HKSAR v. CHEUNG HANG KEI

DCCC 785/2018

[2020] HKDC 286

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 785 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded not guilty to one charge of dangerous driving causing grievous bodily harm. At the outset of the trial, the defendant indicated his guilty plea to careless driving. After trial, I found him guilty of careless driving.

2.  I would not repeat my reasons for Verdict herein.  In summary, at about 1935 hrs on 12 February 2018, the defendant, driver of VA4757, was travelling on the Castle Peak Road Tuen Mun-bound (“the Road”) leading to a T-junction formed by the Road and the exit of the Gold Coast carpark.  PW1, driver of HD3298, proceeded from the exit of the carpark to enter the yellow box markings at the junction after checking that there was no oncoming traffic from his right.  During the course of which, VA4757 hit the offside rear of HD3298 which caused the same to spin around.  At the time of the traffic accident, PW1’s wife and son were on board of HD3298 occupying the offside rear passenger seat and front passenger seat respectively. 

3.  As a result of the traffic accident, both vehicles were damaged and PW1’s wife (“the victim”) sustained injuries. The victim was hospitalized for two days.  She was found to suffer injuries at her head and right chest wall including tenderness over right forehead and tenderness over right chest wall and fracture of the right 4th to 11th ribs. 

4.  In May 2018, X-ray showed that her ribs had been healed without complications.  She had infrequent discomfort over fracture sites only and was treated with analgesics.  She was discharged with no further follow-up.

5.  Overall speaking, I found that the traffic accident took place due to a momentary lapse of attention on the part of the defendant and the defendant was guilty of careless driving. 

Criminal record

6.  Prior to the present conviction, the defendant had a clear criminal record.  He had five traffic records including one conviction of a similar offence and was fined for all five offences. 

Mitigation

7.  A background report was called for prior to sentencing.  The mitigation put forward by the defence is largely consistent with the contents of the background report. 

8.  The defendant, aged 34, was locally born and received education up to Form 3.  His parents are in their fifties and his father also operates a leisure farming business.  The defendant has a younger brother who is now employed in advertising living in the UK. 

9.  The defendant has a son, aged 9, who was born out of a cohabitation relationship in 2010.  He then married his ex-wife in May 2016 in the Mainland but they got separated after three months.  His son and ex-cohabitee could not be reached in early 2016.  He also has had no contact with his ex-wife since late 2016.

10.  After separation with his ex-wife, he returned to Hong Kong to live with his 90-years-old grandmother and resumed working as a full‑time driver with a stable income.  He met Ms Lau Yu Ting, a sales lady, at work in early 2017 and started cohabitation since mid-2017.  They intend to get married this year. 

11.  The defendant joined a vocational training programme in 2001.  However, he quitted the programme after a few months and started to work as a stock keeper.  He got his driving licence in 2004 and mainly worked as a driver until the present offence.  His earnings as a driver was $15,000 or above per month.

12.  The defendant first appeared before the Magistrates’ Court for the present case on 9 August 2018.  The presiding Magistrate granted him bail with conditions including the surrendering of his driving licence and the prohibition from driving any motor vehicle.  Because of these two bail conditions, he could not resume work as a driver and has ever since only worked as a casual construction site worker earning about $12,000 per month.  He also assists in his father’s leisure farming business. 

13.  Under the influence of undesirable peers, he had been addicted to drugs for a few years.  However, after returning to Hong Kong to live with his grandmother, he abstained from drugs.  He now enjoys good health. 

14.  He spent $200,000 on the purchase of VA4757.  As it was covered by third party insurance only, he received $60,000 from the sale of the wrecked VA4757 and suffered heavy financial loss. 

15.  The defendant is remorseful and expresses his guilty feeling for the victim’s injuries. 

16.  His parents and Ms Lau support the defendant and believe that he had committed the present offence out of carelessness.  His employer also passed positive comments about him that he was industrious and punctual with a positive learning attitude. 

17.  Based on the traffic expert’s report, the prosecution initially alleged that the defendant was travelling at a speed of 85 km/h at the time of and immediately prior to the incident.  Following the presentation by the defence to the prosecution, of a traffic expert report prepared by the defence, it was accepted by the prosecution and their traffic expert that at the time of the incident the speed the defendant was travelling was not 85 km/h but 65 km/h plus or minus 7 km/h.  Consequently, the defence offered to the Department of Justice for the defendant to plead guilty to careless driving, in lieu of the dangerous driving causing grievous bodily harm charge.  The offer was, however, not accepted and the case proceeded to trial. 

18.  The present case, as submitted, is not the most serious case of careless driving.  The victim has made a complete recovery.  The defendant is entitled to a discount for his guilty plea.  Although the defendant’s driving record is not unblemished, it should not, as submitted, result in his sentence being increased. 

19.  As a result of the aforementioned bail conditions, the defendant has in effect been disqualified from driving for a period of more than 20 months.  It is submitted that a further disqualification order would amount to the disregarding of the earlier court order regarding the said bail conditions and a double penalization, which would be wrong in principle and manifestly excessive. 

20.  The defence urges me to consider imposing a fine on the defendant and exercising my discretion not to make a disqualification order.

Sentence

21.  I have carefully considered all the facts of the case and mitigation put forward by Mr Donald on behalf of the defendant. 

22.  According to section 38(1) of the Road Traffic Ordinance, a person who commits an offence of careless driving is liable to a fine at level 2 and to imprisonment for 6 months.  The court also has the discretionary power to disqualify the offender from driving, section 69(1)(a) of the Road Traffic Ordinance. 

23.  As the offence of careless driving covers a vast range of driving and the penalty imposed is usually dependent on the degree of carelessness of driving and the driver’s traffic record, there is no sentencing guideline.  However, the most important consideration is the protection of the public, Chan Kwai Lai v R [1968] HKLR 31. 

24.  Although the defendant had traffic records, one of which was careless driving, his offer to plead guilty to careless driving, in my view, reflected his genuine remorse.  I am prepared to deal with him leniently and would not consider his traffic records as an aggravating factor. 

25.  The present case involved injuries sustained by the victim.  However, as the incident occurred due to the defendant’s momentary lapse of attention, I do find his culpability to be at the lower end of the scale for this type of the offence. 

26.  I do note that he was travelling at 58 km/h over the speed limit of 50 km/h the moment before the accident.  It could not be regarded as greatly excessive. His failure to reduce speed at the last slow marking was due to his momentary lapse of attention.  Taking all the circumstances of the case into account, the fact that until today the defendant has been banned from driving for more than 20 months by reason of the bail conditions in question and the said period is close to the mandatory disqualification period of not less than 2 years that can be imposed on a first offender of dangerous driving causing grievous bodily harm offence, I am of the view that it would not be right to suspend the defendant’s driving licence and make a disqualification order. 

27.  Despite so, I do find that the fact of speeding in the present case and his traffic records involving speeding, failing to comply with traffic signals, overtaking another vehicle on its nearside and careless driving clearly show that he needs to attend a driving improvement course to correct and improve his driving manner.  The defendant has, through Mr Donald, indicated to me his willingness to do so.

28.  Taking all the matters into account, I impose a fine of $5,000 on the defendant and order him to attend and complete a driving improvement course at his own expense within 3 months beginning on the date of the order.  The fine will be deducted from the bail money.  The defendant is warned that it is an offence if, without reasonable excuse, he fails to comply with the order regarding the driving improvement course, he will be liable on conviction to a fine at level 3 and to imprisonment for 2 months.