HKSAR v. KAM SIU MING

DCCC 476/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 476 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two offences: firstly, causing grievous bodily harm by dangerous driving, contrary to Section 36A of the Road Traffic Ordinance, and secondly, driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, contrary to Section 39A(1) of the Road Traffic Ordinance.

2.  He has agreed the facts of the case and I have convicted him of both those offences.

3.  The facts show that the charges arise out of a traffic accident that occurred in the early hours of 25 November 2013.  The defendant at the time was driving a private car along Castle Peak Road, Tuen Mun. At about 0103 hours - that is, 3 minutes past 1 in the morning - the car driven by the defendant reached the Castle Peak Road, Tsuen Wan section, where he lost control of his car.  The car spun along Castle Peak Road, hit two other vehicles.  The passenger in the front passenger seat of the car was thrown out of the vehicle and found lying on a kerb on the side of Castle Peak Road.

4.  The facts show that the carriageway was about 30 metres wide and three lanes heading in the Tuen Mun-bound direction.

5.  The speed limit of the accident location was 50 kilometres per hour.  The speed limit prior to that on the Castle Peak Road (Kwai Chung) section before Shing Mun Road is 70 kilometres per hour.

6.  The weather was fine, road surface was dry and there was sufficient illumination.

7.  The passenger was found on top of a concrete road kerb on the right of the road.

8.  The defendant was subject to breath tests by police.  The first one was at 1.07 hours, about 4 minutes later; there was a recording of 45 micrograms of alcohol in 100 millilitres of breath.  And then the second one occurred at 5 minutes past 2; that recorded 41 micrograms of alcohol for every 100 millilitres of breath.  That is the reading on which the second charge is based.

9.  The defendant made records of interview both on that evening and also later in January.  His explanation was that he had drunk three cans of beer before driving the car.  His speed at the accident location was between 80 to 90 kilometres per hour.  He was cutting from the left second lane to the left third lane and braked the car at the time.  He lost control of the car and the right rear part of the car hit the kerb.  He bounced off and hit a coach afterwards.  He said the injured passenger was not wearing a seatbelt and he surmised that braking too hard might have been the cause of the accident.

10.  The passenger, Mr Wong, received injuries which support the charge of there being grievous bodily harm.  The admitted facts show:

(1) extensive injuries to the right skull vault and basal fractures. There was left cerebral contusions, subarachnoid haemorrhage and small acute subdural haematoma and cerebral oedema. Those are the head injuries;

(2) there was a large right pneumothorax (or collapsed right lung) and two rib fractures;

(3) thirdly, there were spinal injuries of the first, second and third lumbar spine, where there were fractures.

11.  Mr Wong had emergency surgery.  He was critically ill and required ventilator support.  He was finally transferred to the general neurosurgical ward on 16 December 2013 after being stabilised.

12.  The car appeared to be in good condition and a government chemist Dr Wong indicated it was unlikely the seatbelt of the front passenger seat had been fastened at the time of the accident.  The passenger Mr Wong was found to have left the vehicle during the course of the accident, which is no doubt how his injuries were caused.

13.  As far as those facts naturally support the charges brought by the prosecution, I have convicted the defendant on the basis of the facts admitted by him. 

14.  The defendant has also admitted his antecedents. He is 29 years old.  As a young man, he received three criminal convictions, resulting in a sentence to a detention centre, but these were, of course, some time ago when he was much younger. 

15.  Perhaps of more relevance is the defendant’s driving record, which shows that he has a total of five convictions for driving in excess of the speed limit:  four for by more than 15 kilometres per hour but less than 30, and one driving in excess of the speed limit by 15 kilometres per hour.  These occurred between 2007 and 2013.  The defendant first was issued with a driving licence in June of 2005.

16.  The defendant has put forward a number of matters in mitigation.  He has provided me with six letters of mitigation and also I have a set of medical reports on Mr Wong, the passenger.  The letters are from family members and employers and also from an organisation for whom he provides some charitable assistance. 

17.  The letters all speak well of the defendant.  He works for the Hong Kong Environmental Protection Services Association; described as committed, passionate, highly motivated, selfless during his employment.  He also assisted the Environment and Nature Protection Association Limited.  It is clearly an area that the defendant has a commitment to and also what is described as passion, and following any sentence of imprisonment, he is, I understood, determined to return to that area of work.

18.  It would appear from the family letters the defendant is largely responsible for the care and support of his elderly parents.

19.  Finally, there is a letter from the mother of the victim.  She speaks of the defendant’s remorse.  She says that she has forgiven him and asks for leniency.

20.  The medical reports show that the passenger - I will call him “Mr Wong” - has made some progress.  Clearly, the area of injury requiring attention for neurosurgery has been the most serious of the areas of his lack of function.  He has received further surgery, most recently in May of this year.

21.  As far as what are called the “orthopaedic injuries” are concerned, he has clearly recovered well and is now freely moving.  No doubt this all provides an object lesson in the necessity of wearing a seat belt.

22.  The approach to sentence is as follows the most serious of the offences the defendant faces relates to Section 36A of the Road Traffic Ordinance.  It is the second of the three offences that involve dangerous driving.  The sentence is described as a fine at level 5 and imprisonment for up to 7 years.

23.  In the case of HKSAR v Lee Yau Wing, the court considered the approach discussed in R v Cooksley is appropriate for an offence of dangerous driving causing grievous bodily harm.  The defendant’s culpability is the dominant component in the sentencing exercise, even though the outcome of the offence is also an important matter for the sentencing judge to take into account. 

24.  Of course, the outcome of the offence is also affected by the failure to wear a seatbelt in cases such as this, which no doubt in any civil proceeding would be an important factor to consider, so I do not think it can be completely ignored in current sentencing either.

25.  In determining the culpability of the defendant’s dangerous driving, there is a body of case law and the case of the Secretary for Justice v Poon Wing Kay is applicable. 

26.  While making allowance for the fact that no death flows from the dangerous driving in a Section 36A offence,  the focus of the sentencing is on the defendant’s culpability.  It is said that any general good character in a case will carry little weight. 

27.  The culpability in this case arises from the defendant’s driving, in particular, maintenance of an excessive speed while driving in that particular location.  At that location, on the defendant’s admission, his excessive speed would have been between 30 to 40 kilometres per hour. 

28.  The defendant committed an error of driving.  He explains there has been excessive braking whilst undertaking a manoeuvre. 

29.  Nevertheless, this error is exacerbated by the defendant’s consumption of alcohol prior to driving, which naturally adversely affected his ability to control the vehicle that was travelling at too high a speed.  No doubt this acted to dull his senses and reactions, also his ability to perceive the risk involved would have been lessened.

30.  Clearly, the consumption of alcohol and its debilitating effects on driving ability is an aggravating factor in an offence such as this.  This, of course, causes the driving in this case to fall into the category of that of the most serious form of dangerous driving, where there is a clear disregard for the safety of passengers or other road users.

31.  Other facts to consider are the personal mitigation that has been put forward for the defendant and the clear remorse that he has shown both to the court and to the family of the passenger, and also, I note that, despite some waywardness in his youth, the defendant is a person who is unlikely to be seen in these courts, save for his involvement in an offence such as this.  He has clearly worked hard to make something of his life and enjoys the support his family.

32.  The sentence in such cases as this are highly dependent on the individual facts of each case and the individual mitigation of each defendant, the primary focus being on the defendant’s culpability, particularly the excess speed and consumption of alcohol, and the injuries suffered by the passenger.  Nevertheless, I have to note these have no doubt been aggravated by his apparently not wearing of a seatbelt.

33.  In sentencing, I bear in mind all these factors that I have outlined.

34.  It does appear to be that the consumption of alcohol and the past propensity of the defendant to drive at excess speed significantly contributed to this accident and the injuries of the passenger.

35.  Of course, in these circumstances, a sentence of imprisonment must be imposed.  It must have immediate effect.

36.  I turn to the first charge, the most serious of the offences faced by the defendant.

37.  In taking all these factors into account, in this case I will take a starting point of 3 years’ imprisonment, which I will reduce to 2 years’ imprisonment for the defendant’s plea of guilty.  He will also be disqualified from driving for 3 years and he will have to take and complete a driving improvement course, but I will give details of that later.

38.  As far as the second charge is concerned, I will impose what is described as the normal sentence for an offence of this nature. There will be a fine of $10,000 and a disqualification from driving for 1 year.  There will also be a necessity to take a driving improvement course.

39.  The disqualifications are imposed at the same time so they operate concurrently, a total of 3 years.

40.  The defendant must also take and complete a driving improvement course within the last 3 months of his period of disqualification. He must also surrender his driving licence.