HKSAR v. MAGSINO RESHIELLE LAGURIN

DCCC 111/2023

[2026] HKDC 424

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 111 OF 2023

------------------

------------------

-------------------------------------

REASONS FOR SENTENCE

-------------------------------------

1.  The defendant has been convicted after trial of the two offences she faced, the first one being causing death by dangerous driving and the second one being the case of causing grievous bodily harm by dangerous driving.

2.  I do not propose to rehearse the facts of the case.  They can be found in the Judgment and also in the evidence in court.  Suffice to say that the case arises out of a failure to adequately or properly brake a vehicle in Peel Street leading to the vehicle rolling downhill and killing one person and causing grievous bodily harm to four others.

3.  The basic facts of the case were dealt with by way of Admitted Facts, including the details of death and injury and again I do not propose to rehearse those in any detail.  Suffice to say that the injuries included to PW1 a skull base fracture, the person was hospitalised for 25 days.  PW2, multiple fractures to the left foot, again, hospitalised for some time.  Other injuries received by other witnesses were broken feet and left fibula fracture.  Other pedestrians in the area also suffered some injuries such as lacerations and swelling.  All in all, the effect of the rolling backwards of this car were catastrophic and tragic both to the victims and also to the defendant as well.

4.  I will deal with the defendant’s background at this stage.  She is a person of clear record, she is currently aged 48.  She has worked in Hong Kong for a considerable time as a domestic helper, I am told since, I believe it is January of 2009.  She has a good driving record and a clear criminal record.  I would describe her conduct prior to this event has been exemplary.  She is highly spoken of by the people who have employed her and has clearly found a great appreciation by them.

5.  The approach to sentence is governed by a number of cases in Hong Kong but primarily by the cases of Liu Kwok Chun and the case that refers to of Poon Wing Kay.  As far as the case of Liu Kwok Chun is concerned, reference for that can be found at [2011] 1 HKC at page 70 and Poon Wing Kay is an Application Review to No. 2006.

6.  In the case of Poon Wing Kay, it said that the sentences of the court should consider that the sentencing policy is that a deterrent sentence is called for in the case of causing death by dangerous driving because of the grave consequences flowing from the offence and at the same time the court recognised that the culpability of the defendant is a dominant factor in the sentencing exercise.  And in assessing the degree of culpability, there are two extreme situations.  The first is where the event occurred because what is described as a momentary error of judgment but the other is a more serious event where there is selfish disregard by the driver for the safety of other road users.  In between these two extremes, there are varying degrees of culpability depending on the presence of aggravating factors.  Those aggravating factors refer back to a case, an English case called Cooksley, this can be found at [2003] 3 All ER 40 which considered sentencing in that jurisdiction of cases of causing death by dangerous driving when the maximum sentence of imprisonment in that jurisdiction was one of 10 years’ imprisonment which is the same as the maximum permissible sentence in Hong Kong presently.

7.  The case of Liu Kwok Chung referred to the aggravating factors in Cooksley.  I do not propose to go through them but I will refer to the two factors that relate to the outcome of the offence, that is described as this:  Firstly, more than one person will be killed as a result of the offence, especially if the offender knowingly put more than one person at risk or the amount of multiple deaths was foreseeable; and the second aggravating factor is that serious injury to one or more victims in addition to the deaths occurred as a result of the accident.  So it can be seen in this accident there are at least two aggravating factors that must be considered.

8.  The court when passing sentence was also considering mitigating factors such as a good driving record by the defendant, any absence of previous convictions, any timely plea of guilty and genuine shock or remorse which may relate to the victim if he was a close relation or friend.  Where there are no aggravating circumstances, the sentencing recommended in Cooksley will be between 12 to 18 months’ imprisonment.  Where there is what is described as intermediate culpability where there is only a momentary dangerous error of judgement but the outcome is the death of more than one victim or serious injury to other victims, then the recommended range of sentencing is between 2 to 3 years in the event of conviction after trial.  I will simply apply those factors to the circumstances of this offence.

9.  I do assess that the culpability in this case is in the range of where the acts of the defendant form a momentary error of judgement.  It is a failure to secure the car.  I did note in the Judgement that none of the methods of braking the car objectively could been seen to have been deployed in this case but it still is a momentary error of judgement.

10.  However, there are at least two aggravating factors.  Firstly, more than one person was killed, and secondly, serious injury to one or more victims in addition to the death which puts the case within what is described as intermediate culpability with a recommended starting point for sentence of between 2 to 3 years’ imprisonment.

11.  Mitigating factors do of course exist here.  Firstly, the defendant, she has one minor conviction but she has a good driving record, she has driven in Hong Kong for a considerable period of time. There is absence of any other previous convictions and I have seen from the letters written by the family that the defendant has shown genuine shock and remorse at the outcome of this case and of the injuries suffered by the victims here.  She is, as I said, otherwise a person of clear record and I do note that in the conduct of the defence here, there were what I call admissions of responsibility and the position that the intermediate position that the defendant’s acts did show some degree of culpability for the accident.

12.  I take all those factors into consideration.  I have determined that the starting point in respect of charge 1, which is the most serious of the offences, should be a starting point of 33 months’ imprisonment which falls within the 2 to 3 year imprisonment range.

13.  I consider there are mitigating factors that will reduce that starting point for sentence.  I have already set them out; the shock and remorse suffered by her, her good record, the absence of previous convictions and the way in which the defence was conducted.  Taken together, they will reduce the sentence by one of 6 months’ imprisonment.

14.  So my final sentence on the 1^st charge will be one of 27 months’ imprisonment.  There will be a 5-year disqualification for driving and the defendant must take a Driving Improvement course within three months of the expiration of her period of disqualification if she wishes to drive in Hong Kong again and retain her licence.

15.  As far as the 2^nd charge is concerned, I will take a starting point of 24 months’ imprisonment and reduce that to 18 months’ imprisonment for the mitigating factors I have outlined.  There will be a mandatory 2 years’ disqualification from driving and a similar Driving Improvement Course is warranted.

16.  All these offences were committed on the same day at the same time, so I will order the sentences to be served concurrently to a total of 27 months’ imprisonment and a total period of disqualification from driving of 5 years.