HKSAR v. WONG WAI WAH

DCCC 334/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 334 OF 2015

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Reasons for Sentence

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1.  In these proceedings, the defendant faces the following counts:

(i) “Dangerous driving”, contrary to section 37(1) of the Road Traffic Ordinance, Chapter 374;

(ii) “Driving whilst disqualified”, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap 374;

(iii) “Using a motor vehicle without third party insurance”, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

2.  He is convicted of all charges upon his pleas and admission of facts. 

Facts

3.  Sometime before midnight on 31 January 2015, a police officer on motorcycle patrol tried to intercept a private car RD 2756 (hereinafter referred to as “the vehicle”) which violated a traffic sign, by flashing lights and public address system.  The vehicle initially slowed down but suddenly accelerated in an attempt to flee.   

4.  When the vehicle reached the junction of Kwai Fuk Road and Hing Fong Road, it ignored the traffic light and drove into the junction.  At the time, a light goods vehicle and a taxi were driving in compliance with the traffic light’s direction into the same junction from Hing Fong Road.  In order to avoid collision, the light goods vehicle had to make an abrupt manoeuvre but in the process overturned and collided with the aforementioned taxi.  The vehicle stopped after hitting a metal fence at Kwai Fuk Road.

Injuries

5.  The driver of the light goods vehicle and the passenger on board the taxi both suffered injuries as a result of the collision.  The driver suffered tenderness of the bilateral neck muscles, thoracic spine and left elbow and abrasion on the left knee.  The passenger on the taxi suffered tenderness of the occiput, upper thoracic spine, abrasion and bruising on both legs.

6.  The defendant was the driver of the vehicle.  A female passenger was also on board.  Further inquiries revealed that the defendant was at the time disqualified from holding a driving licence.  Therefore, the vehicle’s third party licence did not cover the defendant.

7.  Under caution, the defendant admitted that at the time of the incident, he was aware that he had been disqualified during the period between July 2014 and July 2017. 

Sentencing Considerations

8.  The maximum sentence for the offence of “Dangerous Driving” is a fine of HK$25,000 and imprisonment for 3 years.  Since the defendant had a previous conviction of dangerous driving, he must be disqualified from driving for at least two years unless there is a special reason not to.

9.  For the charge of “Driving whilst Disqualified and Driving without Third Party Insurance”, the maximum penalties are the same.  The defendant is liable to a fine of HK$10,000 and imprisonment for 12 months. There is also a mandatory disqualification period of 3 years in the absence of any special reasons not to.

Sentencing Principle

10.  Most authorities on the subject deal with the more serious offences of “Dangerous Driving Causing Death” or “Dangerous Driving Causing Grievous Bodily Harm”; under sections 36 and 36A respectively.  All three sections carry the identical definition of dangerous driving.  It will be safe to assume that all the offences are referring to the same conduct and distinguishable by the severity of their consequences.

11.  The Court of Appeal has repeatedly stated that there is no excuse for driving dangerously since it involves taking risk whilst in control of a potential lethal machine.  See: for example, the judgment of Secretary for Justice v Lam Siu Tong[1].

12.  There is no clear sentencing guideline on the quantum as obviously each case must be decided on its own facts.  The Court of Appeal in the case of Secretary for Justice v Poon Wing Kay[2] clearly spells out the relevant sentencing principle and the matters the sentencing court must take into account when considering an appropriate sentencing order.  They can be summarised thus.  The sentencing principle is one of deterrence for the law imposes a standard on a motorist to ensure that all who came into contact with motor vehicles were safe, be they motorists, passengers and pedestrians.  The court must look at the overall circumstances and overall culpability of the offender.  In assessing the overall seriousness of a crime, culpability was often the dominating factor.  The major aggravating factor justifying a heavy sentence is when a person had driven with selfish disregard for the safety of other road-users or his passengers or of pedestrians or with a degree of recklessness.  A sentence order must commensurate with the culpability of the offender.

Discussion

13.  The three counts are only different in degree, the considerations for each count overlap.  I would therefore, as directed by the Court of Appeal, take into account of the overall circumstances to adopt a sentence order to reflect the overall culpability of the defendant.

14.  Judging from the circumstances of the case, I have no doubt at all that the dangerous manoeuvres were the result of the defendant’s attempt to evade police investigation and thereby exposing his driving whilst disqualified.  In so doing, he had put the lives and safety of other users of the road as well as his passenger at risk.  It was a wonder that no other road‑users or his passenger had suffered more serious injuries.

15.  I also note from the pictures taken at the scene that in addition to the injuries of the victim described above, the defendant’s selfish and reckless behaviour caused substantial loss of properties belonging to other people.  Since the defendant’s driving was not covered by the third party insurance, it is doubtful whether any of the losses could be financially compensated.

16.  The facts state that the defendant had slowed down before accelerating, that he had jumped the red light on three occasions in a high-speed chase are indicative that it is not a case of momentary loss of concentration.  His behaviour exhibited a cynical and reckless disregard for the law and the safety of other users.

17.  I also take into account the fact that the defendant also had an appalling criminal and driving record: he had 26 previous convictions, at least five were traffic-related involving one count of dangerous driving (2012); one count of driving without a licence (2011); five counts of driving without third party insurance (thrice in 2011, twice in 2012); and four counts of driving whilst disqualified (twice in 2011 and twice in 2012).  His last conviction was in November 2012 where for three traffic-related convictions, he was sentenced to a total of 11 months’ imprisonment and disqualified from driving for a total of 3 years.

18.  It is obvious that the previous sentences had done little to deter him from re-offending.  Although a person is not to be punished for his previous transgressions for which he had paid the price, the fact that he repeatedly committed the offences of the same nature is by itself an aggravating feature relevant to the sentencing of the present case.

19.  In the present case, the followings are the aggravating factors.  It was a deliberate attempt on the part of the defendant to evade police interception.  In the process, he had driven his vehicle at an excessive speed.  The defendant had on three occasions deliberately and consciously disobeyed the red traffic light, and on the final occasion, he had been instrumental in causing the collision of the light goods vehicle and the taxi and the injuries suffered by others[3].

20.  All the while, the defendant was aware that he had been disqualified from driving, and that there was no third party insurance to provide a financial cushion against any mishaps.  The defendant is also a repeated offender of similar traffic-related offences.  

21.  I also take into account of the injuries and damages to the property flowing from the defendant’s reckless behaviour and the fact that without third party insurance, the aggrieved parties would probably have no redress. 

22.  The following cases of comparable magnitude to give me a perspective of the proper sentencing order.  That said, I am fully aware that the present case is only about dangerous driving and did not result in grievous bodily harm or death.

23.  CAAR 2/2009:

A blatantly irresponsible driving. The defendant drove across a pedestrian crossing at an excessive speed on an amber light but by the time he collided into a pedestrian, the traffic light was red. The pedestrian sustained multiple injuries from which she died. The Court of Appeal considered that a starting point of 24 months’ imprisonment should have been appropriate but remarked that had it not been the fact that the pedestrian had dashed out on a red light, the starting point should have been higher.

24.  CAAR 4/2009:

The defendant drove a bus across a pedestrian crossing against a red light. As his view was obscured by another vehicle which stopped before the crossing, he continued driving in the pedestrians’ crossing without slowing down, resulting in a death and injuries to another person. The Court of Appeal considered the starting point should be 36 months’ imprisonment[4].

25.  HKSAR v Lui Chung Tak[5] (supra):

The defendant drove through an amber light just before it turned red and struck an 83‑year-old female pedestrian. That he ran the light deliberately was not established. The Court of Appeal considered on the face of the case a starting point of 20 months was appropriate.

26.  香港特別行政區訴劉國權[6]:

In this District Court case, the defendant collided with a taxi in a crossing by making a right turn against the traffic sign. The taxi driver suffered serious injuries as a result. The learned District judge adopted a 20 months’ imprisonment as the starting point.

27.  Having considered the above matters and the authorities, I come to the conclusion that the overall culpability of the defendant’s driving warrants a starting point of 21 months.  As to the 2nd and the 3rd counts, I will adopt a starting point of 9 months.

Mitigation

28.  Mr Boyton in mitigation stated that the defendant was unaware he was being pursued.  I do not accept such was the case as there is evidence that he slowed down initially when he was first pulled over.  I also found it incredible that he managed to be oblivious to the flashlight and the siren of a pursuing police motorcycle.

29.  I am shown a letter allegedly from the female passenger at the time of the incident.  She blamed herself for asking the defendant to drive her home as she was not feeling well. I have also been furnished a letter written by the defendant himself, repeating the same excuse.  However, even if I were to accept this excuse, this is not valid mitigation.  

30.  The Probation Officer gave detailed background information on the defendant.  I have been told that the defendant and his wife live with his daughter’s family.  I have also been told that the defendant worked as a contractor.  None of this constitutes valid mitigating reason.

31.  The only valid mitigation is his plea of guilty.  I will give him the customary reduction of the sentence order, and for the 1st count of dangerous driving, his sentence is therefore reduced to 14 months’ imprisonment; for the two other charges, 6 months respectively.  They are all to run concurrently.

32.  As required by law, I have to consider whether I need to order disqualification.  Mr Boyton fairly conceded that there are no special reasons not to.  I therefore order for each count the defendant to be disqualified from holding or applying any driving licence for 3 years.  He is also to attend a driving-improvement course within the last three months of the disqualification order.

33.  I also put on record of the warning that it is the defendant’s duty to arrange for the enrolment of the driving-improvement course organised by the Transport Department.  No one is going to write to remind him.  If he should fail to comply with the court order, the prosecution or the police may prosecute him.

34.  The defendant’s poor driving constitutes a poor understanding of the traffic regulations and shows little respect for the law.  Although I understand that for any disqualification up to three years, if a person should apply for the licence, he would have to go through a retesting.  To make the court’s stance clear, I hereby order under section 70 of the Road Traffic Ordinance that he would have to retest, that is, go through the usual examination to apply for the driving licence if he should be minded to get one.