HKSAR v. FU CHI YUNG, DENNY

DCCC 416/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 416 OF 2015

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Reasons for Sentence

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1.  In this case the defendant, Fu Chi-yung Denny, faces the following two counts:

(i) “Causing grievous bodily harm by dangerous driving”, contrary to section 36 of the Road Traffic Ordinance, Chapter 374.

(ii) “Altering evidence of serious accident causing serious injuries”, contrary to section 57(1) of the Road Traffic Ordinance, Cap 374,

2.  He was convicted of the dangerous driving count upon his plea and admission of facts.

3.  He pleaded not guilty to the 2nd count, after his conviction of the first charge,  and upon the prosecution’s application of not proceeding with the 2nd count, it is ordered that it shall remain in the count’s file and not to proceed with without the leave of the court.

The Driving

4.  Sometime before midnight on 18 November 2014, the witness Mr Leung was driving towards Sheung Shui at a speed of 45 km per hour.  He was approaching a left bend about 40 metres away when he saw a seven-seater going towards him on the same lane.  Despite his attempt to warn the driver (the defendant) by flashing headlight, sounding the horn, by reducing his speed and driving closer to the left kerb, the defendant still kept travelling on the same lane.  Two to three seconds later, the seven-seater collided with the motorcycle with its right front corner coming in contact with the left handlebar of the motorcycle.

5.  At the time the traffic flow was smooth, the road was well lit, dry and in good repair.  The visibility was good.  There was no evidence that either driver had alcohol in his system.

The Consequence

6.  As a result of the collision Mr Leung fell off his motorcycle and suffered the following injuries:

(i) crack fracture of the distal radius;

(ii) complete fractures of the metacarpal-phalangeal joint radial collateral ligament and the radial lateral band at proximal phalange level and middle phalange level on his right ring finger.

7.  He was hospitalised for three days to undergo operation for wound exploration and repair.  After he was discharged, he had to attend regular following treatment and physiotherapy sessions.  The fractures healed well but he suffered from persistent stiffness of the right middle, ring and little fingers.  He was granted sick leave until 5 March 2015.

8.  The motorcycle and the seven-seater were also damaged.

Admissions

9.  At the scene, the defendant told Mr Leung he was driving too fast and therefore drove onto the wrong side.  When questioned by the policer officers, the defendant again stated he over-steered and drove onto the opposite lane.  Under caution, the defendant stated that when he was negotiating a right bend, he suddenly saw a dog one metre away from his vehicle, seeing that the traffic was clear ahead of him, he swerved onto the opposite lane to avoid hitting it.  When his vehicle was halfway into the opposite lane, he saw the motorcycle coming towards him at a very fast speed, so he immediately swerved back to his original path but did not manage to avoid collision.  He did not hear anyone sounding the horn.

Discussion

10.  “Causing grievous bodily harm by dangerous driving” is a serious offence and carries a maximum sentence of 7 years.

11.  The court accepts that this is not the most serious case of dangerous driving.  Apart from some stiffness on the injured areas, the victim, Mr Leung, has almost had a complete recovery.

12.  It was almost midnight, the traffic was smooth, the road was well lit and probably because of the good traffic condition, the defendant put down his guard for a moment and over-steered while negotiating a right bend.  Although his account of the dog sounds dubious, this is the only explanation this court has been given and I will have to accept the same.

13.  I also note that, none of the aggravating factors mentioned in the Cooksley[1] case is present.  The defendant’s driving record is unremarkable, there is no evidence of excessive speed nor was the defendant under influence of alcohol or drugs.

14.  Yet the fact remains the defendant was in charge of a very powerful instrument capable of causing a lot of damage to the life and property of other users of the road.  He had a duty to manage this power with care and diligence.  In this instance, he failed.  He ignored the traffic regulations, drove onto the wrong lane of the road, ignored the warning of flashing lights and horn and continued driving until it was too late to avoid collision.  Although he stated that he saw a dog, the reasonable course to be taken under the circumstances must be to brake or slow down, instead of driving on and swerving into the wrong side of the road.  By so doing he had caused the injuries and damage to the property of another person.  He has to be held accountable for such irresponsibility, not only as a punishment but as a deterrent to the others.

Sentencing Considerations

15.  The authorities have been clear on this. The sentence order must be of a deterrent effect and proportionate to the culpability of the driving to serve as a warning to both the offender himself and the society at large[2]. Normally, an immediate custodial sentence will be necessary[3]. In this respect, “causing death by dangerous driving” and “causing grievous bodily harm by dangerous driving” are only different in degree and the precedents of the former charges are equally applicable to the latter with the adjustment appropriate to reflect the difference in severity.

16.  Although every case must be decided on its own facts, considering other precedents (albeit cases of varying severities) does assist me in adopting a just and proper sentence order.

17.  In the Lee Yau Wing supra[4] case, the defendant drove on to the pedestrian crossing against a red light in the belief that no one was crossing.  His vision was obscured by a stationary vehicle.  He hit an elderly pedestrian crossing the road on a flashing pedestrian green light.  The Court of Appeal took the view that the defendant’s culpability lies in his wilful refusal to stop at the red light and his taking the deliberate risk of driving into the pedestrians’ crossing with his view obscured. The adoption of 15 months’ imprisonment as a starting point, reduced to 10 on a guilty plea, was upheld in the Court of Appeal.

18.  In the case of HKSAR v Chen Chi Chu Louis[5], the defendant was driving at a speed of 80 to 90 kilometres per hour on the fast lane on the road when he collided into another vehicle driving out of a carpark exit at a 90 degree bend.  The speed limit there was 50 kilometres per hour.  At the time of the collision, the other vehicle had reached the dividing line between the slow and the fast lane.  As a result, the driver of the other vehicle suffered from multiple injuries to his skull, legs, pelvis, shoulders, spine, ribs, urinary tract and had to undergo three surgeries.  The passenger of the defendant’s vehicle also sustained severe injuries to his left hip and had to undergo surgery.  A year later after the accident, they had not fully recovered.  On appeal, his sentence was reduced from 3 years to 2 years.

19.  My attention is also drawn to the Magistrate’s Appeal case of Lee Fai[6], where the defendant’s taxi collided with a motorcycle travelling on the opposite lane. After trial, he was sentenced to 6 months’ imprisonment.  The learned Deputy High Court Judge, as he then was, took the view that while a short term of 2 to 3 months’ imprisonment should have been appropriate, nonetheless decided to substitute the sentence order with a CSO of 120 hours in the circumstances of the case.

20.  In the case of Ho Kwong Wai[7], the defendant’s vehicle drove through the double white line separating the traffic in opposite directions in a bid to overtake the vehicle in front.  As a result, he collided with a motorcycle travelling in the opposite direction and the motorcyclist suffered serious injuries.  For the count of “Causing grievous bodily harm by dangerous driving”, the defendant was sentenced to 32 months’ imprisonment on a guilty plea. The Court of Appeal took the view that the driving could described as a momentary dangerous error of judgement and a more appropriate starting point should have been 3 years.  The sentence order for the charge was reduced to 24 months.

21.  The present case is similar on the facts to the Ho Kwong Wai case.  In my view, the severity or culpability of the driving in the present case is lower.  Having considered the facts as a whole, I consider 12 months’ imprisonment an appropriate starting point.

Mitigation

22.  Apart from a minor conviction back in 1983 and a few fixed penalty citations, the defendant had a clear record. I take into account what has been said in his mitigation by his lawyer and the contents of the background report by the probation officer.

23.  I accept that, by and large, the defendant, a 48-year-old-man, had been living a law-abiding life since he emigrated to Hong Kong in 1974, that he had been a filial son and dutiful brother to his family, that he was remorseful and that he is highly regarded by his relatives and friends.  Yet, since the focus of the sentence is on the culpability of the defendant’s driving, his clear record and good character carry little weight.  

24.  In my view, the only valid mitigation is his plea of guilty.  I therefore reduce the sentence to 8 months’ imprisonment.  In addition, I would take an exceptional course of exercising my discretion to further reduce his sentence by 2 months in order to reflect his relatively good record and that he is a person of good repute in the eyes of his family. Therefore the sentence order is one of 6 months.

Disqualification

25.  There is a mandatory disqualification of not less than 2 years for the offence unless there is any special reason for not making such an order.  In this case I did not see any special reason and order that the defendant be disqualified from holding or obtaining a driving license for 2 years.  

26.  Under section 72A(1)(a) of the Road Traffic Ordinance, I also order the defendant to obtain and complete the driving improvement course within the last 3 months of his disqualification. I will put on record my warning that the order places a duty on the defendant to make arrangement to obtain and complete the course on his own initiative.  No one will remind him to, but failure to comply with such an order may result in prosecution by the police.