HKSAR v. HO WAI FAI

DCCC328/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 328 OF 2011

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Reasons for Sentence

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The Charges

1.  The Defendant pleaded guilty to the following offences under the Road Traffic Ordinance, Cap. 374 (“the Ordinance”) :

(i) dangerous driving causing death, contrary to section 36(1) (1^st charge);

(ii) failing to stop after an accident, contrary to section 56(1)(a), (1)(b) and (5) (2^nd charge);

(iii) failing to provide a specimen of breath for a screening breath test, contrary to section 39B(2) and (6) (4^th charge);

(iv) failing to comply with a traffic sign, contrary to regulations 59(1)(a) and 61(1) of the Road Traffic (Traffic Control) Regulations made under the Ordinance (5^th charge);

(v) 5 charges of “breach of a condition of a learner’s driving licence”, contrary to regulations 30(1), 30(2), 30(3)(a), 30(3)(b), 30(4), and 46(2) respectively of the Road Traffic (Driving Licences) Regulations made under the Ordinance (6^th – 10^th charges).

2.  He pleaded not guilty to one charge of “failing to report an accident involving personal injuries”, contrary to section 56(3) and (6) of the Ordinance (3^rd charge). The prosecution applied for this charge to be left on the court file and not to be proceeded with without the leave of the court. It was so ordered.

The Facts

3.  At about 0600 hours on 26 September 2010, the Defendant, who admitted having himself consumed about 2 bottles of red wine at a bar in Tsim Sha Tsui before boarding a private car PG 9497, drove the vehicle along the 2^nd lane of North Bound Wo Yi Hop Road, Kwai Chung, with three female passengers on board. While travelling on that lane, PG 9497 suddenly crossed the dividing double line and scraped the offside of a light goods vehicle DY 4811 which was travelling on the South Bound Wo Yi Hop Road.

4.  Then, PG 9497 swerved forward and had a head-on collision with a taxi FU 695. At the time, FU 695 was driven by the deceased LAU Yuk-lun with a passenger on board.

5.  After the collision, PG 9497 and FU 695 stopped on the road. A small fire broke out on PG 9497. When the ambulance arrived, the deceased was found to be unconscious and his head badly injured. The deceased was then rushed to the hospital but was certified dead at 0720 hours on the same day. The cause of death was multiple injuries.

6.  The taxi passenger and the three passengers on board PG 9497 were also injured. They were hospitalized for a period ranging from 3 to 18 days. The prosecution has confirmed that all of them have now fully recovered and none suffers any permanent injury/disability.

7.  The accident was captured by the CCTV camera installed at a nearby swimming pool. Based on this footage, the expert estimated that, before the accident, the speed of the taxi was not less than 27 km/hour and that of the Defendant’s vehicle was not less than 67 km/hour. I have viewed the footage and it is clear that, irrespective of what the actual speed was, the Defendant’s vehicle was, at the time of the impact, travelling at a much higher speed than that of the taxi. The speed limit of that section of the road was 50 km/hour. At the time of the accident, the weather was fine, the road was dry and in good repair, traffic flow was light and visibility was clear.

8.  After the accident, the Defendant alighted from PG 9497 and walked unsteadily away from the vehicle. The Defendant was later found lying outside the office of the swimming pool. When the police arrived and after the Defendant was pointed out as the driver of PG 9497, the Defendant stood up and walked away. The police officer then stopped him and found him to have a strong smell of alcohol. When being questioned, the Defendant claimed that he was a pedestrian and he then tried to flee. It was only after a pursuit of 400-500 metres by the police was the Defendant arrested.

9.  After the arrest, the police tried to conduct a screening breath test on the Defendant but he refused to provide any breath specimen.

10.  When PG 9497 and FU 695 were later examined, they were found to have been extensively damaged during the accident. I have examined the photos showing the two vehicles. They both had badly smashed, dented bonnets and crushed engines. The windscreen of FU 695 was shattered with a large hole on it.   

11.  All the passengers on board the Defendant’s vehicle stated that it was travelling very fast. One of them had asked the Defendant to slow down but that warning was ignored by the Defendant. Another had noticed the Defendant driving in a zig-zag manner at a fast speed.

12.  The Defendant was only a learner driver at the time and such formed the basis of the different offences under the Road Traffic (Driving Licences) Regulations made under the Ordinance, that is, he was not accompanied by a driving instructor; he was not allowed to carry passengers on board his car; he was not allowed to drive during that time of the day; he was not displaying a learner driver’s plate; and the vehicle was not installed with a handbrake readily accessible to the driving instructor (6^th  - 10^th charges).

Mitigation

13.  The Defendant is now aged 32 and was educated up to Form 3 level. He is married but his wife is a Mainlander and lives in the Mainland. Prior to his arrest, the Defendant worked as a transportation worker, earning about HK$6,000 to HK$9,000 per month. He lived with his mother and a mentally retarded elder sister. It was said that the Defendant made contributions from his income to support his family in Hong Kong and his wife as well as his wife’s child from her previous marriage.

14.  The Defendant has been before the court on 8 previous occasions with 9 convictions including theft, trafficking in a dangerous drug, burglary, making off without payment, robbery, criminal damage and misleading a police officer by giving false information. He was last released from the prison in February 2010. It was said that, in order to better equip himself, he then started learning to drive.

15.  As mentioned above, the Defendant was holding a learner driver’s licence at the time of the accident. He has not held any full driving licence before and, therefore, he has had no previous traffic conviction.

16.  In mitigation, it was said that the Defendant accepts full responsibility for his acts. He has pleaded guilty, saving the court’s time and saving the witnesses the trouble and the stress of coming to testify in court. It was also said that the Defendant, only out of panic, behaved in the way he did as described in the Summary of Facts.

17.  Mr. Ng further submitted that the offences all arose from the same set of facts and urged the court to pass concurrent sentences.

Sentencing Considerations

18.  In SJ v Poon Wing Kai [2007] 1 HKLRD 660, the Court of Appeal expressed agreement with the sentencing considerations detailed in R v Cooksley & Ors [2003] 3 All ER 40, and stated, inter alia, that :

“10(3) 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 … 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.”

19.  The present case is one which falls into the very serious category. It has many of the aggravating factors identified in SJ v Liu Kwok Chun CAAR 3/2009 (unreported) :

(i) the Defendant drove the vehicle after consuming a large amount of alcohol and when he was probably deprived of sleep, drinking at the bar that night;

(ii) despite his only holding a learner driver’s licence and that he had only received a few months’ driving lessons after his discharge from the prison in February, the Defendant carried three passengers on board the vehicle and drove on an expressway which a learner driver was prohibited from entering;

(iii) even before the accident, the Defendant was already driving in a zig-zag manner at a fast speed as observed by one of his passengers;

(iv) the Defendant continued to drive at a fast speed despite a request from his passenger to slow down the vehicle;

(v) the Defendant was driving, before the accident, at a speed of at least 67 km/hour when the speed limit for that section of the road was only 50 km/hour;

(vi) after the accident, the Defendant claimed that he was only a passer-by and sought to flee from the scene.

20.  On the facts admitted and considering the overall circumstances, the degree of the Defendant’s culpability was undoubtedly high. The accident took away one precious life and the Defendant was the sole engineer of this tragedy. His conduct on the day of the accident was outrageous and his acts grossly irresponsible. By driving after drinking; by allowing, if not asking, his friends to board the vehicle when he himself was only a learner driver; by ignoring his passenger’s request to slow down the vehicle; and by driving in excess of the speed limit, the Defendant showed complete disregard for the safety of his passengers and the well-being of other road-users. What he did in that early morning was extremely dangerous and the danger must have been clear to him. His behavior was absolutely inexcusable.

21.  Judging from the extent of the damage caused to both vehicles, it was pure luck that all the passengers have fully recovered and do not have any permanent injuries. Given that the Defendant was only a learner driver and that a fire had broken out after the collision, the accident could have resulted in much graver consequence.

The Sentences in This Case

22.  In view of the facts of this case and the aggravating factors identified above, I consider that a sentence of sufficient deterrence is necessary. In respect of the charge of “dangerous driving causing death”, I am going to adopt a starting point of 5½ years.

23.  The Defendant pleaded guilty and he would receive a one-third reduction. Other than his plea, I see nothing which would warrant any further reduction in sentence. The Defendant is therefore to serve a term of 44 months’ imprisonment for this charge.

24.  I am also going to make an order to disqualify the Defendant from driving for 6 years.

25.  In respect of charge (2), that is, the failing to stop offence, I consider that the maximum term of 1 year is justified as the Defendant did not only fail to stop; he indeed claimed himself to be a mere passer-by when being questioned by the police and he later attempted to flee from the scene which resulted in a pursuit by the police. 1 year reduced by one-third to take account of the Defendant’s plea would result in a term of 8 months’ imprisonment for this charge.

26.  In respect of charge (4), that is, the failing to provide a specimen of breath for a screening breath test, I consider a starting point of 2 years to be appropriate. Again, the Defendant would get a one-third reduction for his plea which would result in a term of 16 months’ imprisonment.

27.  Regarding charges (5) to (10), that is, the offences relating to the Defendant’s status as a learner driver, I consider that a starting point of 3 months, which is the maximum for these offences, is justified given the facts of this case. After the reduction for the Defendant’s plea, he is to serve a term of 2 months for each of these charges.

The Totality Principle

28.  While the subject matters of charges (5) to (10) all related to the Defendant’s status as a learner driver and therefore concurrent terms might be justified, the same, however, could not be said in respect of the “dangerous driving”, the “failing to stop”, and the “failing to provide a specimen of breath” offences for there was no necessary connection amongst these. In other words, the sentences for these charges should, in principle, run consecutively.

29.  However, applying the totality principle, I consider that an overall term of 44 months sufficiently reflects the criminality involved in this case. I therefore order that the terms in respect of all 9 charges are to run wholly concurrently, making a total term of 44 months’ imprisonment.