HKSAR v. WONG KA SHING

DCCC 86/2021

[2021] HKDC 867

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 86 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of causing death by dangerous driving, contrary to section 36 (1)  of the Road Traffic Ordinance and to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance[1].

2.  Full particulars of the offences are set out in the summary of facts admitted by the defendant on 31 May 2021.

3.  On 3 July 2020 Mr Lam and his wife Madam Hung were going to Hong Kong Garden in taxi SZ 5391, driven by the defendant, when the taxi crashed on the Tuen Mun Road.  Tragically Mr Lam sustained serious injuries from which he passed away later that evening. Madam Hung also sustained serious injuries and was hospitalised for thirteen days.

4.  The crash took place on the slip road at exit 23 of the Tuen Mun Road, a three lane highway with each lane separated by continuous double white lines.  A water barrier and a four-meter long crash cushion separated the slip road and the first lane of the Tuen Mun Road. 

5.  The weather was fine, the road surface dry and the traffic flow medium.  There was sufficient lighting from the street lamps.  The speed limit of the Tuen Mun Road was 70 km/h and the slip road 50 km/h. 

6.  At the material time the defendant was travelling in the second lane.  When the defendant realised that he was in the wrong lane for exit 23 he was unable to switch lanes because of the presence of a medium goods vehicle in the first lane.

7.  The defendant therefore accelerated to overtake the medium goods vehicle, crossed the double white lines separating the first and second lane and rammed into the crash cushion when trying to cut into the slip road. 

8.  Photographs of the location of the crash and the damage to the taxi together with a sketch of the location (not to scale)  have been submitted to court[2]. 

9.  At the request of the court a sketch showing the length of the double white line separating the first and second lanes has been prepared[3] and daytime photographs of the scene of the accident have been taken[4].

10.  The defendant called the police.  After the emergency services arrived Mr Lam was taken to Tuen Mun Hospital where sadly he was certified dead at 11:41 p.m. 

11.  Madam Hung sustained multiple injuries including fractures of the face, left eye and right hip.  Madam Hung was first admitted to Yan Chai Hospital and later to Princess Margaret Hospital for further surgery.    

12.  Under caution and in a video-recorded interview the defendant admitted, inter alia, that he was in the wrong lane; he was too late in cutting lanes; he accelerated to around 80 km/h to overtake the medium goods vehicle and afraid he would not be able to go to Sham Tseng crossed the double white lines and rammed into the crash cushion.

Mitigation

13.  In passing sentence, I have carefully considered the oral and written submissions of Miss Chong, including that the defendant who is 31 and single, has a serious skin disorder and has diabetes, high blood pressure and fatty liver disease[5]. 

14.  Miss Chong has submitted two mitigation letters from the defendant’s mother and younger sister who have attended court to support the defendant.  I have considered the letters, the contents of which Miss Chong summarised in court.

15.  I take into account the defendant has no previous convictions.  The defendant does however have one fixed penalty for failing to comply with traffic signals and a conviction for careless driving, both offences in June 2020.

Causing death by dangerous driving

16.  This is a serious offence the maximum sentence for which is 10 years’ imprisonment.

17.  In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[6].  These factors were revised in R v Cooksley[7]and have been adopted in Hong Kong[8]. 

18.  Whilst in R v Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in R v Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another[9] emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  

19.  In Secretary for Justice v Lau Sin Ting the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[10].

20.  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 also been adopted in Hong Kong[11].

21.  In HKSAR v Lee Yau Wing, the court emphasised that the focus on the culpability of the driving has been adopted notwithstanding that it is sad feature of these cases that the offender is usually not a person of a criminal background but is a law abiding citizen of good character[12].

Causing grievous bodily harm by dangerous driving

22.  Causing grievous bodily harm by dangerous driving is a serious offence for which the maximum penalty is 7 years’ imprisonment.

23.  In Secretary for Justice v Chu Wing Ying Christine the Court of Appeal stated that the dominant factor to be considered in sentencing is the defendant’s culpability, which involves two related assessments, the objective dangerousness of the defendant’s driving and the moral culpability of the defendant and having assessed culpability the court should consider the harm and impact caused to the victim, which involved an assessment of the nature and degree of the injuries sustained[13].

Injuries

24.  Madam Hung sustained multiple injuries including fractures of the face, left eye and right hip.  Medical reports have been submitted to court detailing the injuries and follow up treatment[14]. At the request of the court update medical reports have been obtained and submitted to court[15]. Photographs showing Madam Hung’s injuries as at 31 July 2020 have also been submitted to court[16].

25.  A victim impact statement dated 17 May 2021 has also been submitted together with three photographs of Madam Hung taken on the same day[17].    

26.  The medical reports show steady progress towards full recovery, although that seems to be some way in the future.  Madam Hung has not been able to return to work. Madam Hung cannot walk steadily and needs help when she goes out and cannot climb up stairs or squat down due to pain for which she is still taking painkillers.  Madam Hung has also experienced double vision.

27.  Madam Hung visits a clinical psychologist every three months.  The clinical psychologist is of the opinion that Madam Hung is suffering from Post-Traumatic Stress Disorder.  Over time Madam Hung has become less anxious and her mood more stable.    

28.  In HKSAR v Lui Chung Tak the Court of Appeal said that it is not helpful to compare the various injuries which amounted to grievous bodily harm save where a dramatic level of injury may have an impact on sentence[18].  In Secretary for Justice v Chu Wing Ying Christine the court said that really serious injury which impacts on the victim will be an important factor in the sentencing exercise[19].

29.  Whilst the impact on people’s lives is to be taken into account when sentencing, the Court of Appeal in Secretary for Justice v Poon Wing Kay said that a sentencing court must look at the overall circumstances and the overall culpability of the offender and that in assessing the overall seriousness, culpability is often the dominant factor[20].

Sentence

30.  In Secretary for Justice v Poon Wing Kay the Court of Appeal said: -

“It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians)  are safe and that their lives are not endangered.”

31.  I have carefully considered the cases referred to court by Miss Chong[21].  Miss Chong submits that the defendant made a wrong judgment and that his culpability lies in speeding, cutting lanes and incorrectly estimating the distance to cut into the slip road resulting in insufficient time to enter the slip road smoothly[22].

32.  In my view this is not just making a wrong judgment when turning a corner at a higher than reasonable speed as in HKSAR v Lei Tin Seng relied on by Miss Chong[23].  The defendant was in the second lane of the highway.  Continuous double white lines prevented cutting into the first lane let alone the slip road.  The defendant, having realised he was in the wrong lane and unable to safely cut into the first lane because of the presence of the medium goods vehicle, embarked on a highly dangerous manoeuvre by speeding to overtake the medium goods vehicle and then crossing the continuous double white lines to cut into the first lane and then the slip road. 

33.  Miss Chong further submits that the defendant was unfamiliar with the road leading to his mistaken belief that he would be able to switch to the first lane after exiting the covered noise barrier[24]. The fact the defendant, a professional driver, was not familiar with the road was all the more reason for him to move to the first lane on seeing the sign for exit 23 and not waiting and hoping he could cut lanes later. 

34.  I am satisfied the defendant’s driving falls into the higher end of the intermediate range of culpability.  

35.  Taking into account all the circumstances of the accident including that the defendant, a professional driver, embarked on a highly dangerous manoeuvre, I am satisfied that the proper starting point after trial for causing death by dangerous driving is 3 years’ imprisonment and taking into account the injuries sustained by Madam Hung and the impact the injuries have had on her life, I am satisfied the proper starting point after trial for causing grievous bodily harm by dangerous driving is 2 years’ imprisonment.

Positive action to assist the victim at the scene

36.  Miss Chong asks the court to take into account that the defendant remained at the scene and helped call the police for an ambulance; helped to stop the bleeding of Mr Lam and ensured no other vehicles crashed into his taxi[25].  

37.  Looking at the damage to the taxi the defendant could not have driven away.  I nevertheless accept that after the accident the defendant behaved responsibly and did what he could to assist.  In the circumstances I reduce the starting points by 3 months to 2 years and 9 months’ imprisonment and 1 year and 9 months’ imprisonment respectively.

38.  Giving the defendant full credit for his pleas of guilty reduces the sentence for causing death by dangerous driving to 1 year and 10 months’ imprisonment and for causing grievous bodily harm by dangerous driving to 1 year and 2 months’ imprisonment.

Medical condition

39.  Miss Chong submits that the defendant will suffer extra hardship in prison by reason of his psoriasis which affects his skin and joints[26].

40.  Miss Chong explains that the defendant has tried various medication and biologic agents to manage his condition and only after switching to Adalimumab was his condition stable.  Each dose of   Adalimumab however costs $8,000 which the defendant has to pay for.

41.  On incarceration the defendant having no income will not be able to afford to pay for the injections.  The defendant therefore stopped taking the injections in May so he could get used to what the situation would be like when he goes to prison.  This resulted in an extensive rash covering more than 30 percent of his body. 

42.  New oral medication has been prescribed for which close medical follow-up is required.  The defendant says the oral medication is not as effective in controlling his psoriasis as the injection of Adalimumab.

43.  Whilst sympathetic to anyone suffering from illness, after careful consideration, I am satisfied this provides no ground to further reduce the sentence.  I am satisfied the defendant will receive all necessary medical treatment while serving sentence and that the prison authorities will closely monitor the defendant’s condition.  Should there be a deterioration in the defendant’s condition he may always apply to the Chief Executive for clemency.

Totality

44.  Miss Chong submits that the sentences are generally served concurrently[27]. 

45.  In HKSAR v Man Chun Pun the Court of Appeal noted that although the two offences arose from the one accident, the death of the passenger and the injuries to the other passengers were dealt with by separate charges as provided by law and therefore the culpability encompassed by the second offence was not incorporated into the first offence[28]. 

46.  The court said that the issue of totality of the two sentences should be addressed in order to ensure a just and fair sentence is passed.   The Court of Appeal held a partly consecutive sentence was appropriate. 

47.  I am satisfied a total sentence of 2 years and 4 months’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[29]. 

48.  The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 10 months’ imprisonment; and

Charge 2 – 1 year and 2 months’ imprisonment with 6 months consecutive and 8 months concurrent to charge 1.

The total sentence to be served by the defendant is 2 years and 4 months’ imprisonment.

Disqualification

49.  There is mandatory disqualification of not less than 5 years in the case of a first conviction for causing death by dangerous driving and not less than 2 years in the case of a first conviction for causing grievous bodily harm by dangerous driving unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.  I find there are no special reasons. 

50.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 5 years for causing death by dangerous driving and 2 years for causing grievous bodily harm by dangerous driving.  I order the disqualification periods to run concurrent to each other.

51.  Section 72A (1A)  of the Road Traffic Ordinance provides that a court shall order a person convicted of causing death by dangerous driving and causing grievous bodily harm by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again I find there are no special reasons not to order the defendant to attend and complete a driving improvement course. 

52.  The defendant is ordered to attend and complete a driving improvement course, at his own cost, within the period of 3 months ending on the date on which the disqualification for causing death by dangerous driving expires.  The disqualification for causing grievous bodily harm by dangerous driving being shorter I do not in the circumstances also order the defendant to attend and complete a driving improvement course on this charge.

53.  The defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course notwithstanding the disqualification period may already have ended.