road.  This was a carriageway with 2 lanes.  The defendant was initially travelling on the right hand lane.  The traffic lights for this lane was red and 2 taxis had stopped at the traffic lights; PW9’s taxi was the second vehicle that stopped at the junction.  The defendant failed to stop or slow down despite the red light, rammed into the back of PW9’s stationary taxi, causing serious damage to its rear.  Although the defendant’s car was damaged, he did not stop after this 3^rd accident.  Instead, he swerved to the left and sped off on the left hand lane.  This was the second time that he had failed to stop after an accident within the space of minutes.

25.  Soon thereafter, the police found the defendant’s car on Austin Road near Chatham Road South.  The defendant’s car was heavily damaged, stationary and sideways on the road, next to 2 damaged trees and a damaged signpost.  PW1, the passenger in the defendant’s car sustained several broken ribs as a result of this series of accidents.

26.  The defendant’s conduct was persistent and deliberate.  He deliberately took the risk not just of being prosecuted for breaching traffic laws, but far worse, of endangering people’s lives.  It was clear that the defendant would not have stopped but for this last accident.

27.  The standard of the defendant’s driving was wholly appalling and in my view totally unacceptable and must rightly be condemned.  The safety and well-being of members of the public in Hong Kong are paramount and the public must be adequately protected from the type of driving the defendant displayed.  His driving came within the worst category of the type of offences under consideration.  In no other case cited to this Court have the facts been so bad.  The deliberate disregard for the lives and safety of others may well have attracted charges of causing grievous bodily harm with intent, where upon conviction, sentence of life imprisonment might have been imposed.

28.  In Poon Wing Kay (supra), the Court of Appeal found that the behaviour of the defendants warranted the maximum sentence of 5 years.  The maximum term for dangerous driving and dangerous driving causing grievous bodily harm has since been increased to 7 years’ imprisonment.  Although the defendant was not a public transport driver, he failed to stop after the two accidents.  As was stated above, any delay in rescue could have caused further harm to the victims, especially PW2 who suffered a fractured skull and brain haemorrhage. The defendant was only fortunate that the injuries caused to the victims were not more serious.

29.  In my judgment, the appropriate starting points are as follows:

Charge 1: 6 years’ imprisonment;

Charge 2: 1 year’s imprisonment;

Charge 3: 3 years’ imprisonment;

Charge 4: 1 year’s imprisonment

MITIGATION

30.  The defendant only indicated that he would plead guilty to all 4 Charges after the trial dates were fixed.  In those circumstances, he is only entitled to a 20%-25% discount.  Since he only indicated his plea shortly before the commencement of the trial, I am of the view that a 20% discount would be appropriate.

31.  Apart from his guilty plea, Counsel pointed out that the defendant himself was seriously injured as a result of the accidents.  He was left unconscious after the accident and was admitted to the intensive care unit for 3 days.  Thereafter, he spent 2 months in hospital and underwent near a dozen surgeries, including skin grafts to his right arm.  He then spent another month in Kowloon Hospital before he was discharged.  Counsel submitted that the defendant is still suffering from weakness in his right arm.

32.  Firstly, the defendant was the author of his own wrong.  If he drives in that manner, he can only expect to be injured.  Taking into account his injuries, the sentences for Charges 1 and 3 will be reduced by 6 months.  In other words, the sentences for the 4 Charges will be:

Charge 1: 51.5 months’ imprisonment

(57.6 months – 6 months, rounded down to 51.5 months)

Charge 2: 9.6 months’ imprisonment

Charge 3: 22.8 months’ imprisonment

Charge 4: 9.6 months’ imprisonment

33.  It is trite law that the personal background and family circumstances of the defendant do not amount to mitigation in serious cases.  His remorse is already included in the discount for a guilty plea. Apart from his guilty plea and injuries, there are no mitigating factors.

TOTALITY

34.  The Court is required to consider the question of totality.  Since I have taken into account the overall circumstances of this case in assessing the starting point for Charge 1, order that the sentences of all charges to be served concurrently, ie a sentence of 51.5 months’ imprisonment.

DISQUALIFICATION

35.  In addition, under Charges 1, I order that the defendant be disqualified from driving or holding any form of driver’s licence for a period of 4 years or until he has, after the date of the disqualification order, passed the test of competence to drive prescribed under the Road Traffic Ordinance, whichever is the later.

36.  For Charge 3, the defendant is disqualified from driving or holding any form of driver’s licence for a period of 1 year or until he has, after the date of the disqualification order, passed the test of competence to drive prescribed under the Road Traffic Ordinance, whichever is the later, such order shall be consecutive to the disqualification in Charge 1.