HKSAR v. KWOK YU HANG

DCCC 414/2022

[2023] HKDC 149

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 414 OF 2022

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REASONS FOR SENTENCE

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1.  Mr Kwok pleaded guilty before me to one charge of Causing death by dangerous driving, contrary to section 36(1)  of the Road Traffic Ordinance, Cap 374. Particulars are that he, on 18 November 2021, near Lamppost No FB5719, Kam Tin Road, Yuen Long, New Territories, in Hong Kong, caused the death of Tang Tung Lung, by driving a motor vehicle, namely, a private car bearing registration mark XF3809, on a road dangerously.

Facts admitted by Mr Kwok

2.  On 18 November 2021, at about 6:39 am, Mr Kwok was driving private car XF3809 (“the Car”)  carrying his girlfriend along Kam Tin Road (Eastbound). Tang Tung Lung (“Deceased”), aged 57, was driving a taxi JZ8694 (“the Taxi”)  along the same road (Westbound).  The two lanes were separated by continuous double white lines with speed limit of 50 km/h.

3.  Suddenly, the Car crossed the continuous double white lines into the opposite lane.  It travelled against the traffic and caused a head-on collision with the Taxi.  The fronts of the two vehicles were severely damaged.

4.  The Deceased was trapped in the Taxi.  When the ambulancemen arrived at about 6:51 am, they found the Deceased having shallow breathing, and a weak and irregular pulse.  When the Deceased was eventually released from the Taxi at about 7 am, he was not breathing and had no pulse.  Cardiopulmonary resuscitation was performed before he was sent to Pok Oi Hospital (“the Hospital”).

5.  Mr Kwok and his girlfriend remained conscious and suffered no apparent injuries.  They were also sent to the Hospital by way of ambulances.

6.  The Deceased was certified dead at about 7:51 am at the Hospital.

7.  At about 7:16 am, on Mr Kwok’s arrival at the Hospital, the police conducted enquiries with him.  Mr Kwok said, among other things, that he had drunk red wine and was driving at a speed of 80 [km/h] before the collision.

8.  Between 7:27 am and 7:34 am, four screening breath tests were conducted on Mr Kwok.  The first 3 failed.  The fourth returned a reading of 63 micrograms per 100 millilitres, exceeding the prescribed limit of 22 micrograms per 100 millilitres.

9.  At the Hospital, Mr Kwok was arrested for “Driving a motor vehicle with alcohol concentration in breath above the prescribed limit”.

10.  Mr Kwok was subsequently sent to Tuen Mun Hospital for further treatment.  At about 11:05 am the same day, blood sample was obtained from Mr Kwok with his consent.  Government Chemist confirmed that the blood sample contained not less than 46 mg of alcohol per 100 ml of blood (which was below the prescribed limit of 50 mg per 100 ml).

11.  The Car’s dashboard camera and the CCTV of a nearby shop captured the following:-

(a)  Shortly before the incident, along the traffic flow on Kam Tin Road, the Car passed through three pedestrian crossings with traffic lights with no sign of deceleration;

(b)  Two seconds before collision, the Car approached a left bend at high speed; there was no sign of deceleration;

(c)  The Taxi was travelling with medium speed along the opposite lane;

(d)  The Car, when making the left bend, crossed the continuous double white lines to the opposite lane against the traffic, with a distance of around 10 metres from the Taxi;

(e)  After the Car had crossed the continuous double white lines, it headed towards the Taxi at high speed; the braking sign of the Taxi lighted up;

(f)  There was no sign of the Car decelerating or swerving back to the original lane; the Car had a head-on collision with the Taxi, after which the Car bounced back and rotated clockwise (with a vertical axis); and

(g)  The Car became back to front, while the Taxi bounced onto the pavement.

12.  Autopsy of the Deceased showed the direct cause of death was multiple injuries to head, trunk and limbs which were compatible with being the results of blunt impact with the interior component of a taxi upon head-on collision with another vehicle; external examinations revealed that the Deceased had suffered 30 injuries (of abrasion, bruises and lacerations)  over his head, neck, trunk, and limbs; the Deceased also suffered from multiple internal injuries, including traverse fractures at the vertebral body of the 7^th cervical vertebra, left lower forearm bones and right upper forearm bone, fractures of ribs, blood and blood clots at both chest cavities, collapse of both lungs, and lacerations at his heart, stomach and liver.

13.  The recorded data in the airbag control module of the Car revealed:-

(a)  The speed of the Car remained consistently between 100 km/h and 120 km/h since 4.7 seconds before collision; and

(b)  Brake was applied at 2.7 seconds before impact for around 1 second.

14.  Forensic scientist estimated from the Car’s dashboard camera footage that the speed of the Car before the incident to be about 124 km/h.

15.  Both vehicles sustained multiple damage.

16.  Mr Kwok now admits that he drove dangerously in that he:-

(a)  Failed to keep a proper lookout;

(b)  Crossed continuous double white lines;

(c)  Drove at a high speed exceeding the speed limit; and

(d)  Drove the Car after having consumed alcohol.

Criminal and road traffic records

17.  Mr Kwok has a clear criminal record but has two road traffic convictions one of which was for crossing continuous double white line or white line with a broken white line.

Antecedents

18.  Mr Kwok is aged 23 (21 at the time of the offence), single.  He was educated to secondary 6 level.  He is employed in his family business with monthly income of about $10,000.  He lives with his girlfriend and their daughter aged 19 months.

Mitigation

19.  Mr Steven Liu of counsel mitigated on behalf of Mr Kwok.  The following is a summary of the mitigation submissions.

20.  Mr Kwok was and is working as a waiter in a small restaurant run by his parents.

21.  Mr Kwok obtained his probationary driving licence in March 2021 but it was cancelled in December of the same year.  The reason for the cancellation was his conviction for crossing double white line and driving a vehicle without a “P” plate committed on 15 August 2021 (ie prior to the present offence).  Mr Kwok must be re-tested before he would be qualified to drive again.

22.  Mr Kwok himself suffered injury as a result of this incident – his bladder was intruded.  He underwent an urgent operation in ICU to stop internal bleeding.  He was admitted to Tuen Mun Hospital for 12 days.  He needed to carry a urine bag for weeks.  He is now recovered.

23.  Mr Kwok and his family apologize to the Deceased and his family for what happened and the irreparable loss.  The accident has brought shock and sadness to Mr Kwok and his family as well.  Mr Kwok frankly admitted that he should take all the blame and responsibility for the incident.  He is more than willing to be punished for his irresponsible driving behavior.

24.  It is admitted that Mr Kwok had consumed alcohol before driving home. It was about 10 minutes’ drive from the place of the incident to Mr Kwok’s home.  The alcohol in the blood sample about 4 hours after the incident was not less than 46 mg/100 ml (prescribed limit being 50 mg/100 ml).  Mr Kwok is willing to admit, out of remorse, that if the blood sample was taken earlier, the limit would likely exceed the prescribed limit.

25.  After the Car entered the left bend at high speed, Mr Kwok simply failed to respond because the speed was too high.

26.  After referring to Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 and Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70 at length, Mr Liu on behalf of Mr Kwok admitted that there is more than one aggravating factor in the present case: Mr Kwok consumed alcohol before driving and he was driving in excessive speed.  Mr Liu acknowledged that according to the cross-checking exercise advocated in Liu Kwok Chun, Mr Kwok’s category of culpability belongs to the “Higher culpability”.

27.  Mr Liu emphasized the following mitigating factors:-

(a)  Mr Kwok has a clear criminal record and a light road traffic record;

(b)  He pleaded guilty in a timely manner reflecting his genuine remorse;

(c)  He was shocked in the incident;

(d)  He was an inexperienced driver having only obtained a probationary driving licence 8 months prior; and

(e)  He was also seriously injured as a result.

28.  Mr Liu then sought to compare the factual circumstances of an application for review case Secretary for Justice v Lau Sin Ting [2010] 5 HKLRD 318 in which the sentence was raised by the Court of Appeal from 10 months to 16 months’ imprisonment (starting point raised from 15 months to 30 months).

29.  Mr Liu submitted 5 mitigation letters all in Chinese written respectively by Mr Kwok himself, his colleagues, a Village representative, a District Councillor and a Pastor.  The contents are generally that Mr Kwok is very sorry to the Deceased’s family and has a guilty conscience; that the incident has caused distress to Mr Kwok’s own family; that he is willing to bear the consequences; that he promises to rid himself of alcohol and not to re-offend and asks for leniency for his momentary mistake so he may turn over a new leaf and re-unite with his family early.

30.  Mr Liu also submitted three certificates of appreciation for acts of charity done by Mr Kwok; all three certificates were dated post the present offence.

31.  Mr Kwok’s girlfriend and relatives including his mother, younger brother are in court to give their support.

32.  Mr Liu acknowledged that there are no special reasons why a disqualification order or the order to attend and complete a driving improvement course should not be imposed.

33.  Upon enquiry from the court, Mr Liu informed the court Mr Kwok’s girlfriend suffered a rib fracture from the incident.  Again upon enquiry from the court, Mr Liu informed the court that after Mr Kwok left the gathering at which wine was consumed, he drove for 7 minutes before stopping over at a friend’s place for 15 minutes before driving again for 1 minute before the collision occurred.

Sentence

34.  The maximum imprisonment sentence for this offence is 10 years’ imprisonment.

35.  No doubt Mr Kwok had consumed an excess amount of alcohol on the day in question.  He was almost at tier 3 category at a time nearly one hour from the time of collision.  After drinking, he exposed himself to the risk of driving under the influence of alcohol for a maximum of 18 minutes.  Besides, he drove at almost 2.5 times the speed limit on Kam Tin Road.

36.  He exposed not only himself to the risk of serious injury but also other road users including his girlfriend passenger who was also the mother of his child (then only 5 months old).

37.  Sadly, a man of 57 years old died as a result with very severe injuries.

38.  I have no doubt that this case belonged to the high end of the Higher culpability category as explained in the case of Liu Kwok Chun (supra), if not even the Most serious culpability category.

39.  A comparison with other sentencing cases with different facts is not of much assistance because each case depends on its own facts.

40.  I will adopt a starting point of 5 years’ imprisonment in the case of Mr Kwok.

41.  Mr Kwok pleaded guilty in good time so he shall be entitled to the full 1/3 discount.  For the other mitigating factors of his shock (including from the fact that his girlfriend was also injured, though not severely), his young age and lack of driving experience, and that he himself was injured as a result, I shall give him a further reduction of 4 months after the 1/3 discount.  There are no other mitigating factors of weight to justify any further reduction in sentence.

42.  There are no special reasons why I should not order (i)   a disqualification order of the minimum length or (ii)  Mr Kwok to attend a driving improvement course.

(Mr Kwok, please stand)

43.  I therefore impose a prison term of 36 months on Mr Kwok.

44.  I order that Mr Kwok be disqualified from holding or obtaining a driving licence for all classes of vehicle for a period 5 years.  I further order that within the last 3 months of the disqualification period, he is to attend and complete, at his own cost, a driving improving course.  Mr Kwok is not to drive again until he has fully served his disqualification period and attended and completed the said driving improvement course.