HKSAR v. CHIU KING TAO

DCCC 1094/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1094 OF 2009

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Reasons for Sentence

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Charge

1.  The Defendant pleads guilty to a charge of careless driving. The traffic accident caused the loss of a human life and the injuries of 5 people.

Collision

2.  At about 0333 hours on 24 May 2009, Sung Siu Hang (PW1) was driving a private vehicle, a Lexus Harrier, bearing registration mark LT 9250 (“V1”) along the 2nd lane (counting from the nearside kerb) of the south bound Tolo Highway (“the Highway”) in the direction of Tai Wai. The road surface was wet and PW1 drove at a speed of about 90-100 km/h at that section of the Highway where the speed limit was 100 km/h. There were 4 lanes on the south bound Highway but in the vicinity of Chainage 14.O (A) the 4th lane was temporarily closed off by water-filled plastic barriers.

3.  PW1 had 5 passengers in V1. Ho Wai Chu (PW2) sat in the front passenger seat. In the rear were Tse Kwan Ho (PW4), Ng Wai Sze (PW3), Chan Pui Yuk (PW5) and Ngai Ming Kin (the Deceased). V1 was in breach of the legal limit of 5 passengers including the driver. PW3 was PW4’s girlfriend. The Deceased was PW5’s fiancé.

4.  When V1 reached the location close to Chainage 14.O (A) PW1 saw a private vehicle, a Mercedes-Benz (“V2”), in the 3rd lane some 40 metres approaching V1 from behind at a high speed. Seconds later, PW1 saw that the distance had closed to some 20 metres. He then felt that V2 was moving close to V1 and PW1 slightly steered V1 to the left as he felt endangered.

5.  Suddenly, V2 crashed into the offside of V1 on the posterior part of the front wheel, causing V1 to spin clockwise and to hit the roadside barrier of the 1st lane, where it rebounded and hit the barrier again before V1 stopped on the 1st lane of the Highway facing the oncoming traffic. PW1 reversed V1 onto the road shoulder as he thought it was dangerous to leave V1 where it had stopped.

After collision

6.  After the collision, PW1 found PW2 conscious but PW3 – PW5 and the Deceased then were seriously injured.

7.  PW1 looked towards V2 which was also facing the wrong direction and saw the Defendant standing by V2. PW1 shouted to the Defendant to call the police but the Defendant remained where he stood without making any response.

8.  PW1 then took no further notice of the Defendant. Later, Sgt. 2912 (PW7), a traffic policeman, arrived at the scene and found the Defendant had abandoned V2 and left the scene with the ignition key.

9.  PC 51706 (PW8) took a breath screen test on PW1 with negative result.

10.  PW1 – PW5 and the deceased were taken by ambulance to the Prince of Wales Hospital. PW3 – PW5 were admitted into the I.C.U. due to their serious injuries. The Deceased was certified dead an hour after his admission to hospital. The cause of death was multiple injuries including head wounds.

PW1 – PW5’s injuries

11.  The medical reports of PW1 – PW5 are as follows:

(1)  PW1 sustained superficial abrasion wounds over left thigh and right knee.

(2)  PW2 suffered mild tenderness over the right side of chest wall.

(3)  PW3 suffered haemorrhage of the brain, loss of sensation of  nerve, pelvic fracture, cervical spine C2 fracture, and left lung contusion.  Upon operation and prolonged treatment, her prognosis was good.

(4)  PW4 suffered head injury, jaw bone fracture, pelvic fracture, lung contusion, and left clavicle fracture.

(5)  PW5 sustained a slight laceration wound over her right scalp and another slight laceration wound over her left forearm.  There was bleeding in the spleen, liver.  Her urinary bladder was ruptured.  She was transferred to the intensive care unit for close monitoring.  She had to undergo a series of operations and prolonged treatment.

Police enquiries

12.  The Defendant was the registered owner of V2. He surrendered himself to the Traffic New Territories North Headquarters at about 1400 hours on 24 May 2009 in the company of his legal representatives. He admitted that he was the registered owner of V2. He consented to a breath screen test which was done by PC 58286 (PW11). The result was negative. At 1446 hours on 24 May 2009, PW11 arrested him for the offence of dangerous driving causing death. He remained silent under caution.

13.  The MVE of the Transport Department examined V1 and V2. Both vehicles were found to be free from mechanical defects.

14.  The accident spot was a slight bend to the right with a number of wide lanes. V1 and V2 were normal-sized private cars.

Whether the Deceased wore a seat belt

15.  V1 was built with 5 seats. At the time of the accident, there were 6 passengers, all of whom were adults. It was common ground that there was no change in the seating plan before the accident. PW1 was the driver and PW2 took the front passenger seat. There were 4 passengers in the rear. V1 was overloaded in terms of the number of passengers.

16.  There were 2 different versions as to who, and in particular the Deceased, sat in which part of the rear. There were 4 rear passengers but only 3 seat belts. The prosecution’s expert, Dr Dao, had examined the 3 seat belts in the rear. He found only 1 being used at the time of the accident. Unfortunately, that particular seat belt, which was located at the nearside rear, was loosened up due to the immense impact of collision. PW3’s version, which was given to the police on 10 June 2009 (i.e. more than 2 weeks after the accident which rendered her unconscious and then badly injured), was that the Deceased was sitting at the offside corner. PW2’s version, which was given to the police on 26 May 2009 (i.e. 2 days after the accident), was that the Deceased was sitting at the nearside corner. Mr. Fong seeks to argue that PW3 might be correct. I do not agree. I accept PW2’s evidence because she received only slight injuries and her statement was given reasonably proximate to the date of the accident. I proceed with the sentencing on the basis that the Deceased had worn a seat belt.

Sentencing principles

Careless Driving

17.  The maximum penalty for careless driving is a fine of $5,000 and 6 months’ imprisonment. The Court may also impose disqualification and re-test orders.

Consequences of offence

18.  It is trite that when sentencing a defendant, the paramount concern ought to be his culpability. However, the consequences of offence cannot be ignored as an incidental consideration.

19.  In The Queen v Pang Kwok Poon CACC 23/1985, the applicant was driving a public light bus at about 8 p.m. in Causeway Road through a road junction. The traffic lights had changed to red against him and the green indicator authorizing pedestrians to cross was shown. It killed two children and injured the third. Roberts CJ, who delivered the judgment in the Court of Appeal, at para. 14, regarded that:

“14. The results which flowed from the risks which the applicant took were tragic in the extreme.  Nevertheless, it would be unfair on the applicant not to consider his culpability, primarily, though not of course exclusively, in relation to the causation of the accident rather than by reference to the results which flowed from it.  (my emphasis)”

20.  In R v Nottingham Crown Court, ex parte DPP [1996] 1 Cr App R (S) 283, at 288, Stuart-Smith LJ observed that:

“It is a cardinal principle of sentencing that the court should take into account when considering the gravity of the offence and the appropriate sentence, the consequences to the victim.  This is because one of the purposes of the criminal law is to assuage the feelings of victims and their friends and relations.  The law must redress their grievance by inflicting an appropriate punishment and then there is no excuse for the victim or his friends to exact their own retribution.”

21.  In HKSAR v Goh Swee Yan CACC 491/1999, the principle was equally adopted where the consequences of offence did not come within the ingredients of the offence. There the applicant was convicted, among others, of evading a liability by deception. Her counsel submitted on appeal that the ingredients of the charge did not involve any loss of money, hence the fact that the victim actually suffered loss of money should not be taken into account in sentencing the applicant. Keith JA, who delivered the judgment in the Court of Appeal, stated as follows in rejecting this submission:

“The argument is that … the ultimate loss of the money was not an ingredient of … the charge of evading a liability by deception.  That may be so, but in our judgment a court is entitled, in determining the proper sentence, to take into account the consequences of a defendant’s offending.  The consequence in this case was that [the applicant] had the use of funds to which she was not entitled, and that she used them in such a way which resulted in [the victim] not being able to recover them.”

22.  In SJ v Chau Wan Fun CAAR 1/2006, the Secretary for Justice applied to review the sentence of 12 months derived from a starting point of 18 months’ imprisonment. There the respondent was pushed to the limits of tolerance as her husband had to resign from his secure job and move out of his quarters at the Jockey Club. Whilst they were packing up, she discovered that her husband had stolen and pawned her personal effects for paying debts. Previously she had already used her life savings to pay up a large debt for him. They had to provide for their 2 young daughters. In the course of argument, she used a knife to stab him. It left him unconscious for 5 weeks in the hospital. He could nearly have been killed. His left leg above the knee had to be amputated. He could not move his limbs or communicate with others. He would remain bed-bound and totally dependent on personal care by others.

23.  Stuart-Moore VP, in applying the principle stated by Stuart-Smith LJ in Nottingham Crown Court (above), substituted a starting point of 6 years on the ground, at para. 25, as follows:

“Given the nature of the attack and the very grave consequences to the victim arising from it, but balancing that with the circumstances of the respondent at the time of the offence, it is our opinion a starting point of 6 years’ imprisonment would have been appropriate on the charge as it stands.  In saying this, we recognize the fact that this offence was committed by a decent person at the end of her tether, and that there was scant premeditation.  (my emphasis)”

Defendant’s personal background and mitigation

24.  The Defendant is 49 years of age. He has a number of previous criminal convictions, the most serious of which resulted in suspended sentences. There were 1 traffic record for careless driving and a lot of traffic tickets for speeding, failure to comply with traffic signs, using a mobile telephone whist driving, etc. He was educated up to secondary school level in the Mainland. He is a contractor at construction sites. He earns between $15,000 and $20,000 per month. He is qualified to drive Classes 1 and 2 vehicles, i.e. private cars and light goods vehicles. He has to drive from one site to another. He has mitigating letters from his aged mother, who is living in the Mainland, his wife, who is a housewife, his children, his long-time friend and his business partner. They all show high regards for him and great worries about his penalty.

25.  He has donated about $5,000 in total to the charities over the last few years but he has lost all receipts except for one in the sum of $1,000 dated 24 August 2009.

26.  His counsel submits, on the consequences of offence as a secondary sentencing factor, that it was a case of a momentary, one-off failure to steer the car properly as it negotiated the bend. The road surface was wet. He asks me to consider calling a community service report. He relies on the case of HKSAR v Chan Ka Chun DCCC 440/2009. He appreciates that that case is not a binding authority. Should I find imprisonment inevitable, he asks for a suspended sentence based on the exceptional circumstance that:

(1)  V1 was overloaded in terms of the number of passengers;

(2)  Although the Deceased had worn a seat belt, his multiple injuries and death were possibly caused by the other rear passengers who had not done so and who knocked against the Deceased due to the immense swirling inside V1.

27.  I do not see these as exceptional circumstances. Wet road surfaces are nothing unusual. Whilst overloading in terms of the number of passengers is illegal on the part of the driver, it does not lighten the consequences of the offence. One must note that the Deceased had been wearing a seat belt and PW1 and PW2, despite wearing seat belts in the front, were also injured. Putting it the highest, the defence submission can only suggest that had the other 3 rear passengers been wearing seat belts, they might have suffered less serious injuries.

Sentencing the Defendant

28.  I have to consider all relevant circumstances. As a primary circumstance, it had to want substantial care and competence, though not as substantial as far below the standard of a careful and competent driver, to get over so much to the adjacent lane and hit V1’s offside body so severely. As a secondary sentencing circumstance, the consequences of the offence were tragic to a quite a number of people. In sum, these can only suggest a jail term “because one of the purposes of the criminal law is to assuage the feelings of victims and their friends and relations. The law must redress their grievance by inflicting an appropriate punishment and then there is no excuse for the victim or his friends to exact their own retribution.” (Nottingham Crown Court, above, per Stuart-Smith LJ).

29.  Given the loss of a human life, I do not find community service a viable option. Out of a maximum of 6 months’ imprisonment, I take 4 months as the starting point. Given his plea of guilty, I reduce it by one-third. His donation in the past has to be recognized but its effect is limited. There are no other mitigating factors. The sentence is 2½ months. I make it 2 months and 2 weeks. As his alleged exceptional circumstances are not substantiated, the sentence has to be served immediately.

30.  In order to protect other road users and himself, I order him to be re-tested for Classes 1 and 2 vehicles. He is also to be disqualified from holding any full licence for such classes of vehicles for 6 months counting from today.