HKSAR v. CHAN KIN FUNG

DCCC 659/2018

[2019] HKDC 886

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 659 OF 2018

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The defendant is convicted upon his own guilty plea of the first charge of causing death by dangerous driving and the second charge of using a defective vehicle.

FACTS

2.  The accident took place on Sha Tau Kok Road – Wo Hang (the “Road”).  The relevant sections of the Road had two lanes, one was Sha Tau Kok-bound and the other Sheung Shui-bound.  The two lanes were separated by broken lines and the speed limit was 50 km/hour.  At the material time, the weather was fine and the Road was dry.

3.  At about 10:16 am on 15 January 2018, PW2 was driving his private car (“PW2’s car”) on Sha Tau Kok-bound of the Road at about 50 km/hour.  PW3 was driving his car (“PW3’s car”) directly behind PW2’s car, and the defendant was driving private car HS8869 (“D’s car”) behind PW3’s car.

4.  When PW2’s car was travelling about 3 km before the accident location which was near Ma Tseuk Leng San Uk Ha, D’s car entered the opposite lane of the Road, ie Sheung Shui-bound of the Road, and overtook PW2’s car and PW3’s car in one go.  D’s car then returned to Sha Tau Kok-bound of the Road.  The front and rear car camera of PW2’s car captured the incident.  Having examined the footage, a forensic scientist estimated that D’s car was travelling at a speed of 109 km/hour.

5.  At about 10:17 am on the same day, PW3 was driving PW3’s car on Sha Tau Kok-bound of the Road at about 50 km/hour in front of D’s car.  At about 310 m before the accident location, D’s car entered the opposite lane of the Road and overtook PW3’s car.  D’s car then returned to Sha Tau Kok-bound of the Road. PW3 estimated D’s car was travelling at a speed of 80 to 90 km/hour.

6.  Around 250 m before the accident location, there was a farmer’s car in front of D’s car.  There was no car in front of the farmer’s car.  D’s car entered the opposite lane of the Road to overtake the farmer’s car, but a medium-sized truck reversed from a warehouse entrance/exit off the Road onto that opposite lane and occupied half of that opposite lane.  D’s car squeezed through the gap between the farmer’s car and the truck.  PW3 estimated D’s car was travelling at a speed of 80 to 90 km/hour.

7.  PW3 said about 2 seconds after D’s car re-entered its original lane, i.e. Sha Tau Kok-bound of the Road, a pedestrian subsequently found to be 78-year-old Lee Kin Chai (the “Deceased”) was thrown into the air, and flew from that lane onto the opposite lane.

8.  At the material time, PW1 was driving his truck (the “Truck”) on the opposite lane, i.e. Sheung Shui-bound of the Road.  There was no car within 100 m in front of the Truck.  Within this 100 m, there were bus stops on both sides of the Road, a safety island and three side-roads.  The Deceased collided with the front of the Truck but was not rolled over by the Truck.  PW1 got out of the Truck, inspected the Deceased and found a pool of blood underneath the Deceased’s head.

9.  The defendant pulled over D’s car about 15 m from the back of the Truck.  PW1 berated the defendant for dragging him into the accident.  The defendant said the Deceased rushed out, did not respond to his horn, and continued walking.

10.  PW1 estimated that D’s car was travelling at 50 km/hour after it had hit the Deceased, but D’s car did not significantly reduce its speed after having hit the Deceased.

11.  Ambulancemen arrived at the accident location soon afterwards.  The Deceased was bleeding heavily from the back of his head, and did not have any pulse or breath.

12.  The Deceased was taken to the hospital and certified dead.  Autopsy revealed, inter alia, that the Deceased had multiple rib fractures and lacerations in the head, lungs, heart and spleen.

13.  Upon investigation by the police at the accident location, the defendant said:-

(i) he was driving on the Road towards Sha Tau Kok at about 50 km/hour;

(ii) when he reached the accident location, the Deceased suddenly ran out from the back of a car travelling on the opposite lane, and crossed the Road;

(iii) he therefore sounded horn, swerved to the left and braked his car;

(iv) however, the front right part of his car collided with the Deceased and caused him to fall; and

(v) when his car swerved to the left, the left front wheel of his car collided with the kerb. The left front tyre of his car therefore burst, and he lost control of his car which continued moving forward until it stopped.

14.  As a result of the accident, D’s car had the following damage:-

(i) an approximately 32 cm crack on the right front bumper;

(ii) an approximately 26 cm x 80 cm dent on the right front fender;

(iii) a dislodged and broken right front side mirror;

(iv) an approximately 36 cm x 50 cm fracture on the right front windscreen;

(v) damaged right front lamp;

(vi) damaged left front wheel and tyre; and

(vii) scratches to the right front door and bonnet.

15.  A motor vehicle examiner later examined D’s car and found that the windows of both of the side doors of D’s car were fitted with tinted films that reduced the ability of glass to transmit light.

16.  The defendant admitted that he drove D’s car on the Road dangerously and caused the death of the Deceased.  The defendant drove dangerously by failing to keep a proper lookout and driving at excessive speed.  The defendant also admitted that he used D’s car on the Road where both sides front door window glass of D’s car were attached with tinted films that reduced the ability of the glass to transmit light.

PREVIOUS RECORD

17.  Prior to the commission of the present offences, the defendant had two criminal convictions, one being smoking/injecting dangerous drugs sentenced to DATC in 2005, and the other being possession of dangerous drugs sentenced to DATC in 2012.  Further, he was convicted of the following traffic offences:-

(i) driving in excess of speed limit by more than 30 km/h but not more than 45 km/h (offence date: 6 June 2013);

(ii) driving in excess of speed limit by more than 15 km/h but not more than 30 km/h (offence date: 6 June 2013);

(iii) failing to stop after accident (injury and damage) (offence date: 6 August 2014);

(iv) failing to report after accident (injury and damage) (offence date: 6 August 2014);

(v) using a mobile telephone or other telecommunications equipment or an accessory to such telephone or equipment while the vehicle is in motion (offence date: 7 May 2016);

(vi) driving in excess of speed limit by 15 km/h or less (offence date: 11 May 2016);

(vii) driving in excess of speed limit by more than 15 km/h but not more than 30 km/h (offence date: 16 August 2016);

(viii) driving in excess of speed limit by 15 km/h or less (offence date: 20 February 2017); and

(ix) careless driving (offence date: 8 August 2017)

18.  The defendant was born in July 1980 and is now 38 years old.  He has received education up to Form 3 level.  He is married with four children respectively aged 2, 4, 9 and 12.

MITIGATION

19.  In mitigation, it was submitted that the defendant was the sole bread winner of the family.  At the time of the offence, he was a delivery driver and he is currently a casual delivery worker earning about HK$20,000 a month.  Three mitigation letters respectively from the defendant, his wife and his parents were submitted to this court asking for leniency.

20.  Mr Simon Yip, counsel for the defendant, submitted to this court Secretary for Justice v Lau Sin Ting CAAR 3/2010, HKSAR v Sheung Kun Hoo Daniel CACC 56/2010 and HKSAR v Tsang Wai Hung CACC 6/2015 for the court’s reference.  Mr Yip submitted that the seriousness of the present case was similar to that of Lau Sin Ting and Tsang Wai Hung, and not as bad as in Sheung Kun Hoo Daniel.  As to the disqualification period and driving improvement course, Mr Yip said he had no submission.

SENTENCE

21.  I have carefully considered the cases submitted by Mr Yip.  I note that Tsang Wai Hung was an appeal against conviction only.  I have also considered HKSAR v Hui Wang Chin CACC 158/2012 in which the appellant was driving his car at a speed prior to collision at 47 km/hour which was below the speed limit.

22.  In HKSAR v Lee Yau Wing CACC 282/2012, the applicant appealed against the imprisonment sentence imposed on him as a result of his guilty plea to the charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of Cap. 374. The Court of Appeal in paragraphs 33 to 39 of the judgment identified sentencing principles that must be accommodated when sentencing for an offence of that nature and level of seriousness.  They are the principles of retribution, deterrence and denunciation.  In paragraph 39 of the judgment, the Court of Appeal said:-

“39. If the judge bears the principles of retribution, deterrence and denunciation in mind when considering the appropriate level of punishment for the offender then the sentence that he imposes should be a balanced, proportionate and just one. In this way the courts will contribute to the important objective of ‘maintaining public confidence in the sentencing system.’”

23.  As the Court of Appeal said in Secretary for Justice v Poon Wing Kay and Anor CAAR 2/2006 & CACC 536/2005, the impact on people’s lives ought to be taken into account when sentencing.  The Court of Appeal also said that courts should have regard of the fact that there might sometimes be extremely grave consequences flowing from acts of dangerous driving and it was therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving, and that one major factor to be considered as an aggravating factor justifying a heavy sentence was where a person had driven with selfish disregard for the safety of other road users or of his passengers (or of pedestrians) or with a degree of recklessness.

24.  Poon Wing Kay was referred to in Secretary for Justice v Liu Kwok Chun CAAR 3/2009 & CACC 34/2009 in which the Court of Appeal set out various aggravating and mitigating factors relevant in sentencing cases of dangerous driving causing death.

25.  In the present case, the defendant on different occasions entered the opposite lane and overtook PW2, PW3 and the farmer’s cars at a speed estimated to be 80 to 90 km/hour or more (± 10%).  When he was driving his car to squeeze through the gap between the farmer’s car and the medium-sized truck reversing from a warehouse entrance/exit, the speed was estimated to be 80 to 90 km/hour.  It was a series of bad and aggressive driving.  Indeed, he admitted to this court this morning that he drove dangerously by failing to keep a proper lookout and driving at excessive speed.  He also has a number of traffic convictions of driving in excess of speed limits and one conviction of careless driving.

26.  In light of the aforesaid observations, for Charge 1 I will adopt a starting point of 3 years’ imprisonment.  I give one-third discount to the defendant for his timely indication of guilty plea.  The imprisonment sentence is therefore reduced to one of 2 years’ imprisonment.  I do not consider his family circumstances a valid mitigating factor – he should have driven in a much more competent and careful manner as serious consequence would have caused to his family and other road users.  There being no other valid mitigating factors justifying further reduction in sentence, the term of imprisonment is 2 years.  I also order the defendant be disqualified from driving for 5 years, and to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.

27.  As for Charge 2, in light of his guilty plea I will impose a fine of HK$1,000, to be deducted from his bail money.