HKSAR v. HO MAN HEI

CACC 127/2024 [2025] HKCA 224

On appeal from [2024] HKDC 977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 127 OF 2024

(ON APPEAL FROM DCCC NO 773 OF 2022)

_______________

_______________

________________

J U D G M E N T

________________

1.  The applicant was charged with two counts of dangerous driving causing death (Charges 1 and 2), and two counts of dangerous driving causing grievous bodily harm (Charges 3 and 4), contrary to sections 36(1) and 36A of the Road Traffic Ordinance (Cap 374) respectively. On 26 February 2024, the applicant pleaded guilty to the charges before Deputy District Judge M Chow (the judge).  On 28 May 2024, the judge sentenced the applicant to 58 months’ imprisonment and ordered that he be disqualified from driving for a period of 7 years and to attend a driving improvement course within the last 3 months of the disqualification period.

2.  On 18 June 2024, the applicant filed a notice of application for leave to appeal against sentence.  In the notice, he stated that the sentence was excessive.

3.  On 16 September 2024, Mr David Ma and Mr Winson Yung, counsel for the applicant, filed perfected grounds of appeal against sentence.  In essence, it is complained that the judge failed to properly assess the applicant’s culpability regarding Charges 1 and 2 (Ground 1); the judge failed to give any or adequate consideration to the fact that the applicant had experienced genuine great shock and remorse from the incident, as the victims included his girlfriend and friends and that he also suffered injuries from the incident (Ground 2); and the judge failed to properly address the totality of the sentences of Charges 1 to 4, resulting in unduly lengthy overall sentence (Ground 3).

4.  On the evening of 31 October 2021, at around 10:04 pm, a tragic traffic accident occurred on Bride’s Pool Road, a two-lane two-way road in the Sha Tau Kok bound direction.  The weather was clear, the road surface was in good condition, and the area was well-lit by streetlights.  The speed limit was 50km/h.

5.  At approximately 10:04 pm, three vehicles – private cars WA2086 (“V2”) and UD7643 (“V3”), and a motorcycle (“V4”) – departed Tai Mei Tuk Car Park towards Sha Tau Kok.  The deceased in Charge 2, Fung Tat Wa (Fung), was driving V2, while the applicant was driving V3.  So Tak Yu (So) (the victim of Charge 3) was a passenger in V2, and Yuen Cho Kit (Yuen) (the victim of Charge 4) and Lau Chun (Lau) were passengers in V3.

6.  Shortly thereafter, V2 and V3 began accelerating, with V3 closely following V2.  Some parts of the road are in an “S” shape.  As they navigated a series of bends, both vehicles repeatedly crossed the continuous double white lines and encroached into the opposite lane.

7.  At 10:06:47 pm – 10:06:53 pm, V2 and V3 overtook a slow moving vehicle (“White Car”) by crossing into the opposite lane, and then accelerating again. Both vehicles engaged in a series of reckless manoeuvres, including crossing continuous double white lines multiple times.  During this period, V3 travelled along the opposite lane for around four seconds at a right bend.  A few seconds later, V3 crossed and drove along the continuous double white lines for around three seconds at another right bend.  V3’s camcorder recorded a conversation indicating that “the game was over” when the White Car appeared.  

8.  At approximately 10:07:58 pm, V2 and V3 approached another slow moving vehicle (“Black Car”) and followed it for about two and a half minutes.  During this period, V3 crossed into the opposite lane for around six seconds, and V2 also drove close to or on the double white lines.

9.  At 10:10:17 pm, V2 overtook the Black Car, and V3 did the same, both accelerating once past the Black Car and continuing to drive at a high speed in a reckless manner.

10.  At 10:10:41 pm, while navigating a left bend near the accident location, V2 crossed the continuous double white lines into the opposite lane.  At that moment, private car WB8221 (“V1”), driven by Lui Man Yat (Lui) (the deceased of Charge 1), was traveling in the opposite direction.  The offside front of V2 collided with the offside front of V1, causing V1 to overturn.  V2 then rebounded and crashed into V3, which was following closely behind.  V4 subsequently arrived at the scene and failed to stop in time, resulting in his motor cycle falling over.

11.  During the journey, V2 crossed or drove along continuous double white lines for around six times while V3 did so around four times.  When the collision took place, the average speeds of V2 and V3 were 108±11 km/h and 101±10 km/h respectively.

12.  The result of the series of accidents was devastating.  Lui, the driver of V1, was pronounced dead at the scene due to multiple injuries sustained in the collision (Charge 1).  Fung, the driver of V2, was rescued from the wreckage but was declared dead later that night at 11:35 pm (Charge 2).  So, the passenger in V2, suffered from polytrauma, including rib fractures, clavicular fracture, lumbar spine fractures, and liver lacerations (Charge 3).  Yuen who was the passenger in V3, sustained liver lacerations, rib fractures, and other injuries, requiring hospitalization.  She was hospitalized from 1 to 4 November 2021 and granted sick leave until 21 November 2021 (Charge 4).  Lau, a passenger in V3, and Kwok, the driver of V4, escaped with minor injuries. 

13.  It is admitted that the applicant was driving V3 on a road dangerously, namely, at a speed greatly excessive at about 101±10 km/h while the speed limit was 50 km/h; competitive driving against another vehicle and racing; a prolonged, persistent and deliberate course, lasted for about five minutes, of very bad driving; crossing or driving along continuous white lines for many times; and driving on the lane of opposite direction.  The way he drove fell far below what would be expected of a competent and careful driver; and it was obvious to a competent and careful driver that driving in that way would be dangerous.  The applicant’s dangerous driving resulted in the deaths of Lui and Fung and serious injury to So and Yuen.  So was the applicant’s girlfriend and a passenger in the other car.  She suffered very serious injuries, including severe cognitive impairment and some executive dysfunction, and is now under the care of her father.

14.  I am not persuaded that the applicant’s grounds of appeal against his sentence are reasonably arguable and leave to appeal his sentence is refused.

15.  The judge properly treated the applicant’s offences as a bad case of dangerous driving, which caused the death of two people and serious injury to two others.  The dangerous driving was seriously aggravated by the manner of driving which included driving at excessive speeds when the roads were narrow, winding and bending from time to time; crossing double white lines; driving in opposite lanes; and engaging in competitive driving and racing.  There is no question that the applicant’s driving displayed a blatant disregard for the safety of his passengers and other road users. 

16.  Given the seriousness of the offences and the aggravating factors involved, the judge rightly adopted a starting point of 5 years’ imprisonment on each of Charges 1 and 2, 3 years’ imprisonment on Charge 3, and 2 years’ imprisonment on Charge 4.  Other than the one third discount for the applicant’s guilty pleas, there was no other meaningful mitigation warranting any further reduction to his sentence.  As a result, the judge sentenced the applicant to 40 months’ imprisonment on each of Charges 1 and 2, 24 months’ imprisonment on Charge 3, and 16 months’ imprisonment on Charge 4. In applying the totality principle, the judge ordered that 6 months of the sentence from each of Charges 2, 3 and 4 run consecutively to each other and to the sentence of 40 months’ imprisonment on Charge 1, resulting in a total sentence of 58 months’ imprisonment.

17.  The judge correctly identified the applicant’s culpability and the aggravating factors that seriously exacerbated his wrongdoing, bearing in mind the sentencing guidance provided in R v Cooksley [1], which have been strongly endorsed and expounded in decisions of this Court: Secretary for Justice v Poon Wing Kay [2]; Secretary for Justice v Chu Wing Yin Christine [3].  The applicant participated in a road race with the other vehicle, which collided with an oncoming vehicle in the opposite lane and then with his vehicle, resulting in the death of two people and serious injury to two others.  This catastrophic accident was bound to happen given the dangerous and reckless manner in which these two drivers raced their vehicles against each other, speeding, crossing double lines, and driving into the lanes of oncoming traffic.  Whilst it was the other vehicle that had the collision with an oncoming vehicle, it did not matter which vehicle caused the accident because they were both to blame for racing against each other on the road.  In the circumstances, they are therefore equally culpable for the horrific consequences of their dangerous and reckless driving.

18.  The total sentence of 58 months’ imprisonment incorporated a fair and appropriate consecutive element of the individual sentences when adjusted, taking into account the totality of the sentences.  It is suggested that the sentence imposed by the judge on each offence should have been ordered to run concurrently because they arose out of the one event.  Such an argument fails to appreciate that the applicant has been convicted of multiple offences for his dangerous driving, which caused the death of two people and serious injury to two others.  I do not see anything wrong with the overall sentence imposed on the applicant for the offences he committed.

19.  All the reports and testimonials indicate that the applicant is a decent young man, but that counts for little when the dangerous driving involved road racing, resulting in death and serious injury to others.  Whilst it is understandable that he is shocked and distraught over this tragic accident, having lost a friend and watched two others, including his girlfriend, suffer serious injuries, the fact remains that this accident would not have happened if he had not participated in a road race with his friend.  There is also the loss of life of an innocent road user, who tragically was a victim of the road race between the applicant and his friend. The culpability and blameworthiness of this offence was elevated because it involved road racing.  It is understandable that the judge gave no allowance for the applicant’s shock and the relatively minor injuries that he sustained as a result of this tragic series of accidents.  The law makes it abundantly clear that this sort of conduct on our public roadways will not be tolerated and offenders will be punished accordingly. 

20.  For the reasons I have given, I refuse the applicant leave to appeal against his sentence.  Nevertheless, the applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.