HKSAR v. LAU WING-HUNG

DCCC 283/2022

[2023] HKDC 366

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 283 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Causing grievous bodily harm by dangerous driving" (Charge 1); a charge of "Driving while disqualified" (Charge 2); and a charge of "Using a motor vehicle without third party insurance" (Charge 3). He was driving a private car on New Clear Water Bay Road westbound. Suddenly, he crossed the double white lines and had a head on collision with an oncoming private car.

Summary of Facts

2.  The accident occurred near Lamppost No. AB6204, New Clear Water Bay Road, Sau Mau Ping in the afternoon on 12 August 2021.  This segment of the road was a curved 3-lane carriageway with 1 westbound lane towards Ngau Tau Kok and 2 eastbound lanes towards Sai Kung.  There were double white lines separating the westbound and eastbound traffic.

3.  At the time of the accident, the weather was fine with good visibility and sufficient daylight.  The road surface was dry and in good repairs.  The vehicular traffic was smooth.

4.  Shortly before the accident, a private car DU127 (V1)  was travelling in the 2^nd (right)  eastbound lane within the speed limit[1]. A lorry NW1131 (V2)  was travelling in the 1^st (left)  eastbound lane also within the speed limit.  At the same time, the defendant was driving a private car WZ8190 (D's Car)  travelling in the westbound lane.  A government vehicle AM4352 (V3)  was behind D's Car travelling within the speed limit.

5.  About 2:40 p.m. on that day, D's Car suddenly crossed the double white lines and moved into the 2^nd eastbound lane.  V1 was in the 2^nd eastbound lane coming towards D's Car.  The offside front of D's Car rammed into the offside front of V1.  The nearside front of V1 also collided with the offside of V2.  Upon impact with V1, D's Car spun 90 degrees clockwise rendering it almost perpendicular to the westbound lane, thereby blocking half of that lane.  V3 could not stop in time and its offside front collided with the rear part of D's Car.

6.  As shown in the footage of V3's car camera, right before and at the point of impact, V1 was boxed in between D's Car and V2.  V1 had no way to avoid the collisions with D's Car and V2.

7.  At the scene, the defendant admitted that he was the driver of D's Car and was disqualified from driving.

8.  As a result of the collisions, the driver of V1 (PW1 Mr. Chou), left rear seat passenger of V1 (PW2 Mr. To)  and front seat passenger of V1 (PW3 Mr. Tsang)  sustained the following injuries:

(i)  PW1 – right foot fractures; right shoulder, back and head injuries; hospitalized for 2 days and was granted sick leave for 37 days; as at February 2023, he stated that he has mostly recovered from his injuries, but right foot has recurrent pain which affected his job as an auto-mechanic;

(ii)  PW2 – right clavicle fracture; limbs, neck and back injuries; hospitalized for 7 days and was granted sick leave for 21 days; as at February 2023, he stated that he has mostly recovered from his injuries, but has right wrist pain and unable to hold heavy objects or perform vigorous exercises, which affected his job as a car salesperson; and

(iii)  PW3 – injured head, face, left shoulder, left arm and legs; hospitalized for 2 days and was granted sick leave for 84 days; as at February 2023, he stated that he has mostly recovered from his injuries, but has left knee pain making him unable to stand for a long time, which affected his job as a car salesperson and ability to perform vigorous exercises.

9.  On the day of the accident, the defendant held a valid 3^rd party insurance policy for D's Car.  However, since he was disqualified from driving from 19 April 2021 to 18 April 2022, the policy did not cover his driving of D's Car.

Mitigation & Sentence

10.  The defendant is almost 48 and has 10 conviction records, which included 1 offence of "Driving while disqualified" and 1 offence of "Using a motor vehicle without third party insurance" (both dated April 2021).  In terms of traffic record, he obtained his full driving licence in 2017 and has 19 fixed penalty tickets and 1 conviction of "Careless driving".  He has also been disqualified from driving twice under the points system. 

11.  Defence solicitor Mr. Leung informed me that the defendant is divorced with 2 children (both are secondary school students).  He resides alone.  Prior to his arrest, the defendant was a mechanical engineering sub-contractor with about 70 workers under him.  His net income was $20,000 to $40,000 per month.  He pays maintenance to his ex-wife and children regularly and is on good terms with them.

12.  In mitigation, Mr. Leung submitted that at the time of the accident, the defendant was not under the influence of alcohol or drugs. He was not speeding and there were no prolonged deliberate and persistent bad driving manners.  Mr. Leung also stressed that apart from the 2 traffic offences sentenced in April 2021, the defendant's remaining criminal convictions took place more than 20 years ago.  Finally, Mr. Leung submitted that the defendant was recently diagnosed with heart problems.  He had been hospitalized for a few days before he came to court for plea; his doctor granted him leave to attend court.  He was told his heart conditions are so poor that he could have a heart attack any moment.

13.  It is fortunate that PWs 1 to 3 have recovered from their injuries.  I note that their ability to carry out certain physically demanding tasks related to their jobs are somewhat impaired.

14.  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.

15.  I have viewed the footage of the accident captured by V3's car camera numerous times.  The duration of the accident was a few seconds only.  But in those few seconds, PWs 1 to 3 were seriously injured due to no fault of their own.  That 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.

16.  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 PWs 1 to 3 and their respective families as a result of their injuries as well as their grievances and resentment[3].

17.  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…"

18.  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."

19.  I do not know why the defendant suddenly crossed the double white lines.  There was no vehicle immediately in front of him which could have remotely given rise to the need of overtaking.  What went through his mind or what his intentions were remain a mystery.  The offences he committed are serious and an immediate custodial sentence is inevitable.  The court must send a clear message to the general public that drivers must shoulder the responsibility for their acts on the road.

Charge 1

20.  The maximum sentence for this offence is a fine of $50,000 and imprisonment for 7 years.  Although his traffic record has not yet reached the "appalling" category, the defendant is hardly a good driver.  A total of 3 persons were seriously injured as a result of his dangerous driving.  Having considered all relevant factors, I adopt a starting point of 21 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 14 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 14 months' imprisonment.

21.  In addition to imprisonment, I make a disqualification order for a period of 2 years[5], which will start to run from the date of sentencing[6]. I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[7].  In my view, it is unnecessary to order him to re-take his driving licence test.

Charge 2

22.  This offence constitutes a flagrant breach of a disqualification order.  This is the defendant's 2^nd conviction of similar offence.  I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 4 months' imprisonment.

23.  Since it is the defendant's 2^nd conviction of similar offence, the disqualification period shall be not less than 3 years.  I make a disqualification order of 3 years.

Charge 3

24.  This is also the defendant's 2^nd conviction of similar offence.  By driving D's Car, he has deprived PWs 1 to 3 and other potential victims of adequate financial protection.  I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 4 months' imprisonment.

25.  The law stipulates that for a person convicted of this offence, the disqualification period shall be not less than 12 months or more than 3 years.  Since it is the defendant's 2^nd conviction of similar offence, I make a disqualification order of 18 months.

Overall Sentence

26.  Bearing in mind the totality principle, I consider a global starting point of 27 months' imprisonment for all 3 charges appropriate and just.  With the timely guilty pleas, the overall sentence is reduced to 18 months.  Hence, I order the sentences for Charges 2 and 3 to run concurrently; but consecutive to Charge 1.

27.  For the avoidance of doubt, the disqualification orders for Charges 1 to 3 shall run concurrently from the date of sentencing.