HKSAR v. TAM YING YUEN

DCCC 129/2022

[2022] HKDC 915

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 129 OF 2022

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REASONS FOR SENTENCE

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The Charges and the Facts

1.  The defendant pleaded guilty to two charges, namely, 1)  Causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374 (“RTO”)  and 2)  Driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, contrary to section 39A(1)  of the RTO.

2.  According to the Summary of Facts admitted by the defendant, the accident occurred at a signal-controlled pedestrian crossing in Sha Tin where the speed limit was 50 km/hr.  It was at about 2252 hours on 17 July 2021 when the defendant was driving a light goods vehicle (XD4439)  along the 3^rd lane on the relevant road.  Despite the “red” traffic signal, the defendant did not stop the vehicle when it was driving over the pedestrian crossing.  Obviously, the pedestrian signal at that time was green.  Unfortunately, Mr Lai (PW1)  and Ms Leung (PW2)  were there crossing the road and came into contact with XD4439.  The impact threw both of them into the air before they fell onto the ground.  It was revealed later that the dash camera of XD4439 captured the course of the accident.

3.  The police came to the scene and conducted a Screening Breath Test on the defendant at 2322 hours (ie half an hour after the accident)  and found a reading of 112 micrograms of alcohol per 100 millilitres of breath.  The defendant was then arrested for “Drink Driving”.  He revealed that he had alcohol two hours before the accident.  A subsequent breath test conducted at 0039 hours on 18 July 2021 produced a reading of 71 micrograms of alcohol (the prescribed limit was 22 micrograms).  The defendant further revealed that he had two glasses of beer and wine that night before the accident.

4.  During the cautioned interview, it was further revealed that the defendant was driving at about 50 km/hr.  He admitted that he saw the “red” traffic signal, but he reacted too slowly and could not apply the brake in time because of his consumption of alcohol.

5.  On the other hand, PW1 and PW2 were admitted to Prince of Wales Hospital (“PWH”).  Examinations revealed the following injuries on them:-

(a)  PW1 (victim as per the particulars of charge): fracture of right pelvis acetabulum and fracture of right great toe proximal phalanx. PW1 was hospitalized for 6 days.

(b)  PW2 (victim not named in the particulars of charge): abrasions and minor head injury. She was admitted to Intensive Care Unit and Orthopaedic Clinic of PWH. She did not require any sick leave, however.

6.  I am told that PW1 had a full recovery.

Mitigations

7.  The defendant was 50 (now 51)  at the material time.  He was a factory supervisor sharing a professional driver role and food preparation earning around $20,000 per month.  He now focuses on food preparation for the same company.  He is married and living with his wife and two daughters.  The defendant has certain criminal convictions, but they occurred when he was rather young and there was no similar previous record.  There is only a record of “Failing to comply with traffic signal” in March 2021 since he had obtained his driving licence in 1991 and that case was dealt with by way of a fine of $600.

8.  In mitigation, Mr McGowan (with Ms Cyndi Ho assisting him)  helpfully referred me to the case of Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771 and highlighted the relevant parts for my consideration.  In particular, counsel referred to paragraphs 58 and 59 of the case and asked me to take that “the door is still open for other (sentencing)  options[1]”.  It was further suggested in mitigation that taking a holistic approach, the present case is exceptional, in particular, when, as Mr McGowan stressed, one is to consider sufficiently the matters pertaining to commission of the offence and the background of the defendant. 

9.  I was told that XD4439 was a company car.  It was parked at the parking space designated by the company.  The defendant had dinner with his close friend Mr Leung (PW4)  after work on that night in the vicinity.  It was submitted that during the meal, Mr Leung suddenly expressed that he felt unwell.  The defendant had underestimated his alcohol consumption and volunteered to drive Mr Leung home.  I was told that, but for Mr Leung’s condition, the defendant would have gone home by bus after the dinner.

10.  To explain the consumption of alcohol, counsel also referred to a background concerning his younger daughter that caused the defendant to have a lot of thoughts and feelings.  The defendant was described to be in a “uncharacteristic troubled mood”[2]. It was further revealed that the younger daughter has suffered from a psychiatric condition as a result of an incident that took place in 2021. Suffice it to say, I have considered all the materials put before me and I shall not go into details in this regard.  Similarly, there are certain conditions about the health of the wife of the defendant.  It seems that the defendant plays an important role in the family and his absence (upon being jailed)  from the household would cause a great impact on the family, including the three elders who continue to need the care of the defendant.

11.  Based on the extensive mitigations advanced, a background report was called for.  Suffice it to say, the contents of the report supported the submissions of the Defence.  I must add that the Probation Officer, Ms Chan, highlighted that the wife of the defendant had provided a number of documents to support the medical conditions of the elders in the family and the mental issue suffered by their younger daughter.  Ms Chan also elaborated in detail the matters that brought upon the present conditions of the younger daughter and how much extra care the family should give her and how serious the impact that any incarceration of the defendant would bring to the family.  These involve sensitive matters and I have indicated to the Prosecution that I would refrain from mentioning them in detail now.

12.  According to the Background Report, Mr Leung (PW4)  was also interviewed, and he gave a supportive account of what had happened.

13.  In summary, the Background Report is a very positive one and one would clearly take that the defendant was otherwise a reliable and respectable father and a highly regarded member of the family. 

14.  Mr McGowan fairly pointed out that there are aggravating factors: 1)  the extent of intoxication and 2)  the fact that the offence took place at a pedestrian crossing.  It is clear that the defendant drove against the traffic light at the material time.

15.  I note that the alcohol level was 3 times above the prescribed limit. That could be consistent with the consumption the defendant had revealed. However, the level remains a high level.

16.  To sentence otherwise a law-abiding citizen to jail for a traffic offence is painful.  Furthermore, the sentence however harsh could not undo the tragedy which sometimes involves serious injuries of an accused or their close relatives and friends. 

17.  The difficult job I have here is to arrive at a proper and just sentence not only for the defendant; the same should do justice to the victim(s)  and be able to send a clear message to the public that the courts do take a serious view regarding similar offences.  Each case however depends on the individual facts both pertaining to the case and the offenders.

18.  Having considered all the materials before me, I am not satisfied that this case is exceptional.

19.  When one is to compare it with Chu Wing Yin Christine, one would note that the appellate in that case had also caused two victims “bounced off” the vehicle at the time of the accident.  Both of them had sustained serious injuries as a result.  Mr McGowan acknowledged that the facts of that case bear certain similarities to the present one saved that the appellate in that case was not driving under any influence of alcohol.  The Court of Appeal was of the view that the proper starting point should be a 18 months’ immediate custodial sentence for that case.  In all the circumstances, I cannot accept that the present case warrants a lower starting point.  I also do not accept that any non-immediate custodial sentence is appropriate for the present case.

20.  The drink driving also forms the basis of the second charge.  Whilst the defendant would not be punished twice for this matter and the court has to arrive at a fair starting point for each of the charges bearing in mind the totality principle as well, Charge 2 alone is very serious.  Let us not forget that drink driving could be lethal, and the courts take it very seriously.

21.  Having given due care and consideration to all the mitigations, I do not accept that any sentence other than an immediate custodial sentence is sufficient for the drink driving offence alone in this case.  The defendant had plenty of options and so did Mr Leung (PW4).  The defendant has to bear the consequences albeit that I accept that his decision was a foolish one as described.

22.  I shall give full discount to the guilty plea.  I also accept that the defendant is genuinely remorseful.

23.  For Charge 1, where a person is convicted of an offence of causing grievous bodily harm by dangerous driving, section 36A(2)  of the Ordinance provides that the sentencing court must order the person to be disqualified in accordance with subsection (3)  or (4), unless the sentencing court for “special reasons” orders that the person not be disqualified or disqualified for a shorter period as specified.

24.  Under sub-section (4), it is said that “for a first conviction, a period of not less than 2 years, or until the person has attended and completed the course at his or her own cost, whichever is the later”.

25.  For Charge 2, there are similar provisions under s39A.

26.  It is important to note that under s36A (6), “If an offence under subsection (1)  is committed in circumstances of aggravation, the maximum fine and term of imprisonment for the offence as set out in subsection (1), and the minimum disqualification periods for the offence as set out in subsections (3)  and (4), are each increased by 50% and subsection (5)  must be construed accordingly.

27.  Under s36A (7), “A person commits an offence under subsection (1)  in circumstances of aggravation if at the time of committing the offence— (a)  the proportion of alcohol in the person’s breath, blood or urine is tier 3”.

28.  Therefore, by virtue of sub-sections (6)  and (7)  it is incumbent upon the court in the present case to note the increased maximum penalty for Charge 1.  Nonetheless, it does not mean that the court should increase the starting point by 50%. 

29.  Having carefully considered, I shall adopt an overall starting point of 18 months’ imprisonment for Charge 1 and a starting point of 6 months’ imprisonment for Charge 2. 

30.  They are reduced to 12 months and 4 months to reflect the guilty plea. I decide to further reduce them by 3 months and 1 months respectively to reflect all the other mitigations.  Therefore, the defendant is sentenced to 9 months for Charge 1 and 3 months for Charge 2.  I order that these sentences to be served concurrently.  Therefore, the total sentence imposed is 9 months’ imprisonment.

31.  On the question of disqualification, I see no basis to depart from the minimum requirement and the Defence have also no objection to that.  I shall order a 2 years’ disqualification for each of the charges also to be run concurrently.

32.  And lastly, it is ordered that the defendant has to complete the driving improvement course by his own cost within 3 months of completion of disqualification period imposed for Charge 1.