HKSAR v. HO KA PO

DCCC 1464/2024

[2025] HKDC 1579

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1464 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Ho pleaded guilty before me to two charges on a Charge Sheet as follows.

2.  Charge 1 is Causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on 4 December 2023, near Lamppost No FA5875, Shek Kok Road, Tsuen Wan, New Territories, in Hong Kong, caused the death of Wong Chak Nam by driving a motor vehicle, namely, a private car bearing registration mark XJ2558, on a road dangerously.

3.  Charge 2 is Driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on the same date, drove a motor vehicle, namely the same private car on a road with the proportion of alcohol in his breath exceeding the prescribed limit of 22 micrograms of alcohol in 100 millilitres of breath, namely, 121 micrograms of alcohol in 100 millilitres of breath.

Facts admitted by Mr Ho

4.  The subject location was near Lamppost No FA5875 on Shek Wai Kok Road, Tsuen Wan, a three-lane driveway with two lanes for travelling towards Yi Pei Chun Road, and one lane for travelling towards Wai Tsuen Road.  Speed limit was 50 km/h.

5.  On 4 December 2023, at about 7:45 pm, traffic at the subject location was normal.  Wong Chak Nam aged 38 (“the Deceased”) was driving a motorcycle (V1) with a helmet on along the left 1^st lane of Shek Wai Kok Road towards Yi Pei Chun Road.  Mr Ho was driving a private car with registration number XJ2558 (V2) directly behind V1.  When V1 reached the subject location, the Deceased slowed down to make a right turn.  However, V2 could not slow down in time and rear-ended V1.  V1 was pushed forward by V2 and stopped at around 80 metres away from the collision point.  V1 and V2’s points of impacts were seriously damaged.

6.  The Deceased sustained serious head injury and was sent to Princess Margaret Hospital in an unconscious state.  At the Accident and Emergency Department, the Deceased was diagnosed with “left cheek laceration, abdominal abrasion and bilateral foot abrasion”.  CT of the brain showed diffuse subarachnoid haemorrhage, bilateral intraventricular haemorrhage with obstructive hydrocephalus.  After brain surgery, the Deceased was admitted to the ICU for 4 months.  His situation deteriorated and developed a few episodes of ventilator-associated pneumonia and was found arrest on one occasion.  The Deceased eventually passed away on 7 April 2024.

7.  On the day of the incident, at 8 pm, police conducted a Screening Breath Test with Mr Ho and obtained a result of 130 micrograms in 100 millilitres of breath.  Mr Ho was arrested for “Dangerous driving causing grievous bodily harm” and “Drink driving”.  At 8:47 pm Evidential Breath Test was conducted on Mr Ho and a result of 121 micrograms in 100 millilitres of breath was obtained.

8.  CCTV footages of the incident were obtained from a nearby public light bus and from a KMB bus terminus.  Government Chemist PW16 calculated therefrom the speed of V2 to be about 102 km/h +/- 10 km/h.

9.  PW16 examined the data of the airbag control module of V2 and learned that the speed of V2 was 96 km/h at 4.8 seconds before impact; 98 km/h at 3.8 seconds before impact; 102 km/h at 2.8 seconds before impact; 104 km/h at 1.8 seconds before impact; 100 km/h at 0.8 seconds before impact; and 88 km/h at the moment of impact.  The data shows that brake was only engaged at the moment of impact.

10.  The autopsy report stated that the direct cause of death of the Deceased was “Pneumonia, Traumatic brain injury, status post-cranietomy”.

11.  In the VRI conducted on 5 December 2023, Mr Ho admitted the following:

(a) V2 was borrowed from his friend’s father for transporting some tools for construction;

(b) He could not see V1 ahead at the incident location;

(c) He confirmed that V2 was operating normally;

(d) Prior to the incident, he was returning to his Cheung Shan Estate home after delivering documents from home to his boss at Tsuen Wan West MTR Station;

(e) He consumed some beer before the forward journey from Cheung Shan Estate;

(f) He thought it would be fine as he would return home soon;

(g) He forgot how fast he was driving at the material time;

(h) V2 was following V1 prior to the incident;

(i) He was familiar with the road condition of the incident location; and

(j) He knew the speed limit of the incident location was 50 km/h.

12.  Mr Ho now admits he caused the death of the Deceased by driving V2, a motor vehicle, on a road dangerously.

Criminal and Road traffic conviction records

13.  Mr Ho has a clear criminal record and a clear road traffic conviction record.

Antecedents

14.  Mr Ho is aged 32 (30 at the time of the offences), educated to F2 level.  He is a casual worker.  Mr Ho has three sons with at least two from his previous marriage.  He lives alone in public housing in Tsuen Wan.

Mitigation

15.  Mr Patrick Chiu of counsel[1] mitigated on behalf of Mr Ho.  The following is a summary of the mitigation submissions.

16.  Mr Ho is a person of clear criminal and road traffic conviction records.

17.  The maximum penalty for dangerous driving causing death is a fine of $50,000 and imprisonment for 10 years.

18.  As pointed out in Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70, the Court of Appeal referred to the range of sentences stipulated in R v Cooksley [2003] 3 All ER 40, and applied Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, which recognizes that culpability of the defendant as the dominant factor in the sentencing exercise: see Liu Kwok Chun, at para 35.

19.  In assessing the degree of culpability there are two extreme situations.  The first is where the event occurred because of a momentary error of judgement.  The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness: see Liu Kwok Chun, at para 37.

20.  Aggravating and mitigating factors referred to in R v Cooksley are also recited in Liu Kwok Chun, at paras 38-39.

21.  Another salient feature of this case is that Mr Ho committed drink-driving. In the statutory provision in Road Traffic Ordinance, Cap 374 (RTO), a person commits an offence under section 36(1) in circumstances of aggravation if at the time of committing the offence, the proportion of alcohol is tier 3; and the maximum fine, term of imprisonment and the minimum disqualification period (5 years) for the offence are each increased by 50%: see section 36(2D) and (2E) of RTO.

22.  The present case has two aggravating factors set out in Liu Kwok Chun, namely:-

(a) The consumption of alcohol, which Mr Ho frankly admitted his alcohol concentration was 5.5 times the prescribed limit: see Liu Kwok Chun, at para 38.1; and

(b) Mr Ho was driving at an excessive speed, ie 91.8 km/h, which was 41.8 km/h faster than the permitted speed of 50 km/h: see Liu Kwok Chun, at para 38.2.

23.  A recent decision by the Court of Appeal, Secretary for Justice v Law Siu Kin [2023] 2 HKLRD 814 has reviewed the applicable principles above. The Court of Appeal, in arriving at the appropriate sentence for dangerous driving causing death (or grievous bodily harm), held a court makes two assessments, namely: (i) the objective dangerousness of the driving and (ii) moral culpability of the driver, see Law Siu Kin, at paras 21 to 24.

24.  When it comes to the categories of “culpability” as referred to in R v Cooksley and Liu Kwok Chun, Mr Ho accepts that it should fall into the category of “higher culpability” as Mr Ho’s driving was more highly dangerous, with two aggravating factors involved.

25.  However, Mr Ho is of clear record and hence there is no previous conviction; there was a timely plea of guilty and Mr Ho undoubtedly had a genuine shock and remorse.  Mr Ho urges the court to take into account the said mitigating factors.

26.  It was further submitted that there is no evidence to show Mr Ho had a prolonged, persistent and deliberate course of very bad driving or aggressive driving either.

27.  It was submitted that the distance between Cheung Shan Estate and Tsuen Wan West MTR Station is around 3.7 km and approximately a 5-minute drive (10 minutes both ways).  Mr Ho consumed some beer at his home before driving and he thought it would be fine as he would return home soon.  The absolute selfish decision by Mr Ho caused the accident, which would definitely haunt him for the rest of his life.

28.  Mr Chiu then compared the facts of Law Siu Kin and two District Court sentencing cases HKSAR v Sin Yau Fook [2024] HKDC 2208 and HKSAR v Kwok Yu Hang [2023] HKDC 149 with those of the present case and urged the court to adopt a starting point of less than (or not more than) 4 ½ years.

29.  Mr Chiu submitted that there are no special reasons not to impose either a disqualification order or an order for Mr Ho to attend and complete a driving improvement course.  Mr Chiu urged the court to impose the minimum duration disqualification order which he submitted is sufficient to reflect Mr Ho’s culpability.

30.  The maximum penalty for drink-driving is a fine of $25,000 and imprisonment for 3 years.  There is no sentencing tariff.

31.  Mr Chiu referred to two District Court sentencing cases HKSAR v Lam King Sing DCCC 190/2015 and HKSAR v Mok Tsz Fung, Steven [2018] HKDC 983 on Tier 3 drink-driving and submitted that a starting point in the range of 12 to 18 months will be appropriate for Tier 3 drink-driving.

32.  Mr Chiu urges the court to order concurrent sentences for Charge 2 with Charge 1, as those have already been taken into account as aggravating factors when assessing Mr Ho’s culpability as well as the triangulation of interests (the public, the accused and the victim) in respect of Charge 1.  The court must be wary of punishing Mr Ho twice for the same act: see Law Siu Kin, at para 28.

33.  Disqualification (minimum 2 years) and order to attend and complete a driving improvement course are provided for under section 39A(2A) and section 39A(2B) of RTO.  There are no special reasons not to impose them.  However, Mr Chiu urged the court to make them concurrent with those under Charge 1.

34.  The most powerful mitigating factor is Mr Ho’s timely plea, and Mr Ho is of clear record.

35.  Mr Chiu submitted on behalf of Mr Ho a mitigation letter written in Chinese by Mr Ho’s first cousin.  In the letter, the writer asked for a lenient sentence on behalf of Mr Ho.

Sentence

36.  On Charge 1, the original statutory maximum penalties and minimum disqualification period are enhanced by 50% because of the presence of aggravation.  I accede to the submission of Mr Chiu and adopt a starting point of 4½ years’ imprisonment for the reasons he referred to.

37.  On Charge 2, I adopt a starting point of 24 months’ imprisonment.

38.  There are no special reasons not to impose a disqualification order of at least the minimum length nor are there any special reasons not to order Mr Ho to attend and complete a driving improvement course.

39.  Mr Ho pleaded guilty to the charges in good time.  He shall be entitled to the customary 1/3 sentencing discount on prison terms.  There are no other mitigating factors that I can see which will entitle him to any further discount.  In this respect, there is no evidence that Mr Ho suffered any genuine shock.

40.  I accede to the submission of Mr Chiu and will make the imprisonment sentences run concurrently.  I will also make the disqualification orders run concurrently.

41.  However, as regards the order to attend and complete the driving improvement course, I cannot order Mr Ho to attend and complete another driving improvement course under Charge 2 because of section 72A(1B) of RTO.

42.  I will therefore impose the following sentences.

(Mr Ho, please stand)

43.  For Charge 1, the sentence is 36 months’ imprisonment.

44.  For Charge 2, the sentence is 16 months’ imprisonment.

45.  The two imprisonment sentences are to run concurrently.

46.  Under Charge 1, I order that Mr Ho be disqualified from holding or obtaining any driving licence for a period of 7½ years; that Mr Ho is to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period.

47.  Under Charge 2, I order that Mr Ho be disqualified from holding or obtaining any driving licence for a period of 2 years.

48.  I order that the two disqualification orders are to run concurrently.

49.  Mr Ho is not to hold or obtain a driving licence again until he has both (a) served his disqualification periods and (b) attended and completed at his own cost the driving improvement course.

50.  I hereby warn Mr Ho that failure to attend and complete the driving improvement course at the time specified without reasonable excuse is itself an offence and can attract an imprisonment sentence.