HKSAR v. CHEUNG CHUN HUNG

DCCC 1081/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1081 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.  On 29 February 2016, the defendant pleaded guilty to one charge of driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, a charge that was laid against him under section 39A(1) of the Road Traffic Ordinance, Cap 374 (Charge 1), and another charge of causing grievous bodily harm by dangerous driving, preferred under section 36A of the same Ordinance (Charge 2).  On his admission to the amended summary of facts provided by the prosecution in support of the charges, he was convicted of the two offences. 

FACTS OF THE CASE

2.  According to the sketch submitted by the prosecution, the north-bound carriageway of Choi Hung Road consists of four lanes.  At the junction between Choi Hung Road and Po Kong Village Road, the traffic in the third and fourth lanes must turn right to proceed to the east-bound carriageway of Choi Hung Road, whereas the first and second lanes allow the traffic to go straight ahead into the three-lane, north-bound carriageway of Po Kong Village Road.  A yellow-box area covers almost the entity of the junction, which is controlled by traffic lights.  On the northern boundary of the yellow-box area lies a pedestrian crossing across the three-lane, north-bound carriageway of Po Kong Village Road (“the pedestrian crossing”).   

3.  The weather in the area near the junction was fine on the morning of 20 July 2015, the road surface was dry and in good repair, and the volume of traffic was medium.  The speed limit at that location was 50 km/h.  At around 8:15am, at the junction, the traffic lights regulating the first and second, north-bound lanes of Choi Hung Road were red.  Some vehicles in those two lanes halted to wait for the change of lights at the junction.  The traffic lights that controlled the third and fourth lanes were green, so that vehicles in those two lanes could make a right turn into the east-bound carriageway of Choi Hung Road. 

4.  At that time, the defendant drove a private vehicle TF3002 along the third, north-bound lane of Choi Hung Road.  On reaching the junction, instead of turning right into the east-bound Choi Hung Road as he should, he drove straight ahead, crossed the red lights against the north-bound traffic, went through the yellow-box area, and ran into a 54-year-old lady Madam Wong Nga-lai who was walking across Po Kong Village Road in the pedestrian crossing.  The traffic lights controlling the pedestrian crossing were green in Madam Wong’s favour.  She was thrown into the air and landed on Po Kong Village Road, while the defendant’s car continued going forward and managed to stop only after careering 56 metres of the second lane of Po Kong Village Road.    A pedestrian who was herself an experienced driver witnessed the accident; she estimated that the defendant’s car had proceeded at around 60 to 70 km/h.  The driver of a vehicle nearby saw the accident; he put the speed of the defendant’s car at around 70 km/h.  A bus driver, who also saw the accident, estimated that the defendant had proceeded at around 80 km/h.  None of the witnesses heard any sounds of braking or of the defendant’s horn, nor did any of them see the defendant slowing down before running into Madam Wong.

5.  A police officer attended the scene and conducted a screen breath test on the defendant; the reading the officer obtained was 73 ug/100ml.  The defendant was subsequently taken to Wong Tai Sin Police Station where an Evidential Breath Test was conducted on him; this time the reading stood at 56 ug/100ml. 

6.  The traffic lights at the junction were working properly at the material time. No tyre marks were seen on the road surface at the scene.  The defendant’s car was noted to be dented in the nearside front.   Subsequent examination on the car revealed no mechanical defects and that its brakes were operative.

7.  Madam Wong was taken to Queen Elizabeth Hospital immediately after the accident.  She was found to have suffered (i) a closed fracture of the right sacral ala and the right superior pubic rami, (ii) diastasis of the left sacro-illiac joint, (iii) a closed comminuted fracture of the left distal femur, (iv) a Gustilo 2 open fracture of the left distal radial and ulnar shaft with a 2cm wound at the dorsum of the distal forearm, (v) a Gustilo 2 open fracture dislocation of the right elbow and forearm with two 1cm wounds at the posterior elbow, (vi) a Gustilo 2 open fracture of the right distal tibia and fibula with a 2cm wound at the distal lateral leg region, and (vii) a closed fracture at the base of the left 2^nd metacarpal bone.  A scalp haematoma at the right parietal region was noted; there was no intracranial haemorrhage, however.  Madam Wong has been hospitalized until 12 December 2015 and has been granted sick leave until 6 May 2016.  Subsequent to her discharge from hospital, she has to attend the Department of Orthopaedics and Traumatology for follow-up treatment, receive physiotherapy treatment at Kowloon Hospital every Monday, Wednesday and Friday, together with occupational therapy at Kwong Wah Hospital every Tuesday.  As of the date of the defendant’s arraignment on 26 February 2016, Madam Wong has been on sick leave for over 120 days and has remained wheelchair-bound.  

MITIGATION

8.  The defendant was born in the Fujian Province in the mainland in February 1989 and is now 27 years old.  He settled in Hong Kong when he was 10.  He has been educated up to Form One level.  He is married and has a three-year-old son.  He works as a decoration and delivery worker, making about $13,000 a month.  He has one previous criminal conviction record involving two charges of trafficking in a dangerous drug for which he was, in August 2009, sentenced to a concurrent term of imprisonment of two years and four months.  In terms of traffic offences, he has one conviction recorded against him in October 2011 for careless driving.

9.  In his plea in mitigation, Mr HP Chan, solicitor appearing on the defendant’s behalf, puts forward the following matters for the court’s consideration.  The defendant has been a qualified driver before he turned 19 and has since then been working as a driver.  He acknowledges the seriousness of the two offences he has committed: he has failed to obey the traffic lights, he has not applied the brakes, he has not sounded his horn, and worse, he was in a state of insobriety.  However, he asks the court to give full weight to his guilty pleas as expressions of true remorse.  He explains that he has had some drinks with his friends, and he has recklessly decided to drive as he is familiar with the way home.

10.  Mr Chan refers to the case of HKSAR v Lui Chung Tak[1]. In that case, the defendant was not under the influence of drugs or alcohol. He drove a light goods vehicle at about 42 km/h past a pedestrian crossing against the traffic lights and knocked down an 83-year-old female pedestrian.  The victim suffered, in consequence, laceration, bruises and swelling with a subarachnoid haemorrhage over her left frontal lobe.  She was hospitalized for two days and could no longer, since the accident, live an independent life.  The defendant was sentenced after trial to 26 months’ imprisonment and he appealed against his sentence.  Mr Chan points out that the Court of Appeal in that case found the defendant’s driving manner worse than a momentary lapse of concentration but still allowed the defendant’s appeal against sentence and imposed on the defendant a sentence of 20 months’ imprisonment instead.  

REASONS FOR SENTENCE

11.  The Court of Appeal in HKSAR v Lee Yau Wing[2] found as a matter of principle that the dominant sentencing consideration in a case of causing grievous bodily harm by dangerous driving was the level of culpability of the offender’s driving, although the degree of harm or injuries suffered by the victim remained an important factor.  In this regard, the Court of Appeal said:

28. This approach was endorsed by this Court in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 at 668D and has been applied by this Court in many other decisions since. This seems to us to be an equally appropriate approach to the offence of causing grievous bodily harm by dangerous driving. For this offence the range of harm is considerable from the situation of the victim in the present case, who only suffered a fractured knee to the victim who may be rendered paraplegic. Furthermore the harmful consequences of a driving accident may be disproportionate to the level of culpability of the defendant’s driving. A car accident caused by appalling driving may present as an horrific scene to onlookers but the occupants of the car or cars may walk away with comparatively less serious injuries. But an accident caused by a low level of culpability may nevertheless result in death or terrible injuries. There can be an element of randomness in the outcome of an accident and the present case is a prime example.(emphasis supplied)

12.  In addition, the Court of Appeal emphasized that given the nature of the offence, the sentencing court should be less concerned with rehabilitation of the offender (who, in most cases, would otherwise be a law-abiding citizen) than with general deterrence:

32. …Consequently the person appearing before the courts is usually an otherwise law-abiding citizen who, for only this one occasion in his life, finds himself being prosecuted for having breached the criminal law. Yet, because of the nature of the offence he has committed, he further finds that he does not receive the usual advantages of being a first offender and a person of good character and that the court is less concerned with imposing upon him a sentence that is rehabilitative in nature but a sentence that seeks to accommodate other sentencing principles. …

35. … the dominant sentencing principle for this offence is general deterrence but the severe sentences that are imposed in order to deter also have a secondary purpose of educating the public as to the potential dangers to others involved in driving motor vehicle and the social responsibility that rests on the shoulders of all drivers to drive safely and with due regard to others. …

13.  In that case, the Court of Appeal upheld a prison term of 10 months, on a guilty plea, for a fresh offender who disobeyed the traffic lights, drove slowly across a pedestrian crossing, and ran into an elderly person who, in the words of the Court of Appeal, “quite fortuitously for the applicant, ultimately recovered quite uneventfully”[3].

14.  In the more recent case of HKSAR v Lam Ying Yu[4], the Court of Appeal said:

92. The applicant is a 40 year-old woman with a clear criminal record. She had been a successful businesswoman but through the fault of another had lost $28 million and been declared bankrupt. Her bankruptcy occurred in the month preceding the accident so it is, perhaps, not surprising that she was distracted by her personal problems. She felt genuine remorse after the accident and contributed to the cost of the deceased’s funeral expenses.

93. However, as this Court has made clear on many occasions, the sentences for this offence must include a strong element of deterrence and for this reason imprisonment is inevitable in most cases. Good character and remorse will not usually be a reason for departing from the need to impose a deterrent sentence.

94. The primary consideration in assessing the appropriate sentence for this offence is the culpability of the offender’ driving. In the circumstances of this case we believe that the applicant’s dangerous driving falls into the least culpable level as there was not present any serious aggravating factors. On the first scenario the applicant’s culpability lies only in her not concentrating on her driving and failing to keep a proper lookout. Nevertheless, in the circumstances of this case this was a significant failure. The judge was right in saying the signs and road markings were prominent and for the applicant to not see them indicates how badly distracted she was from her task of driving her car.

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96. The extent of the applicant’s inattention to her driving, in our view, places her culpability at the higher end of the least culpable dangerous driving range. An appropriate sentence for this level of culpability with the consequences it caused is 18 months’ imprisonment and that is the sentence we impose.

15.  The case of HKSAR v Lui Chung Tak[5] referred to by Mr Chan is readily distinguishable: there are several obvious aggravating factors attending to the commission of the present offences by the defendant, some of which are plainly absent in that case.  First, the defendant drove at a speed that exceeded the lawful limit.  Secondly, he disobeyed the traffic lights.  Thirdly, the accident took place at a pedestrian crossing where the presence of pedestrians was reasonably expected.  Fourthly, he was driving under the influence of alcohol; he has in fact exceeded twice the legal limit in this regard.  Fifthly, his ability to maintain proper and effective control of the car was seriously hampered, in that it has taken him over 50 metres to stop the car – without any signs of abrupt braking. 

16.  Dangerous driving can occur in various ways, covering a wide range of irresponsible manners of driving.  A serious lapse of concentration provides the obvious example of the least culpable type of dangerous driving.  What is important to note in the context of the present case is that dangerous driving can and often does take place without any of the aggravating circumstances identified above.  In the court’s view, the presence of these aggravating circumstances places the defendant’s culpability significantly above “the higher end of the least culpable dangerous driving range” referred to in the case of HKSAR v Lam Ying Yu[6].

17.  It is, in the particular circumstances of this case, futile and impossible in fact to attempt to separate the two offences in considering the proper sentence.  It seems clear that it was the defendant’s drunkenness that has led to the dangerous driving causing the severe injuries to Madam Wong.  In the court’s view, an effective global starting point of two years’ imprisonment would be sufficient to reflect the overall criminality of the defendant’s crime.  The defendant is entitled to one-third reduction in sentence for his guilty pleas.  The overall sentence should therefore be one of 16 months’ imprisonment.

18.  To arrive at that overall sentence, starting points of six months’ imprisonment and 21 months’ imprisonment are chosen for the two charges respectively.  The sentences are reduced to four months and 14 months on account of the defendant’s pleas. Applying the totality principle, it is ordered that two months of the sentence in respect of the first charge be served consecutively to the 14-month imprisonment for the second charge, resulting in the final sentence of 16 months’ imprisonment.

Conclusion

19.  For the offences in the two charges of which he stands convicted, the defendant is sentenced to a term of imprisonment of 16 months.

20.  In addition, it is ordered that in respect of the first charge, the defendant be disqualified, pursuant to section 39A(2A)(a)(ii) of the Ordinance, from driving all types of vehicles in Hong Kong for a period of 15 months (on the basis that the degree by which he has exceeded tier 1 infringement could not be said to be insignificant); and in respect of the second charge, the defendant be likewise disqualified, pursuant to  section 36A(3)(a) of the Ordinance, from driving all types of vehicles in Hong Kong for a period of two and a half years (in view of the aggravating factors identified above).  The two disqualification periods are to run concurrently.  Finally, it is ordered that pursuant to sections 72A(1A) and (3B) of the Ordinance, the defendant do, within the three months prior to the expiry of the concurrent driving disqualification period, attend and complete a driving improvement course.