HKSAR v. Wong KWOK KWONG

DCCC 734/2017

[2018] HKDC 243

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 734 OF 2017

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Reasons for Sentence

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1.  The defendant, Mr Wong, has been convicted by me of the alternative charge of careless driving on the basis of an indictment which was originally on the basis of causing death by dangerous driving, and the facts of the case are set out in my earlier reasons for verdict, and I will adopt them as far as the sentencing process is concerned.

2.  In brief summary, this is a tragic accident whereby a lady, crossing the road, died as the result of impact with the defendant’s car.  This was a country road in Sai Kung.  It was in the evening, when people are going home.  The conditions were challenging.  A police officer who arrived at the scene described the conditions as dim at the time.

3.  The courts, in sentencing cases where people die as a result of the driving conduct of others, must bear in mind really two major factors:  firstly, the consequences of the act, and secondly, the level of culpability.

4.  In this case, the consequences are severe.  As the defendant acknowledged, in fact, in the probation report, he is well aware of the severity of the consequences of this incident, so I do not need to iterate them here, but a person has died, and normally the courts have indicated that in such cases, even where the defendant is convicted of merely careless driving, that a sentence of imprisonment is the appropriate approach for the court to reflect the severity of what has happened.

5.  That can be ameliorated by certain factors that may exist in the course of the way in which the accident occurred.  Those are the factors I must consider when dealing with culpability for the offence.

6.  In this case the defendant is convicted of careless driving, a reduced culpability from dangerous driving.  Nevertheless, there can be serious cases of careless driving.  In this case I have set out the basis on which I convicted the defendant of careless driving, and that was his inattention at a time when attention should have been focused on that particular crossing.  This was not a recognised pedestrian crossing, although there were warnings to that effect further down the road.

7.  What may ameliorate the defendant’s conduct in this case and may lead me to a position where I need not impose an immediate custodial sentence is the conduct of the deceased.  The deceased chose to cross the road at that point when, from the evidence, it was clear that there was oncoming traffic from both directions, and because there was oncoming traffic from the other direction than the defendant was driving in, she stepped back into the defendant’s car - and there was independent evidence of that from PW1 - and thereby endangered her own safety.

8.  I consider this act by the deceased mitigates and ameliorates the defendant’s culpability in this matter to a position where I can consider imposing a formal sentence that does not require him to go to prison immediately.  I have considered whether a suspended sentence is appropriate or whether the alternative to an immediate sentence of imprisonment, a community service order, is appropriate, and it appears to be that the factors of this case lead me inexorably to the imposition of a community service order, and I am supported in that by the report very helpfully prepared by Mrs Tam from the Probation Services dated 9 February 2018.  I do not propose to go into the report in detail, but there are some factors, of course, that I must indicate that I have given attention to.

9.  A major factor, of course, is the position of the defendant’s children.  They have had the unfortunate history of having lost their mother, and the defendant is the only parent caring for them.  Clearly, to remove him from their care and attention at this stage of their lives would be a very harsh punishment indeed both on the defendant and on the children themselves.

10.  The Community Service Officer says in her report considering the accused’s children, being at their adolescence, will be deprived of parental love and care should the accused be sentenced to imprisonment, and that the accused has committed to perform to Mrs Tam 240 hours of paid(unpaid?) community work under a community service order as well as to employ a part‑time driver for driving him and his children with effect from March 2018.  She says the accused deserves a chance to rehabilitate in the open community.  In view of the foregoing, a community service order is recommended for the accused as reparation of his misdeeds in the present offence.

11.  I consider I cannot really add anything to what she has said in terms of the factors that I should consider in imposing the order here.

12.  What I will do is in fact impose an order of 200 hours of community service.  I will explain that in a little more detail later.

13.  As a consequence of your conviction, I am also going to disqualify you from driving.  You are aware of that and you seem to have taken some steps to deal with that.  The disqualification from driving will be for 1 year.

14.  Furthermore, I am going to order that you should take a driving improvement course, and you must take and complete that within 3 months of the expiry of your period of disqualification, or you will not get your licence back.

15.  As far as the 200 hours of community service is concerned, you must provide to the community a total of 200 hours of unpaid work.  That will be at the direction of a Community Services Officer who is in charge of the scheme.  You must attend that scheme and complete the work at the direction of that officer and within the time allocated.  In any event, it must be completed within 12 months of today.  If there is any difficulty in doing that, you must refer that matter back to me, back to this court, so I can consider whether an extension can be given to you.

16.  You must also generally keep the peace and be of good behaviour.  If you are convicted of any further offence during the period of this order you will be brought back to this court, and you can be sentenced again for the offence of which you were originally convicted.  Now, do you understand the requirements of the order?

DEFENDANT: Understood.

17.  Yes.  You must also report -- there is a reporting condition on the report from Mrs Tam, but I will iterate it to you again:  you must report to a Mr Simon Lau at Room 335, 3rd Floor, Wan Chai Tower, 12 Harbour Road, Wan Chai, on 14 February at 10.30 am to receive your instructions in respect of the community service order.  You will be provided with that information by my clerk, I believe.

18.  You must also surrender your licence.  I will give you 24 hours to do that.

MR HARRIS: Your Honour, I hesitate to interrupt.

COURT: Yes.

MR HARRIS: Given that he is coming back to this building on Wednesday, I wonder if we could ask for 48 hours.

COURT: 48 hours to surrender your licence.

MR HARRIS: He understands, of course, that he must not drive a car from this moment on.

COURT: This point on, yes.

MR HARRIS: So, unless there is any misunderstanding, he is disqualified from today.

COURT: From today, yes, that’s right. The disqualification operates from my declaration of that.

MR HARRIS: Very grateful.

COURT: Do you understand?

DEFENDANT: Understood.

COURT: Yes. You are free to go now.