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DCCC 478/2022
[2023] HKDC 830
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 478 OF 2022
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| Before: |
H.H. Judge G. Lam |
| Present: |
Mr. Brian Cheng, PP, of the Department of Justice, for HKSAR. |
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Mr. Ryan Sheung instructed by M/s Wong & Co., for the defendant. |
| Offences: |
(1) & (7) Driving in excess of speed limit（超速駕駛） |
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(2) Driving a motor vehicle failing to display standard registration mark（駕駛沒有展示標準登記號碼的汽車） |
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(3) Taking part in a motor race or speed trial on a road（在道路上參與賽車或速度試驗） |
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(4) Causing grievous bodily harm by dangerous driving（危險駕駛引致他人身體受嚴重傷害） |
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(5) Failing to stop after accident whereby personal injury was caused to a person（發生意外以致他人身體受傷後沒有停車） |
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(6) Failing to report an accident involving personal injury to another person （沒有報告涉及他人身體受傷的意外） |
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(8) Doing an act or a series of acts tending and intended to pervert the course of public justice （作出一項或一連串傾向並意圖妨礙司法公正的作為） |
REASONS FOR SENTENCE
The defendant pleaded guilty to 6 charges of driving-related offences (Charges 1, 2, 4, 5, 6 and 7) and 1 charge of "Perverting the course of public justice" (Charge 8). All 7 charges arose from his driving which caused another car to flip 90 degrees, resulting in physical injuries to 6 persons on board of that car.
2. I granted the prosecution's application to leave Charge 3 in the court file; not to be proceeded against the defendant without leave of court.
Summary of Facts
Location of the accident
3. The accident took place on Tolo Highway (northbound). The segment in question has 4 lanes with a speed limit of 100 km/h. At all material times, the weather was fine; road surface dry; lighting sufficient; and volume of traffic moderate.
The events
4. About 1:08 a.m. on 21 November 2021, the defendant was driving a BMW private car (DG421) on Lam Kam Road (Tai Po bound). He was captured speeding near Lampost EB0428. He was driving at 79 km/h when the speed limit was 50 km/h. This is Charge 1.
5. About 1:15 a.m. on the same day, the dash camera of a car captured 10 cars travelling at very high speed and frequently changing lanes on Tolo Highway (northbound) near the Shatin racecourse. DG421 was one of those fast going vehicles. According to forensic analysis, its speed at one point was 123 ± 12 km/h.
6. About the same time, Mr. Tang (PW1) was driving a 7-seater private car (FT6218) in the 3rd left lane on Tolo Highway (northbound) near the CUHK Flyover at the speed of about 100 km/h. PWs 2 to 6 were passengers on board FT6218.
7. Suddenly, 4 private cars overtook FT6218 from PW1's right side at very high speed weaving in and out between vehicles. Shortly afterwards, another 2 cars went past FT6218 at high speed. PWs 1 to 6 did not notice the plate numbers of those 6 cars. A few seconds later, FT6218 was hit by DG421 from behind, causing FT6218 to lose control and flip 90 degrees to its offside.
8. Mr. Kong (PW9) was driving on Tolo Highway (northbound) at the same time. He saw from the rear view mirror of his car FT6218 flipping over to its offside; and soon afterwards, a damaged black BMW (i.e. DG421) sped off next to him. The incident was recorded by PW9's dash camera. This is Charge 5.
9. PC 11884 later arrived at the scene. He found a black BMW bumper and the licence plate of DG421 embedded into the tail of FT6218. Forensic examination confirmed that the bumper came from DG421.
10. PWs 1 to 6 were all injured as a result of the accident. They were sent to the hospital for treatment. PWs 2 to 6 sustained some abrasions and had pain; they were discharged on the same day.
11. PW1 sustained deep laceration wounds over his right forearm and elbow. He was diagnosed with right arm and hand crush injury and neck whiplash injury. He was discharged on 8 December 2021. According to his witness statement dated 19 April 2023, PW1 was hospitalized for 18 days and was given sick leave for 120 days. He received occupational therapy and physiotherapy up to December 2022; and orthopaedic treatment up to February 2023 at public hospitals. His pre-injury work required physical labour. PW1 returned to work on 22 March 2022, but was unable to perform heavy tasks. He switched to a position which does not require physical labour. He is unable to fully extend his right palm due to the scars and still has not regained full power in his right elbow. This is Charge 4.
12. About 1:22 a.m. (a few minutes after the accident), the defendant was captured speeding on Tolo Highway (northbound) near Chainage 16.9B. He was driving at 113 km/h when the speed limit was 100 km/h. This is Charge 7.
13. Between 1:23 a.m. and 1:50 a.m. on the same day, the defendant parked DG421 at Tat Wan Road (near an exit of Tolo Highway). He phoned his wife (Madam Lau) and called a friend to arrange for a tow truck. About 1:45, Madam Lau arrived at Tat Wan Road in her private car RV611. She and the defendant went to the driver seat of DG421. The defendant removed the dash camera from DG421, whilst Madam Lau was looking around. The couple then boarded RV611 and left. This is Charge 8.
14. About 11:44 a.m. on 22 November 2021, the Police located DG421 at a garage owned by the defendant and his cousin. DG421 was towed to Tai Lam Chung Vehicle Examination Centre.
15. Upon examination in December 2021, DG421 was found to have the following defect: "Display of front and rear registration marks did not comply with the regulation. (Letters/numerals with silver border.)" This is Charge 2.
16. The defendant surrendered to the Police in the company of his legal representatives at 4:30 p.m. on 22 November 2021. He did not make any report to the Police regarding the accident, in which personal injury was caused to PW1, as soon as practicable and in any event within 24 hours after the occurrence of that accident. This is Charge 6.
17. A house search was conducted at the residence of the defendant and Madam Lau in the late evening on 22 November 2021. The Police did not find any dash camera.
Mitigation & Sentence
18. The defendant is 39 and has 3 conviction records, which included 1 "Drink driving" offence. For traffic record, he obtained his driving licence in August 2003; he has 2 fixed penalty tickets, one of which was for "Speeding". Defence counsel Mr. Sheung informed me that the defendant ran his own garage business, earning $40,000 per month. The garage ceased operation after his arrest. The defendant is married with 2 children (aged 10 and 9). His wife works as a clerk.
19. In mitigation, Mr. Sheung submitted that regarding Charge 4, from the angle which is most beneficial to the defendant, he was driving at 111 km/h, which was only 11 km/h above the speed limit. The defendant was not under the influence of alcohol or drugs either. Also, the accident took place in the early hours, the traffic volume would be low, therefore less dangerous to other road users in the event of speeding.
20. I have viewed the relevant footage captured by the dash cameras of different vehicles. The defendant's driving manner was appalling. Mr. Sheung accepted that the defendant was driving "competitively", though he submitted that the defendant fell quite behind from the faster and more aggressive drivers. Be that as it may, despite being a "slower" driver, the defendant is the one who caused a serious traffic accident which led to PW1's grievous bodily harm.
21. I will deal with Charge 4 first.
22. It is fortunate that PW1 has recovered from his injuries. I note that the mobility and strength of his right palm and elbow are somewhat impaired. He had to switch position at work.
23. To the victim(s) and their families, a traffic accident which involves fatalities or serious personal injuries must be one of the most tragic events which could happen to them. It saddens me each time when I need to deal with a case in which someone has lost his/her life or has been seriously injured as a result of a traffic accident.
24. I have viewed the footage of the accident numerous times. The duration of the accident was a few seconds only. But in those few seconds, PW1 was seriously injured due to no fault of his own. That is the reason why the court must instil into the minds of the general public that driving (whether in a professional or recreational capacity) is a privilege ‒ a privilege with great responsibilities attached. It is a message which cannot be stressed enough.
25. In the course of sentencing, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just[1]. I must also consider the hardship caused to PW1 and his families as a result of his injuries as well as their grievances and resentment[2].
26. The courts have repeatedly emphasized the importance of deterrence when sentencing in cases related to dangerous driving. I have reminded myself of the sentencing principles[3] set out by the Court of Appeal in SJ v Poon Wing Kay [2007] 1 HKLRD 660, in particular paragraph 10(4) "While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor. It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence…"
27. In HKSAR v Lei Tin Seng [2011] 1 HKLRD 341, Yeung JA (as he then was) held :-
"17. This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.
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19. The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.
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22. This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment."
28. The defendant has no one but himself to blame. He made an extremely wrong decision to take part in a motor race, which led to the accident and PW1's injuries. He committed a serious offence and an immediate custodial sentence is inevitable.
29. The maximum sentence for Charge 4 is a fine of $50,000 and imprisonment for 7 years. The defendant's driving record is not perfect but fairly acceptable. Having considered all relevant factors (especially the elements of racing, speeding and weaving in and out between vehicles), I adopt a starting point of 21 months' imprisonment. With the timely guilty plea, the sentence is reduced to 14 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 14 months' imprisonment for this charge.
30. In addition to imprisonment, I make a disqualification order for a period of 2 years[4], which will start to run from the date of sentencing[5]. I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[6]. In my view, it is unnecessary to order him to re-take his driving licence test.
Charges 1 and 7
31. The maximum sentence for these 2 charges is a fine of $5,000. The defendant exceeded the speed limit by 29 km/h (in a 50 zone) and 13 km/h (in a 100 zone) respectively. I impose a fine of $1,500 and $1,000 respectively for Charges 1 and 7.
Charge 2
32. The maximum sentence for this charge is a fine of $2,000. I impose a fine of $500 for this charge.
Charges 5 and 6
33. The respective maximum sentences for these 2 charges are a fine of $10,000 and imprisonment for 12 months; and a fine of $25,000 and imprisonment for 6 months. Both failing to stop and failing to report after a traffic accident (especially one which involved personal injuries) are irresponsible behaviour. I adopt a starting point of 1.5 months' imprisonment for each charge. With the timely guilty plea, I sentence the defendant to 1 month's imprisonment for each charge.
Charge 8
34. By removing the dash camera from his car after the accident, the defendant's intention was clear – to conceal evidence of his poor driving. This act would no doubt seriously hinder the police investigation of the traffic accident. His culpability is comparable to "switching drivers" after a traffic accident, which is to conceal the identity of the true driver. I adopt a starting point of 6 months' imprisonment. With the timely guilty plea, I sentence the defendant to 4 months' imprisonment for this charge.
Totality
35. Bearing in mind the totality principle, I consider a global starting point of 27 months' imprisonment appropriate for Charges 4, 5, 6 and 8. With the timely guilty pleas, the overall sentence is reduced to 18 months. I order the sentences to run in the following manner :-
(i) Charges 5 and 6 concurrent; but consecutive to Charge 4; and
(ii) 3 months in Charge 8 consecutive to Charges 4 to 6.
Thus, arriving at a total prison term of 18 months for all 4 charges.
[1] See HKSAR v Lee Yau Wing CACC 282/2012, paras.32 to 39.
[2] See SJ v Sze Sum [2014] 5 HKLRD 645, para.26 at p.650.
[3] See para.10 at pp.667-668.
[4] Section 36A(2) and (3) of the Road Traffic Ordinance (Cap.374) stipulates a mandatory disqualification period of not less than 2 years in the case of a 1st conviction.
[5] Since the defendant has no previous conviction of a "scheduled offence", by virtue of section 69A(1)(b) of Cap.374, the entire section 69A does not apply. Hence, the court has no power to order the disqualification period not to start to run until he finishes serving his prison term.
[6] See section 72A(3B) of Cap.374.
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