HKSAR v. CHAU PO

DCCC 508/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 508 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant faces one charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374 (hereinafter referred to as “Charge 1”) and another charge of using a defective vehicle, contrary to regulations 28(2) and 121(1) of the Road Traffic Ordinance, Cap 374 (hereinafter referred to as “Charge 2”).

2.  The statement of offence of Charge 1 reveals that the defendant, on 2 November 2016, at Shing Fung Road near Kai Tak Cruise Terminal, Kwun Tong, Kowloon, in Hong Kong (hereinafter referred to as the “Accident Location”), caused the death of Leung Wing Hon (hereinafter referred to as “the Deceased”), by driving a motor vehicle, namely, a private car bearing registration mark RJ9310 (hereinafter referred to as “the Vehicle”), on a road dangerously.

3.  The statement of offence of Charge 2 reveals that the defendant, on the same day, at the Accident Location, used the Vehicle, on a road where both side windows glass were attached with tinted films that reduced the abilities of the glass to transmit light.

4.  The defendant pleaded guilty for both charges before me on 1 December 2017.  He was convicted of them accordingly.

5.  From the Amended Summary of Facts agreed by the defendant, this court was informed that at around 10:36 pm on 2 November 2016, a fatal accident had occurred at the Accident Location which involved the Vehicle and the Deceased (hereinafter referred to as “the Accident”).  The Accident Location was a straight road consisted of two lanes, each towards different direction, separated by intermittent white lines.  The prescribed speed limit was 50 km/h. At the time of the Accident the weather was fine and road surface was dry and in good condition.  There was sufficient lighting from street lamps and the traffic was smooth.

6.  Shortly before the Accident, the Deceased was cycling with his brother (hereinafter referred to as “PW4”) and a friend of theirs (hereinafter referred to as “PW5”) in sequence along Shing Fung Road, towards Kowloon Bay.  Their speed was about 30-35 km/h.  They were all wearing protective gears, with their bicycles equipped with front and back lights.

7.  Meanwhile, on the other side of the same stretch of Shing Fung Road, another cyclist, Mr Wong Pak Hung (hereinafter referred to as “PW1”), was riding his bicycle at the opposition direction at a speed of about 45 km/h.

8.  The Vehicle, driven by the defendant was originally travelling behind and in the same direction as PW1.

9.  When the Vehicle reached the Accident Location it overtook PW1’s bicycle by going into the opposite lane where the Deceased, PW4 and PW5 were cycling along.  It was estimated that the Vehicle was travelling, at that very juncture, at a speed of about 70-80 km/h.

10.  It then resulted in a head-on collision between the Vehicle and the Deceased.

11.  The Deceased was observed to have been cycling about 3-feet away from the pavement nearest to him immediately prior to the said collision.

12.  There was no light signal or honking on the part of the Vehicle prior to the said collision.

13.  PW4 and PW5 were able to swerve away and avoided any collision with the Vehicle but they both lost control of their respective bicycles and fell to the side of the road.

14.  No skid mark was found at the Accident Location.

15.  The Deceased was taken to hospital.  He died the following morning as a result of the said collision.

16.  Motor vehicle examination revealed that both side window glass of the Vehicle were attached with tinted films that reduced the abilities of the glass to transmit light.

17.  Ms Flora Cheng, counsel for the defendant told this court that the defendant is a 45-years-old married man.  He was, prior to the present remand, living with his parents, his wife and his 11-years-old son.

18.  He is the youngest amongst 3 siblings.  With his two elder brothers already moved away, married and lived apart.  The defendant is now the person who is mainly responsible for taking care of his parents.

19.  The defendant’s wife works at a hotel as a housekeeper earning at a monthly salary of HK$12,000.  The defendant’s son is studying at primary school.

20.  The defendant himself used to work as a decoration worker with an average monthly income of HK$15,000.

21.  This court was told that there is no traffic-related-conviction committed by the defendant in the past.

22.  As for past criminal convictions, the defendant had been sentenced by various courts on 4 different occasions.  Insofar as sentencing the defendant is concerned, Ms Cheng urged this court to consider that these sentences took place a long time ago when the defendant was relatively young (the last of which was in 1997) and that they were all dissimilar in nature to the current charges faced by the defendant.

23.  Ms Cheng also informed this court that the Vehicle was purchased by the defendant the day preceding the Accident.  The defendant discovered shortly after receiving the Vehicle that there was some problem with its oil tank and thus he took the Vehicle to the garage for checking.

24.  On the day of the Accident the defendant got the Vehicle back from the garage and took it  ̶̶  to the area where the Accident Location was situated  ̶  for a test drive.  The reason being that the Accident Location was, to the defendant’s mind, not a crowded area.

25.  Whilst driving along the said Shing Fung Road, the defendant saw a number cyclists riding their bicycles  ̶  along the same direction  ̶  in front of him.

26.  The defendant also saw a public light bus travelling in front of him along the same direction as his.  This public light bus overtook some of the cyclists by their off-sides.  This piece of information was confirmed by the prosecution according to what was witnessed by witnesses present at the Accident Location at the material time.

27.  Upon seeing the said manoeuvre by the public light bus, the defendant then followed-suit shortly afterwards when the Vehicle reached the Accident Location.

28.  The defendant noticed that there were two bicycles travelling  ̶  more or less parallel to each other  ̶  along Shing Fung Road right in front of the Vehicle. One of these bicycles was ridden by PW1 (which was further away from the pavement when compared with the other bicycle).

29.  To the defendant, PW1 was travelling at a speed of about 35-40 km/h.

30.  In order to overtake PW1’s bicycle, the defendant decided that he needed to speed up the Vehicle and go pass PW1’s bicycle via its off-side.  As a result of which, he drove the Vehicle into the opposite lane which ultimately took away the life of the Deceased.

31.  Ms Cheng, on behalf of the defendant, told this court that there is no evidence to suggest that the defendant was speeding over a long period of time.

32.  Further, immediately after the collision, the defendant stopped the Vehicle, alighted from it and raised both of his hands and apologised.  This, as I am being told, was supported by witnesses who were present at the Accident Location at the time.

33.  Ms Cheng urged that the defendant was remorseful towards his misdeeds at the earliest stage.

34.  This court was also told that the defendant never drive again ever since the Accident.

35.  Mitigation letters written by the defendant’s parents, his wife and his friends were submitted to the court.  It is clear from these letters that for the past 20 years or so the defendant had been living a responsible life as a husband, a son and a father.

36.  In sentencing the defendant, this court must take into account the defendant’s manner of driving at the material time.

37.  On the one hand, this court accepts those submissions  ̶  made on behalf of the defendant by Ms Cheng  ̶  that are favourable to him.  In particular, this court accepts that the decision to overtake was a judgment of error on the part of the defendant. This court also accepts that it was, in all likelihood, a split-second’s decision which was encouraged, to a certain extent, by the manoeurve of the preceding public light bus.

38.  Having said that however, what the defendant ultimately did is to overtake two bicycles that were travelling almost parallel to each other.  And in order to facilitate that manoeurve, the defendant decided to speed up the Vehicle and went into the opposite lane.  The result, as we now know, costed the life of a 23-years-old man.

39.  The Court of Appeal said in the past that it is hard in sentencing offenders in causing death by dangerous driving cases, the reason being that some of these defendants  ̶  who were persons that had never transgressed the law before  ̶ would need to be sentenced to a relatively lengthy term of imprisonment due to the seriousness of the offence.

40.  In your case, defendant, as your counsel Ms Cheng correctly pointed out, for the Charge 1, immediate custodial sentence is something that cannot be avoided.

41.  Taking into account of the diligent submissions made on your behalf by Ms Cheng, the manner in which you have committed Charge 1, I take 12-months-imprisonment as the starting point.  In view of your guilty plea, you are entitled to a 1/3 discount thus reducing it to 8 months.  I will give you a further 1 month’s reduction due to the absence of any traffic-related-conviction in the past on your part.

42.  For the Charge 1, therefore, you are sentenced to a term of 7-months-imprisonment.  You will also be disqualified from driving for 5 years and shall complete a mandatory driving improvement course and retake a driving test before your driving licence can be restored.

43.  For the Charge 2, you are fined for HK$2,000.00.