HKSAR v. CHAN TSZ KI

 DCC1169/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1169 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one count of dangerous driving causing death, contrary to section 36(1) of the Roads Traffic Ordinance, Cap. 374.

2.  On 8 April this year the defendant was driving his employer’s vehicle. His colleague was sat in the front passenger seat. Originally his colleague was due to drive this vehicle but had asked the defendant to drive instead. This accident happened about 11.20 am at Cha Kwo Ling Road, Kwun Tong, Kowloon. The road, at that time, was dry, in good repair and had a speed limit of 50 kilometres per hour.

3.  I don’t intend to repeat the full summary of facts but the accident happened as follows. The defendant negotiated a right bend at speed and lost control. A witness said the defendant did not slow down into the bend. The vehicle moved across its lane as the defendant lost control and hit the right rear of a parked medium goods vehicle. It then hit a second parked vehicle. The deceased was found lying on the road. He had obviously fallen out of the vehicle. The speed of this vehicle was calculated by a forensic scientist as being 87 kilometres per hour, at the commencement of the skid marks, with a tolerance of plus or minus 10 per cent.

4.  The victim, the passenger, died of multiple injuries. The dangerous element was negotiating a right bend of westbound Cha Kwo Ling Road at excessive speed. The summary of facts also include a fact that, “The deceased had not properly fastened his seatbelt during the accident.”

5.  The defendant is a young man with a clear record. I have heard full mitigation put forward on his behalf before I adjourned for a background report. The background report has been explained. I have considered its contents, which are comprehensive. The defendant’s family background is tragic. Both his parents are very ill and both rely on the defendant.

6.  The defendant’s background is very humble. The family was financially strapped mainly due to his mother’s long-term illnesses. Yet clearly they are a very decent supportive family unit. The defendant, since leaving school at 17, has tried to better his family’s financial situation by working.

7.  These are tragic cases. An accident that could have been avoided has resulted in the death of a young man. I am sure there are other lives connected to the deceased that have been affected by his early death. There is no acceptable excuse for dangerous driving. The courts should not show leniency to any driver who has endangered the lives and safety of other passengers or road users.

8.  I have looked at length at a particularly helpful authority, in particular, Secretary of Justice v Lam Siu Tong and Wong Ton Fan CAAR 2 [2009] and 4 [2009]. They are applications for review by the prosecution for sentences for a similar charge and, in those two cases, similar facts dealt with together. The authority reviews numerous previous authorities and discusses at length the court’s approach to sentencing offences of this nature.

9.  The facts of those two cases are more serious than the facts here. In those two cases the drivers caused the death of pedestrians at pedestrian crossings. In CAAR4 of 2009 the driver jumped a red light at a pedestrian crossing hitting a pedestrian. Drivers obviously must exercise utmost care when approaching pedestrian crossings.

10.  Courts will look at mitigating and aggravating factors when considering sentence. I need to consider the overall culpability of the offender, which is a dominant factor in sentencing. My view is the facts of this case are not the most serious where dangerous driving causing death is concerned. The defendant has failed to negotiate a bend properly or safely but it is not a case where he has had an obvious selfish disregard to others safety.

11.  In addition, I cannot ignore the fact the victim had not properly fastened his seat belt. If he had would he still be alive today? I cannot say he contributed to his own demise without fully considering the facts or circumstances. That is not what I am saying here but the fact he left the vehicle upon impact may have been attributed to his seat belt not being worn properly. The fact he left the vehicle most likely also exacerbated his injuries. I do not know if that is because the impact was so serious or the belt failed to protect him.

12.  In the authority I have just referred to a 24 month starting point was considered appropriate for CAAR2 of 2009. And in the more serious case of CAAR4 of 2009 a starting point of 36 months was considered appropriate. As I have said, the facts of this case I find to be less serious than the facts of the those. I find I can take a lower starting point than 24 months.

13.  Having considered all the relevant facts here and mitigation, and the sentencing approach I should take as put forward in discussions in the authorities, I do consider an 18 month starting point to be appropriate. I will reduce it by a further 3 months for the undisputed fact the victim’s seatbelt was not properly fastened, a relevant factor, I cannot ignore. The defendant having pleaded guilty is entitled to a discount of one-third. That is a discount of 5 months.

14.  For this offence I am imposing a sentence of 10 months’ imprisonment. The defendant is also disqualified from driving any class of vehicle for a period of 2 years that is a disqualification imposed from today. The defendant must understand if he drives whilst disqualified, that, in itself is an offence, which will be punished by a term of imprisonment. The seriousness of that comes from the fact you will not have any insurance whilst disqualified.