HKSAR v. WONG YEE KI

DCCC 570/2020

[2021] HKDC 308

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 570 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following charges:-

1^st Charge - Causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374;

2^nd Charge - Causing grievous bodily harm by dangerous driving, contrary to section 36A(1) of the Road Traffic Ordinance, Cap 374;

3^rd Charge - Failing to stop after accident whereby personal injury was caused to other persons, contrary to section 56(1)(a) and (5) of the Road Traffic Ordinance, Cap 374; and

4^th Charge - Failing to report an accident involving personal injury to other persons, contrary to section 56(3) and (6) of the Road Traffic Ordinance, Cap 374.

SUMMARY OF FACTS

2.  The accident took place at small hours on 31 August 2019 at around 0215 hours near lamppost AD3976, Kiu Hing Road, Yuen Long, New Territories (“Accident Location”).

3.  Kiu Hing Road is a one lane two way road which formed a T-junction with a village road (“the Junction”) leading to Muk Kiu Tau Tsuen.  The Accident Location was very close to the Junction.

4.  On 31 August 2019 at around 0215 hours, Ng Chun Pong (male, aged 35) (“the Deceased”) and Chan Chi Hin (male, aged 25) (“the Victim”) were riding bicycles along Kiu Hing Road towards south on their way home.  Upon reaching the Accident Location, the defendant, who was driving a private car bearing registration mark KB1628 (“the Car”), rammed into them from behind resulting in a death of Ng Chun Pong and a serious injury of the Victim. (“the Accident”)

5.  On the same day at around 0226 hours, Lam Wa Yung (“PW6”), who was the security guard of Chun Fai Garden, revealed the Accident.  PW6 saw a woman, who was talking on the phone and crying, walking towards Pak Sha Tsuen.  PW6 then reported the case to the police.

6.  At around 0244 hours, Ambulanceman 13994 (“PW4”) arrived at the scene.  The Deceased was found lying on the nearside of the Junction with fatal head injury.  He was certified dead by PW4 at the scene.  The Victim was found lying at the offside road in front of the Car.  It was about 20 to 30 meters away from the Junction.  Principal Ambulanceman 12788 (“PW5”) found the Victim was unconscious with his right arm bleeding and left leg fractured.  The Victim was then conveyed to Tuen Mun hospital (“TMH”).

7.  At around 0243 hours, PC 20565 (“PW1”) attended the scene.  He found a damaged black bicycle besides the Deceased.  He could not locate the driver of the Car at the scene.

THE ARREST OF THE DEFENDANT

8.  On the same day at around 1830 hours, the defendant surrendered herself to the police in the presence of her lawyer.  She confirmed she was the driver of the Car at the material time and signed the “Notice Requiring the Identification of Driver” (Pol 571).  The defendant was then arrested.  Under caution, she remained silent.

POLICE INVESTIGATION

9.  At the material time, the weather was fine with manageable visibility.  The road surface was dry and in good repair.  The traffic volume was light and the speed limit was 50 km/h.

10.  The Victim could not recall the course of the Accident after the injury. He confirmed the Deceased was his friend.

11.  No mechanical defect was found on the Car.  DNA of the Deceased and the Victim were found on the front bumper and the roof of the Car.  CCTV1 of In Keen Garden captured and revealed that the Deceased and the Victim were riding bicycles along Kiu Hing Road and the Car passed the In Keen Garden at a very high speed towards the same direction.

12.  CCTV2 of Wah Yuen captured the Accident, it revealed that the Deceased and the Victim were riding bicycles along Kiu Hing Road; and the Car approached them from behind at a very high speed and hit the Deceased and the Victim; and the Car kept moving forward.

13.  Government Chemist Dr Poon Ka Chun (“Dr Poon”) reconstructed the Accident.  He concluded that the speed of the Car was about 117 km/h (+ 12 km) in the footage of CCTV1, and that the brake light was on at 01:57:47 (actual time 02:23:47) in the footage of CCTV1 which means the driver could have perceived the Deceased and the Victim as a danger at 01:57:46 (actual time 02:23:46); and at that point, the Car was about 50 meters from the point of impact; the Accident could be avoided even if the driver had driven the Car at 60 km/h at 01:57:46 (actual time 02:23:46).

14.  He also concluded that the brake light was on at 02:19:43 (actual time 02:24:23) in the footage of CCTV2, and the speed of the Car was about 91 km/h in the footage of CCTV2.

MEDICAL FINDINGS

The Deceased

15.  According to the autopsy report, the cause of death of the Deceased was multiple injuries.

The Victim

16.  The Victim was admitted to the Accident and Emergency Department of TMH on 31 August 2019.  Medical examination revealed the following conditions:-

(a)  Scalp wound with bleeding;

(b)  Wounds over four limbs;

(c)  Left leg was deformed;

(d)  A linear fracture over left superior facet of C4 vertebral body;

(e)  Comminuted fracture over anterior – inferior of C5 vertebral body.

17.  He was transferred to the Orthopaedics & Traumatology Department of TMH and was found to be suffering from:-

(a)  Multiple facial lacerations;

(b)  Bilateral upper limb lacerations and left tibia and fibula open fractures;

(c)  Pulmonary contusion;

(d)  Fracture of left superior facet of the 4^th cervical and 5^th cervical vertebra;

CONCLUSION

18.  At all material times,

(a)  the defendant was speeding excessively;

(b)  the defendant failed to stop the Car when there were other road users;

(c)  the defendant failed to maintain a proper lookout and to ensure the safety of other road users.

19.  As such, the way the defendant drove fell far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous. 

Mitigation

20.  The defendant is now aged 26.  She is widowed and has a son who is aged 4.  She got married in 2017, but within one year her husband committed suicide leaving her as the sole provider for her newly born child.  She is now living with both her mother (aged 48), her stepfather (aged 53), her two younger sisters (aged 12 and 14) and her stepfather’s son (aged 28) in the family home.

21.  For the past year, the defendant has been working in internet sales, earning around HK$20,000 per month.  She gives her mother $10,000 per month.

22.  The defendant has regularly taken part in charity events such as distributing food to the needy.

23.  The defendant has held a driving license since 2017.  She has two convictions for speeding both of which were exceeding the speed limit by less than 30 kph and three other matters all of which were dealt with by fixed penalty fines.  She has no driving convictions and no record of careless or dangerous driving.  The defendant had not committed any traffic violations for nearly a year before this incident.

24.  The defendant’s only criminal convictions were for drug related matters, the most recent being in 2012, when she was aged 16.

Remorse

25.  Counsel for the defendant, Mr Davies submitted that the defendant is obviously remorseful for what happened that day.  She has pleaded guilty at the earliest opportunity.  Although she did not immediately report the matter to the police, because she was in shock, she did turn herself in later the same day and admit that she was the driver at the time.

26.  Following the incident, she did locate the undertakers who were handling the deceased and offered to pay the funeral expenses.  She paid an initial deposit of HK$1,200.  Soon after, however, the family of the deceased changed undertakers and the defendant could not make further payments.

27.  The victim of the 2^nd charge has also written a letter on behalf of the defendant asking the court to treat her leniently.

28.  Mr Davies submitted that all charges arose out of the same incident and therefore all sentences should run concurrently.

29.  He further submitted that there are no sentencing guidelines for Dangerous Driving cases which cause death or grievous bodily harm, and each case depends on the facts of the case.

30.  His observation is that in the present case, the main factor is that the defendant was driving at a high speed and was unable to stop before colliding with the victims.  There were no other aggravating factors, such as dangerous overtaking or alcohol or drug consumption.

31.  Although the speed was excessive, Mr Davies submitted that it cannot be said to be in the extremely high-speed category and that this is not the most serious example of Dangerous Driving causing death or grievous bodily harm.

32.  Regarding the charge of failing to stop after an accident, he submitted that it is not apparent that this would have lessened the injuries to either of the victims because others attended the scene soon after and contacted the emergency services immediately.

33.  Similarly, for the charge of Failing to Report after an Accident, he submitted that the defendant did soon after attend a police station and admit that she was the driver.

34.  Mr Davies submitted that in light of the facts of the case, the defendant’s previous reasonably good driving record, her background and her own rather tragic life as well the defendant’s obvious remorse, this is a case which leniency is called for, and he asked the court to impose the minimum possible sentence on the defendant.

Sentence

35.  In sentencing the defendant, I have carefully considered the facts admitted by the defendant, all that has been put forward in mitigation by Mr Davies on behalf of the defendant, as well as the contents of the letters seeking leniency on behalf of the defendant.

1^st Charge - Dangerous driving causing death

36.  The maximum penalty for the offence of dangerous driving causing death is 10 years’ imprisonment on conviction on indictment and a fine at level 5, namely $50,000[1]. It is further provided that a person convicted of the offence shall be disqualified for a period of not less than 5 years in the case of a first conviction, unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.  The Ordinance also provides that the court shall also order that the person attend and complete a driving improvement course.

37.  In the judgment of the case for Secretary for Justice v Ng Hop Sing also known as Ng Hop Shing[2], the Court of Appeal stated in paragraphs 35 to 40 of the judgment that:-

“It is never an easy task to sentence a defendant convicted of dangerous driving causing death. In these cases, most of the defendants are persons of good character and in normal circumstances they have never thought of going to jail.

The courts have emphasised many times that a vehicle in control by an irresponsible driver could be a deadly lethal weapon that could cause great loss of human lives and property damage.

And, in order to deter dangerous driving by irresponsible drivers and in order to avoid loss and injury to human lives and property damage, the court would generally sentence defendants convicted of dangerous driving causing death to immediate custody sentence.

As Lord Woolf CJ in the case of R v Cooksley [2003] 3 All ER 40 on page 46 of the judgment stated:

‘A factor that courts should bear in mind in determining the sentence which is appropriate is the fact that it is important for the courts to drive home the message as to the dangers that can result from dangerous driving on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standard of driving. Motor vehicles can be lethal if they are not driven properly and this being so, drivers must know that if as a result of their driving dangerously a person is killed, no matter what mitigating circumstance, normally only a custodial sentence will be imposed. This is because of the need to deter other drivers from driving in a dangerous manner and because of the gravity of the offence.’

….

The Court of Appeal in Hong Kong, in the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, adopted the sentencing principle and guideline in Cooksley. The Court of Appeal emphasised, due to the serious consequence of the offence, there is a need for deterrent sentence.”

38.  In R v Cooksley and Others[3], it sets out a number of aggravating features of dangerous driving causing death.  It also sets out a number of mitigating factors. 

39.  In  Secretary for Justice v Poon Wing Kay[4], paragraph 10(4), the Court of Appeal said:-

“While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor. It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence …”

40.  In Cooksley, it classified dangerous driving causing death cases into four categories:-

(1)  For cases with no aggravating circumstances, the starting point should be 12 to 18 months’ imprisonment;

(2)  Two to three years’ imprisonment for offences of intermediate culpability;

(3)  Four to five years’ imprisonment for offences of higher culpability; and

(4)  Six years’ imprisonment or over for offences of the most serious culpability.

41.  In Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70 CAAR 3/2009 and CACC 34/2009, a case of dangerous driving causing death, the Court of Appeal listed the aggravating and mitigating factors that the sentencing court must take into account.

42.  I have carefully considered the list of aggravating[5] and mitigating[6] factors helpfully set out in Liu Kwok Chun case as well the cross-check[7] table of suggested sentence in Cooksley in respect of the four categories of culpability.

43.  There are certainly some aggravating features in the facts of the present case.

44.  In the present case, the causes of accident were the defendant driving in excess speed causing serious injury to one victim, in addition to the death of Mr Ng.

45.  I had watched CCTV1 and CCTV 2 before sentence.  Given the speed limit of 50 km/h, and that the layout of Kiu Hing Road is a one lane two way road which formed a T-junction with a village road, I find that the defendant was driving in excess speed under those circumstances.

46.  Despite the aforesaid, I accept defence’s submission that although there was excessive speed, this is not the most serious example of Dangerous Driving causing death or grievous bodily harm.

47.  Mr Davies submitted that although the defendant did not immediately report the matter to the police, because she was in shock, she did turn herself in later the same day and admit that she was the driver at the time.

48.  In Liu Kwok Chun case, the Court of Appeal approved in that case the sentence of the 2^nd charge (ie failing to stop after accident whereby personal injury was caused to another person) to run consecutively to the sentence of the 1^st charge (ie dangerous driving causing death). 

49.  As a matter of fact, the defendant left the scene despite of knowing the deceased Mr Ng and the victim Mr Chan had been hit by her car and were seriously injured.

50.  As the defendant has been separately charged with two other offences for failing to stop and failing to report an accident involving personal injury to other persons after the accident, I am not going to take into account those factors when sentencing for the offence of dangerous driving causing death.

51.  By reasons of the aforesaid, my view is that this case should fall within the category of middle end of the Intermediate culpability.

52.  Having considered all the above circumstances, I take 2 years and 6 months’ imprisonment as the starting point for the 1^st charge.  After the full one third discount on the starting point, the sentence is reduced to 20 months.

2^nd Charge - Causing grievous bodily harm by dangerous driving

53.  The maximum penalty for a section 36A offence is 7 years’ imprisonment and a fine at level 5 ie $50,000.  A conviction also carries a mandatory disqualification for a specified minimum period unless special reasons exist.

54.  With the above aggravation in mind, I am satisfied that the defendant’s driving belongs to the middle end of the intermediate culpability range of seriousness.

55.  I am satisfied that a notional starting point of 2 years and 6 months would not have been too high had the offence been dangerous driving causing death.

56.  However, the 2^nd charge is dangerous driving causing grievous bodily harm and therefore an allowance must be made to take into account of the lower maximum sentence and obviously the less serious consequences flowing from the dangerous driving conduct.

57.  I am satisfied that a starting point of 18 months would fit the defendant in the overall circumstances of the offence.  For her early plea, I give her full credit and take away one-third.  That comes down to 12 months.

3^rd Charge - Failing to stop after accident

58.  In respect of the 3^rd charge, that is the offence of failing to stop after the accident, the maximum sentence for the offence is a fine of $10,000 and 12 months’ imprisonment.

59.  The deceased and the victim was known by the defendant to be severely injured but the latter chose to leave the scene without stopping and making a report immediately.

60.  The defendant is leaving the deceased and the victim unattended in a village road at small hours.  Although the deceased and the victim were attended to by the ambulanceman not long after the accident, the defendant’s reaction was utterly irresponsible and selfish.

61.  I take 6 months’ imprisonment as the starting point.  After 1/3 discount for her guilty plea, the sentence is reduced to 4 months.

4^th Charge - Failing to report an accident involving personal injury to other persons

62.  In respect of the 4^th charge, the maximum penalty is fine of $15,000 and 6 months’ imprisonment.  I take a starting point of 3 months’ imprisonment which is reduced to 2 months after 1/3 discount due to her guilty plea.

Disqualification order

63.  For the 1^st charge, there is mandatory disqualification of not less than 5 years in the case of a first conviction unless the court for special reasons orders that the person to be disqualified for a shorter period or that the person not be disqualified.

64.  For the 2^nd charge, there is mandatory disqualification of not less than 2 years in the case of a first conviction unless the court for special reasons orders that the person to be disqualified for a shorter period or that the person not be disqualified.

65.  I can see no special reasons not to disqualify the defendant.  I now order her to be disqualified from holding or obtaining a driving licence for all classes of vehicles for 5 years for the 1^st charge and 2 years for the 2^nd charge to be run from today and concurrently with each other.

66.  I also make an order under section 72A(1A) of the Road Traffic Ordinance, Cap 374, there being no special reasons against the making of an order, that she must at her own expense attend and complete a driving improvement course within the last three months of the expiration of the period of disqualification of 5 years.

67.  The defendant is also warned that it is an offence not to attend and complete the driving improvement course and that she remains disqualified until she attends and completes the driving improvement course, notwithstanding that the disqualification period may already have ended.

68.  Taking into account of the totality principle, I order that:-

(i)  12 months of 2^nd charge be served concurrently with 1^st charge;

(ii)  2 months of 4^th charge be served concurrently with 3^rd charge;

(iii)  2 months of 3^rd charge be served consecutively to 1^st charge.

69.  As such, the total sentence imposed on the defendant for all the four counts she pleaded guilty to is one of 22 months’ imprisonment.

70.  However, as a reflection of the mitigating factors of her surrender to the police and participation in charity events, I give a further deduction of 2 months to the overall sentence.

71.  Therefore, the total sentence imposed on the defendant for all four counts she pleaded guilty to is one of 20 months’ imprisonment.