HKSAR v. WAI NGA YEE

DCCC 408/2021

[2022] HKDC 93

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 408 OF 2021

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Careless driving" (Charge 1); 2 charges of "Dangerous driving" (Charges 2 to 3); and a charge of "Driving an unlicensed vehicle" (Charge 4).

Summary of Facts

2.  This case arose from a parking incident which began with a minor bumping of 2 cars.

Charge 1

3.  About 8:33 p.m. on 4 February 2021, Mr. Cheung (PW1)  and Mr. Ng (PW2)  were sitting in a stationary LGV UB8109 ("V1")  parked at Kau Yuk Road, Yuen Long.  They were waiting for their client Mr. Leung (PW3), who was working in the vicinity.

4.  At that moment, the front of a private car WX9656 ("V2"), which was driven by the defendant, bumped against the rear of V1.  PWs 1 and 2 felt a slight bump but did not alight from V1 to see what happened.  PWs 1 and 2 did not know the defendant and vice versa.

5.  The bumping against V1 by V2 was caused by the defendant's careless driving.  Subsequently, it was discovered that the rear bumper of V1 was scratched and slightly dislocated. The repair costs were $8,200.

Charge 2

6.  After parking V2, the defendant went to a nearby restaurant to buy take-out.  Upon her return, she negotiated with PWs 1 and 2 about the bumping against V1 by V2.  At that time, PW3 arrived at the scene.  Both parties failed to reach any agreement on compensation.  The defendant decided to leave the scene.  She boarded V2 intending to drive away.

7.  In order to prevent the defendant from leaving, PW1 stood in front of V2.  He also reported the matter to the Police using his mobile phone.  The defendant ignored PW1's presence and drove V2 forward (though not at a high speed).  As a result, the front part of V2 came into contact with PW1's legs.  He lost balance and clung onto the bonnet of V2.

8.  Despite such an obvious danger, the defendant continued to drive V2 forward with PW1 hanging onto the bonnet of her car.  She made a U-turn on Kau Yuk Road.  She also jumped 2 sets of red light.  PW1 screamed at the defendant asking her to stop.  The defendant drove V2 for about 125 metres with PW1 on its bonnet.  She eventually stopped V2, upon which PW1 put his feet on the road and stepped away from V2.

9.  PW1 sought medical treatment afterwards.  He sustained tenderness on his right hand and stomach area.

Charge 3

10.  Once PW1 had detached himself from V2, the defendant continued to drive.  A few minutes later, she was driving along Yuen Long Highway towards Sheung Shui at high speed.  The speed of V2 once reached 105 km/h, whereas the speed limit was 80 km/h.

11.  Upon reaching the location marked "CH 40.4A", V2 rammed into the rear of a moving KMB double-decker bus WU2711 ("the Bus")  and then made a half flip.  V2 landed on its offside with its 4 wheels facing sideway.  Fortunately, no one on the Bus reported any physical injuries.

12.  After the accident, the defendant crawled out of V2 by herself and left the scene on foot.

Charge 4

13.  The registered owner of V2 was the defendant's husband.  He confirmed that the defendant was the driver of V2 during the incidents described above.  Police investigation discovered that the vehicle licence of V2 had expired on 8 January 2021.  In other words, the defendant drove an unlicensed vehicle on 4 February 2021.

Arrest

14.  Accompanied by her legal representative, the defendant surrendered to the Police at 4:40 p.m. on 5 February 2021.  She was arrested.  Under caution, she remained silent.

15.  All the driving incidents described above were captured on footage with sound taken by car camera and/or mobile phone.

Mitigation & Sentence

16.  The defendant is 33 and has a clear record.  She obtained her driving licence in November 2015.  In terms of traffic record, she has 2 convictions of "Careless driving"; 2 convictions of "Failing to comply with traffic signs" and 6 fixed penalty tickets (2 of which were "Speeding").

17.  Defence counsel Mr. Chan informed me that the defendant is married with a daughter (aged 4).  Mr. Chan stressed that the defendant has been remanded in jail custody since February 2021.  The defendant's daughter is now looked after by her grandparents, both of them are hearing impaired and unable to speak.  The defendant's husband works full-time to support the family.  The defendant is educated to diploma level.  Prior to her arrest, she was a casual delivery worker earning $8,000 per month.

18.  In mitigation, Mr. Chan submitted that the defendant was not a bully.  Initially, she was not aware of any bumping against V1 when she parked V2.  Upon her return from buying take-out, she noticed the front of V2 being very close to the rear of V1.  She thought V1 had bumped against her car when reversing.  She thus went up to PW1 to demand compensation.  PW1 showed her the footage of V1's car camera and asked her to compensate instead.  When she refused, PW1 called the Police.  The defendant got scared and panic; she did not know what to do.  She chose to run away.  Mr. Chan also explained that after V2 had flipped sideway, the defendant left the scene because at that moment, she just wanted to go home.  She surrendered to the Police on the following day.  Finally, Mr. Chan submitted that the footage taken by the PWs and others have gone viral on the internet, which added extra stress on the defendant and became some form of additional punishment.

Charges 2 and 3

19.  I have viewed the footage which captured the incidents in Charges 1 to 3.  The defendant's driving manner in Charge 2 was beyond appalling.  I cannot imagine what went through her mind when she decided to drive her car with a live person clinging onto the bonnet. It was most fortunate that PW1's injuries were not serious.  With as much luck, in Charge 3, no passengers on the Bus reported any injuries.

20.  I have considered the Court of Appeal's decision in SJ v Ko Wai Kit, Paul [2001] 3 HKLRD 751.  I adopt a starting point of 18 months' and 12 months' imprisonment respectively for Charges 2 and 3.  With the timely guilty pleas, the sentence is reduced to 12 months and 8 months respectively.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence the defendant to 12 months' and 8 months' imprisonment respectively for Charges 2 and 3.

Overall sentence

21.  Charge 3 seems to be a continuation of Charge 2, but it is not.  In my view, the 2 charges are separate and distinct to a very large extent.  Mr. Chan submitted that during the course of Charge 3, the defendant's ability to drive was impaired by the previous events.  This argument is a two-edge sword.  If the defendant was in fact overwhelmed by the previous events, she should not have continued to drive once PW1 was out of her sight.  I have listened to her phone conversation in V2.  She sounded calm and in control.  As much as I would try to understand the defendant's desire to go home as soon as possible after what she had done to PW1, her responsibilities in Charge 3 remain.  She made the decision to run away from everything, she should have at least driven home in a safe manner.  Observing the speed limit would have been a good start.

22.  Bearing in mind what took place in both charges and the totality principle, I consider a global starting point of 24 months' imprisonment for Charges 2 and 3 appropriate and just.  With the timely guilty pleas, the overall sentence is reduced to 16 months.  To achieve this, I order 4 months in Charge 3 to run consecutive to Charge 2.

Other orders

23.  For both Charges 2 and 3, a disqualification order is inevitable.  I have borne in mind the comments made by the Court of Appeal generally on disqualification orders in SJ v Hung Ling Kwok [2010] 4 HKLRD 365 and HKSAR v Chan Kim Ching CACC 69/2014 (unreported Chinese judgment).  The defendant has no similar conviction, the disqualification period is not less than 6 months[1].  I make a disqualification order of 18 months for Charge 2; and 12 months for Charge 3.

24.  The defendant's driving manner in Charge 2 renders her a serious threat and danger to other road users.  In order to rectify her reckless and irresponsible behaviour, I order her to be re-tested[2] for Charge 2.  On this basis, I do not see the need to order her to complete a Driving Improvement Course.  I make no order in this regard for Charges 2 and 3.

Charges 1 and 4

25.  In Charge 1, I do not know why the defendant wanted to park V2 so close to the rear of V1.  Even if there was no bumping, she left no room for V1 to leave its parking spot (assuming there was another vehicle parked in front of V1, which is a safe assumption to make).  This is not something a reasonable and prudent driver in Hong Kong would do; it is an inconsiderate act, especially when she had to leave V2 unattended.  I am aware that the bumping against the rear of V1 was minor.  I impose a fine in the sum of $1,000 for Charge 1.

26.  For Charge 4, in the case of a 1^st conviction, the maximum penalty is a fine at level 2 (i.e. $5,000)  and imprisonment for 3 months.  I impose a fine in the sum of $800 for this charge.