HKSAR v. LAM WING KEI

 DCCC753/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 753 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three offences.  The first and most serious of those charges is a charge of dangerous driving causing death.  The particulars of the offence are that on 2 January 2009, on Castle Peak Road, he caused the death of Law Wai-chung, his maternal uncle, by driving a motor vehicle, a private car, on a road dangerously.  At the time of committing that offence, he was not the holder of a valid driving licence and nor was he insured.  They are the subject of the 2nd and 3rd charges.

2.  The facts admitted by the defendant disclose that on the morning of 2 January of 2009, he was driving a private motor car, registration number NM 8312 (which I will refer to as “the vehicle”) along Ping Shan Section of Castle Peak Road in Yuen Long in the New Territories.  There were two passengers on board the vehicle.  In the front passenger seat was his 20-year-old girlfriend, Miss Leung, and the other passenger was his maternal uncle, Mr Law, who sat in the rear offside passenger seat.  They were proceeding to the defendant’s residence in Tin Ha Road.

3.  Where the accident occurred, the road was divided into a two-way carriageway with two lanes going in each direction.  The speed limit was 70 kilometres per hour. 

4.  At around 11.30, the vehicle was proceeding at a speed of about 60 kilometres per hour along the second left lane of the southbound carriageway.  This part of the road is straight and is unobstructed.  The traffic flow was light.  The weather was fine.  The road surface was dry and in good repair.

5.  The vehicle driven by the defendant was following a private motor car, registration number HB 680, along the second left lane at a distance of some 2 to 3 metres.  That vehicle was travelling at a speed of about 60 kilometres per hour.  In the inside lane close to the nearside of the defendant’s vehicle was an unidentified private car. 

6.  The defendant made the decision that he wanted to overtake the vehicle in front by going into the nearside lane.  He suddenly accelerated the vehicle, cut into the first left lane in front of the unidentified vehicle.  It was whilst entering the first lane the defendant noticed that the unidentified vehicle was in fact closely preceded by another vehicle.  The defendant therefore abruptly steered his vehicle back into the second left lane.  He lost control of the vehicle which crashed into central railings dividing the south and northbound carriageways of the road. 

7.  Some 12 metres of metal railings were snapped into pieces and scattered around the road.  The defendant’s vehicle ended up toppled on its nearside on the second left lane after skidding for some distance.  The skid marks measured 13.2 metres on the nearside and 16.6 metres on the offside of the vehicle were diagonally across the first left lane and the second left lane at the side of the vehicle.  

8.  The defendant’s uncle was thrown out of the vehicle whereas the defendant managed to get his girlfriend out.  After the collision, Mr Law was found to be lying on the road.  He sustained various injuries to his head, chest and forearm but was conscious at that time. 

9.  Police officers attended the scene and a breathalyser test was given to the defendant, but no alcohol was detected.

10.  Mr Law was taken to the Tuen Mun Hospital for medical treatment.  He was put on a mechanical ventilator and inotropic support.  His condition deteriorated and he was finally certified to be dead at around 5 pm the following day.

11.  The defendant and his girlfriend were treated at Tuen Mun Hospital also.  The defendant sustained relatively minor injuries and was treated and discharged the same day.  His girlfriend was admitted into hospital for various injuries, the most serious of which was a fracture in the thigh bone of her right leg.  She was discharged from hospital three weeks later and I am told has made a full recovery.

12.  There were no mechanical defects found in relation to the vehicle.  Police inquiries reveal that the defendant was not the holder of any valid driving licence in Hong Kong and obviously was not covered by insurance.  He was never in fact the holder of any driving licence or third-party insurance policy in Hong Kong.

13.  When the defendant was interviewed, he admitted that he was not the holder of a driving licence.  The vehicle was not his.  He had borrowed the vehicle and not told the owner that he had no driving licence.  He said that at the material time, he was driving the vehicle along the second left lane of Castle Peak Road at about 65 kilometres per hour, following an unknown lorry which was being driven in the same direction at a speed of approximately 12 metres. 

14.  He admitted that the deceased, Mr Law, was thrown out of the vehicle during the accident.  He further admitted that Mr Law had, due to the fact that he had had a surgical operation shortly before the incident, not fastened his seatbelt at the material time. 

15.  The defendant has seven previous convictions.  None of them relate to traffic matters.  He has a variety of offences recorded against him.  He has previously served periods of probation, detention centre, and he has previously been sentenced to a term of imprisonment.

16.  I am told that he was educated to Form 3 standard.  He was born in Hong Kong.  He was working as a casual transportation worker earning about $6,000 per month.  I am told that on the day in question, it was shortly after New Year, he had borrowed a car from a friend to drive his girlfriend and uncle, and he was aware that he had no driving licence or insurance cover.  He was driving his girlfriend and his uncle to a social gathering.  I am told that he had had previous driving experience in China.

17.  Counsel for the defendant urged upon me that this accident was caused by the poor judgment of the defendant rather than a deliberate course of reckless driving, and he urges upon the court that in terms of offences of this kind, this is at the lower end of the scale of dangerous driving. 

18.  It is accepted by the prosecution that at the time of the accident, the defendant was not speeding.  He was not under the influence of alcohol.  As I mentioned previously, he urges upon the court that it was an error of judgment rather than a deliberate course of reckless driving.  He has got no previous driving offences, and he undertakes not to drive again.  It is also urged upon the court that the defendant has felt very responsible for his part in his uncle’s death and that this has been a cause of serious remorse for him. 

19.  I have been referred to a number of cases, in particular, the case of Secretary for Justice v Poon Wing Kay & Another.  The defendants in this case were involved in much more serious reckless driving than the defendant in the present case.  This involved road racing; it involved excessive speed and deliberate flouting of traffic signs and traffic lights.  The court said in that case that where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased.  The impact on people’s lives ought to be taken into account when sentencing.

20.  In this case, the deceased was part of the defendant’s family, and it is urged upon me that the defendant himself has been caused grave distress in this matter.  The court also in that case went on to say that it is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving. 

21.  The court said a motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim.  The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who come into contact with motor vehicles, whether fellow motorists, passengers or pedestrians, are safe and that their lives are not endangered.

22.  The court referred to the dictum and Lord Woolf CJ in R v Cooksley [2003] 3 AER 40.  It stated that while a list can be drawn up of aggravating and mitigating factors, a sentence in court must, however, look at the overall circumstances and the overall culpability of the offender.  In assessing the overall seriousness of the 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.  In some cases, the fact that only some aggravating factors exist but not others may still bring the case into a very serious category

23.  The headnote of that case in the All England Reports catalogues a list of what the court considered to be aggravating factors.  They included a number of matters such as the consumption of drugs or alcohol, excessive speed, racing, competitive driving, showing off, a disregard of warnings from fellow passengers, a prolonged persistent and deliberate course of very bad driving, aggressive driving, for example, persistent inappropriate attempts to overtake or cutting in after overtaking, using a mobile phone, driving when suffering from a known medical condition; other offences committed at the same time, example, driving without holding a driving licence, driving whilst disqualified, driving without insurance, and driving while a learner without supervision.

24.  The court goes on to cite other examples of aggravating features.  I accept in this case that many of those aggravating features referred to in the case of Cooksley are not present in the current case.  As defence counsel has said, the defendant was not speeding, there was no excess alcohol, no alcohol at all, and he urges upon me that this was an error of judgment rather than a deliberate course of bad driving.  It is also urged upon me that distress has been caused to the defendant because the person who was killed was his uncle. 

25.  However, the defendant is a person who knows that he has no driving licence and he is not covered by insurance.  He takes out this motor vehicle and in the back is sat his uncle who has recently undergoes surgery not wearing a seatbelt.  The defendant was aware of that.  These are factors, in my view, that should have been considered by the defendant when he embarked on this enterprise.  The accident occurred when he was in an act of overtaking a vehicle on the wrong side.  Clearly, he would have known that any accident, particularly for somebody not wearing a seatbelt in the rear of his vehicle, there would have been serious consequences.

26.  I have given this case anxious consideration.  The defendant has no record for driving offences.  Taking into account all the features I have referred to, it seems to me that a starting point of 2 and a half years would be appropriate, and in respect that he has pleaded guilty at an early opportunity, so I will reduce that by one-third.  The sentence will be one of 20 months’ imprisonment.

27.  I will disqualify the defendant from driving for a period of 6 years. 

28.  In respect of the offence of no driving licence, I sentence him to 2 months’ imprisonment, to run concurrently.  For the defendant driving without insurance, I send him to prison for 4 months again and I order that to run concurrently. 

29.  I arrived at those sentences after taking starting points of 3 and 6 months respectively.

30.  The offence of no insurance attracts a mandatory disqualification period and I disqualify the defendant for 2 years for driving without insurance, and I order that period of disqualification run concurrent for the dangerous-driving offence.

31.  In ordering that the sentences of 2 months and 4 months’ imprisonment for the no driving licence and no insurance should run concurrently, it does not mean I do not regard those as serious matters but I have taken them into account when arriving at the overall sentence on the charge of dangerous-driving.

32.  The defendant will go to prison for 20 months and he is disqualified from driving for 6 years.  Now, what the disqualification means is this.  It is that if you are foolish enough to drive again, obviously, you do not hold a driving licence or insurance and you will be charged with those offences.  But in addition to that, you are disqualified from driving by order of the court, and if you breach that order, it is almost inevitable that you will go to prison for breaching the order.  Inevitably, if you drive whilst disqualified, you will not be covered by insurance and that will be regarded as an aggravating feature.