HKSAR v. CHI YIN NI AND ANOTHER

DCCC 34/2022

[2022] HKDC 1306

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 34 OF 2022

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REASONS FOR SENTENCE

1.  D1 pleaded guilty to a charge of "Causing death by dangerous driving" (Charge 1)  and a charge of "Causing grievous bodily harm by dangerous driving" (Charge 2). D2 pleaded guilty to a charge of "Dangerous driving" (Charge 3).

Summary of Facts

Location of the accident

2.  The accident took place at the junction of Tai Chung Kiu Road and Sha Tin Wai Road in Shatin ("the Junction").

3.  Tai Chung Kiu Road is a 5-lane road.  Its 1^st and 5^th lanes (counting from the left)  were for turning left and turning right respectively.  Its 2^nd to 4^th lanes were for going straight.

4.  Sha Tin Wai Road is also a 5-lane road.  Its 1^st and 2^nd lanes (counting from the left)  were for turning left.  Its 5^th lane was for going straight or turning right.  Its 3^rd and 4^th lanes were for going straight.  Sha Tin Wai Road was regulated by a split phase traffic light with a green arrow sign for vehicles making left turns.

The accident

5.  Shortly before 3:00 p.m. on 13 June 2021, D1 was driving private car TG5138 ("the Audi")  in the 3^rd lane of Sha Tin Wai Road.  D1's husband was in the front passenger seat and a male ("the Intended Buyer"), in the rear passenger seat.  D1 was showing the Audi to the Intended Buyer by letting him ride the car as a passenger.

6.  Also in the 3^rd lane of Sha Tin Wai Road and directly in front of the Audi was a private car BC3348 ("the Maserati")  driven by D2.  The Maserati was the 1^st vehicle stopped at the red light, followed by the Audi.

7.  At the same time, Mr. Cheung ("the Deceased"; aged 57)  was driving a green minibus VD1927 ("the Minibus")  in the 2^nd lane of Tai Chung Kiu Road heading towards Ma On Shan with 6 passengers on board.

Charge 3

8.  When the green left arrow for the 1^st and 2^nd lanes of Sha Tin Wai Road illuminated (for vehicles turning left onto Tai Chung Kiu Road), it was still a red light for the 3^rd to 5^th lanes of Sha Tin Wai Road (for vehicles going straight through the Junction).  As the vehicles in the 1^st and 2^nd lanes of Sha Tin Wai Road started moving forward and turning left, the Maserati (whilst in the 3^rd lane of Sha Tin Wai Road)  also moved forward against the red light regulating vehicles going straight.  Despite the vehicles on Tai Chung Kiu Road (which had a green light)  were moving across the Junction (from the perspective of the vehicles stopped at Sha Tin Wai Road), the Maserati continued to move forward.  The Maserati managed to go through the Junction without any collision.

Charges 1 and 2

9.  When the Maserati started to move forward against the red light, the Audi followed.  As the same time, the Minibus was also going straight on Tai Chung Kiu Road.  When the Audi reached the middle of the Junction, it rammed into the offside rear wheel of the Minibus, causing it to turn 180 degrees horizontally and then flip 90 degrees vertically falling on its nearside.  It then slid for about 15 meters before coming to a halt.

10.  Upon collision, the Deceased and all 6 passengers on board were thrown to the nearside of the Minibus.  The Deceased was certified dead at the scene after being extricated.  Passengers Mr. Hung (PW13; aged 49)  and Madam Lau (PW14; aged 64)  were seriously injured.

11.  A forensic pathologist Dr. Yeung indicated in his autopsy report that the direct cause of death of the Deceased was head injuries.

12.  PW13 sustained a left frontal scalp laceration of around 4 cm, a 1.5-cm right wrist laceration, a 3-cm laceration of right thumb and a 3-cm laceration on right knee.  A tendon in PW13's right thumb (the extensor pollicus longus)  was injured with a 50% cut, and another a tendon (the radial extensor hood)  was injured 25%.  The injured tendons were repaired with sutures and the unhealthy tissue debrided.

13.  PW14 sustained a deep wound over her left parietal scalp with bone exposure with no active bleeding oozing and right 2^nd rib fracture.  She was hospitalized for 25 days and 2 surgeries were performed.

14.  The Deceased and all 6 passengers on board of the Minibus were not wearing their seatbelts.

Investigation

15.  D1 was arrested at the scene.  She remained silent under caution and in her subsequent video recorded interview.

16.  D2 was arrested on 14 June 2021 when she surrendered to the Police.  She remained silent under caution.

17.  A forensic scientist Dr. Tao has examined the footage captured by various dash cameras. He confirmed that none of the vehicles involved in this accident was speeding.

Mitigation

D1

18.  She is 35 and has a clear criminal record.  D1 completed her probationary driving period and obtained her full driving licence on 8 June 2021.  She received 1 fixed penalty ticket in November 2020.  D1's counsel Mr. Li, SC, informed me that D1 is married with no children.  She used to run a bridal boutique, which was closed in 2019.  Then she worked as freelance make-up artist, but received no more work since 2021.  D1's husband is a construction foreman.

19.  In mitigation, Mr. Li submitted that D1 has become a victim of doxing after the accident.  Her personal information including photos, personal data were posted all over the internet without her consent.  She was heavily criticised on social media by complete strangers.  D1 was under tremendous stress.  She has been consulting a psychiatrist since November 2021 and was diagnosed to be suffering from depression of moderate to severe degree as well as anxiety disorders, including post-traumatic stress disorder, of moderate to severe degree. 

D2

20.  She is 31 and has a clear criminal record.  She obtained her full driving licence in July 2015.  She has received 6 fixed penalty tickets[1]. D2's counsel Mr. Fu informed me that D2 is married with 2 daughters (aged 7 and 9).  D2's husband runs his own business in the mainland.  D2 is a university graduate and has been working as a Dealer Representative in a securities company since 2015.

21.  In mitigation, Mr. Fu submitted that D2 had mistaken the green arrow signal as a green light for her.  She did not cause any collision, damage any property or injure any person.  D2's husband has not been able to return to Hong Kong during the pandemic, D2 is currently the sole care provider for their 2 daughters.

Sentence

D1

22. To the victim(s)  and their families, a traffic accident which involves fatalities or serious personal injuries must be one of the most tragic events which could happen to them. It saddens me each time when I need to deal with a case in which someone has lost his/her life or has been seriously injured as a result of a traffic accident.

23. I have viewed the footage of the accident captured by different dash cameras from different angles. The duration of the accident was a few seconds only. But in those few seconds, the Deceased lost his life and 2 passengers on the Minibus were seriously injured. This is the reason why the court must instil into the minds of the general public that driving (whether in a professional or recreational capacity)  is a privilege ‒ a privilege with great responsibilities attached. It is a message which cannot be stressed enough.

24. In the course of sentencing, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just[2]. I must also consider the hardship caused to the Deceased's family as a result of his death as well as their grievances and resentment[3]. Similarly, I must consider the same for PWs 13 and 14 and their families. As there is no information before me to suggest otherwise, I assume PWs 13 and 14 have fully recovered.

25. The courts have repeatedly emphasized the importance of deterrence when sentencing in cases related to dangerous driving. I have reminded myself of the sentencing principles[4] set out by the Court of Appeal in SJ v Poon Wing Kay [2007] 1 HKLRD 660, in particular paragraph 10(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. 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…"

26. In HKSAR v Lei Tin Seng[2011] 1 HKLRD 341, Yeung JA (as he then was)  held :-

"17. This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.

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19. The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.

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22. This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment."

27. In mitigation, Mr. Li submitted that D1 heard the Intended Buyer saying that she should move forward. There is no way to find out what D1 was thinking when she followed the Maserati against the red light. But I give her the benefit of doubt that she could possibly be misled by the Maserati and/or the Intended Buyer.

28. It is not an easy task to send someone like D1, who has never lost her freedom, to prison. I have considered long and hard what the appropriate length of imprisonment should be. I understand the traumatic effect of a prison term would have on D1 and people who care about her. The court, however, must send a clear message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.

29. When determining the starting point, I treat D1 as a person of good character and having a good driving record (though a rather short one). Though possibly be misled by the surrounding circumstances, D1 disobeyed a red light and failed to proceed through the Junction with caution. Her driving resulted in one death and 2 persons seriously injured. I consider her mistake falling at the low end of the intermediate culpability category on the Cooksley's scale[5].

30. For Charge 1, I adopt a starting point of 22.5 months' imprisonment. With the timely guilty plea, the sentence is reduced to 15 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D1 to 15 months' imprisonment for this charge.

31. For Charge 2, I adopt a starting point of 15 months' imprisonment. With the timely guilty plea, I sentence D1 to 10 months' imprisonment for this charge.

32. I have reminded myself not to double count the Cooksley factors and to avoid punishing D1 twice. I consider a global starting point of 2 years' imprisonment appropriate and just for Charges 1 and 2. With the guilty pleas, the overall sentence is reduced to 16 months. To achieve this, I order 1 month in Charge 2 to run consecutive to Charge 1. Thus, arriving at a total prison term of 16 months.

33. In addition to imprisonment, I make a disqualification order for a period of 5 years[6] for Charge 1 and a disqualification order for a period of 2 years[7] for Charge 2. Both disqualification periods will start to run from the date of sentencing[8] and to run concurrently).

34. D1 got into the present accident just 5 days after she completed her probationary driving period. As an apparently inexperienced driver, I am reluctant to let her have her driving licence back after 5 years of zero practice. I have raised this matter with Mr. Li and he shares my view. In order to make sure that D1's driving skills are up to standard 5 years later, I order her to be re-tested[9] for Charge 1. On this basis, I do not see the need to order her to complete a Driving Improvement Course. I make no order in this regard for Charges 1 and 2.

D2

35. Based on the footage of various dash cameras, I give the benefit of doubt to D2 that she did not deliberately disobey the red light. Without evidence to the contrary, I accept that she could have been misled by the green arrow signal and/or the vehicles in the 1^st and 2^nd lanes of Sha Tin Wai Road when they began to move forward. What D2 did was merely jumping a red light. She should not be held responsible for the subsequent accident caused by D1, though the results of the accident were tragic. Had there been no accident, I envisage that D2's faulty driving would have been dealt with by way of a fixed penalty ticket (as if she was caught by roadside cameras set up to catch vehicles jumping red lights). On this basis, I consider a substantial fine to be adequate punishment. I fine D2 $10,000.

36. For Charge 3, a disqualification order is inevitable. I have borne in mind the comments made by the Court of Appeal generally on disqualification orders in SJ v Hung Ling Kwok [2010] 4 HKLRD 365 and HKSAR v Chan Kim Ching CACC 69/2014 (unreported Chinese judgment). D2 has no similar conviction, the disqualification period is not less than 6 months[10]. I make a disqualification order of 6 months for Charge 3.