HKSAR v. TSE CHAK ON

DCCC 342/2023

[2024] HKDC 144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 342 OF 2023

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REASONS FOR SENTENCE

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1.  The Defendant, Mr. TSE Chak-on, pleads guilty to the following charges:

(a)  Causing death by dangerous driving (“Charge 1”);

(b)  Failing to stop after accident (“Charge 2”); and

(c)  Failing to report an accident (“Charge 3”)[1].

2.  Mr. Tse admits and confirms the content of the Amended Summary of Facts to be true and correct.  He agrees, inter alia, that[2]:

(a)  The accident (the “Accident”)  took place at around 6:02 a.m., on 23^rd September 2022 on the lane near the lamppost FB5734 of Kam Tin Road (eastbound)  towards Pat Heung (the “Accident Location”). The relevant section of the road is a dual carriageway and is a straight road. At the material time, the weather was fine and the road surface was dry and in good condition, the traffic flow was very low and the speed limit was 50 km/h.

(b)  At the material time, the Deceased was riding a green bicycle (the “Bicycle”)  along the left roadside of Kam Tin Road (eastbound)  in parallel with the traffic towards Pat Heung; while the Defendant was driving the empty light goods vehicle in question (the “Vehicle”)  on the same lane behind the Deceased. Upon approaching the Accident Location, the Vehicle’s nearside collided with the upper body of the Deceased, causing the Deceased and the Bicycle fell down; and the Defendant did not stop the Vehicle but kept driving away.

(c)  The Defendant was arrested later on the same day. The Deceased was certified dead 3 days after. The forensic evidence shows, at the material time, that:

(i)  the average speed of the Vehicle was around 41 km/h to 50 km/h; and

(ii)  the Defendant could have an unobstructed view of the Bicycle at least 50 meters away and his view towards the Bicycle became clear as the Vehicle came closer to it.

The Sentence

3.  Mr. Oliver Davies, the Counsel for Mr. Tse, relies on R. v. Cooksley [2003] 2 Cr. App R 18, which is considered by the Court of Appeal in the Secretary for Justice v. Poon Wing Key & Anor., [2007] 1 HKC 289.  The Court of Appeal adopted the sentencing principles in Cooksley.

4.  Secretary for Justice v Chu Wing Yin Christine, [2020] 1 HKC 258 is a case of causing grievous bodily harm by dangerous driving.  After reviewing a number of authorities, including Cooksley and Poon Wing Key, the Court of Appeal concludes that:

“[77] The steps and considerations when approaching sentence for this type of offence are, therefore, as follows.

[78] First, the dominant factor to be considered is the offender’s culpability which will involve two related assessments:

(1)  the objective dangerousness of the offender’s driving; and

(2)  the moral culpability of the offender.

[79] Secondly, closely allied to culpability is the harm and impact caused to the victim(s). This will involve an assessment of the nature and degree of the really serious injury to the victim or victims.

[80] Aggravating factors may include:

…

(vii)  the length of the journey during which others were exposed to risk; …

(xi)  whether the offender failed to stop;

[81] Thirdly, the normal sentence for this type of offence is an immediate custodial sentence. The length of the sentence will be determined by an assessment of the two factors of culpability and harm, bearing in mind that the maximum sentence for the offence is 7 years’ imprisonment on indictment. Only in exceptional circumstances would other sentencing options be available and this will be dependent upon the circumstances of the offence and of the offender.

[82] Fourthly, the sentencing court will evaluate any mitigating factors with an appropriate adjustment to the sentence.

[83] Fifthly, the sentencing court must consider the imposition of any other consequential orders, such as disqualification from driving, the completion of a driving improvement course and compensation.”

5.  I am fully aware Chu Wing Yin Christine is a case of causing grievous bodily harm by dangerous driving; however, the above sentencing guidelines are still worth considering.

6.  Other than Mr. Tse failed to stop and the Deceased was well exposed to him before the Accident, there is no evidence to show that Mr. Tse was speeding or under the influence of alcohol or affected by any other aggravating factors at the Accident.  He has unrelated criminal records dated back to 1989; and his driving record, although not perfect, is good.

7.  The Background Report shows he suffered from right eye visual problem and he only had 10% vision in his right eye; however, the Accident happened on his left hand side, so his right eye’s problem should not be considered as an aggravating factor.  According to the discussion between the court and the parties, there is no evidence to show that Mr Tse’s driving ability at that time was affected by his eye problem.

8.  In Mr. Tse’s video-recorded interview, he stated the sky was very dark at the material time.  I watched the video carefully and noticed the lighting condition was very good and Mr. Tse should have noticed the Deceased more than 50 meters away.

9.  Mr. Tse did not stop after the Accident.  In Secretary for Justice v Liu Kwok Chun [2010] HKCU 1882, the Court of Appeal was in the view that:

[43] We accept that this case has the following aggravating factors :

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3)  The defendant did not stop after the accident. We consider this to be an extremely callous act on the part of the defendant. To leave the deceased lying on the road, not caring if she was still alive, with the distinct possibility that she might be further injured by oncoming vehicles clearly aggravates the culpability of the defendant. …

10.  Eventually, the Court of Appeal put the defendant in the high end of the intermediate culpability and sentenced him 3 years and 3 months’ imprisonment.

11.  After a careful consideration, I conclude that the proper starting point of sentence for Charge 1 is 24 months’ imprisonment.

12.  For Charge 2, the proper starting point is 6 months’ imprisonment and for Charge 3, 3 months’.

Mitigating Factors

13.  Mr. Tse pledges guilty at the earliest opportunity, so I will allow one-third discount on sentence.

14.  Mr. Tse’s Background Report discloses that Mr. Tse has eyes problem.  In 2020 he had operation in his right eye and now he only has 10% vision on his right eye.  His left eye deteriorates since 2020 after the present offence and encounters similar problem partly due to stress.  After considering his visual problem, his good driving record, it is highly unlikely he will drive again and the totally principle; I will reduce 3 months in his overall sentence.

The Sentence

15.  For Charge 1, I will sentence Mr. Tse 16 months’ imprisonment after one-third discount; further, I will reduce 3 months for the reasons I mentioned.  For Charge 2, I will sentence him 4 months’ imprisonment which runs concurrently with that of Charge 1.  For Charge 3, I will sentence him 2 months’ imprisonment after one-third discount, which runs consecutively with that of Charges 1 and 2.

16.  The total imprisonment term is 15 months.

Disqualification

17.  Mr. Tse had previously been disqualified for 12 months for driving a vehicle without insurance in 1989.  I am of the view that the proper period of disqualification in the present case should be six years after considering his prison term.

18.  Mr. Tse shall attend and complete a driving improvement course at his own costs within the last 3 months of the disqualification period.