HKSAR v. YEUNG SHIU LUNG AND ANOTHER

DCCC 89/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 89 OF 2013

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Reasons for Sentence

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CHARGES

1.  The 1^st defendant (“D1”) was driving a private car in an erratic manner when it knocked down an elderly lady crossing the road (1^st charge: dangerous driving causing death).  He was under a disqualification order during which the third party insurance of the private car would not cover (2^nd charge: driving whilst disqualified; 3^rd charge: using a motor vehicle without third party insurance).  Without reasonable excuse, he failed to be breathalysed (4^th charge: failing to provide a specimen of breath for screening breath test).  Both he and the 2^nd defendant (“D2”) claimed that D2 was the driver at the time of the accident (5^th charge: doing an act tending and intended to pervert the course of public justice).  He resisted a police officer in the due execution of police duty (6^th charge: resisting a police officer in the due execution of his duty).  They plead guilty to the respective charges. 

FACTS

2.  All events took place on the morning of 22 September 2012, a Saturday, on On Tin Street, Lam Tin, Kowloon.  The part of On Tin Street relevant to the present case consisted of 2 straight lanes with a total width of 7.4 m.  The weather was fine, the traffic was light, the road was dry and in good repair.  The speed limit was 50 kmh.         

3.  At after 9 am, a private car RJ2578 (“the Car”) driven by D1 was moving along southbound On Tin Street.  Approaching the T-junction of Tak Tin Street it stopped obliquely to the right when the traffic light was red.  It was followed by a public light bus (“the PLB”) driven by PW1.  When the green traffic light was on, the Car did not move.  A few seconds later, PW1 tooted the horn.  The Car started to move after 4 more seconds. 

4.  The Car inclined towards the right side of the road when going past the junction of Tak Tin Street.  Suddenly it stopped as it almost hit a traffic light.  Then it moved back to the left side and continued along On Tin Street.  Suddenly it swerved right and crossed the centre dividing lines to move along the opposite northbound lane.  After going 3 private car lengths and approaching the safety island at the T-junction of Ping Tin Street, which divided the lanes, suddenly it swerved back to the southbound left lane. 

5.  The 2 lanes were both southbound after passing the T-junction of Ping Tin Street.  On the left lane the Car accelerated up to 50 kmh and cut into the right lane ahead of a bus travelling on the right lane.  The bus had to brake sharply to avoid a collision.  The Car continued to move forward on the right lane.    

6.  An elderly lady was crossing the road from a bus-stop lay-by (at the flank of the left lane) to the give-way line at the road exit of Lam Tin Methodist Primary School (at the flank of the right lane).  She was facing the school with her right side to the right front of the Car.  When she reached the give-way line, the Car suddenly swerved right further on the right lane and its left front hit her.  After moving forward for a distance, it stopped.  There were 2 passengers alighting from the rear seats of the Car.  People called the police.  At the hospital after 7 hours the elderly lady died of multiple injuries.  A subsequent vehicle examination confirmed that the Car did not have any mechanical defect.  The defence accepts that from the traffic light at the junction of Tak Tin Street to the point of collision was a straight road of 130 m.  These constituted the 1^st charge. 

7.  Soon after the accident, the police made enquiries at the scene.  D1 and D2 claimed that D2 was the driver.  D1 said that his wife D2 had rung him up after knocking down a person and he only came down from their residence nearby to check.  D2 even took the breath test.  Three eyewitnesses heard the false claim and told the police that D1 was the driver and D2 only came to the scene after the accident.   CCTV record of the residence of D1 and D2 showed D2 with a child carried in her arms taking the lift down shortly after the time of the accident.  These constituted the 5^th charge. 

8.  As D1 smelled of alcohol, a police officer in uniform requested him for a breath test but he refused without reasonable excuse.  These constituted the 4^th charge.   

9.  The police declared arrest on him for failing to be breathalysed and perverting the course of public justice.  He brushed off the hands of a police officer and kept swinging his body from side to side to keep away the police officer.  He refused to get into the police car.  He screamed that the police were beating him.  He bumped his head against the ground for 5 to 6 times and attempted to flee.  He kept on screaming that the police were beating him as he was being handcuffed.  He shouted at D2 to call the ambulance and pretend to be scared and need to see the doctor.  On board the police vehicle, he bumped his head against the door for 2 to 3 times.  He kept on wriggling his body after the police officers put him under safety belt on the seat.  These constituted the 6^th charge.   

10.  It transpired that D1 was subject to a driving disqualification order for 2 years imposed less than 2 years ago in KTCC 6194/2010.  These constituted the 2^nd charge.  His use of the Car was in breach of the requirement for third party insurance.  These constituted the 3^rd charge. 

D1’S PERSONAL BACKGROUND AND MITIGATION

11.  D1 is 29 years of age, of secondary education level.  He lives with his wife D2 and their 2-year-old son.  He is a decoration worker.  His following records are relevant to the present case:

(1) 4 instances of driving in excess of speed limit by 15 – 30 kmh (June 2007, August 2007, November 2007, June 2010);

(2) 1 instance of driving in excess of speed limit by < 15 kmh (November 2010);

(3) 1 instance of crossing continuous double white line or white line with a broken white line (May 2008);

(4) 1 instance of failing to provide specimen of blood for a laboratory test (October 2010);

(5) 1 instance of using vehicle without third party insurance (November 2010);

(6) 1 instance of careless driving (June 2010);

(7) 1 instance of driving whilst disqualified (November 2010);

(8) 1 instance of failing to complete a driving improvement course ordered by the court (August 2011).

12.  Broadly speaking, he has a bad record.  Not to mention that careless driving is a mild form of dangerous driving, specifically for failing to provide a blood sample for the test of alcohol in the body (which I regard as an offence similar to failure to be breathalysed), using a motor vehicle without third party insurance, and driving whilst disqualified, the present convictions mean that he had committed these 3 offences again before long. 

13.  I am told that he had been drinking until about 6 am at Tsim Sha Tsui East.  The respite had not sobered him up as he started to drive.  His counsel accepts that it was not a short trip to make to the location of the accident.

14.  His counsel has no particular submissions in respect of disqualification order, driving improvement course or retest. 

D2’S PERSONAL BACKGROUND AND MITIGATION

15.  D2 is 27 years of age, of F. 5 education level.  She has a clear record.  She married D1 in 2010.  They have a 2-year-old son.  She is a housewife.

16.  Her counsel in mitigation asks for a non-custodial sentence based on humanitarian grounds.  She has to look after their child if D1 is sentenced to prison.  I understand that if both of them go to prison, D1’s family can stand in to take care of the child. 

SENTENCING CONSIDERATIONS

17.  There are no sentencing guidelines for each of the 6 offences in question.  The defence has provided me with 7 cases as follows:

Dangerous driving causing death

(1) R v. Cooksley and Others [2004] 1 Cr App R (S) 1:

The English Court of Appeal identified a non-exhaustive list of aggravating factors (at p 3 H7) as follows:

Highly culpable standard of driving at time of offence

(a) the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl’

(b) greatly excessive speed; racing; competitive driving against another vehicle; ‘showing off’

(c) disregard of warnings from passengers

(d) a prolonged, persistent and deliberate course of very bad driving

(e) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking)

(f) driving while the driver’s attention is avoidably distracted, eg by reading or by use of a mobile phone (especially if hand-held)

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

(h) driving when knowingly deprived of adequate sleep or rest

(i) driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns

Driving habitually below acceptable standard

(j) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle

(k) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving

(My emphasis underlined)

As a reminder, the court stated as follows:

It was important to appreciate that the significance of the factors could differ. There could be a case with three or more aggravating factors, which were not as serious as a case providing a bad example of one factor.

(2) Secretary for Justice v Poon Wing Kay & Anor [2007] 1 HKC 289:

The Court of Appeal adopts the aforesaid observations of Cooksley.

(3) Secretary for Justice and Liu Kwok Chun CAAR 3/2009:

Culpability of the defendant was aggravated by the collision taking place at the zebra crossing at the speed of at least 62 kmh for a speed limit of 50 kmh; not only did the defendant fail to stop after the collision or report the accident but he also interfered with the vehicle so as to eradicate signs of the offence causing the death. He told a lie to the police so as to explain for the extensive repair to the vehicle 4 days afterwards. The maximum for dangerous driving causing death was only 5 years at the time of the offence. It was regarded as a case at the high end of intermediate culpability. The original overall sentence of 2 years 8 months was increased to 3 years 3 months on review by the application of the prosecution.

(4) HKSAR v Sheung Kun Hoo Daniel (尚冠豪) CACC 56/2010:

The defendant exceeded the prescribed limit of alcohol intake by 2 folds when he knocked down a drunken young man, who was a university student from overseas, walking in the middle lane of Wong Nai Chung Road. The trial judge rejected the mitigation based on momentary error of judgment. He knew well enough to stall for time to sober up when he refused to have an eye witness call the police at once. He had various records for speeding, one for using a mobile phone when the vehicle was in motion and another for crossing continuous double white lines in a tunnel. All considered, the trial judge sentenced him to 3 ½ years for dangerous driving causing death after trial. The sentence was affirmed on appeal despite the allowance given for the high degree of contributory negligence on the part of the victim.

Perverting the course of public justice

(5) HKSAR v Liu King Chuk HCMA 1305/2000:

The defendant was a hawker running a fruit and vegetable stall. For a period of 15 months he had engaged an old lady to stand in for the arrest and court attendance whenever the hawker control team was to book him for causing obstruction in a public place. He would give her food. The sentence of 2 months was to be suspended on appeal on the basis that the stand-in was a knowing compromise between him and the hawker control team, which the court found had exploited him in the situation.

(6) HKSAR v Tsang Chiu Sun, Bruce and Anor HCMA 105/2003:

The 1^st and 2^nd defendants were convicted after trial on the basis that they both falsely claimed to the police that the 2^nd defendant was the driver. The conviction was overturned on appeal. They did not appeal against the 80 hours’ community service order which they had completed.

Humanitarian grounds for co-defendant wife

(7) HKSAR v Sze Tung-lam and Cua Sally DCCC 132/2011:

The defendants were man and wife. The man was sentenced to 18 months’ imprisonment. On humanitarian grounds, the wife’s sentence of 15 months had to be suspended because their 3 children aged 9 to 14 would otherwise be left without proper care.

SENTENCE OF D1

18.  On the 1^st charge, there was an amalgam of aggravating factors for the dangerous driving according to Cooksley.  There was consumption of alcohol. D1 had been drunk and most unfit as he failed to drive properly or in a straight line or on the proper (not opposite) lane in fine weather and road condition in broad daylight on a straight and wide road in light traffic.  All these can be reflected by the manner the Car had moved along the stretch of 130 m before the collision.  Construing his manner of driving and his failure to be breathalysed together, the irresistible inference must be that he had largely exceeded the permissible alcohol intake limit.

19.  There was a prolonged, persistent and deliberate course of very bad driving from Tsim Sha Tsui East to the location of collision which must have put a considerable number of road-users at risk apart from the 2 passengers in the Car.  He was driving while disqualified.  There was no third party insurance.  He had previous records for bad driving and failure to take the breath test.  He had been a driver habitually in disregard of safe and proper driving rules for the benefit of himself or other road users.     

20.  It was a bad case.  I take 5 years (ie 60 months) as the starting point.  I reduce it to 3 years 4 months (ie 40 months) because of his plea of guilty.    

21.  On the 2^nd charge, it was a repeat conviction for driving whilst disqualified before long.  I take 6 months as the starting point.  I reduce it to 4 months because of his plea of guilty. 

22.  On the 3^rd charge, it was a repeat conviction for using a motor vehicle without third party insurance before long.  I take 6 months as the starting point.  I reduce it to 4 months because of his plea of guilty. 

23.  On the 4^th charge, it was the semblance of a conviction for failing to provide a blood sample for the test of alcohol in the body committed before long.  I take 6 months as the starting point.  I reduce it to 4 months because of his plea of guilty. 

24.  On the 5^th charge, such act of perverting would have grave criminal and civil implications, leading to misled investigation and court proceedings and a wrong person (D2) being charged or sued.  It was a ploy to cover up a serious traffic case costing the loss of a human life.  I understand it was a momentary decision without premeditation to falsely put up D2 as the driver.  D1 was the instigator.  I take 12 months as the starting point.  I reduce it to 8 months because of his plea of guilty. 

25.  On the 6^th charge, he had put up much violence in resistance of the police for quite some time.  I take 3 months as the starting point.  I reduce it to 2 months because of his plea of guilty. 

26.  By totality, I make the following adjustments:

(1) 1^st charge, 3 years 4 months, the whole term to be served;

(2) 2^nd to 4^th charges and 6^th charge, concurrent with all other charges;

(3) 5^th charge, 8 months, the whole term to be served consecutively to all other charges.

27.  The overall sentence shall be 4 years.

28.  There are no special reasons not to disqualify D1.  For each of 1^st, 2^nd, 3^rd and 4^th Charges, I order disqualification from holding all driving licences for a period of 6 years, to run concurrently from the date of release from prison. 

29.  As part of the penalty of 1^st charge, D1 has to attend and complete the driving improvement course and be retested before getting a driving licence. 

SENTENCE OF D2

30.  D2 was asked to stand in as the claimed driver.  I am told that she knew it was a serious traffic accident when so asked by D1.  She was no doubt urged by a readiness to help D1 in the claiming.  To complete the claiming, she even took the breath test.  I take 9 months as the starting point.  I give her a one-third discount.  Her sentence is 6 months.