HKSAR v. HO MAN HEI

DCCC 773/2022

[2024] HKDC 977

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 773 OF 2022

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REASONS FOR SENTENCE

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1.  The D pleaded guilty to four charges of driving offences:-

Charge 1:- dangerous driving causing death of Lui Man Yat;

Charge 2:- dangerous driving causing death of Fung Tat Wa;

Charge 3:- dangerous driving causing grievous bodily harm to So Tak Yu;

Charge 4:- dangerous driving causing grievous bodily harm to Yuen Cho Ki.

Summary of facts

2.  The accident location is a two-lane two-way road separated by continuous double white lines with a left bend on the Sha Tau Kok bound (the accident location). 

3.  At the time of the accident, the weather was fine with sufficient illumination from streetlights.  Road surface was in good repair.  Traffic flow was light.  Speed limit was 50 km/h.

4.  The vehicles, the drivers and the passengers involved in this case:-  

5.  At around 2204 on 31 October 2021 the drivers in V2, V3 and V4 started travelling from Tai Mei Tuk Car Park along Bride’s Pool Road towards Sha Tau Kok.

6.  Around a minute later, V2 and V3 started to accelerate along the road. V3 followed V2 while V4 was far from behind.

7.  Some parts of the road are in “S” shapes as there are left and right bends.  According to the Summary of Facts from 22:06:03 to  22:10:17, before the accident took place, V2 and V3 had been driven closely to or on continuous double white lines when reaching bends and drove on opposite lanes on multiple occasions.

8.  On two separate occasions, there were cars in front of V2, both V2 and V3 slowed down as the other vehicles were being driven at a relatively slower speed than V2 and V3.  According to the camcorder footage of V3, the conversation indicating that “game was over” can be heard upon seeing the first vehicle.

9.  On the first occasion before overtaking the other car, V2 and V3 were crossing single broken lines and driving on the opposite lane then switched back to the original lane and accelerated again.  They repeated the same driving manner to overtake the second car.

10.  At around 22:10:41, V2 and V3 approached the accident location along the left bend towards Sha Tau Kok, while V1 was driven by the deceased of Charge 1 in the opposite lane.  At a left bend, V2 crossed the continuous double white lines and drove into the opposite lane.  The offside front of V2 collided with the offside front of V1.  V1 bounced backward and landed on its top.  V2 bounced up to the left and crashed into the front of V3, which was moving forward.  Then, V4 also reached the accident location and failed to stop in time, causing it to fall onto the ground.

11.  During the journey, V2 cut or drove along continuous double white lines for around six times while V3 did so for around four times.

12.  At around 22:27, ambulancemen arrived at the scene and confirmed both Lui (in charge 1)  and Fung (in charge 2)  were dead.

13.  Upon enquiry, the defendant stated that he was travelling downslope towards Luk Keng.

Medical Reports Re Charge 3

14.  According to So’s medical report, her diagnosis is polytrauma.  She suffered from ribs fracture, clavicular fracture, lumbar spine fractures and liver lacerations.

Medical Reports Re Charge 4

15.  According to Yuen’s medical report, CT scan showed liver laceration, contusion at segment 6, there was also right lower rib fracture.  She was hospitalised for four days with 21 days sick leave.

16.  As to Lau, scratches were found on his’s hand and feet.

17.  As to Kwok, the driver of V4, also had scratches on his left feet.

Investigation

18.  According to Dr. Tam, the average speed of V2 and V3 from 22:31:40 to 22:31:43 is 108 ± 11 km/h, while the speed of V3 from 22:31:41 to 22:31:43 is 101 ± 10 km/h.

19.  According to the MVE accident report, all vehicles were confirmed to be free from any mechanical defect at the time of the accident.

Criminal Record

20.  The defendant has a clear criminal record and traffic conviction record.

Personal Background

21.  Defendant is 25 years old and he is currently living with his parents. In 2018, the defendant completed the higher diploma in automotive engineering course at the Hong Kong Institute of Vocational Education.  The defendant then joined a three-year apprenticeship training with Volkswagen.  He was later promoted and worked as a car technician earning a monthly salary of $18,000 and contributed 2,000 to 3,000 to his family.  He obtained a full driving licence in 2019.

22.  In 2023, the defendant completed the bachelor of arts in mass communication, advertising and public relations at the School of Professional and Continuing Education of University of Hong Kong.

Mitigation

23.  The defendant wishes to apologise to all the families and parties concerned in this tragic accident.  The relationship between the defendant, the deceased and the injured person are as follows: -

i. The defendant and the deceased in Charge 2 met at work. They both shared the same interest in cars and became good friends for about three years.

ii. Miss So, the injured person in Charge 3, is the girlfriend of the defendant and they have known each other for about seven years at the time of the accident.

iii. While the two passengers in the defendant’s vehicle are boyfriend and girlfriend, they are friends of the defendant, and one of them, is the victim (Yuen Cho Ki)  in Charge 4.

24.  I am told the defendant is devastated and regretful about the incident. It is submitted that the incident had caused genuine shock to the defendant and he is truly remorseful.  The defendant in his letter told me that he is extremely regretful and will live with this guilt for the rest of his life.

25.  The defendant’s parents, sisters, and his colleagues have all written letters to this court to tell me the positive side of the defendant.  The parents accepted that the defendant had committed a very serious mistake. Nonetheless, they ask for a lenient sentence for the defendant.  Both parents of the defendant and Ms So still maintain a close contact since the present incident and they are shocked to find the defendant getting into such serious trouble.

26.  Because of this incident, the defendant’s superior had advised the defendant to seek professional help in his mental health aspect. I have also called two reports:- 

i. The psychiatric reports tell me that the defendant’s mental condition remains largely stable and he has less rumination regarding the present offence.

ii. The clinical psychologist said that his emotional disturbances in respect of the present incident had seemingly subsided and there was no clear evidence indicating that the defendant has mood problems or other major psychopathology. His risk of reoffending was assessed to be low and that it is not necessary for psychological treatment for his rehabilitation.

Sentence

27.  The maximum sentence for:-

i. dangerous driving causing death is 10 years’ imprisonment and a fine at level 5 plus disqualification period and to attend driving improvement course.

ii. dangerous driving causing grievous bodily harm is 7 years’ imprisonment and a fine at level 5 plus disqualification period and to attend driving improvement course.

28.  There is no doubt in my mind that this is a very serious case as there were two deaths and two passengers were seriously injured in this car accident.

29.  As stated in the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, that in assessing the overall seriousness of a crime, culpability is often the dominant factor.

30.  While in the case of HKSAR v Liu Kwok Chun  [2011] 1 HKC 70 that there were varying degree of culpability, depending on the presence of the aggravating factors as referred in Cooksley [2004] 1 Crim App R.  In Cooksley, there were four categories of culpability and they are adopted in Hong Kong, where:

(1)  there are no aggravating factors, the sentence range between 12 to 18 months’ imprisonment;

(2)  intermediate culpability, 2 to 3 years’ imprisonment;

(3)  higher culpability, 4 to 5 years’ imprisonment;

(4)  the most serious culpability, 6 years onward.

31.  In the judgment of Cooksley, it stated that the aggravating factors in higher culpability standard of driving involve:

(1)  consumption of drugs;

(2)  greatly excessive speed, racing, competitive, driving against another vehicle;

(3)  disregard of warning from fellow passengers;

(4)  prolonged persistent and deliberate course of very bad driving;

(5)  driving while the driver’s attention is avoidably distracted;

(6)  driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills;

(7)  driving when knowingly deprived of adequate sleep or rest or driving a poorly maintained or dangerously loaded vehicle.

32.  As stated in the passage of Cooksley at page 285, that the outcome of the offence is also considered as aggravating factor when more than one person killed, serious injuries to one or more victims in addition to death.

33.  In the present case, the aggravating factors were driving in excessively high speed when the road condition was narrow, winding, and bending from time to time, crossing double white lines, driving in opposite lane, competitive driving and racing against each other, two deaths, two serious injuries.

34.  As stated in the judgment of Secretary for Justice v Chu Wing Yin Christine, CAAR 5/2018, at paragraph 53, the dominant factors to be considered is the defendant’s culpability which involved two related assessments:

(1)  the objective dangerousness of the defendant’s driving manner;

(2)  the moral culpability of defendant’s driving manner.

35.  In the present case, when V2 and V3 set off from the car park, they started to accelerate within minutes.  V3 followed V2 with V4 at the back and their speed was over 100 plus km/h when the speed limit on the road was 50 km/h. The defendant was engaged in competitive driving and racing as can be heard from the conversation (game was over)  of his car camcorder.

36.  Part of the road condition is in an “S” shape which bends to the left and to the right.  When the defendant engaged in driving at such a high speed, crossing double white lines and into the opposite lane was clearly dangerous and objectively extremely dangerous.

37.  When the defendant drove in such an excessively high speed and at a close distance behind V2, it was foreseeable to any competent and prudent driver that when accident occured, it would be disastrous.  And the way that the defendant drove in such manner was a selfish disregard to the safety of other road users.

38.  As often say, speed can kill.  Not only that, it can cause serious injury to any passengers and road users. 

39.  The driver in Charge 1 was on the opposite lane.  It was around 10 pm in the night.  His family would never expected that he would meet his death in such circumstances.  They only expected him to come home in the night.  Now, he left behind his young family and he was a totally innocent party in this tragic accident.

40.  As to the death of the driver in V2, he was the only child in the family and no doubt, his family has difficulty to overcome his demise in this incident as well.

41.  There were two seriously injured passengers.  One was the defendant’s girlfriend, Ms So and she is the victim in Charge 3.

42.  At the time of the present proceedings, there are 23 different medical reports before me.  Those reports are prepared by the doctors from

i. ICU of Prince of Wales Hospital,

ii. neurosurgery department,

iii. department of physiotherapy,

iv. department of ophthalmology and visual signs,

v. A&E department,

vi. occupational therapy department,

vii. department of speech therapy,

viii. clinical psychologist.

43.  From all these reports, I know that the injury suffered by Ms So are extensive and serious. She is no longer the same person before the accident. She has slow processing speed, severe memory impairment and some executive dysfunction.  Her father is now her major caregiver. Her chance of recovery seems to be gloomy.

44.  Her current medical condition has a bearing in the sentence of Charge 3.   

45.  The other passenger was the victim in Charge 4 in the defendant’s vehicle.  I am told she is now fully recovered. 

46.  In court, during the first proceeding, I could see tears and hear cries from the deceased’s family members in Charge 1.  It remains beyond them to cope with the reality of the demise of their love one.

47.  As said in Cooksley at paragraph 11 of the judgment, that the impact on the family of those killed is nonetheless a matter that should certainly be taken into account.

48.  With all this information and the aggravating factors in mind, I now turn to the length of sentence.  In deciding the sentence, I also have reference to the judgement of Cooksley at page 286, which says that the number of deaths resulting from the dangerous driving is relevant to the length of sentence.  The public are entitled to require the court to reflect the loss of life to demonstrate that dangerous driving is a very serious social evil, which if deaths result would lead to a substantial custodial sentence.

49.  In passing sentence, the personal circumstances of the defendant carry very little or even no weight at all.  Having said that, this court is still obliged to take into account of the mitigating factors put before me, that the defendant is 26 years old with a clear criminal record, a good driving record, and his timely plea to indicate his remorse.  I accept that the defendant has suffered a genuine shock as a result of this accident as there were friends involved.

50.  In the present case, I consider that this case, falls into the category of higher culpability. Charge 1 and 2 :-

i. I take 5 years as the starting point reduced to 40 months after one-third discount.

ii. I also order the defendant to be disqualified from driving all vehicles for a period of 7 years.

iii. The defendant is required to attend and complete the driving improvement course at his own expense within 3 months prior to the end of the disqualification period.

Charges 3 and 4

i. In Charge 3, I take 3 years as the starting point, reduced to 2 years after one-third discount.

ii. In Charge 4, I take 2 years as the starting point, reduced to 16 months after one-third discount.

iii. I also order a 7 years disqualification period for both charges, that the defendant is not allowed to drive any vehicle for a period of 7 years. The defendant is also required to attend and complete the driving improvement course at his own costs within 3 months prior to the end of the disqualification period.

Totality

51.  As said in the judgment of HKSAR v Man Chun Pun, [2019] HKCA 159, that:

“The culpability encompassed by the second offence was not, therefore, incorporated in the first offence by imposing a concurrent sentence.”

52.  That means concurrent sentence cannot reflect the culpability and gravity of each offence.  As such, I order 6 months from Charges 2, 3, and 4, to run consecutively to Charge 1.  The total sentence is 58 months (40 + 6 + 6 + 6 =58).

53.  As to disqualification order, each charge is 7 years, I order all disqualification periods are to run concurrently.

54.  As to driving improvement course for all charges, the defendant is only required to attend once.