HKSAR v. LAW SIU KIN

DCCC 892/2021

[2022] HKDC 462

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 892 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to summary of facts to a charge of causing death by dangerous driving, contrary to section 36(1)  of the Road Traffic Ordinance, Cap 374 (1^st Charge), a charge of driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, contrary to section 39A(1)  of the Road Traffic Ordinance, Cap 374 (2^nd Charge), and a charge of failing to stop after accident whereby personal injury was caused to a person, contrary to section 56(1)(a)  and (5)  of the Road Traffic Ordinance, Cap 374 (3^rd Charge).

2.  The accident occurred at around 12:50 am on 28 March 2021 at the loading area of Yong Zhuo Logistics, DD52, Lot 339, Hung Kiu San Tsuen, Man Kam To Road, Sheung Shui, New Territories, Hong Kong.

3.  At the material time, the weather was fine, road surface was dry and roughly paved.  No streetlights were set up in the loading area but there was sufficient illumination from the loading platform and the traffic was minimal.

4.  In the evening of 27 March 2021, defendant and his 13 to 14 friends, including the deceased, were having a barbecue party on the elevated loading platform on the right side of the loading area.  Defendant had been drinking and was noticed rambling nonsense and turning agitated.

5.  At 12:30 am on 28 March 2021, defendant wanted to drive off.  He was seen wobbling and unable to walk straight.  His friends urged him not to drive because they found him drunk and told him that it would be dangerous. Defendant did not listen to his friends.

6.  At 12:45 am, he hopped off the loading platform and got into the driver’s seat of the private vehicle SE243 (“the car”).  The car was parked in the loading area.  He turned on the ignition and the headlight.  The deceased chased after him.  He approached the left side of the car, opened the left rear door and said to him loudly, “Don’t drive off.”  Defendant ignored the deceased.  With the left rear door still open, he put the car on reverse and turned the steering wheel to the right.  The car backed up at high speed and the left rear door struck the metal fencing.  Despite the collision, he put the car on forward.  He turned the steering wheel to the left and sped towards the exit.  The deceased was in front of the car when he got knocked down and rolled over twice (1^st Charge).  Defendant did not stop the car.  He just sped off (3^rd Charge).

7.  The deceased later died in hospital despite resuscitation.  Medical report revealed that the deceased suffered, amongst others, abrasions over the right face, distension of the abdomen and deformities over the four limbs.  The direct cause of death was multiple injuries.  The pathologist remarked that the deceased showed extensive blunt impact trauma consistent with being produced by vehicular impact and rolled over.

8.  One of the friends at the scene called the defendant at 1:01 am. Defendant did not pick up his phone but called him back at 1:05 am.  When this friend informed the defendant about the accident and urged him to surrender to the police, the defendant refused.  At 1:40 am, defendant returned to the scene.  He told the police that he was the driver of the car and that he had come back to surrender.  He also told the police the car was parked in a car park about 3 kilometres away from the scene.

9.  At 2:09 am, defendant’s screening breath test detected the presence of alcohol at a concentration of 72 micrograms per 100 millilitres.  His subsequent screening breath test at the police station at 3:20 am detected the presence of alcohol at a concentration of 64 micrograms per 100 millilitres (2^nd Charge).  Defendant was arrested for drink driving after the first screening breath test.

10.  Motor vehicle examination confirmed that there was no mechanical defect in the car although the left rear door was damaged and the window glass of the door was broken.

11.  CCTV of the car park captured that the defendant parked the car at 12:53 am and alighted the vehicle at around 1 am.  He left the car park at 1:05 am and walked back towards the car park at 1:32 am.

Criminal record

12.  Defendant has 2 previous convictions, not similar.  As for the traffic record, the defendant had been convicted of failing to display a valid licence in March 2020 and was fined $320.

Mitigation

13.  Defendant is aged 41.  At time of offence, he was married and lived with his wife.  However, since the offence, the marriage broke down and he is now divorced but he maintained a friendly relationship with his ex-wife.  Defendant received education up to Form 6.  Defendant, it was said, was a hardworking man and had maintained two jobs, both working as a gardener and a logistic worker, earning HK$20,000 per month.

14.  Defence counsel submitted that defendant had been driving since the year 2003 and despite always on the road he has only one conviction for failing to display valid licence, so his traffic record is a good one.

15.  It was said the defendant contributed monthly HK$4,000 to HK$5,000 to his elderly parents.  It was said also that his father lost mobility of his hands due to illness and had poor eyesight.

16.  Defendant’s family is supportive of the defendant in his rehabilitation.  Defence counsel has submitted to this court 7 mitigation letters from the former wife, family members, all of which say that the defendant is a hardworking man with a kind heart and he cares for people around him.  He is also supportive of his family.  He regrets what he has done and has determined to quit alcohol.  They ask that this court would give him a lenient sentence.

17.  It is submitted that at the time of the offence the defendant was in a state of intoxication, ie Tier 2, with 64 micrograms in 100 millilitres.  It was said that because of this mental state that the defendant was not thinking straight and he thought that the deceased was somewhere behind his vehicle when in fact he was in front.  He drove off and was unaware that he knocked down his friend. He now knows how reckless and foolish he was and he will regret for the rest of his life.

18.  It is also said defendant is remorseful as the defendant and the deceased were close friends and they had known each other for 5 years.  It was said that after the accident, in order to show his remorse, he had paid HK$30,000 towards the deceased’s funeral expenses.  The deceased knows that no money can compensate the loss of life or alleviate the pain that he has caused to the victim and also members of his family.

19.  It was also said by defence counsel that defendant had been in custody since the date of the offence and it is the first time that he had been in custody, and that during his time in custody the defendant had time to reflect on himself, his attitude and the tragic effect this incident had on his family as well as that of the deceased’s family.  He vows not to take alcohol any more as he knows the severe effect in impairing his judgment.

20.  Defence counsel said the defendant had pleaded guilty at the first available opportunity, which shows his remorse.  He returned to the scene shortly after the accident and surrendered himself to the police and fully co-operated in the investigation.

21.  Defence counsel asks that this court would give the defendant the sentencing discount in view of his guilty plea.  It is also submitted that, as the offences were proximate in nature, time and location, that the sentences should run concurrently.  She also concedes that the mandatory disqualification period and the driving improvement course requirements can be ordered as there is no special circumstances in this case.

Discussion

22.  Before sentencing, this court has considered all mitigation submissions, mitigation letters submitted by the defence counsel.

1^st Charge

23.  In the case of Secretary for Justice v Poon Wing Kay & Anor [2007] 1 HKLRD 660, the Court of Appeal affirmed that deterrent sentence is called for in sentencing a defendant convicted of dangerous driving causing death because of the grave consequence flowing from the offence.  At the same time, the Court of Appeal recognised that the culpability of the defendant is the dominant factor in the sentencing exercise.  A person convicted of this charge upon indictment is liable to a fine at level 5 and to 10 years’ imprisonment.

24.  Defendant is a logistic worker which requires him to drive a lorry on a daily basis.  In this case, a young person aged 27 died as a result of defendant’s committing the offence, who was said to be a close friend of the defendant.

25.  In the case of HKSAR v Lee Yau Wing, CACC 282/2012, the Court of Appeal emphasised that, in sentencing, the focus is on the culpability of the defendant’s driving and, therefore, his clear record and general good character carries little weight.  The dominant sentencing principle is general deterrence with principles of retribution and denunciation being also of relevance.

26.  In relation to this charge, the 27-year-old victim acting in his good faith to prevent his good friend from making trouble was killed by the defendant instead.  No doubt his family and friends felt aggrieved and devastated by his death.

27.  Again, in the case of Secretary for Justice v Lam Siu Tong, [2009] 5 HLLRD 601, the Court of Appeal was of the view that there was no acceptable excuse for dangerous driving and nothing could justify the loss of a life or lives consequent upon it.  Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine.  The courts would not show leniency to any driver who had endangered the lives and safety of other road users.  It is said therefore that good character and remorse must not be given undue prominence in sentencing for this offence. This counted very little or not at all for the family and all those connected with the victim, who died as a result of an act or omission that could have been avoided.

28.  Here, the defendant had consumed alcohol to the extent that he was seen wobbling and unable to walk, and this is a Tier 2 upper limit alcohol intoxication driving case.  Defendant failed to heed his friends, including the deceased, who dissuade him from driving, and he killed the deceased when the latter tried to stop him from driving.

29.  The manner of dangerous driving of the deceased at the time was not a mere momentary error of judgment but rather a selfish disregard by him for the safety of other road users.  He should have known the risk posed to others when he chose to drive, despite warnings, in this mental state.  Defendant also failed to stop after the accident.  Facts of the case show that the deceased was rolled over 2 times.  The facts as agreed also reveal that at first instance the defendant refused to surrender himself when he returned the call from his friend after he parked his car in the car park few kilometres away from the accident site.  He later changed his mind half an hour later and surrendered himself.

30.  Failing to stop is an aggravating feature in sentencing as they add to the culpability of the defendant.

31.  Considering the circumstances of the case, the appropriate sentencing starting point is 2 years 9 months’ imprisonment.  Defendant has pleaded guilty.  This court is prepared to give him the full one-third sentencing discount. 

32.  It is said the defendant is remorseful as he had killed the deceased who was his close friend.  In the case of Secretary for Justice v Tsang Ho Pong [2009] 6 HKC 389, it is said that any credit for remorse will invariably be subsumed in discount given for the guilty plea.

33.  Defendant also alleged that he felt shocked that he killed his friend but this allegation of shock was not supported by any medical or psychiatric evidence or particulars.  The court has no idea as to whether he has suffered exceptional mental injury or trauma as a result of the accident or the extent of which it existed.  This is not therefore a useful mitigating factor as envisaged in the Cooksley case, as followed in the Secretary for Justice v Liu Kwok Chun case [2011] 1 HKC 70.

34.  Accordingly, defendant is sentenced to 22 months’ imprisonment for this charge.

35.  This is the defendant’s first conviction of the offence.  Defence counsel has conceded that there is no special reason why the defendant should not be disqualified by reason of the conviction of this charge.  Defendant is therefore disqualified from holding or applying for driving licence of all classes of vehicles for 5 years from today’s date.

36.  Defendant is further ordered to attend and complete a driving improvement course pursuant to section 72A(1)  of the Road Traffic Ordinance at his own cost, the same to be completed within the last 3 months of the disqualification period.  This court warns the defendant that if he fails to complete the course within the specified period, he might have breached section 72A(9)  of the Road Traffic Ordinance and is liable to a fine of level 2 and to imprisonment for 1 month and that, even on the expiry of the disqualification period, he would not be allowed to apply for, obtain or hold any driving licence of any class until he has completed the driving improvement course.

2^nd Charge

37.  A person convicted of this charge on indictment is liable to a fine at level 4 and to imprisonment for 3 years. 

38.  The proportion of alcohol in the defendant’s breath is Tier 2 upper limit.  This is the first conviction of defendant of this charge.  The appropriate sentencing starting point is 9 months and the defendant is again entitled to full one-third sentencing discount by reason of his guilty plea. He is therefore sentenced to 6 months’ imprisonment for this charge.

39.  In sentencing of the 1^st charge, the court had already considered the fact that the defendant was driving in this self-intoxicated state and therefore the sentence for this charge would run totally concurrent to the sentence in the 1^st charge. 

40.  Defendant is further disqualified from holding or applying for any driving licence of any classes of vehicles for a period of 12 months from today’s date.  This disqualification order shall run concurrent with the disqualification order under the 1^st charge.

3^rd Charge

41.  A person convicted of this offence is liable to a fine of $10,000 and to imprisonment for 12 months. 

42.  This is the first conviction of the charge for the defendant.  The defendant did return to the scene an hour later and although he had left the scene at the time, the deceased was cared for by the others present at the scene.  The appropriate sentencing starting point is 3 months’ imprisonment and, under the circumstances, he is again sentenced to 2 months’ imprisonment by reason of his guilty plea.

43.  Likewise, the court had considered the offence as an aggravating feature in sentencing for the 1^st charge and, accordingly, sentence of this charge is also to run wholly concurrent to the sentence in the 1^st charge.

44.  Defendant is therefore sentenced to a total of 22 months’ imprisonment for this case.