HKSAR v. KWOK CHING KAN

DCCC 504/2023 & DCCC 860/2023

(Heard together)

[2024] HKDC 317

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 504 OF 2023

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 860 OF 2023

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REASONS FOR SENTENCE

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1.  In DCCC 860/2023, the Defendant is charged with an offence of “dangerous driving” (Charge 1)  and “possession of a dangerous drug” (Charge 2). He pleaded guilty to Charge 1 and Charge 2.

2.  In DCCC 504/2023, the Defendant is charged with an offence of “causing grievous bodily harm by dangerous driving” (Charge 1), “driving without a valid driving licence” (Charge 2), “using a motor vehicle without third party insurance” (Charge 3), “failing to stop after accident whereby personal injury was caused to a person” (Charge 4)  and “doing an act tending and intended to pervert the course of public justice” (Charge 5). He pleaded guilty to Charge 1 to Charge 4. Upon the prosecution’s application, Charge 5 is left on Court’s file and not to be proceeded with save with the leave of the Court.

Summary of Facts

DCCC 504/2023

3.  In this case, an accident occurred at a pedestrian crossing on Castle Peak Road – Ping Shan at Yuen Long (“Accident Location”)  on 7 November 2022. The material section of which was a 2-lane dual carriageway, with one way towards Yuen Long and the other towards Tuen Mun. At the material time, the weather was fine, the road surface was dry and in good conditions with sufficient lighting. The traffic was low and the speed limit was 70km/h.

4.  At around 9:25 pm, a man was jogging on the pavement along Castle Peak Road near the Accident Location. He passed through a 14-year-old boy (the “Boy”)  who was looking at his phone. He also noticed a car, later known as a private car bearing registration number YE6236 (“Car”), coming in the opposite direction towards Tuen Mun with a very loud engine sound and travelled passed him. The sound got louder and louder. A few seconds later, he heard a loud impact sound and turned back. He then saw the Boy flipping in the air before landing onto the ground. The Car continued travelling and fled. Upon measurement, the Boy was found lying around 33 metres away from the Accident Location.

5.  Subsequently, at around 3:20 am on 8 November 2022, a security guard heard some loud sound of explosion and discovered some flames at a location around 4 kilometers away from the Accident Location (“Incineration Location”). After the fire was put out, it was found that the vehicle incinerated was bearing registration plate number YE6236.

6.  Upon investigation, the defendant’s identity was revealed. On 16 November 2022, the defendant was arrested. Under caution, the defendant stated that he hit PW1 only because the Boy was jaywalking. He drove off without stopping because his licence had been suspended and he was scared.

7.  During video recorded interview, the defendant admitted under caution that at the material time, he was driving the Car at about 70 km/h. The traffic light was green but the Boy suddenly dashed out and he could not stop the Car in time. Thus, he hit the Boy and could see him collapsed from the dash mirror of the Car. He decided to drive away as his driving licence was suspended and he was frightened. He confirmed with the photos shown to him that the incinerated vehicle at the Incineration Location was the Car.

8.  According to the car camera of the Car, the Car was travelling at a high speed with loud music being played. At the material time, the Car proceeded to cross the Accident Location at a high speed when the green traffic signal was on and the Car hit PW1. Still, the Car left the Accident Location without stopping.

9.  According to the car camera installed on a bus, at the material time, the Car reached the Accident Location was slowed down shortly and drove off. Then the Boy was seen lying in the middle of the road (“Footage 2”). A CCTV camera installed behind the Accident Location captured a large impact sound and then the Car travelled at a high speed (“Footage 3”).

10.  On 8 November 2022, a CCTV of a Hotel located at Yuen Long captured that at 02:31:57, the defendant left the hotel and boarded a black private car. At 03:33:30, Defendant returned to the hotel by taxi.

11.  On 8 November 2022, a CCTV captured that a male was running away quickly from the Incineration Location at 03:15:15. At 03:15:16, there were flames and explosions at the Incineration Location.

12.  According to Dr Wong, a forensic scientist, the average speed of the Car was around 87±9 km/h at 21:51:32 as captured in Footage 2; and around 60±6 km/h at 21:52:07 as captured in Footage 3.

13.  A Scientific Evidence Officer of the Government Laboratory examined the Car on 8 November 2022 after the Incineration and found that the roof, the offside bodywork, the rear bumper and the rear registration plate were not found on the Car. Dr Chan of the Government Laboratory conducted a physical examination of the Car after the Incineration and opined that the fire could have been the result of a deliberate act.

14.  The defendant had a Probationary Driving Licence between November 2014 and November 2015. Yet, he had never been issued with a Full Driving Licence. At the time of the Accident, he was not holding any driving licence and the Car was not covered by any third party insurance.

15.  The Boy was sent to the Tuen Mun Hospital on 7 November 2022 after being hit by the Car. Upon arrival, he was normotensive with tachycardia. He underwent intubation and fluid resuscitation. There were open wounds at bilateral parietal scalp, multiple abrasions over the left chest wall, the pelvis was unstable, the right arm and left thigh were deformed. X-rays and whole body computed tomography with contrast showed traumatic subarachnoid haematoma (“SAH”)  and subdural haematoma (“SDH”), fractured left mastoid and temporal bone, left scalp haematoma, bilateral pneumothorax and thin pneumomediastinum, right renal laceration, fractured bilateral sacrum, pubic rami, widening of pubic symphysis and right sacra-iliac joint, bony fragment posterior to lumbar spine L1, L2, fractured right humeral shaft and fractured left medial distal femoral condyle. PW1 had to undergo a series of emergency operations. Follow up computer tomography in the brain showed interval decrease of SAH and SDH. He was discharged on 30 December 2022 and was granted sick leave up to 28 March 2023.

DCCC 860/2023

16.  There were three lanes (Yuen Long bound)  in the relevant section of Yuen Long Highway (“YLH”). The speed limit imposed thereon was 80 km/h.

17.  This whole incident occurred on 10 July 2021. At 4:57 pm, a sergeant (“Sergeant”)  was patrolling on police motorcycle along the left lane of YLH. At the material time, the weather was fine and the road surface was dry with moderate traffic.

18.  Sergeant spotted a white private car (“Vehicle”)  travelling along the middle lane of YLH at the speed of about 80 km/h. The Vehicle cut into the left lane, overtook another vehicle on the middle lane and cut across the middle lane to the right lane. Sergeant switched on the flashing light and directed the Vehicle to pull over for enquiry. The Vehicle did not pull over. Instead, it accelerated. Sergeant gradually accelerated to about 120 km/h and gave chase. However, the Vehicle cut into the hard shoulder of YLH and accelerated to over 200 km/h. Sergeant eventual lost track of the Vehicle.

19.  At around 5:00 pm, an accident took place at the left lane of YLH. That accident location was about 900m away from where Sergeant lost track of the Vehicle. At that time, 1 taxi (“V1”)  with 3 passengers on board and 3 private cars (“V2”, “V3” and “V4” respectively)  were travelling on YLH. V2 was travelling on the left lane while V4, V3 and V1 were travelling on the right lane. Since the traffic was heavy, V1 to V4 were travelling very slowly. Suddenly, the Vehicle travelled between V1 and V2 and collided with the right side of V2 and left side of V1. V1 and V2 were pushed forward. As a result, V2’s front collided with V3’s rear and pushed V3 to collide with V4.

20.  As a result of the collision, the driver of V1 suffered back pain and the driver of V2 sprained his neck and bruised his right eye corner. V1 to V4 were all damaged. Repair costs of V1 was unknown. The loss of V2 was about HK$200,000. Repair costs of V3 was HK$15,000. Repair costs of V4 was around HK$7,000.

21.  At 5:03 pm, Sergeant arrived at the scene of collision. At that juncture, the defendant alighted from the driver seat of the Vehicle and fled. Sergeant gave chase but to no avail. Later on, other police officers arrived at the scene for investigation. Upon checking the vehicle, it was found that there was no vehicle licence on it, the registration mark did not match its chassis number, its vehicle licence expired and it had no third party insurance coverage.

22.  Also, a wallet containing 6 plastic bags containing a total of 0.94g of a solid containing 0.87g of cocaine were found under the driver seat of the Vehicle. Estimated street value of the cocaine was about HK$980.

23.  On 17 November 2022, the Defendant was arrested. Under caution, he remained silent. Investigation revealed that the Defendant did not hold any valid driving licence at the material time.

Defendant’s background and mitigation

24.  The defendant is now 30 years old. He was 27 years old at the time of the offence for DCCC 860/2023, and 28 years old at the time of offence for DCCC 504/2023. He is single and lives with his parents and brother. The defendant was detained since 16 November 2022 and his father passed away during the detention period. He and his mother wrote mitigation letters begging for a lenient sentence.

25.  From 2015 to 2017, the defendant had a total of 8 conviction records in 4 different cases, including 2 convictions of using a motor vehicle on a road against third party risks respectively in 2015 and 2017, 1 conviction record of dangerous driving in 2015, 2 convictions of possession in dangerous drugs in 2017.

26.  Still, he was also sentenced for further offences in June 2023 by the Tuen Mun Magistrates’ Court. These further offences include possession of dangerous drugs, driving while disqualified and using a motor vehicle on a road against third party risks. These further offences were committed by 2018 and the defendant was granted a court bail at that time. Then, he jumped bail. Therefore, when he committed the present offences, no matter in November 2022 (DCCC 504/2023)  or in July 2021 (DCCC 860/2023), he was a wanted person.

Sentence

27.  In passing the sentence, I have considered the facts of both cases, the background of the defendant, and the mitigation and authorities submitted to this me. Also, I have viewed all the relevant video clips played in court.

DCCC 504/2023

28.  In identifying the factors to be considered by a court in sentencing a defendant for causing grievous bodily harm by dangerous driving, Ms Ho, counsel for the defendant, referred me to the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, in that the Court of Appeal said that sentencing judges in such cases shall “… look at overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of the crime, culpability is often the dominant factor.”

29.  In Poon Wing Kay, the Court of Appeal referred to the judgment of Lord Woolf CJ in R v Cooksley and set down a 5 steps approach for sentencing:

“(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 true 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 there 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 motorists, 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 p.47B (para 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 p.46F-D (para 12).”

30.  In Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771, the Court of Appeal stated that the dominant factor to be considered in sentencing is the defendant’s culpability, which involves two related assessments, namely the objective dangerousness of the defendant’s driving and the moral culpability of the defendant. Another factor closely allied to culpability is the harm and impact caused to the victim(s).

31.  This court is guided by the aforesaid principles and guidelines laid down by the Court of Appeal.

32.  In this case, the defendant drove at a speed of about 87±9 km/h. Even interpreting this in the most favourable way for the defendant, he was still speeding because the prescribed speed limit was 70 km/h. He even did not stop after hitting the Boy. I do not accept that the defendant was a momentary lapse of attention. If the defendant had kept a proper lookout of the road conditions at the material time and driven in a competent and careful manner, he could not have failed to notice the Boy and should have ample time and opportunity to stop the Car in time. Although the defendant was driving according to the traffic signal, the offence was committed at a pedestrian crossing. Had he not been travelling too fast, the accident would have been avoided. The manner of the defendant’s driving was obviously dangerous. Its consequences were severe. Besides, he was never been issued with a Full Driving Licence. The absence of a third party insurance also adds to the culpability of the offence.

33.  The Boy was only 14 at the material time. Although there was no death resulted from the dangerous driving, it is obvious that grave distress was caused to him and his family. Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine. There is no acceptable excuse for dangerous driving. This court will not show leniency to any driver who has endangered the lives and safety of other road users.

34.  Ms Ho referred me to a number of cases involving dangerous driving causing grievous bodily harm or even death:律政司司長 訴 溫達揚, [2022] HKCA 1328, 香港特別行政區 訴 黃劍川, [2019] HKCFI 1338, 香港特別行政區 訴 黃振忠, [2020] HKDC 1141, 香港特別行政區 訴 冼愛珊, [2023] HKDC 1469, 香港特別行政區 訴 蕭慕璋Ringo, [2020] HKDC 902.

35.  Ms Ho submitted that a starting point of 6 to 15 months would be appropriate for Charge 1.

36.  However, each case must depend on its own facts and I do not consider those cases referred to me by Ms Ho are binding on me. Moreover, the defendant have a poor driving record, including dangerous driving and using a motor vehicle without third party insurance. He had no respect for traffic laws. He did not hold any driving licence. There was no valid third party insurance.

37.  Causing grievous bodily harm by dangerous driving is a serious offence for which the maximum penalty is 7 years’ imprisonment. Taking into account of all the circumstances, including particularly the driving manner of the defendant and the injuries sustained by the Boy, I adopt 2 years’ imprisonment as the starting point for Charge 1. Moreover, he was a wanted person when he committed this offence and I increase 3 months’ imprisonment for that reason.

38.  Given his timely plea, a one-third discount should be given. I am not able to find any other factor justify for a further discount. The defendant is sentenced to 18 months’ imprisonment for Charge 1. Taking into account the circumstances of the driving and the defendant’s poor traffic record, I am satisfied that a 3 years’ disqualification is appropriate. The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years. No Driving Improvement Course is required.

39.  For Charge 2, I adopt 5 weeks’ imprisonment as the starting point and increase 1 week because he was a wanted person. Given the discount for his timely plea, the sentence is reduced to 4 weeks’ imprisonment.

40.  For Charge 3, I adopt 5 weeks’ imprisonment as the starting point and increase 1 week because he was a wanted person. The sentence is reduced to 4 weeks’ imprisonment for his timely plea. I am satisfied that a 12 months’ disqualification is appropriate.

41.  For Charge 4, I adopt 10 weeks’ imprisonment as the starting point and increase 2 weeks because he was a wanted person. The sentence is reduced to 8 weeks’ imprisonment for his timely plea.

42.  In consideration of the totality principle, the sentence for Charge 1 to 4 are to be run concurrently. The total sentence for DCCC 504/2023 is therefore 18 months’ imprisonment.

DCCC 860/2023

43.  Ms Ho submitted that a 6 months’ starting point is appropriate for dangerous driving in this case. A case concerning drivers trying to escape from the police through speeding is submitted to me for reference: HKSAR v Cheuk Chun Ho [2024] HKDC 151.

44.  However, each case depends upon its own facts. In the present case, the defendant drove at a speed of over 200 km/h in order to escape the police and ended up causing damage to 4 vehicles. Some drivers sustained injuries.

45.  For Charge 1, I bear in mind that the maximum prison term for this offence is 3 years. Having considered all the circumstance, particularly the driving manner of the defendant, I adopt a starting point of 8 months’ imprisonment. I increase 1 month because of his “wanted person” status at that time. With the timely guilty plea, the sentence is reduced to 6 months’ imprisonment. A disqualification order is inevitable. I make a disqualification order against the defendant for a period of 12 months. No Driving Improvement Course is needed.

46.  For Charge 2, the quantity of drugs is small. In HKSAR v Wan Sheung Sum, [2000] 1 HKLRD 405, the Court of Appeal affirmed the three-step approach in sentencing for possession of dangerous drugs, namely,

(1)  a starting point of between 12 months and 18 months’ imprisonment;

(2)  enhancement to take account of the latent risk factor of re-distribution of the drugs; and

(3)  adjustment of sentence to take into account mitigation.

47.  Ms Ho submitted that a 6 months’ imprisonment is an appropriate starting point in view of the quantity of drugs involved.

48.  In view of the quantity of dangerous drugs involved is not substantial, I adopt a starting point of 5 months’ imprisonment and then increase 1 month for his “wanted person” status. The re-distribution risk wa minimal and I do not further enhance the sentence. Given the full one-third discount, the defendant is sentenced to 4 months’ imprisonment for Charge 2.

49.  Having considered the totality principle, despite Charge 1 and Charge 2 are of different nature, I order 2 months’ imprisonment of Charge 2 is to run consecutively to Charge 1. The total sentence for DCCC 860/2023 is 8 months’ imprisonment.

Sentence

50.  The defendant is sentenced to 18 months’ imprisonment in DCCC 504/2023, and 8 months’ imprisonment in DCCC 860/2023. Having considered the totality principle, I order 6 months’ imprisonment in DCCC 860/2023 to be served consecutively to DCCC 504/2023. Total imprisonment for both cases become 24 months’ imprisonment.

Disqualification order

51.  For Charge 3 in DCCC 504/2023, the defendant is disqualified from driving for a period of 12 months, starting from today.

52.  For Charge 1 in DCCC 860/2023, the defendant is disqualified from driving for a period of 12 months, starting from today, and concurrently with Charge 3 in DCCC 504/2023.

53.  Section 69A of the Road Traffic Ordinance, Cap 374 provides that: “The court or magistrate must direct that the disqualification period is not to start to run until the person finishes serving the term of imprisonment” if: -

(a)  a court or magistrate convicts a person of a relevant scheduled offence,

(b)  the conviction is the person’s second or subsequent conviction of a relevant scheduled offence, regardless of whether that conviction is for the same or for a different relevant scheduled offence,

(c)  the court or magistrate sentences the person to undergo a term of imprisonment or detention and the sentence is not suspended, and

(d)  the court or magistrate orders that the person be disqualified for a fixed period.

54.  For Charge 1 in DCCC 504/2023, the defendant is disqualified from driving for a period of 3 years. That offence was committed within 5 years after he committed the offence in DCCC 860/2023. I opine that the 2 cases are to be heard together today for purpose of convenience. Had the defendant been dealt with DCCC 860/2023 on a different date prior to DCCC 504/2023, he would have a “conviction record of a relevant scheduled offence” committed within 5 years when he is convicted and sentenced for Charge 1 in DCCC 504/2023. Although both cases are sentenced today, I have to sentence the 1 case after the other. Therefore, I am satisfy that according to section 69A of the Road Traffic Ordinance, Cap 374, the disqualification order is not to run until he finishes serving his imprisonment.