HKSAR v. NG RYAN KA CHUN

DCCC 948/2022

[2023] HKDC 626

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 948 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of dangerous driving causing death and one charge of dangerous driving causing grievous bodily harm.

2.  The accident took place near the junction of Tai Yau Street and Pat Tat Street, San Po Kong, Kowloon, in Hong Kong (“the Location”).

3.  At the material time, the weather was fine with good visibility and sufficient street lighting. The road surface was dry and in good repair. The speed limit was 50 km/h.

4.  At around 6:10 pm on 31 December 2021, PW1 was driving a taxi (the “Taxi”)  with two passengers on board along Tai Yau Street, heading towards Tseuk Luk Street direction. When the Taxi reached at the Location, PW1 heard that there was a loud crash sound from the offside rear of the Taxi and at the same time he felt that the Taxi was shaken due to the crash caused by the car which was driven by the defendant and was travelling along Tai Yau Street northbound.

5.  PW1 stopped the Taxi and saw that the Car, which was travelling at a high speed after colliding with the Taxi, rammed into the railings and the pedestrian pavement, and hit the pedestrians.

6.  The Car subsequently came to a stop when its front crashed into the rolling shutter gate of a shop.

7.  The accident was witnessed by PW2 who was driving along Pat Tat Street, heading towards the direction of Tai Yau Street junction. PW2 stopped her car behind the “Give way” line and was ready to make a right turn to Tai Yau Street, when the Car suddenly passed in its front from left to right at a very high speed. The Car was then seen hitting the Taxi with some broken parts and fragments falling onto the ground, the Car then further crashed onto the pedestrian pavement.

8.  The dash camera installed in PW2’s vehicle captured the course of accident partially.

9.  As a result of the accident, two pedestrians were killed and three pedestrians were injured. They were all walking on the pavement at the material time when the accident occurred.

Medical Findings of Madam Shi and Mr Li

10.  When the Car crashed onto the pedestrian pavement, Madam Shi and Mr Li were knocked down by the Car and became unconscious. Madam Shi was certified dead at the scene. While Mr Li was certified death an hour later. The direct cause of death for both deceased appeared to be “multiple injuries”.

PW3

11.  PW3 was hit by the Car but he did not witness the accident. PW3 was found to sustain left forehead laceration wound and hematoma, right leg deformity and tenderness. He was admitted to the Department of Orthopaedics & Traumatology (“O&T”)  of QEH.

12.  PW3 was further referred to the Department of Ear, Nose & Throat of QEH. Physical examination showed deviated nasal septum to right side. PW3 was discharged on 26 January 2022, and was granted sick leave from 31 December 2021 to 22 June 2022.

13.  On 14 April 2023, PW3 still feels pain in the injured parts of his body. He still needs to attend follow up medical appointments at the O&T of QEH. His next appointment is in July 2023.

14.  PW3 has resumed working after the accident but, he could not return to his original job position as he is still not yet fully recovered, he was assigned to handle clerical duties.

PW4

15.  As to PW4, she felt that something hit her from behind and she became unconscious. She was then admitted to the Department of A&E of QEH. PW4 was found to sustain bilateral lower limbs open fracture with deformity and left arm deformity. The clinical diagnosis was multiple limb fractures.

16.  PW4 was admitted to the Intensive Care Unit and Department of O&T of QEH.

17.  PW4 was transferred to Kowloon Hospital on 31 January 2022, and was discharged on 26 March 2022. She was granted sick leave from 31 December 2021 until present.

18.  As of 14 April 2023, PW4 still feels pain in her left arm and both legs. She still needs to attend appointments at the O&T of QEH. Her last appointment was on 19 April 2023 and the next one will be on 12 July 2023.

19.  As PW4 is still on sick leave, she cannot return to her job as a clerk. In her daily life, she requires the assistance of a crotch in walking. She requires a wheelchair to go to further places as she can only walk slowly and feels the pain in the legs after walking for a long distance.

The defendant

20.  After the accident, the defendant was then admitted to the Department of O&T where he was found to sustain mild lower cervical spine tenderness and mild tenderness on chest wall. The defendant was discharged on 6 January 2022.

The Investigations - Dash Camera and CCTV Footages

21.  A total of 4 footages which are relevant to the accident on 31 December 2021 were retrieved, details of which are summarised as follows:-

(a)  The dash camera installed in the Car captured that at 18:07:11, the Car stopped at the junction of Sam Chuk Street and Tai Yau Street in compliance with the red traffic light signal. At 18:07:16, the Car turned right to Tai Yau Street. At 18:07:18, the Car travelled along Tai Yau Street, heading towards the Diamond Hill direction. The Car was travelling on the separating line of both bounds. (“Footage 1”)

(b)  The dash camera installed in PW2’s vehicle captured that at 18:07:15, PW2’s vehicle stopped at the Location. At 18:07:21, the Car travelled from left to right at high speed. At 18:08:20, PW2’s vehicle turned right and travelled along Tai Yau Street. The Car was seen having crashed into the roller shutter of a shop. (“Footage 2”)

(c)  The CCTV camera installed at New Tech Plaza captured that at 18:07:23, the Car was travelling along Tai Yau Street at high speed. The Car was travelling on the separating line of both bounds, and that half of the body of the Car crossed the opposite lane. At 18:07:26, the Car turned right and crossed the opposite lane (“Footage 3”); and

(d)  The CCTV camera installed at Perfect Industrial Building captured that at 18:02:01, the Car was travelling along Tai Yau Street at high speed. At 18:02:04, the Car turned right. (“Footage 4”)

Expert Evidence from the Forensic Scientist

22.  According to Dr TAO, the Forensic Scientist who analyzed the footages for determining the speed of the Car before the accident, the average speeds of the Car, based on their respective frame rates when the Car travelled between the relevant landmarks, were:-

(a)  between 57 ± 6 km/h at 18:07:19 hours and 77 ± 8 km/h at 18:08:20 hours as captured in Footage 1;

(b)  around 81 km/h at 18:07:22 hours as captured in Footage 2;

(c)  between 63 ± 6 km/h at 18:07:25 hours and 81 ± 8 km/h at 18:07:26 hours as captured in Footage 3; and

(d)  around 78 ± 8 km/h at 18:02:02 hours as captured in Footage 4.

MVE Accident Report of the Car and the Taxi

23.  The Car and the Taxi were examined with no defects detected. But the Car was seriously damaged. Both side front and rear windows were smashed. Both side front and rear air bags were deployed.

24.  As for the Taxi, its offside rear fender panel, offside rear direction indicator lens, offside rear lamp lens and offside stop lamp lens were damaged.

Arrest and Caution of the defendant

25.  At 9:55 pm on 31 December 2021, the defendant was arrested and cautioned.

Criminal record

26.  The defendant has a clear record.

Traffic record

27.  The defendant obtained his full driving license in November 2018.

28.  During the period of provisional driving license, he has 3 previous traffic convictions:-

(a)  Driving in excess speed by more than 15 km/h in 2017;

(b)  Driving in excess speed by more than 30km/h in November, 2021; and

(c)  Failing to compile with traffic signs in March 2020.

Mitigation

29.  The D is now 26 years of age. He is single and lives with his parents. He dropped out from University in the UK due to his suffering of chronic eczema since he was born.

30.  He worked as a Barista in Starbucks Coffee prior to the present incident.

31.  His family and friends are all shock to find him to get into such a serious trouble. In their letters to this court, they said that it is totally out of his character.  He is extremely sorry for what had happened to the families of the deceased and the injured pedestrians.  He prepares to face up to the consequence of this car accidents.

32.  The defence accepted that he was driving in excess of the speed limit, his car partially crossed onto the opposite lane (that was a momentary lapse of attention)  before losing control and crashing into the victims.

33.  There was no evidence to show that he drove under the influence of drugs or alcohol or suffering from any medical condition. He was not distracted from using the mobile phone.

34.  The defence submitted that there was no aggravating factors in the present case and this incident should be viewed at the lower end of culpability as set out in the case of Liu Kwok Chun [2011] 2 HKC 70.

35.  The defence said that had he been prosecuted for speeding, the sentence would be a fine.

36.  It is unlikely that the defendant will re-offend again.

Sentence

37.  The maximum sentences for:-

(a)  Dangerous driving causing death is 10 years’ imprisonment and a fine at level 5 plus disqualification period.

(b)  Dangerous driving causing grievous bodily harm is 7 years’ imprisonment and a fine at level 5 plus disqualification period.

38.  In the present case, there was two deaths and 2 pedestrians were seriously injured.

39.  The defence cited one case for reference:- Secretary of Justice v Liu Kwok Chun [2011] 2 HKC 70.

40.  I then informed parties to refer to the following 2 cases:-

(a)  SJ v Chu Wing Yin Christine [2019] HKCA 1459

(b)  HKSAR v Man Chun Pun [2019] HKCA 159

41.  Subsequent to that after an adjournment, the defence further submitted additional cases apart from the above 2 mentioned cases plus Chapter 10 of the 10^th Edition of Sentencing in Hong Kong.

(a)  R v Dillion [1984] RTR 270

(b)  R v Noble [2003] RTR 6

42.  As said in the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 that:-

“In assessing the overall seriousness of a crime, culpability is often the dominant factor.”

43.  While in Liu Kwok Chun’s case, there “were varying degrees of culpability depending on the presence of the aggravating factors referred to in Cooksley”.

44.  In Cooksley [2004] 1 Cr App R (S), there were four categories of culpability and they were also adopted in Hong Kong:-

(a)  Where there are no aggravating factors – 12-18 months’ imprisonment

(b)  Intermediate culpability – 2-3 years

(c)  Higher culpability – 4-5 years

(d)  The most serious culpability – 6 years onwards

45.  While the court in HKSAR v Man Chun Pun [2019] 4 HKLRD 426 also said that apart from culpability of the defendant,

“the potential/ actual harm caused were also important consideration.”

46.  In court, there were cries and tears from the deceased families’ members. No one can dispute that their and pain and suffering for the loss of the dear and love ones are beyond measurement. At the time of the present proceeding, I can see their emotional wounds are still raw and fresh. In the case of HKSAR v Chan Kwok Fai, Stock VP said that:

“whilst culpability is the dominant factor to be taken into account, the impact on the families of those killed is nonetheless a matter that should certainly be taken into account, see R v Cooksley, para 11.”

47.  As stated in the passage of Cooksley at page 285 that the outcome of the offence is also considered as aggravating factors when:-

(a)  more than one person killed

(b)  serious injuries to one or more victims, in addition to the death(s)

48.  Apart from the numbers of death and injuries, the defendant drove the car in a high speed. The defence said that it was not excessive. However, it is a matter of relativity. The speed limited is 50 km/h. I shall come to the speed at later paragraphs.

49.  San Po Kong is a well-established industrial area with a lot of commercial activities. From the CCTV footage and photos, we all can see that a lot of the shops were still opened and there were many pedestrians on various parts of the pavements.

50.  The Car was straddled between 2 lanes, half of the body of the Car was on the opposite lane. The Car eventually crossed the opposite lane before crashing onto the pavement.

51.  Again, from the photos, I can see that the road sign was removed and sat on the bonnet of the Car horizontally, a metal railing was also removed and laid next to the tent with blood stain on the surface of the road.

52.  The lower part of the shop shutter where the Car came into contact and stopped was totally deformed and damaged.

53.  Needless to say, the Car was seriously damaged and it was a total loss. It is clear all the properties damages were due to the great force and impact of the Car as a result of the accident.

54.  All the pedestrian victims would never expect or anticipate that they would meet with this horrible car accident as they were rightly walking on the pavement. The defendant’s car was supposed to be driven on the road, not onto the pavement.  By driving in that manner, obviously put the pedestrians in great risk.

55.  The accident took place on the pavement, it is worse than taking place on a pedestrian crossing. I judge that it is a serious aggravating factor.

56.  Although it was not reported in the summary of facts, it is not difficult to understand that some pedestrians or drivers who witnessed this horrible accident might have suffered shock or anxiety.

57.  The Car was a BMW M4 series, bright gold color. The defence said that I cannot take judicial notice that it is a high performance car. I disagree as this type of car has been around for sometime.

58.  When carefully examined the evidence between the CCTV footages and the expert evidence, there was a sudden increase of speed from 57 ± 6 km/h at 18:07:19 hours to 77 ± 8 km/h at 18:08:20 hours.

59.  The rest of the CCTV footages also showed a high speed of around 80 km/h.

60.  It is clear to me that the defendant was unable to control the Car at that time and it resulted in this tragic incident.

61.  I also notice that the defendant has 2 previous convictions of speeding. One speed record was in November, 2021, one month prior to this accident and it was more than 30km/h. The defendant in each occasion received a penalty of fine of $450 and $600 only.

62.  No wonder the defence said that had the defendant been charged with speeding, it was only a fine.

63.  What the defendant did not see in the past was that speed can kill and or main. A fine in the past has no deterrent effect upon him.

64.  From this traffic conviction, the defendant knows that I know what does it tell me regarding his driving manner in term of speed?

65.  In mitigation, the defence said that the defendant was not on the phone nor was he under the influence of drinks or drugs.

66.  When playing the CCTV footage in court, I can hear very high volume of loud rock music in the Car. It was overwhelming when it was in an enclosed space, such as in the Car. It can distract the attention of the defendant during driving. I consider this as an aggravating factor.

67.  With all this information and the aggravating factors in mind, I now turn to the length of the sentence.

68.  In deciding the sentence, I also have reference to the case Cooksley (at page 286)  which said that the number of death resulting from the dangerous driving is relevant to the length of sentences. The public are entitled to require the courts to reflect the loss of life to demonstrate that dangerous driving was a serious social evil, which if death results would lead to a substantial custodial sentence.

69.  However, it remains that the offender’s culpability in relation to the driving as the dominant component in the sentence exercise.

70.  In passing sentence, his personal circumstances carry very little or even no weight at all.

71.  Having said that, this court still oblige to take into account of the following mitigating factors that the defendant is 26 years old with a clear criminal record and his timely plea to indicate his remorse.

72.  In the present case, I consider that this case falls into the higher end of intermediate capability, I take 3 years 3 months as the starting point for the first charge and reduce it to 2 years 2 months after 1/3 discount.

73.  I also impose a 5 years’ disqualification order from holding or obtaining a driving license for all classes of vehicle.

74.  The defendant is also ordered to attend and complete a mandatory driving improvement course at his own expense within 3 months prior to to the end of the disqualification period.

75.  I now turn to charge 2 – dangerous driving causing grievous bodily harm.

76.  In the case of Chu Wing Yan Christine, the court set down the 5 steps approach for sentencing. (paragraph 78 onwards refer)

77.  Firstly, the dominant factor to be considered is the offender’s culpability which will involve two related assessments:-

(a)  The objective dangerousness of the offender’s driving manner (see [48]-[50] of the judgment of Macrae VP), I have discussed the dangerous driving manner of the defendant in previous paragraphs and I shall not repeat here.

(b)  The moral culpability of the D – clearly it is his inability to control of that high performance car in resulting this accident. He has been driven this Car for some time and he was familiar with its functions.

78.  Secondly, the 2 victims suffered really serious injuries.

(a)  PW3 still feels the pain in the injured part of his body. PW3 has returned back to work, but he is no longer able to perform his previous duty. His company arranged him to do clerical works.

(b)  PW4 is still on sick leave and cannot be returned to work since the accident in the end of December 2021, some 17 months ago.

(c)  PW3 and 4 were originally in good health, because of this accident, they both suffered pains in their bodies. PW4 required to walk with a crotch and wheelchair for further distance. PW4’s daily life has changed since the date of the accident.

79.  Both of them were innocent pedestrians. I do not need a psychologist to tell me that they both, not only suffer in pain physically, they also suffer mentally.

80.  The aggravating factors as stated above. That included:-

(a)  Excess speed

(b)  Crossing opposite lane

(c)  Dashed onto the opposite pavement resulting the accident occurred on the pavement

(d)  Loud music

(e)  Unable to control the Car

81.  I considered that the appropriate starting point for charge 2 is one of 2¹/₂ years, given ¹/₃ discount, the sentence is come down to 20 months’ imprisonment.

82.  I also order 2 years’ disqualification period from holding or obtaining a driving license for all classes of vehicle.

83.  The defendant is also ordered to attend and complete a mandatory driving improvement course at his own expense within 3 months prior to the end of the disqualification period.

84.  As said previously, personal circumstances of the defendant carry no weight in this case. He deserves no further deduction of sentence except the ¹/₃ discount.

Totality

85.  The defence asked for concurrent sentences for both charges. I disagree.

86.  Nevertheless, I have no intention to impose a consecutive sentences for the 2 charges.

87.  During the course of mitigation, I refer the defence to the case of Man Chun Pun (also one charge of dangerous driving causing death and one charge of dangerous driving causing grievous bodily harm)  “that the culpability encompassed by the second offence was not, therefore, incorporated into the first offence” by imposing a concurrent sentence.

88.  The defence said that the Court of Appeal did not elaborate any further apart from that line of sentence.

89.  It is not difficult to understand the meaning by imposing partly consecutive sentences because the culpability was aggravated by serious injuries to the victims in addition to the death of the deceased.

90.  To this end, I order 1 year from charge 2 to run consecutively to charge 1. The total sentence is 3 years 2 months.

Disqualification period

91.  Charge 1 – 5 years

Charge 2 – 2 years

92.  Both disqualification period are to be run concurrently.

Diving improvement course

93.  The defendant is only required to attend once.