HKSAR v. YUEN WAI KIT

DCCC 867/2024

[2025] HKDC 361

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 867 OF 2024

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant has pleaded guilty to a single charge of negligently causing or permitting an aircraft to endanger a person, contrary to Article 48 of the Air Navigation (Hong Kong)  Order 1995, Cap 448C. Particulars of that offence being that the defendant, on 2 October 2023, being the tandem paraglider pilot, negligently caused or permitted a paraglider to endanger a person, namely Zhang Yiqi, being a passenger on the said paraglider.

2.  The offence is contrary to Article 48 of the Air Navigation (Hong Kong)  Order, which provides under Article 48 that a person shall not recklessly, or negligently, cause or permit an aircraft to endanger any person or property. Clearly, the Article envisages the possibility also of a reckless endangering of person or property as a result of the causing or permitting use of an aircraft. Contravention of the ordinance on indictment lead to a fine, or imprisonment for a term not exceeding 2 years.  The maximum sentence permissible by the court in this case would be one of 2 years’ imprisonment.

3.  I turn now to the facts as agreed by the defendant.  The defendant held himself out to be a paragliding trainer in June 2023, and the victim, a Madam Zhang, showed an interest in learning paragliding in September 2023.  The victim (PW1)  met D in a restaurant for a paragliding theory lesson.  At that lesson, the defendant said he was a trainer with the United States Hang Gliding and Paragliding Association known as USHPA.  It did in fact occur that the defendant’s licence with USHPA had been suspended at that point.

4.  On 2 October 2023, the flight on the paraglider was arranged at Ngong Ping at Ma On Shan, which is where PW1 met the defendant.  The victim was given a helmet, and then a tandem paraglider was to be used to carry the victim PW1 as a passenger to take off.  It was said there was no briefing before the take- off, or any form of pre-flight preparation, or any briefing on emergency procedures.

5.  The defendant is said not to have conducted any pre-flight equipment check.  Within seconds, I believe it was some 3 seconds, the paraglider had barely gained any altitude, the harness on the right side of the tandem paraglider suddenly loosened.  The defendant and PW1 then crashed onto a slope nearby.

6.  Emergency services were summoned.  As a result of the accident, PW1 suffered from a serious fracture to her right ankle and as a result underwent four operations between 2 October 2023 and 7 November 2023.  She had to attend intensive follow-up treatments thereafter.  The fractures were healing, or are healing, but the range of movement of her right ankle has been seriously affected for a period of time.

7.  The flight itself was analysed by a Mr Chiu, who is the vice chairman of HKCPAL, had been appointed to assist in the investigation of paragliding accidents and incidents conducted by the Air Accident Investigation Authority. He provided an expert opinion as to the cause of the accident.  He reviewed the video footage, which had been taken of the accident.  His conclusions were that the accident was caused by:

(a)  a misjudgment of pre-flight preparations, including one of the defendant’s harnesses was not attached to the spreader, and the defendant was wearing slippers;

(b)  a lack of pre-flight check, including the defendant failing to check if all the harnesses had been properly attached to the spreader;

(c)  a misjudgment during take-off procedures, including the defendant’s failure to notice the harnesses were not properly attached, and he should have stopped take-off procedures; and

(d)  misjudgment of the paraglider controls and take-off, including the defendant’s failure to control the paraglider when losing balance.

8.  It would have been the essential act of negligence in the case that caused the accident was the harness was not attached to the spreader, which led to the fact that the paraglider was not capable of maintaining any form of flight, and quickly crashed.

9.  It is also said that the failure to provide a pre-flight briefing was a form of negligence in this case, although it does not appear necessarily to have contributed to the accident or the injuries suffered by the victim.

10.  The defendant is a man of clear record.  I will go into his background in more detail later.  Currently aged 49, I believe, and is in work now.  I have just received information that a company is currently employing him.

11.  The background of the defendant put forward in mitigation is that the defendant is in fact, or was at the time, a valid hang gliding and paragliding instructor with a licence for the Chinese Taipei Aerosports Association at the time of the accident.  He had been practising paragliding for over 20 years and was at the time an experienced instructor.  He had all along been a licensed person with the United States Hang Gliding and Paragliding Association (USHPA).  However, on 31 October 2019, due to certain allegations and disputes with the Hong Kong Paragliding Association, he reinstated his licence with USHPA, but the licence was not renewed by them.

12.  The defendant, in respect of the incident, admitted that he was negligent when performing safety checks prior to take off.  He did not notice that the right buckle was not fixed properly.  The gear had been ordered from France a few months before the incident.  It was comparatively light compared with the gear he had been previously using, but the buckles all needed to be refixed each time when the aircraft was put into motion.

13.  It is said that this is not a mid-air accident as the paraglider had barely taken off from the ground before it ceased to become airworthy.

14.  The defendant’s attitude toward the victim is said to be as follows:  he is extremely remorseful for the injury suffered by the victim; tenders his sincere apology to the victim.  He had in fact taken some care of the victim since she had been sent to hospital and he had paid certain costs that she had incurred, said to be up to amount of some $10,000.

15.  As far as the allegation there was no pre-flight briefing in his mitigation, the defendant says that when he had taken PW1 out for dinner, he had given her a briefing session at that time and had explained the basic measures and actions of paragliding.  He had indicated to PW1 that the ride he was giving was free of charge and reminded her to take out insurance for herself.  The defendant had himself purchased insurance through the International Paragliding Association from Hong Kong on a yearly basis.

16.  The defendant in his mitigation says that he suffered various drastic consequences from the injury.  He says he had no money benefit for taking the victim for a paragliding ride; he was purely trying to satisfy her request to enjoy a view of Hong Kong.

17.  The defendant says that the accident and its consequences has destroyed his career.  He was apparently asked to resign as a police constable after the incident had appeared in the media in respect of various matters that appeared in relation to this incident.

18.  The defendant has a clear record.  He had been a police constable, joining the Police Force in April 1995; had totally 29 years of service in the Police Force and never been disciplined.  In the background report I obtained, it appears he did receive some commendations and I will deal with those later.

19.  The defendant asks for a lenient disposal of the case, which would lead to him continuing to have his liberty.

20.  I must deal with the approach to sentence.  It is common ground that there have been no previous convictions or sentences in respect of this particular Article.  The case for the prosecution is based on negligence, not recklessness.  So as I have indicated earlier, it is a less serious form of culpability, and of offending, in respect of this contravention of this Article.

21.  The defendant failed to, in this case, adequately brief the victim, and failed in his pre-flight preparations to ensure the paraglider was effectively ready for flight, leading to what was an immediate failure of the paraglider as it had only been airborne for a very short period.

22.  Of course, with there being no previous sentencing, the court must to a certain extent look to other forms of sentencing to see what approach should be taken to a case of this nature.  As I indicated to the prosecution and defence at one stage, it appeared to be similar to offences of careless driving causing serious injury or death, which is punishable in the United Kingdom by a sentence of up to 2 years’ imprisonment.

23.  If I took the approach that would be largely taken in a case of that nature, the sentencing should look at two particular aspects to determine the level of sentence.  The first factor would be the culpability of the defendant.  In this case, as I have said, the culpability is based on negligence.  This could lead for the standard, which would be just below that of recklessness, to that of a standard that is just over the level of carelessness, such as a minor negligent action, or a momentary lapse of concentration.

24.  Secondly, the other factor to be of consideration is to determine the level of harm that has been caused by the defendant’s negligence; that can range from causing grave and serious injury to a minor injury.  A grave and serious injury would be one that is life threatening and permanent, an injury resulting in a long-term permanent disability, affecting the victim’s ability to carry out their normal life.

25.  Let us firstly look at the level of negligence in this case.  This is carelessness, plain and simple.  Certainly not the standard required of a person who was an instructor in paragliding.  There was an inadequate briefing given, or no briefing at all.  Of course, that did not cause the accident, or in any way affect the level of injury received by the victim.  However, it does show a careless approach to what is a serious operation.  Any form of flight involves a serious risk of injury; that is apparent and must be taken very seriously.  So once the paraglider was airborne, it was simply inoperable and crashed shortly afterwards.  The poor flying characteristics of the paraglider led from the failure simply to secure the harness properly.

26.  I consider, however, at the end of the day it is simply overlooking something; that is what I describe as a mid-level seriousness, or as a mid-level of carelessness.  Not at the border of recklessness, but certainly not a minor form of carelessness.

27.  As far as the harm concerned to the victim, the victim’s injuries are not life threatening and should not be permanent.  However, the victim has been highly inconvenienced for a lengthy period; no doubt suffered a considerable pain and suffering, and has been substantially inconvenienced in her life. Again, this would appear to fall again in the middle level of seriousness between serious permanent injury and a minor injury.

28.  I must now consider, having isolated those factors, what is the appropriate sentence in this case.  Clearly, a sentence of imprisonment is possible in respect of an offence of this nature.  And I consider that an offence of this nature would lead to a sentence of imprisonment which would be in the middle of the range, round about 1 year imprisonment.  But should I impose a sentence of that nature, an immediate sentence of imprisonment on this defendant?  Well, in order to determine that, I obtained a background report and a community service suitability report because community service order provides a clear alternative, to a suitable person, to an immediate sentence of imprisonment.

29.  This can be seen from the case history or sentencing in respect of community service orders.  The references in Hong Kong would be to HKSAR v Chow Chak Man and Li Tak Yin CACC 447/1998 where the Court of Appeal consider the guidance in the English case of R v Brown [1981] 3 Cr App R 294, 295 in respect of which kind of person community service orders are appropriate.  It would appear from those cases that the defendant would appear to meet all the characteristics of an offender who could be said to be best suited to a community service order as an alternative to an immediate sentence of imprisonment.

30.  He is a person that is a first offender, with a clear record; comes from a stable home background; a very good work record; and working still.  He has shown genuine remorse and shows no more than a slight risk of reoffending.

31.  The community service report showed the defendant had served in the Hong Kong Police Force for some 28 years, holding various positions.  During his 28 years of service, he had never been disciplined and received a Commanding Officer’s Commendation on four occasions for his professionalism and devotion to duty in various work areas.  That is to be acknowledged in the sentencing.

32.  The background and community service report also shows the defendant has been an active person and has had a great passion in sports and outdoor activities, and has been passionate about paragliding since the year 2000.  He provides paragliding training to students and offers paragliding experiences free of charge to people, especially those in disadvantaged circumstances.

33.  It is the conclusion of the probation officer on the background report that the defendant had suffered significant losses from this incident and has learned a clear lesson.  The defendant’s attitude was described as frank and cooperative and showed deep regret to the victim for his wrongdoing.  The conclusion of this report is the defendant is suited to perform unpaid community service as a means of restitution for his misdeeds.  The conclusion goes on, “The accused should be given a chance to reform and benefit society on a community service order.  And a community service order in the range between 160 and 200 hours are recommended for the accused.”

34.  I find myself having considered all the matters in this case to be in agreement with that conclusion.  The court will, subject to the defendant’s consent, impose a sentence of 200 hours of community service for this offence.