HKSAR v. SIN YAU FOOK

DCCC 115/2024

[2024] HKDC 2208

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 115 OF 2024

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  Mr Sin pleaded guilty before me to one charge of Causing death by dangerous driving, contrary to section 36(1)  of the Road Traffic Ordinance, Cap 374. Particulars are that he, on 18 October 2023, near Lamppost No W4665, Ching Hong Road, Tsing Yi, New Territories, in Hong Kong, caused the death of Yau Dien Fung, Tony, by driving a motor vehicle, namely a light goods vehicle bearing registration mark VK553, on a road dangerously.

Facts admitted by Mr Sin

2.  Ching Hong Road was a two-way 5-lane road; 3 lanes of which with a left bend headed upslope towards Tsing Yi Road West while the other 2 lanes with a right bend headed downslope towards Tsing Yi Interchange.  The two sections were separated by a central divider.  The speed limit there was 50 km/h.

3.  On 18 October 2023, at about 10:53 am, the traffic condition was normal.  PW1 Tong was driving a KMB double-decker bus with route number 43 (V1)  along the 1^st left lane downslope of Ching Hong Road at a speed of roughly 20 km/h with 20 passengers on board.  Mr Sin was driving a light goods vehicle bearing registration number VK553 (DV)  along the 3^rd left lane upslope of Ching Hong Road with a passenger Yau Dien Fung, Tony (“the Deceased”), seated at the back row.

4.  At about 10:53 am, upon reaching the section near Lamppost No W4665 of Ching Hong Road, Mr Sin lost control of DV and it veered to the offside of the 3^rd left lane, thereby hitting a traffic bollard and ramming into the central divider.  DV toppled over to the right with its roof ramming into the offside front of the travelling V1.  As a result, both DV and V1 were seriously damaged.

5.  PW1 stopped V1 and reported the case to the police.  PW1 was sent to Princess Margaret Hospital for treatment; he was given sick leave until 31 October 2023.

6.  The Deceased was trapped at the back row of DV and he was rescued by firemen at about 11:25 am.  He was unconscious and was not breathing and had no pulse.  Cardio-pulmonary resuscitation was performed and he was conveyed to Yan Chai Hospital by ambulance at 11:43 am.

7.  Medical examination revealed the Deceased was suffering from laceration on the left chin and fractures of the ribs and thoracic spine.  At about 11:48 am, the Deceased was certified dead.

8.  Between 12:38 pm and 12:48 pm the same day, Rapid Oral Fluid Test was conducted on Mr Sin.  He was tested positive for ketamine.  At about 2:19 pm, Dr Ng took a specimen of blood from Mr Sin with his consent.  The specimen was tested and the following drugs were detected in the blood:-

(a)  Methadone – 0.38 microgramme/mL;

(b)  Midazolam – 0.09 microgramme/mL; and

(c)  Tramadol – 0.24 microgramme/mL.

9.  At about 3 pm on the day of incident, Mr Sin was further arrested for Dangerous Driving Causing Death.

10.  Enquiries revealed that Mr Sin received methadone treatment in The Lady Trench Methadone Clinic on the day of incident and was given a methadone dose of 80 mg at 7 am.  Mr Sin had been prescribed with the same daily dose since 1 March 2023 and he had 99.6% daily attendance in the treatment period.

11.  Dr Tsang, a Senior Medical and Health Officer, commented that:-

(a)  Methadone, Midazolam and Tramadol detected in Mr Sin’s blood all fell within their reference therapeutic ranges;

(b)  Intake of Methadone could cause side effects including seizures, itching, hoarseness, drowsiness, nausea, vomiting, difficult breathing etc;

(c)  Intake of Midazolam could cause side effects including nausea, vomiting, agitation, restlessness etc; and

(d)  Intake of Tramadol could cause side effects of sleepiness, headache, nervousness, drug mouth etc.

12.  The airbag control module of DV was sent to the Government Lab for data retrieval.  The Retrieval Report revealed that DV was travelling at speeds of 70-83 km/h prior to the incident with no sign of braking.

13.  Mr Sin admits that at the material time, he caused the death of the Deceased by driving DV on a road dangerously.

Criminal and Road Traffic conviction records

14.  Mr Sin has 31 previous criminal convictions none similar.

15.  Mr Sin has 4 road traffic convictions including 2 recorded in 2019 for careless driving.

Antecedents

16.  Mr Sin is 55 years old (53 at the time of the offence), educated to lower secondary level.  He is a goods vehicle driver earning monthly income of $15,000.  Mr Sin is single and resided with his mother in public housing in Kwai Chung.

Mitigation

17.  Mr Francis Yip of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Sin.  The following is a summary of the mitigation submissions.

18.  Mr Sin was educated in Hong Kong to F2 level.

19.  In October 2008, Mr Sin obtained his driving licence for classes 1 and 2 ie private car and light goods vehicle.  Mr Sin attended driving improvement course ordered by the Transport Department and completed the same on 29 July 2019.

20.  A person who causes the death of another person by driving a motor vehicle on a road dangerously is liable on conviction on indictment to a fine at level 5 and to imprisonment for 10 years: section 36(1)(a)  of RTO.

21.  The following are also relevant statutory provisions in RTO:-

(a)  If an offence under section 36(1)  is committed in circumstances of aggravation, the maximum fine and term of imprisonment and the minimum disqualification periods are each increased by 50%: section 36(2D).

(b)  A person commits an offence under section 36(1)  in circumstances of aggravation if at the time of committing the offence,

(i)  The proportion of alcohol in the person’s breath, blood or urine is tier 3; or

(ii)  Any concentration of a specified illicit drug is present in the person’s blood or urine: section 36(2E)  of RTO.

(c)  Specified illicit drug means a substance specified in Schedule 1A: section 2 of RTO. Ketamine is one of the drugs specified in Schedule 1A.

22.  Aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death, set out in R v Boswell [1984] 2 All ER were revised in R v Cooksley [2003] RTR 32 and have been adopted in Hong Kong.  For example, see SJ v Liu Kwok Chun, CAAR 3/2009, [2011] 1 HKC 70.

23.  In R v Cooksley, four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability.  This has been adopted in Hong Kong.  For example, see SJ v Liu Kwok Chun.

24.  For offence under section 36(1), “a deterrent sentence is called for because of the grave consequences flowing from this offence.  At the same time the Court recognizes that culpability of the defendant is the dominant factor in the sentencing exercise.”  See SJ v Liu Kwok Chun, at paragraph 35.

25.  Aggravating and mitigating factors referred to in Cooksley at paragraph 15 thereof are recited in SJ v Liu Kwok Chun, at paragraphs 38-39.  Among the said aggravating factors referred to in Liu Kwok Chun, the following may be relevant:-

(a)  The consumption of drugs (including legal medication known to cause drowsiness): paragraph 38(1);

(b)  Greatly excessive speed: paragraph 38(2);

(c)  Previous convictions for motoring offences, particularly offences which involve bad driving: paragraph 38(11).

26.  At 1114 hours on 18 October 2023, PC 17455 conducted a breath test on Mr Sin with zero microgramme of alcohol.

27.  Later on the same day, Mr Sin was tested positive for ketamine with a Rapid Oral Fluid Test (“ROFT”).  Still later, Methadone, Midazolam and Tramadol were detected in Mr Sin’s blood.

28.  It is submitted that there is no cogent evidence that Mr Sin had ketamine in his body at the material time.

29.  According to Mr Sin’s instructions, he had never taken ketamine at all material times.  In paragraphs 2 and 3 of the memo (“the Memo” copy of which submitted as Annexure I)  by Dr Tsang Chak Chi, Forensic Pathologist, dated 11 December 2023, sent to OC Case, it says that the positive result for ketamine by ROFT DrugWipe using Securetec DrugWipe 6S was contradicted by the blood sample result (absence of ketamine); that according to a study conducted in Hong Kong in 2018, DrugWipe 6S is a reliable device in correctly detecting the negative cases but it lacks sensitivity in identifying the positive cases; that where the DrugWipe 6S result ketamine is positive, the majority (79% in this study)  will be false signals and that the positive result of DrugWipe 6S of detecting ketamine may not truly reflect the truth.

30.  Given the pathologist’s opinion, there is no cogent evidence to establish presence of ketamine in Mr Sin’s blood at the material time.

31.  According to paragraphs 5 and 6 of the Memo, intake of methadone, midazolam or tramadol could cause side effects including seizure, itching, hoarseness, drowsiness, nausea, vomiting, difficult breathing, sleepiness, headache, nervousness, agitation, restlessness etc.  However, person who takes methadone can develop tolerance.  The effects of tramadol and midazolam on human are subjected to individual variability.  It would be difficult if not impossible to comment on a person’s clinical performance just based on his drug levels in the blood.  The pathologist could not conclude whether Mr Sin was capable or not of properly controlling the vehicle at the time of the incident.

32.  The accident took place about 4 hours after Mr Sin had taken the legally prescribed dose of methadone.  According to Mr Sin, he had developed tolerance to the prescribed drugs; that at the material time, he was not affected at all, there being a lapse of about 4 hours.

33.  In the case of first conviction, disqualification for a minimum period of 5 years is obligatory unless there are special reasons for the court to make a shorter disqualification or not to be disqualified: section 36(2A).  Bearing in mind the statutory minimum for a secondary and subsequent conviction is 10 years, the duration of disqualification for a first conviction would normally fall within the range of 5 to 10 years.  The period of disqualification should run concurrently with the term of imprisonment and should have actual effect by being longer than the prison sentence: see HKSAR v Ko Yun Sang [2022] 3 HKLRD 9, at paragraphs 21 and 24.

34.  Section 72A(1A)  provides that where a court convicts a person of an offence under section 36, the court shall order the person to attend and complete a driving improvement course, unless the court or magistrate for special reasons decides not to make such an order.

35.  It is accepted that there are no “special reasons” not to make a disqualification order or to make it for a duration of less than the statutory minimum term.  It is also acknowledged the fact that Mr Sin was a professional driver was not a “special reason” defined under section 2 of RTO.

36.  Culpability is the key factor in assessing the length of the disqualification order.  Given the culpability of Mr Sin’s driving, he undoubtedly poses a risk to other road users; but it is submitted that it is not a high one.  It cannot be said that his driving on this occasion shows that he represents a real and continuing danger to other road users.

37.  There was no evidence to show that on the day of the accident Mr Sin had been driving dangerously over a long period of time.

38.  A 5-year disqualification order will prevent Mr Sin from driving for a considerable period after his release from prison.  This is far more commensurate with the level of culpability of his driving and the risk he poses to the public.  Furthermore, it allows Mr Sin the prospect of returning to a driving career within a reasonable period of time should he wish to do so.

39.  It is submitted that the length of the disqualification order should be one of 5 years, namely the statutory minimum term.

40.  At the time of the incident, Mr Sin was a driver driving the vehicle in the course of his employment.  The deceased sitting in the back row was Mr Sin’s colleague.  It was a shock to Mr Sin.

41.  Mr Sin was driving at a speed in excess of the permitted speed of 50 km/h.  The forensic evidence shows that Mr Sin’s vehicle was travelling at the speed of 70-83 km/h.  Mr Sin should be given the benefit by adopting the lower level of 70 km/h, which was 20 km/h higher than the speed limit.

42.  It is submitted that the accident was to a certain extent caused by Mr Sin’s unfamiliarity with the location.

43.  Mr Sin’s timely plea is the most important mitigating factor indicative of his remorse.

44.  Mr Sin urges the court to be as lenient as possible.

Sentence

45.  Because of Dr Tsang’s memo referred to in mitigation, I cannot be sure that ketamine was indeed present in Mr Sin’s blood.  Hence, there shall not be increase of sentence under section 36(2D)  of the Road Traffic Ordinance, Cap 374.

46.  Because of the presence of one or more of the aggravating factors labelled as (1)  to (9)  in para 38 of Liu Kwok Chun (Mr Yip fairly identified two of them), Mr Sin’s standard of dangerous driving belongs at least to the category of higher culpability as defined in para 40 of Liu Kwok Chun.

47.  Mr Sin has two convictions for offences of careless driving committed in 2018 on two consecutive days for which he was fined on both occasions.  Because they happened 5 years prior to the present offence and are relatively less serious, I do not regard them as indicating that Mr Sin has been driving habitually below acceptable standard.

48.  I have not lost sight of the fact that there was another injured person in the incident, namely the bus driver PW1.  Although he was given 2 weeks’ sick leave, the injuries sustained did not appear to be severe as he was able to control the bus and disperse the passengers right after the incident.

49.  As a result, in my assessment of the culpability of Mr Sin’s driving, I stop at the higher culpability category.

50.  I use as a guide the sentencing range of 4-5 years for that category suggested in para 40 of Liu Kwok Chun, bearing in mind that the Cooksley range of sentence has not been formally adopted as the tariff in Hong Kong.

51.  I take as a starting point in the case of Mr Sin one of 4 years’ imprisonment.  Mr Sin pleaded guilty in good time for which he shall be given the customary 1/3 sentencing discount.  I accept that the fact that the deceased was a colleague and that he suffered his fatal injuries while sitting at the back of the vehicle driven by Mr Sin will pose an extra shock to Mr Sin.  For this additional factor, I shall grant Mr Sin an extra one month off the sentence after the 1/3 discount.  There are no other mitigating factors of weight to justify any other reduction in sentence.

52.  There are no special reasons not to impose either a disqualification order of at least the statutory minimum duration or an order for Mr Sin to attend and complete a driving improvement course.

53.  I accept Mr Yip’s submission that the minimum statutory duration disqualification order is sufficient to reflect Mr Sin’s culpability.

(Mr Sin, please stand)

54.  Mr Sin is to go to prison for 31 months.

55.  I order that Mr Sin be disqualified from holding or obtaining any driving licence for a period of 5 years; that Mr Sin is to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period.  Mr Sin is not to hold or obtain a driving licence again until he has both (a)  served his disqualification period and (b)  attended and completed at his own cost the driving improvement course.

56.  I hereby warn Mr Sin that failure to attend and complete the driving improvement course at the time specified without reasonable excuse is itself an offence and can attract an imprisonment sentence.