HKSAR v. KWONG WING LUN

DCCC725/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 725 OF 2009

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Reasons for Sentence

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1.  The approach for the sentencing court has been discussed in the Court of Appeal cases in Application for Review No. 2 of 2006. Certain passages may be of some use and they are no more than commonsense. I will quote them and explain them now because I am going to rely on them for the factors that were explained in the case.

2.  In the past, even the present, people may still think we should not treat the violator of traffic laws as true criminal. Some people may have difficulty to understand why violators of traffic law are being sent to prison. Of course, family members and relatives of the victim of fatal accidents would certainly think otherwise. The Court of Appeal had this to say, “It is important to bear in mind because while it may be true in some instances”, - I stress, “in some instances”, - “not to treat violators of traffic laws as true criminal nevertheless for offences such as dangerous driving causing death the offender may not necessarily be seen in quite such a benevolent light.”

3.  To translate in the simple expression, dangerous driving causing death offender would not be treated as kindly as other violators of traffic law. It also has -- this is to say the impact on people’s lives ought to be taken into account when sentencing. The Court of Appeal specifically mentioned distress caused to family of the deceased.

4.  There is no evidence what impact it has on the family or whether the deceased has a family but you cannot interpret the Court of Appeal as saying that in such circumstances that would be a mitigating factor. The value of a person’s life is invaluable whether or not he has a family member, whether his death will cause distress to other members of the society, he himself should be -- his life itself should be taken into consideration. Put it simply, if the death caused an impact on other people, family members, relative, the offence would be more serious. It does not mean in the absence of such evidence the offence should be treated as if no person has died. A person has died and that is the fact.

5.  As to the other important factors the Court of Appeal has this to say:

“It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from the acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving.  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.”

6.  You may notice the Court of Appeal did not specifically mention cyclists but I do not believe that the Court of Appeal said the cyclist do not deserve the equal standard of care from drivers, although there may be a very common phenomena that the drivers of motor vehicle usually ignore the cyclists. Very often when a traffic accident occurs involving a cyclist the cyclist was first to blame by onlookers maybe rather than the motor vehicle driver. Let me make it clear, the cyclist deserve the same right to use the road. They deserve the same standard of protection from motorists as other road users.

7.  The Court of Appeal goes on to say that the court must look at the overall circumstances and the overall culpability of the offender. For the sake of completeness I may also cite Court of Appeal’s comment on under which circumstances a heavy sentence should be called for:

“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).”

Without disrespect to the Court of Appeal, if I may add “cyclists”, “or with a degree of recklessness.”

8.  In your case you have demonstrated selfishness. You have no regard for other road users, the cyclist in particular. Either you have not even seen the presence of the cyclist until it was too late or you failed to keep a safe distance from the cyclist, and this is dangerous driving and you caused the death of the cyclist. This driving conduct is exactly what the Court of Appeal had in mind, the conduct which must be deterred.

9.  I have called for a Community Services Report but I have already warned you that does not mean that you will be sentenced to community service order if found suitable. In your case I would think it is proper that the deterrent consideration overrides the question of reforming you. It is not a question of reforming or not reforming. It is a question, anyway you told me you are not going to drive any more. The question is that, as the Court of Appeal said, the court must drive home the message that if you drive dangerously, if you cause somebody’s death, you may go to prison. You may be dealt with seriously.

10.  The question remaining is how long a prison term you should serve and we turn on the question of culpability. You were driving carelessly without consideration of other road users which made your driving dangerous, very dangerous. Driving too close when it is not necessary to the cyclist at such a speed is a very serious matter and you may not know at that time. I hope you know now.

11.  There was evidence you had for some reason failed to take any evasive action at all even accepting that the cyclist may not be cycling in a straight line, but you cannot expect a cyclist to cycle in a straight line or rather a straight path. But your culpability will be tampered because of the conduct of the cyclist which may contribute to the accident.

12.  I accepted your explanation because you pleaded guilty and there is no reason to doubt what you described, it was the cyclist who changed the path. If the case goes to trial I may not come to the same conclusion because you may be cross-examined by the prosecution and I do not know what answers will come up.

13.  The starting point of dangerous driving causing death, looking at your previous driving manner would be one of 6 months. I give you full credit for pleading guilty so I will pass a sentence 4 months’ imprisonment. You will be disqualified from holding and obtaining a driving licence for all classes of vehicles for 3 years. You have to attend and pass a driving competence course.

14.  For the failing to stop charge, again, this is a very serious offence. You demonstrate how irresponsible you have been. Perhaps in this case it makes no difference because there is an eye witness. The injured person will receive emergency care. But if there were no eyewitnesses it is very important for you to stop and give medical or to summon medical care for the victim.

15.  Looking at the facts you had no intention to find out or to make any report, or at least an anonymous call about the accident. You would simply take the risk that the victim would be lying injured on the road. It is one of the most serious case of this kind. After taking into account your plea of guilty and giving you one-third remission I pass a sentence of 2 months’ imprisonment. You will also be disqualified for 3 years all classes of vehicle.

16.  As to the 3rd charge, jumping the red light by itself it almost amounts to dangerous driving. You have panicked but not because of concern for your own personal safety, only you wanted to escape from your responsibility. You drive through the red light. Driving through a red light while your mind is so unsettled is a very dangerous act of driving. But the maximum sentence for failing to comply with traffic light is only 3 months’ imprisonment, so a deterrent sentence of 2 weeks’ imprisonment is appropriate simply because my hands are tied, tied to the maximum penalty.

17.  Again, I have to look at the overall of the severity of the sentence before I can consider the driving conduct of yours on that day immediately before and right after injuring the cyclist.

18.  Sentence of the 2nd charge and that of 3rd charge, jumping the red light, to be run concurrently and one month of this concurrent sentence to run consecutively to the 4 months of the 1st charge.