HKSAR v. IP KIM MAN JOCOSE

DCCC 677/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 677 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to causing grievous bodily harm by dangerous driving, according to section 36A of the Road Traffic Ordinance, Cap 374.

2.  On 28 March 2015 in Yuen Long, New Territories, the defendant was that day driving along Yuen Long On Lok Street and in the first lane of four lanes.  The defendant explains that he had stopped at traffic lights with two vehicles in front of him.  He intended to go straight ahead after the traffic lights turned green.  After the traffic light did turn green, the two vehicles in front of him turned left onto an unnamed road.  The defendant then looked ahead to see some water-filled red and white barricades jutting into the lane in front of him.  The defendant thought he could not go straight ahead because of these barricades.  He told the police that he was going to step on his brake, but instead, stepped on his accelerator, and lost control of his vehicle.

3.  The scenario is best seen from the photographs provided by the prosecution.  From the photographs, the defendant clearly did turn his vehicle to the left, and what happened next was that he hit and drove into the safety island in the middle of that unnamed road.

4.  The defendant’s vehicle hit the victim, a 61‑year‑old gentleman who was stood on that island waiting to cross the road.

5.  A witness saw the defendant’s vehicle turn left at a faster speed than normal and hit the victim.  This witness’ testimony would corroborate or support what the defendant said he did by accident, standing on the accelerator instead of the brake.

6.  Looking at the facts, the photographs and the mitigation put forward, there is no reason not to believe that that is what happened.  The defendant had been stationary at red lights, and when he moved off, he was indecisive about where he could go.  He panicked, and stepped on the wrong pedal.  He sped up, lost control, and not only hit the victim, but drove onto the island, pinning the victim to the railing.  The position his vehicle ended up in meant that he could not move forward or backwards and free the victim pinned to the railing.

7.  Tragically, the victim suffered terrible lower body and lower leg injuries.  This meant that he had to have his right foot amputated and his left lower leg amputated.  I have several medical reports before me, and have learnt that the victim was officially discharged from hospital a few days ago.  His degree of permanent disability is yet to be assessed.  The eight months that he has spent in hospital can only be described as harrowing.  Today I received an updated medical condition that says obvious skin grafting as a result of amputation resulted in some infection.  The victim will be fitted with artificial prosthetic limbs, and before he can use those effectively and efficiently, he will need to use a walking frame.

8.  Besides the physical injuries and disabilities the victim has suffered, he obviously has suffered psychologically.  One report records that he has flashbacks of the accident, sleeps badly now; he also obviously worries about his future and his financial situation, which affects not only himself, but his family directly.

9.  The defendant is a 39-year-old man, married, with a 21‑year‑old son.  The defendant has a clear record.  He has no traffic record, and has had a driving licence since January 2006.  Despite having had a driving licence for nearly 10 years, he only purchased a vehicle a few months before this accident.  That may suggest the defendant was a rusty and inexperienced driver.

10.  The defendant is filled with remorse and a devastated man.  He knows he has ruined another person’s life and his own will never be the same.  He writes a letter to the court and describes how he never imagined that he would be responsible for destroying two families.

11.  The defendant has worked since he left college, and worked in several fields.  He decided to better himself and to set an example to his son by studying for a degree through the open university.  He graduated in 2014 with an associates degree.  He only needs five more credits for a bachelor degree.  He has worked hard all his life to provide for his own family as well as his mother, who is still financially reliant on the defendant.

12.  At the time of the accident, his wife was sitting in the passenger seat.  She witnessed the tragedy.  After the accident happened and because of the position of the car, the defendant could not get out of his vehicle.  His wife could see the victim trapped by her side of the vehicle in the most horrific of circumstances.  Both the defendant and his wife, as a result, suffer now from insomnia, and both live with differing degrees of dread, guilt and shame.  I have no reason to doubt the defendant’s remorse.

13.  Road accidents are never normally intended. Here, the defendant made a critical error, and the consequences were devastating.  Vehicles can be potentially lethal machines that cause misery.

14.  There are in this case no aggravating factors to the dangerous driving as identified in the authority of R v Cooksley [2004] 1 Cr App R 1.  This is not a case where the defendant was drunk, on drugs, deliberately drove dangerously, deliberately drove an unroadworthy vehicle, or overtly took risks on the road.  As a case of this nature goes, the defendant’s driving manner was not the worst of its kind.

15.  However, the courts have to take the approach that dangerous driving cases merit a deterrent approach.  The Court of Appeal in Secretary for Justice v Huen Wing Kei [2007] 1 HKLRD 660, which adopted the principles of the English authority of R v Cooksley, said:

“It is important for the 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. A motor vehicle, many may often forget, when not driven to the requisite standard, 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 their lives are not endangered.”

16.  Obviously, the injuries to the victim here and the impact on his life are to be taken into account.  However, the court must also be careful not to be overwhelmed by the tragic outcome of the accident. It is a relevant sentencing consideration, but the defendant did not intend to do this to the victim.

17.  The culpability of the defendant, how he drove dangerously, is still a dominant factor in sentencing.  The defendant admits and takes responsibility for his driving manner which fell far below the standard expected of a competent and careful driver.

18.  Defence counsel has said all he can on behalf of the defendant in mitigation.  I have had letters from the defendant, his wife, his employer, and friends that all give me an insight into a hardworking family man who made an unintentional mistake that tragically maimed another man.  I accept, as I have said, the explanation as to how he drove dangerously, and I find that it is at the lower end of the spectrum in terms of seriousness, without forgetting the victim’s injuries.

19.  Defendant, please stand up.  Having considered all the circumstances of this case and mitigation put forward, I have decided the appropriate starting point is a sentence of 18 months’ imprisonment. I will reduce that for the defendant’s plea by one-third.

20.  The defendant will, for this offence, serve a 12‑month term of imprisonment.

21.  You will also be disqualified from driving any class of vehicle for 2 years.  In the last 3 months of that disqualification you must undertake and complete a driving improvement course at your own cost. If you do not, you will not be able to drive and have your licence back.  I also have to warn you that if you drive whilst disqualified, that in itself is a serious offence and will merit a term of imprisonment.

COURT: Do you understand the sentence?