HKSAR v. YIU SHEUNG YU

DCCC 1044/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1044 OF 2013

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Reasons for Sentence

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1.  The defendant, Mr Yiu, has pleaded guilty to two offences, the first one, causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance; and the 2nd charge, driving a motor vehicle with alcohol concentration in blood 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 convicted him on both charges.

3.  And the facts that have been agreed show that the defendant was the driver of a private car which is HG1558.  The car was involved in a traffic accident at about 4.02 am on 25 April last year near the entrance of the Cheung Tsing Tunnel in Tsing Kwai Highway in Kwai Chung.  There were two passengers in the car with the defendant who was driving, a Mr Mok and a Mr Ho.  That is to say, the car was involved in an accident and both the passengers were injured seriously.

4.  Prior to the accident, the defendant, Mr Ho and Mr Mok had supper and they drunk beer.  After that, they got on board the car. Mr Ho was in the front seat and Mr Mok was in the rear seat and the defendant was driving.

5.  Now, at the accident location, there are two tubes into the Cheung Tsing Tunnel.  And the New Territories bound tube had been closed for maintenance, so all the vehicles were moving into one of the tubes.  The speed limit was 50 kilometres per hour. 

6.  Facts are agreed that the weather was good, road surface was dry, visibility was good, illumination was sufficient.   Now, what happened is as the private car reached near the Cheung Tsing Tunnel, the car rammed into the cones and railings and veered towards the concrete base of a gantry and rammed head on towards the metal support post.  The car was severely damaged.

7.  As far as the passengers were concerned, Mr Mok was sitting at the rear, he appeared to be not wearing the seat belt.  He sustained multiple fractures, severe head injuries.  At Princess Margaret Hospital he was found to have a cerebral contusion and diffuse axonal injury.   The latest medical report shows some improvement.  He is now described as being able to walk unaided and daily activity is almost fully independent.

8.  Mr Ho was sitting at the front.  He sustained fracture on his left arm and wrist.  He was in hospital for 18 days.  He is now described as not complaining of abdominal pain or chest pain; no doubt, as a result of wearing a seat belt.

9.  The defendant himself was in a coma after the accident.  Blood samples were taken from the defendant.  This showed the defendant had been drinking to excess.  The figure was 123 milligrammes of alcohol in 100 millilitres of blood.  The prescribed limit is 50 milligrammes of alcohol in 100 millilitres of blood.  So the defendant was almost 2½ times the limit and the sentencing level was tier two for that offence.

10.  There was an analysis of the tyre marks left by the private car as it went into the accident.  It appeared that the defendant had negotiated a right bend and lost control of the vehicle.  He hit the railings between the concrete base and the gantry and was stopped by the metal traffic sign.  His impact speed with the concrete base was said to be between 92 and 94 kilometres per hour, and the speed of the private car at the commencement of side-slipping was determined to be at 109 kilometres per hour, that is plus or minus 11 kilometres per hour.

11.  All this is agreed.  And clearly the aggravating features of the case involve the consumption of alcohol and the high speed of the vehicle and clearly support a conviction of dangerous driving causing grievous bodily harm.  

12.  Defendant’s antecedents were agreed.  He is aged 30.  He has a criminal record, not similar offences and not particularly relevant.  He was placed on probation in 2006 for acting as a member of a triad society.  Two speeding convictions, but that is for the offence of more than 15 kilometres an hour but not more than 30 on both cases, he was fined.  The defendant’s previous driving history is unremarkable.

13.  At the present time the defendant is unemployed.  He had been living with his father and mother.   As far as the defendant’s background is concerned, he is, as I say, currently unemployed.  He has two daughters but is divorced from their mother.  When he was working, he made a contribution to his family.  For a time due to his physical injuries, he did not see his daughters but currently he does now.  He is living with his parents who are both retired.  The parents rely somewhat on their savings for their living now. 

14.  There are a number of letters that had been prepared for the defendant and I heard the contents of them.  They are from his father and his mother, his sister, his ex-wife; one of the injured persons Mr Ho has also written to the defendant and is currently in court.  And the defendant has written himself and has expressed remorse for the offence.  And all the writers of the letters noted the defendant has shown remorse in this case and asked for leniency for the defendant.

15.  It can be seen from his mitigation, the defendant has when he is working been a hardworking person.  He seeks to better himself.  Save for a conviction a number of years ago, he is generally of good character.  He is apparently a good parent and supportive parent of his daughters.  As is the case with these offences, people of this nature one would not expect to see in these courts unless they are involved in something like this.

16.  Now, as far as the approach to sentence is concerned, section 36A, the defendant is charged in respect of the 1st offence under section 36A of the Road Traffic Ordinance, it is the second of the three offences that involve dangerous driving.  Sentence is described as a fine at level five and imprisonment is up to 7 years.

17.  In the case of HKSAR v Lee Yau Wing which is Criminal Appeal 282/2012, the court considered that the approach discussed in R v Cooksley is equally appropriate for the offence of dangerous driving causing grievous bodily harm.  The defendant’s culpability shall be 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.

18.  In determining the culpability of the defendant’s dangerous driving body of case law on the other offence in the Road Traffic Ordinance has developed since The Secretary for Justice v Poon Wing Kay is equally applicable while making allowance for the fact that no death flows from the dangerous driving in a section 36A offence.

19.  And, as I say, generally the focus is on the defendant’s culpability.  Any general good character in that case carries little weight.  In this case the defendant’s dangerous driving consisted of approaching a tunnel entrance at high speed in the region of 92 to 100 kilometres per hour, exacerbated by the defendant’s consumption of alcohol which naturally adversely affects his ability to control the vehicle that was travelling at high speed. Reaction time is slow, perception of danger is diminished.

20.  These are, as I have noted before, aggravating factors and put the form of dangerous driving beyond what I would call the simple form or simpliciter form.  This leads the case to fall into the most serious category where there is a clear disregard of the safety of passengers and other road users. 

21.  I have already said the defendant has abundant personal mitigation.  In his position, as a father to young daughters and the fact that he has a supportive family and the determination to better himself. He is clearly remorseful.  He envisages bettering himself and a prison sentence that he sees is inevitable.  He has been assisted in this case by Mr Lo’s able mitigation.

22.  What is apparent is that sentence always depends on the facts and circumstances of each case.  The focus being on the defendant’s culpability.  Bearing this in mind and having regard to the defendant’s culpability and the serious injuries of the passengers and the other overall circumstances, I consider a starting point of sentence after consideration of his aggravating features on the 1st charge to be one of 2½ years’ imprisonment. 

23.  The defendant is entitled to a one-third deduction from this, his plea of guilty, this results in a sentence of imprisonment on the 1st charge of 1 year and 8 months’ imprisonment.   He will also be subject to disqualification from driving for a total of 3 years.  He will also have to take a driving improvement course, and I will describe that in a minute, the nature of that in a minute. 

24.  On the 2nd charge, the sentence will be as follows.   There will be a fine of $7,500 and disqualification from driving for 1 year.  The disqualification from driving runs currently, so it is a total of 3 years’ disqualification from driving. 

25.  Now, the defendant must also take and complete a driving improvement course in the last 3 months of his period of disqualification.  He remains disqualified until that driving improvement course is taken and completed. 

(T Casewell) Deputy District Judge