DCCC102/2023

DCCC102/2023

A A B B DCCC 102/2023 C [2024] HKDC 510 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASES NO 102 OF 2023 F F G ------------------------------ G HKSAR H H v I FUNG KA WAI ROGER I ------------------------------ J J K Before: Her Honour Judge A N Tse Ching in Court K Date: 27 March 2024 L L Present: Mr Delaney A Michael, Counsel-on-fiat, for HKSAR M Mr Lai Ho Yeung Harold, instructed by Ho & Partners, for M the defendant N N Offences: [1] Causing grievous bodily harm by dangerous driving (危險 O O 駕駛引致他人身體受嚴重傷害) P [2] Failing to stop after accident whereby personal injuries P were caused to other persons (發生意外以致他人身體受傷 Q Q 後沒有停車) R [3] Dangerous driving (危險駕駛) R S [4] Failing to stop after accident whereby damage was caused S to another vehicle (發生意外以致其他車輛受到損害後沒 T T 有停車) U U V V  -2- A A B B C ----------------------------------------- C REASONS FOR SENTENCE D D ----------------------------------------- E E 1. The defendant pleaded guilty to 4 charges: F F G (1) Causing grievous bodily harm by dangerous driving, G contrary to section 36A of the Road Traffic Ordinance, H H Cap 374 (Charge 1); I I (2) Failing to stop after accident whereby personal injuries J J were caused to other persons, contrary to section K 56(1)(a) and (5) of the Road Traffic Ordinance, Cap K 374 (Charge 2); L L M (3) Dangerous driving, contrary to section 37(1) of the M Road Traffic Ordinance, Cap 374 (Charge 3); and N N O (4) Failing to stop after accident whereby damage was O caused to another vehicle, contrary to section 56(1)(b) P P and (5) of the Road Traffic Ordinance, Cap 374 Q (Charge 4). Q R R SUMMARY OF FACTS S S 2. The Summary of Facts admitted by the defendant is as follows: T T U U V V  -3- A A B B (1) On the evening of 13 April 2022 the defendant, at C approximately 11:40 pm, arrived at the 218 Hotpot C Restaurant located at 4-6 Tak Hing Street, Yau Ma Tei D D (‘the Premises’) for a celebration with colleagues. The E defendant’s colleagues had been at the Premises since E approximately 7:30 pm on the same evening and those F F colleagues had consumed significant amount alcohol. G G Accident 1 H H I (2) At approximately 01:13 am on 14 April 2022, LI Fen I (PW3) and PU Chun Yu (PW5) left the Premises, and J J stood outside. Shortly after, at approximately, K 01:15 am, the defendant and WAN Kong Leung (PW1) K left the Premises. The defendant got into the driver’s L L seat of his white Mercedes registration AD168 (the M defendant’s car), which was parked outside the M Premises, in a built-up area. PW1 then got into the N N passenger seat of the defendant’s car. O O (3) About one minute later the remaining people at the P P celebration left the Premises, and walked away down Q Tak Hing Street away from the defendant’s car. Q Approximately 30 seconds later, the defendant, having R R maneuvered out of the parking space, the defendant’s S car accelerated along Tak Hing Street. The defendant’s S car then swerved to the right onto the pavement striking T T PW3 and TANG Chun Pong (PW4) from behind. U U V V  -4- A A B B C (4) The defendant’s car then swerved back onto the C roadway, striking NG YiuWah (PW2). These two D D collisions caused grievous bodily warm to PW2 and E PW3. These injuries are accurately described for PW2 E in the Medical Reports of Dr POON Kin Cheong dated F F 19 June 2022 and Dr LAI Yuk Ki dated 18 June 2022 G and for PW3 in the Medical Reports of Dr POON Kin G Cheong dated 28 May 2022 and Dr LIU Jian Feng, Karl H H dated 16 June 2022. I I (5) PW2’s injuries included a fractured skull, bleeding in J J the brain and loss of 6 teeth. PW3’s included a K deformed and fractured right ankle and left fibular shaft K fracture. L L M (6) PW4 only suffered minor injuries, and was not M hospitalized but given 4 days’ sick leave. N N O (7) The defendant’s car did not stop at the scene, driving O away after the two collisions. The scene is accurately P P depicted in the photographs of the ‘Sentencing Q Material’. Q R R Accident 2 S S (8) Approximately 1.3 km from Accident 1 and a few T T minutes later, at approximately 01:20 am, the U U V V  -5- A A B B defendant’s car, in the proximity of the junction of C Austin Road and Nathan, drove at speed into the rear of C a stationary taxi KF860. The taxi was driven by HO D D Kwok Chiu (PW9) who had already stopped at the red E light. This collision caused PW9 to be hospitalized E with chest pains and discharged on the same day. F F G (9) The defendant’s car, now badly damaged, did not stop G but accelerated away from the scene of the accident as H H accurately shown in photos of the ‘Sentencing I Material’. I J J Accident 3 K K (10) The defendant’s car was discovered shortly after at L L Austin Road (eastbound) near Chatham Road South, M heavily damaged, stationary and sideways in the road, M next to two damaged trees and a damaged signpost. N N Photographs of the ‘Sentencing Material’ accurately O show the scene of the accident. O P P (11) At the crash site, PW1 managed to escape from the car Q and notify the police. PW1 was found at the accident Q scene near the unconscious the defendant. The R R unconscious the defendant and PW1 were subsequently S admitted to hospital, with various injuries including S several broken ribs for PW1. A request from Police to T T the Hospital medical staff for blood samples to be taken U U V V  -6- A A B B from the defendant was declined due to the defendant’s C physical condition. C D D (12) The injuries to PW1 are accurately described in the E Medical Reports of Dr LUK Man Ping dated 6 May E 2022. F F G (13) At all material times the road conditions were good and G dry. H H I (14) The videos produced of Accident 1 and Accident 2 are I image accurate but not time stamped verified. J J K THE DEFENDANT’S BACKGROUND K L L 3. The defendant is 41 years old. He was educated to Form 3 M and was a construction worker who runs a business inherited from his late M father. He is single but has a six-year-old son. The defendant’s former N N girlfriend was from the Mainland. She could not visit during the pandemic O and later gave up on the defendant and their son. O P P 4. The defendant and his son live with the defendant’s 68-year- Q old mother. The defendant is the sole breadwinner and caretaker of the Q family. R R S 5. The defendant has a clear criminal record but was convicted S of careless driving about 20 years ago. He has a record of not complying T T with traffic signals and speeding, but his record is not the worst of its kind. U U V V  -7- A A B B The defendant’s car was written off and he has not driven since the C Accidents. C D D SENTENCING PRINCIPLES E E Charges 1 and 3 F F G Charge 1 G H H 6. Section 36A of the Road Traffic Ordinance, Cap 374 provides I that: I J J “(1) a person who causes grievous bodily harm to another person by driving a motor vehicle on a road dangerously commit K an offence and is liable- K (a) on conviction on indictment to a fine at level 5 L L and to imprisonment for 7 years… M (2) If a court or magistrate convicts a person of an offence M under subsection (1), the court or magistrate must order that the person be disqualified in accordance with subsection (3) or (4) N unless the court or magistrate for special reasons orders that the N person be disqualified for a shorter period or that the person not O be disqualified. O (3) Subject to subsection (4), the period for which the person P is to be qualified is- P Q (a) for a first conviction, a period of not less than 2 Q years… R (4) If the court or magistrate has ordered the person to attend R and complete a driving improvement course under section 72A(1A), the period for which the person is to be disqualified S S is - T (a) for a first conviction, a period of not less than 2 T years, or until the person has attended, and U U V V  -8- A A B completed the course at his or her own course, B whichever is the later…” C C 7. Section 72A of the Road Traffic Ordinance provides: D D E “(1) Where a court or magistrate convicts a person of an E offence specified in Schedule 11, the court or magistrate may do either or both of the following- F F (a) impose any penalty that may be imposed for the G offence; G (b) Order the person to attend and complete a driving H improvement course. H (1A) Subject to subsection (1B), where a court or magistrate I I convicts a person of an offence under section…36A, 37…, the court or magistrate shall order the person to attend and complete J a driving improvement course, unless the court or magistrate for J special reasons decides not to make such an order. K (1B) If a person, on being convicted of an offence in any K proceedings, is ordered under subsection (1)(b) or (1A) to attend L and complete a driving improvement course, the person is not to L be ordered under that subsection to attend and complete a driving improvement course in respect of any other offence of M which he is convicted in those proceedings… M N (3) A person who is ordered to attend and complete a driving N improvement course under subsection (1) or (1A) must, at the person’s own cost, attend, and complete that course in O accordance with subsection (3A), (3B) or (3C) as may be O applicable to the person… P P (3C) The person must attend and complete the driving improvement course within 3 months beginning on the date the Q person finishes serving the term of imprisonment or detention if Q the person - R (a) has been ordered to serve a term of imprisonment R or detention, but is not the subject of a S disqualification order; or S (b) Has been ordered to serve a term of T imprisonment or detention, and is also the subject T of a disqualification order with a disqualification period that ends- U U V V  -9- A A B B C (i) before the person finishes serving that C term; or D (ii) within a period of less than three months D beginning on the date the person finishes E serving that term… E (9) A person who, without reasonable excuse, fails to F comply with subsection (3) commit an offence and is liable on F conviction to a fine at level 2 and to imprisonment for 1 month… G G 70(2) Where a person is convicted of an offence involving obligatory or discretionary disqualification the court or H magistrate may, whether or not it makes any other order as to H disqualification, and whether or not such a person has previously passed the test of competence to drive prescribed under this I ordinance, order him to be disqualified until he has, after the date I of the order, passed the test.” J J Charge 3 K K L 8. Section 37 of the Road Traffic Ordinance provides: L M M “(1) a person who drives a motor vehicle on a road dangerously commits an offence and is liable- N N (a) On conviction on indictment to a fine at level four and to imprisonment for three years… O O (2) If a court or magistrate convicts a person of an offence P under subsection (1), the court or magistrate shall order that the P person be disqualified in accordance with subsection (2A) or (2B) unless the court or magistrate for special reasons orders that Q the person be disqualified for a shorter period or that the person Q not be disqualified. R R (2A) Subject to subsection (2B), the person is to be disqualified- S S (a) in the case of a first conviction, for a period of T not less than 6 months, and… T U U V V  - 10 - A A B (2B) If the court or magistrate has ordered the person to attend B and complete a driving improvement course under section C 72A(1A), the person is to be disqualified- C (a) in the case of a first conviction, for a period of D not less than six months, or until the person has D attended and completed the course at his own E cost, whichever is the later…” E F 9. There are no tariffs or sentencing guidelines for Charges 1 and F 3. In R v Cooksley & Others [2003] All ER 40, the Court of Appeal G G identified some aggravating and mitigating factors in this type of cases. H H 10. The principles set out in R v Cooksley were considered by the I I Court of Appeal in Secretary for Justice v Poon Wing Kay [2007] 1 J HKLRD 660. In that case, the defendants, public light bus drivers, were J convicted after trial of causing death by dangerous driving, contrary to K K s 36(1) of the Road Traffic Ordinance (Cap 374) and causing harm to L persons by racing vehicles, country to s 33 of the Offences Against the L Person Ordinance (Cap 212). The defendants were driving their respective M M buses on King’s Road, North Point in the early morning. D1’s vehicle had N eight or nine passengers and D2’s vehicle had 14 passengers. At some N stage, they began racing against one another, competing for passengers, O O including driving through sets of red lights. At a junction, D1’s bus went P through another red light and collided first, with a taxi crossing the junction, P and then with D2’s bus, who was overtaking D1’s bus at the time. D2’s bus Q Q overturned. Two passengers in D2’s bus died and 17 other people were R R injured. Both vehicles were travelling at high speed. The defendants had S records for traffic offences: D1 had 10 convictions since 1996; and D2 had S 27 convictions, including nine for failing to comply with traffic signals, T T since November 2002. The Court of Appeal held: U U V V  - 11 - A A B B “10. In sentencing the defendants, the judge adopted a starting C C point of 2½ years for the dangerous driving charges for both defendants. He found, as we have, great assistance in the D English case of R v Cooksley & Others [2003] 3 All ER 40. D There, the Court of Appeal laid down sentencing guidelines for the offences of dangerous driving and careless driving causing E death, when under the influence of drinks or drugs. While E admittedly the sentencing guidelines for the offence of F dangerous driving causing death in that case cannot be used in F Hong Kong, not least because the maximum sentence in the United Kingdom for the offence was at the time of that case 10 G years (now 14 years) rather than 5, a number of general G principles found in the judgment of Lord Woolf CJ can be stated H as being equally applicable in Hong Kong. (we also add some H observations of our own): I (1) In most cases of dangerous driving it will be I obvious to the offender that his driving was dangerous, and he therefore deserves to be J J punished accordingly: at p.45J (para.11). This is important to bear in mind because, while it may K be true, in some instances not to treat violators of K traffic laws as two criminals. Nevertheless, for offences, such as dangerous driving causing L death, the offender may not necessarily be seen L in quite such a benevolent light. M M (2) Where death results from dangerous driving, it is obvious that grave distress will be caused to the N family of the deceased: at p.46A (para.11). The N impact on people’s lives ought to be taken into account when sentencing. O O (3) It is important for courts to drive home the P message that that may sometimes be extremely P grave consequences flowing from acts of dangerous driving and it is therefore necessary to Q have in mind a deterrent effect when sentencing Q in many cases involving dangerous driving: at R p.46C-E (para.11). A motor vehicle, many may R often forget, when not driven to requisite standards, can kill or maim. The standards S required by the law for motorists found in the S road traffic legislation and elsewhere are there to T ensure that all who can come into contact with T motor vehicles (whether fellow motorist, U U V V  - 12 - A A B passengers or pedestrians) are safe, and that their B lives are not endangered. C C (4) While a list can be drawn up of aggravating and mitigating factors, a sentencing court must D however look at the overall circumstances and D the overall culpability of the offender. In E assessing the overall seriousness of a crime, E culpability is often the dominant factor: - at page 47b (paragraph 14). It is not a case of counting F the number of aggravating or mitigating factors F and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that G G exact an exercise and courts must be sufficiently nimble to take into account the overall picture in H order to arrive at an appropriate sentence. In H some cases, the fact that only some aggravating factors exist, but not others (such as in the present I case), may still bring the case into a very serious I category. J J (5) One major factor to be considered as an aggravating factor justifying a heavy sentence is K where a person has driven with selfish disregard K for the safety of other road users or of his passengers (or, we would add, of pedestrians) or L L with a degree of recklessness: - at page 46f-d (paragraph 12). M M 11. In his Reasons for Sentence, the Judge referred to the headnote in Cooksley which sets out the sentencing guidelines N in England for various scenarios involving dangerous driving N causing death. Some 16 aggravating factors are enumerated O together with some mitigating factors. He then listed out the O aggravating and mitigating factors in the present case to arrive at a starting point of 2½ years for each Defendant… P P 13. In our judgment, the sentences imposed by the Judge on Q the Defendants were manifestly inadequate and wrong in Q principle. We are of the view that for both Defendants, the maximum term of 5 years’ imprisonment should be imposed for R the dangerous driving charges and the maximum term of 2 years R be imposed for the racing charge… Our reasons for revising the sentences are as follows: S S (1) The conduct of both Defendants as outlined T earlier showed an utter and selfish disregard, if T not contempt, for the safety and well-being of all who came into contact with their driving: their U U V V  - 13 - A A B own passengers, other passengers and other road B users. Driving through red lights as if the lights C did not exist and as if they were the only users of C the road, racing against one another in an attempt to grab passengers, no attempts made to slow D down at junctions (in fact quite the opposite) D were all indicative of this. E E (2) The Defendants’ conduct was without doubt reckless and in the words of the Judge “prolonged, F persistent and deliberate”. These were not F momentary lapses of judgment. The evidence indicated that the 1st Defendant went through G G about 10 sets of traffic lights and the 2nd Defendant, 6 sets (including those at the Healthy H Street junction) without stopping or slowing H down. (3) The consequences of this driving, which both I Defendants must have known was dangerous, I were tragic. Two persons lost their lives, many J more were injured. One can only shudder when J thinking that the consequences could have been far worse. The pedestrian, Mr Tse (PW1), was K about to cross the westbound lane of King’s Road K to catch a tram and had he done so even though the pedestrian lights were in his favour, he would L L have sustained extremely serious injuries. M (4) The Defendants were no doubt in a rush but in M doing what they did, they deliberately took the risk not just of being prosecuted for breaching N traffic laws, but, far worse, of endangering N people’s lives. O O (5) The standard of driving of these Defendants was appalling and in our view totally unacceptable P and must rightly be condemned. The safety and P well-being of members of the public in Hong Q Kong are paramount and the public must be Q adequately protected from the type of driving the two Defendants displayed. It should not be R forgotten just how many of the witnesses testified R to the very real fear they felt at the time for their lives. In a letter from the 2 nd Defendant S S addressed to the court yesterday, he denies “absolutely” that he was risking any lives by T racing. We disagree: he and the 1st Defendant T were doing exactly that. U U V V  - 14 - A A B (6) The traffic offence records of the Defendants are B also appalling. The 1st Defendant has a record C since 1996 of having been convicted of 10 traffic C offences, one of which was committed after the present offence. Four were for careless driving. D He has been disqualified twice. The 2 nd D Defendant’s record is far worse. Since E November 2002, there have been 27 convictions E for traffic offences including 9 for failing to comply with traffic signals. Two of the F convictions for failing to comply with traffic F signals were committed after the present accident when he was driving a bus in Lantau. His record G G is truly appalling. H (7) Additionally, it must not be forgotten that the H Defendants were each driving vehicles for the carriage of members of the public. Such I professional drivers must be acutely aware of the I necessity to be safe and not to risk people’s lives J and safety. This provides yet another aggravating J feature in the present case. K (8) In our view, what the Defendants did come K within the worst category of the type of offences under consideration. In no other case cited to us L L have the facts been so bad. The utter disregard for the lives and safety of others may well have M attracted manslaughter charges where upon M conviction, sentences in excess of 5 years might well have been imposed. Be that as it may, N although we suppose worse facts than the present N case can conceivably exist, this does not mean O that maximum sentences should not be imposed. O It is to the category or type of seriousness or culpability that the court looks when sentencing. P P (9) In terms of the culpability of both Defendants, Q they are exactly the same. The periods of Q disqualification reflect the seriousness of the offences and their poor previous records. It is a R disturbing fact that persons such as the 2 nd R Defendant in this case find themselves in a position where they are enabled to drive public S S transport vehicles despite a simply appalling driving record. Before this accident this T particular driver had accumulated since T November 2002 along over 25 driving violations including a large number of failing to have regard U U V V  - 15 - A A B to traffic signals, and indeed after this accident, B as we have earlier mentioned, was still driving C public buses and committing 2 further offences C of failing to comply with traffic signs. The fact that this can occur should be a matter of grave D public concern and we are comforted by Mr D Leung’s assurance that he will raise in the E appropriate quarters what measures exist, if any, E to screen those who are permitted to drive public vehicles. F F 14. In our view the Judge erred by failing to consider the gravity of the overall circumstances of the offences. In some G G parts of his Reasons for Sentence, he seemed to regard as important the fact that only some of the aggravating features H mentioned in Cooksley, but not others, existed and this perhaps H might explain his low starting points. However, once account is taken overall of those aggravating features and other I circumstances we have earlier identified, it is clear that the I present offences are in the most serious category and that J maximum sentences ought to be imposed. The Judge was also J wrong to reduce the 1 st Defendant’s sentence by 6 months on account of his remorse and good character. In the circumstances K of the present case, these factors are of little or no weight …” K L L 11. In Secretary for Justice v Fong Chai Man [2008] 3 HKLRD M 493, the Court of Appeal set out the list of aggravating and mitigating M factors mentioned in R v Cooksley: N N “Highly culpable standard of driving at time of offence O O (a) the consumption of drugs (including legal medication, P known to cause drowsiness) or of alcohol, ranging from P a couple of drinks to a ‘motorised pub crawl” Q (b) greatly excessive speed; racing; competitive, driving Q against another vehicle; ‘showing off’ R R (c) disregard of warnings from fellow passengers S (d) a prolonged, persistent and deliberate course of very bad S driving T T U U V V  - 16 - A A B (e) aggressive driving (such as driving much too close to the B vehicle in front, persistent inappropriate attempts to C overtake, or cutting in after overtaking) C (f) Driving while the driver’s attention is avoidably, D distracted, e.g. by reading or the use of the mobile phone D (especially if hand-held) E E (g) driving when knowingly suffering from a medical condition which significantly impaired the offender’s F driving skills F (h) Driving when knowingly deprived of adequate sleep or G G rest H (i) Driving a poorly maintained or dangerously loaded H vehicle, especially when this has been motivated by commercial concerns I I Driving habitually below acceptable standard J J (j) other offences committed at the same time, such as driving without ever having held a licence; driving while K disqualified; driving without insurance; driving while a K learner without supervision; taking a vehicle without consent; driving a stolen vehicle L L (k) previous convictions for motoring offences, particularly M offences, which involve bad driving or the consumption M of excessive alcohol before driving. N Outcome of offence N O (l) more than one person killed as a result of the offence O (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was P foreseeable) P Q (m) serious injury to one or more victims, in addition to the Q death(s) R Irresponsible behaviour at time of offence R (n) behaviour at the time of the offence, such as failing to S S stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim T off the bonnet of the car by swerving in order to escape T U U V V  - 17 - A A B (o) causing death in the course of dangerous driving in an B attempt to avoid detection or apprehension C C (p) offence committed while the offender was on bail. D Mitigating Factors D E (a) a good driving record; E (b) the absence of previous convictions; F F (c) a timely plea of guilty; G G (d) genuine shock or remorse (which may be greater if the victim is either a close relation or a friend); H H (e) the offender’s age (but only in cases where lack of driving experience has contributed to the commission of I the offence); and I J (f) the fact that the offender has also been seriously injured J as a result of the accident caused by the dangerous driving. K K 12. In Secretary for Justice v Chu Wing Yin Christine （朱詠姸） L L [2020] 1 HKLRD 771, the Court of Appeal explained: M M “78. First, the dominant factor to be considered is the N N offender’s culpability which will involve two related assessments: O O (1) the objective dangerousness of the offenders’ driving (see [48]-[50] of the judgment of Macrae P P V-P); and Q (2) The moral culpability of the offender (see [51]- Q [52] of the judgment of Macrae V-P). R 79. Secondly, closely allied to culpability is the harm and R impact caused to the victim(s) (see paragraph 56 of the judgment S of Macrae VP). This will involve an assessment of the nature S and degree of the really serious injury to the victim or victims. T 80. Aggravating factors may include: T (i) the extent and nature of the injuries inflicted; U U V V  - 18 - A A B B (ii) the number of people put at risk; C C (iii) the degree of speed; D (iv) the extent of intoxication or of substance abuse D (see s.36A(7) of the RTO; E E (v) whether there was erratic or aggressive driving; F (vi) whether there was competitive driving or F showing off; G G (vii) the length of the journey during which others were exposed to risk; H H (viii) whether there was any ignoring of warnings; I (ix) whether the offender was escaping police pursuit; I J (x) the degree of sleep deprivation; J (xi) whether the offender failed to stop; K K (xii) the fact that the offence took place at a pedestrian crossing (see Secretary for Justice v Lam Siu L L Tong); and M (xiii) whether the offender was driving a public service M vehicle (see HKSAR v Man Chun Pun)… N 82. Fourthly, the sentence court will evaluate any mitigating N factors with an appropriate adjustment to the sentence….” O O 13. There is no dispute that the above principles apply to both P P Charges 1 and 3. Q Q Charges 2 and 4 R R S 14. Charges 2 and 4 both carry a maximum term of one year’s S imprisonment and a fine at level 3 (See section 56(5) of the Road Traffic T T Ordinance). U U V V  - 19 - A A B B C 15. In Sentencing in Hong Kong 10th edition, App-165, the learned C author explained: D D E “Cases: HKSAR v Lam Wai-ming [2014] 3 HKLRD E 170…(failing to stop after accident causing injury and failing to report an accident involving injury; 6 months’ imprisonment, F concurrent, on each offence, after guilty pleas). F Customary sentence: Much depends on the facts, with the G G situation of the victim being crucial. In Lam Wai-ming (above), Pang J noted that the sentence to be imposed should depend ‘on H whether any further harm might be caused to the injured victim H by reason of delay in rescue, or the victim being hit by other vehicles’ [15]. In the absence of personal injury, a more lenient I disposal may be appropriate.” I J J 16. In Secretary for Justice v Liu Kwok Chun（廖國鎮）[2011] K 1 HKC 70, the respondent was convicted after trial for, inter alia, one count K of dangerous driving causing death, and one count of failing to stop after L L accident whereby personal injury was caused to another person. For the M failing to stop charge, the Court of Appeal agreed that a one-year starting M point was appropriate. N N O DISCUSSION O P P 17. As for the starting point, Counsel invited the Court to take Q reference adopted by the Court of Appeal in Secretary for Justice v Lau Sin Q Ting [2010] 5 HKLRD 318. In that case, the defendant pleaded guilty to R R one count of dangerous driving causing death. The defendant, aged 19, S drove her 5 younger friends, with 4 sitting in the rear, in a car without third S party insurance. The defendant mistakenly entered a relatively narrow, T T dead end road in a 50 km/hr zone. Anxious to leave, the defendant made a U U V V  - 20 - A A B B U-turn and drove back at high speed (between 87 and 107 km/hr). She lost C control of the car, which spun anti-clockwise and hit a parked goods C vehicle. Consequently, 2 rear passengers, both aged 14, died, while the D D other 2 suffered serious injuries, leaving one a paraplegic. The defendant E herself was severely injured, sustaining multiple broken bones and brain E injuries resulting in a coma lasting 18 days and necessitating numerous F F operations and other medical treatments. The defendant suffered G permanent mental and physical injuries with impaired vision, hearing and G thought processes. She had a clear record and was traumatised by the loss H H of her 2 friends. The defendant held a full driving licence for only 6 months I before the accident. The judge adopted a starting point of 15 months, I reduced it for plea and sentenced the defendant to 10 months’ J J imprisonment and disqualification from driving for 2½ years. The K Secretary for Justice applied for a review of sentence. The Court of Appeal K allowed the application, substituting a sentence of 16 months’ L L imprisonment. M M 18. The Court of Appeal held: N N O (1) the defendant’s evidence at her sister’s trial that she had O taken the car without permission, knowing it was not P P insured, was inadmissible for the purpose of providing Q a “more complete picture”. It could only be relevant to Q factors aggravating the defendant’s role and thus its use R R was prohibited by s 83V(5) of the Criminal Procedure S Ordinance (Cap 221); S T T U U V V  - 21 - A A B B (2) The Judge took too low a starting point. There were a C number of aggravating factors which were not given C sufficient weight, perhaps the most important was the D D tragic reality that two young teenagers died and another E was made a paraplegic as a result of the defendant’s E driving. Additionally, a conscious degree of F F recklessness was involved: the defendant’s decision to G speed at nearly twice the speed limit of 50 km/h must G in the circumstances have created an obvious risk. H H Further, the car had no insurance, it was carrying more I passengers than safely permitted by its design and I consequently, there were insufficient seat belts for the J J rear passengers, two of whom died and one was made K a paraplegic; K L L (3) Yet, there was significant factors in the defendant’s M favour: the incident of dangerous driving was an M isolated one; the defendant had not embarked upon a N N continuous period of dangerous driving; the offence O occurred during a relatively brief period of time; there O was not a crowded traffic or pedestrian environment; P P and, importantly, the offence was not aggravated by Q drugs or alcohol; Q R R (4) Nevertheless, there was a considerable element of S general deterrence involved. The seriousness of the S offence was underlined by the increase in the maximum T T U U V V  - 22 - A A B B penalty from 5 to 10 years’ imprisonment six months C before the present offence occurred; C D D (5) In mitigation, the defendant had pleaded guilty at an E early opportunity. She herself has suffered very E significant and permanent physical injuries and the F F thought that she was responsible for her two friends’ G deaths and for another becoming a paraplegic, would G always remain with her; H H I (6) Notwithstanding the defendant’s previous good I character and genuine remorse, these mitigating factors J J must not be given undue prominence and where, as here, K a full discount had been given for plea, such factors K were subsumed into that discount; L L M (7) An appropriate starting point in the circumstances M would have been 2 years and 6 months’ imprisonment. N N Given the foregoing factors, the starting point would be O reduced to 18 months. Bearing in mind the nature of O these proceedings and that at the time of his judgement, P P the defendant was due for immediate release from Q custody in respect of the original sentence, there would Q be a further discount to 16 months’ imprisonment. R R S 19. Each case must be decided on its own facts. The Court of S Appeal has already pointed out on numerous occasions that apart from T T cases setting out sentencing principles, sentencing guidelines and tariffs, U U V V  - 23 - A A B B sentences in other cases are of limited guidance. I also fail to see how the C facts in Lau Sin Ting (supra) are in any way analogous to those in the C present case. D D E 20. As was pointed out in Chu Wing Yin Christine (supra) and E Poon Wing Kay (supra) the dominant factor to be considered as the F F offender’s culpability is firstly the objective dangerousness of the G offender’s driving. In Lau Sin Ting, the accident occurred as a result of an G error of judgment by the defendant. In the present case, Counsel accepted H H that an overall assessment of the incident demonstrates that the defendant I embarked on a course of dangerous driving (as opposed to momentary I inattention or error of judgment). There was no reason for the defendant J J to drive in that manner and no explanation has been offered for his K behaviour. The only and irresistible inference is that his actions were K deliberate. L L M 21. Counsel conceded that there are a number of aggravating M factors for all 4 Charges. I am of the view that the aggravating factors are N N more serious than what was described by Counsel. In fact, as in Poon Wing O Kay, what the defendant did in the present case came within the worst O category of this type of offences. His conduct showed an utter and selfish P P disregard, if not contempt, for the safety and well-being of all who came Q into contact with his driving. His conduct was completely reckless and Q these were not momentary lapses of judgment. The consequences of the R R accidents were serious. S S 22. The defendant was involved in a total of 4 accidents. He was T T driving on a single carriageway, but he accelerated as soon as he came out U U V V  - 24 - A A B B of the “parking space”. It was clear from the CCTV video that the speed C of the defendant’s car was much higher than appropriate on that stretch of C the road. D D E 23. The defendant then suddenly swerved to the right, drove onto E a pavement where there was a number of pedestrians and struck PW3 and F F PW4. The CCTV video footage showed that the victims were struck down G like bowling pins and it would be obvious to anyone that the injuries would G be serious. The defendant then swerved to the left and struck PW2. All 3 H H victims were injured; PW2 suffered a fractured skull with brain I haemorrhage; he also lost 6 teeth. PW3’s injuries included a deformed and I fractured right ankle and left fibular shaft fracture. Fortunately, PW4’s J J injuries were less serious. Despite that, the defendant did not stop or slow K down. I accept that the traffic was light at the time and the probability of K the victims being struck by another oncoming vehicle was low. However, L L having regard to the injuries (especially the brain injury), further serious M harm could have resulted from a delay in rescue. M N N 24. Not only did the defendant fail to stop after the first 2 O accidents, he sped away and turned onto Jordan Road. This was a O carriageway with 2 lanes. The defendant was initially travelling on the P P right hand lane. The traffic lights for this lane was red and 2 taxis had Q stopped at the traffic lights; PW9’s taxi was the second vehicle that stopped Q at the junction. The defendant failed to stop or slow down despite the red R R light, rammed into the back of PW9’s stationary taxi, causing serious S damage to its rear. Although the defendant’s car was damaged, he did not S stop after this 3rd accident. Instead, he swerved to the left and sped off on T T U U V V  - 25 - A A B B the left hand lane. This was the second time that he had failed to stop after C an accident within the space of minutes. C D D 25. Soon thereafter, the police found the defendant’s car on E Austin Road near Chatham Road South. The defendant’s car was heavily E damaged, stationary and sideways on the road, next to 2 damaged trees and F F a damaged signpost. PW1, the passenger in the defendant’s car sustained G several broken ribs as a result of this series of accidents. G H H 26. The defendant’s conduct was persistent and deliberate. He I deliberately took the risk not just of being prosecuted for breaching traffic I laws, but far worse, of endangering people’s lives. It was clear that the J J defendant would not have stopped but for this last accident. K K 27. The standard of the defendant’s driving was wholly appalling L L and in my view totally unacceptable and must rightly be condemned. The M safety and well-being of members of the public in Hong Kong are M paramount and the public must be adequately protected from the type of N N driving the defendant displayed. His driving came within the worst O category of the type of offences under consideration. In no other case cited O to this Court have the facts been so bad. The deliberate disregard for the P P lives and safety of others may well have attracted charges of causing Q grievous bodily harm with intent, where upon conviction, sentence of life Q imprisonment might have been imposed. R R S 28. In Poon Wing Kay (supra), the Court of Appeal found that the S behaviour of the defendants warranted the maximum sentence of 5 years. T T The maximum term for dangerous driving and dangerous driving causing U U V V  - 26 - A A B B grievous bodily harm has since been increased to 7 years’ imprisonment. C Although the defendant was not a public transport driver, he failed to stop C after the two accidents. As was stated above, any delay in rescue could D D have caused further harm to the victims, especially PW2 who suffered a E fractured skull and brain haemorrhage. The defendant was only fortunate E that the injuries caused to the victims were not more serious. F F G 29. In my judgment, the appropriate starting points are as follows: G H H Charge 1: 6 years’ imprisonment; I Charge 2: 1 year’s imprisonment; I Charge 3: 3 years’ imprisonment; J J Charge 4: 1 year’s imprisonment K K MITIGATION L L M 30. The defendant only indicated that he would plead guilty to all M 4 Charges after the trial dates were fixed. In those circumstances, he is N N only entitled to a 20%-25% discount. Since he only indicated his plea O shortly before the commencement of the trial, I am of the view that a 20% O discount would be appropriate. P P Q 31. Apart from his guilty plea, Counsel pointed out that the Q defendant himself was seriously injured as a result of the accidents. He R R was left unconscious after the accident and was admitted to the intensive S care unit for 3 days. Thereafter, he spent 2 months in hospital and S underwent near a dozen surgeries, including skin grafts to his right arm. T T He then spent another month in Kowloon Hospital before he was U U V V  - 27 - A A B B discharged. Counsel submitted that the defendant is still suffering from C weakness in his right arm. C D D 32. Firstly, the defendant was the author of his own wrong. If he E drives in that manner, he can only expect to be injured. Taking into account E his injuries, the sentences for Charges 1 and 3 will be reduced by 6 months. F F In other words, the sentences for the 4 Charges will be: G G Charge 1: 51.5 months’ imprisonment H H (57.6 months – 6 months, rounded down to 51.5 I months) I Charge 2: 9.6 months’ imprisonment J J Charge 3: 22.8 months’ imprisonment K Charge 4: 9.6 months’ imprisonment K L L 33. It is trite law that the personal background and family M circumstances of the defendant do not amount to mitigation in serious cases. M His remorse is already included in the discount for a guilty plea. Apart from N N his guilty plea and injuries, there are no mitigating factors. O O TOTALITY P P Q 34. The Court is required to consider the question of totality. Q Since I have taken into account the overall circumstances of this case in R R assessing the starting point for Charge 1, order that the sentences of all S charges to be served concurrently, ie a sentence of 51.5 months’ S imprisonment. T T U U V V  - 28 - A A B B DISQUALIFICATION C C 35. In addition, under Charges 1, I order that the defendant be D D disqualified from driving or holding any form of driver’s licence for a E period of 4 years or until he has, after the date of the disqualification order, E passed the test of competence to drive prescribed under the Road Traffic F F Ordinance, whichever is the later. G G 36. For Charge 3, the defendant is disqualified from driving or H H holding any form of driver’s licence for a period of 1 year or until he has, I after the date of the disqualification order, passed the test of competence to I drive prescribed under the Road Traffic Ordinance, whichever is the later, J J such order shall be consecutive to the disqualification in Charge 1. K K L L M ( A N Tse Ching ) M District Judge N N O O P P Q Q R R S S T T U U V V