HKSAR v. CHENG WAI-LAP

DCCC 690/2019

[2020] HKDC 213

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 690 OF 2019

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REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "Causing death by dangerous driving" (Charge 1); 1 charge of "Driving a motor vehicle for the carriage of passengers for hire or reward without a valid hire car permit[2]" (Charge 2); and 1 charge of "Using a motor vehicle without third party insurance" (Charge 3).

Summary of Facts

Location of the Accident

2.  There is a slip road of Lung Cheung Road (westbound) outside Kam Wan House, Choi Hung Estate leading to Hammer Hill Road ("the Location").  That slip road is a one-way road consisted of 2 lanes.  The 1^st left lane leads to San Po Kong; whereas the 2^nd left lane, Shatin via Tate's Cairn Tunnel.  The 1^st left lane is marked with a dashed line and the 2^nd left lane, a solid line.

3.  At the time of the accident, the weather was fine with proper street lighting and good visibility.  The road surface was dry and in good repair.  The speed limit of the relevant road segment was 50 km/h.

The Accident

4.  The defendant was a part-time driver of GOGOVAN.  About 5:10 p.m. on 4 January 2019, he started taking orders from GOGOVAN using his van (V1).  V1 had no permit for the carriage of passengers for hire or reward.  Hence, its 3^rd party insurance policy did not cover this purpose.

5.  About 8:00 p.m. on the same day, the defendant was on his way to Ma On Shan after picking up Madam TSE ("the deceased") at Kowloon Bay.  The deceased was the only passenger on V1.  She was only carrying a handbag which contained her wallet and mobile phone.

6.  Upon reaching the Location, the defendant made a left turn from Lung Cheung Road towards the slip road.  In doing so, V1 lost control and rolled onto the offside pavement.  Its offside collided with a concrete electricity metre box.  The offside sliding door was damaged and fell off due to the impact.  V1 then spun and the deceased fell out from the passenger compartment.  She sustained multiple injuries and was certified dead about 8:30 in the same evening.

7.  A Government Forensic Scientist examined the tyre marks at the scene and calculated that the speed of V1 was 58±6 km/h at the commencement of the yaw mark.

8.  In his video recorded interview, the defendant described how he accepted the deceased's order and the manners in which he drove up to the point when he lost control of V1.

9.  The prosecution alleges and the defendant admits that he was driving V1 dangerously on the following basis :-

(i) despite not being familiar with the relevant route, the defendant failed to observe the speed limit and to consider the appropriate lane V1 should be travelling in;

(ii) the defendant was speeding;

(iii) despite advance notifications given by his navigation device and the road sign reminding him to turn left, the defendant did not slow down before he entered the left bend; and

(iv) the defendant made an abrupt left turn at an excessive speed, causing V1 to lose control, which led to its rolling, colliding with the metre box and spinning, thereby causing the deceased to fall out of V1 and resulting in her death.

Mitigation & Sentence

10.  The defendant is 29 years old and has a clear record.  He has been licensed to drive since 2017.  For traffic records, he has had 1 fixed penalty ticket and 1 conviction of "Careless Driving".

11.  Defence counsel Ms. Cheung informed me that the defendant is single and resides with his mother and younger brother.  After completing Form 5, the defendant worked in the fast food business for 5 years and then spent a year in Australia for working holiday.  Upon returning to Hong Kong in October 2018, he worked as a delivery man for a pizza shop.

12.  In mitigation, Ms. Cheung submitted that the defendant joined the GOGOVAN platform using his father's light goods vehicle just a few days before the accident.  When the defendant picked up the deceased, he discovered that she did not have any luggage or goods with her.  Due to lack of experience, the defendant did not have the courage to decline the deceased's order on the spot. He now regrets it for the rest of his life. 

13.  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.

14.  Based on the Summary of Facts, the duration of the accident must have been a few seconds only.  But in those few seconds, the deceased lost her life.  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.

15.  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[3].  I must also consider the hardship caused to the deceased's family as a result of her death as well as their grievances and resentment[4].

16.  The courts have repeatedly emphasized the importance of a deterrent effect when sentencing in cases involving dangerous driving.  I have reminded myself of the sentencing principles[5] 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…"

17.  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.

18.  When determining the starting point for Charge 1, I treat the defendant as a law-abiding citizen and having a slightly below average driving record.  I would also interpret the forensic evidence in a way which is most favourable to the defendant, namely that V1's speed was 52 km/h.

19.  It is not an easy task to send someone like the defendant, who has never lost his freedom, to prison.  I have considered long and hard what the appropriate length of imprisonment should be.  I understand the traumatic effect of a prison term would have on him and his family.  The court, however, must send a clear message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road.

20.  I consider the present case being borderline between the least culpability and intermediate culpability categories on the Cooksley's scale[6]. I accept that the defendant did not have the intention to drive extremely irresponsibly and dangerously over a long period of time.  The accident happened because he was not familiar with the route and made an abrupt left turn at an excessive speed.  Having considered all relevant factors, I adopt a starting point of 22.5 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 15 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 15 months' imprisonment for Charge 1.

21.  In addition to imprisonment, I make a disqualification order for a period of 5 years[7] (the disqualification period will start to run from the date of sentencing[8]).  I also order the defendant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[9].  In my view, it is unnecessary to order him to re-take his driving licence test.

22.  In relation to Charge 3, owing to his lack of courage to refuse the deceased, the defendant has deprived her family of adequate financial protection.  An immediate custodial sentence is required.  I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 4 months.  Having considered the totality principle, I order 1 month in Charge 3 to be served consecutive to the sentence for Charge 1.

23.  For Charge 3, I also make a disqualification order of 18 months[10]; and it shall run from the date of conviction[11].

24.  For Charge 2, although the accident would not have happened if the defendant had refused to serve the deceased, strictly speaking, his commission of this offence has nothing to do with his driving.  I will impose a fine in the sum of $2,000[12].