HKSAR v. WONG KAI HONG

DCCC 164/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 164 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of “Causing grievous bodily harm by dangerous driving”, contrary to section 36A of the Road Traffic Ordinance, Cap 374.

Facts

2.  At about 9:30pm on 8 August 2015, the defendant was driving his private car (“the Car”) along the second lane Fung Tak Road west bound and on his way to Fung Tak Estate.  Upon reaching Fung Tak Estate vehicular entrance, the defendant cut the roadway corner and part of the Car was on the wrong side of the road when entering Fung Tak Estate.  After passing through the drop-bar booth, the defendant drove on and cut the roadway corner by negotiating a right turn and went onto the wrong side of an unnamed road.  In doing so, the offside mirror collided with and thereby knocked down the 79-year-old Madam Lin Yim who was standing near the give-way line at the centre of that lane.   

3.  Madam Lin sustained serious head injuries as her forehead hit against the kerb.  She was sent to Queen Elizabeth Hospital for treatment.  Due to the serious head injuries sustained by her, emergency operation for external ventricular drainage was performed.  Subsequently, in view of the significant injury with impaired cognition and functional status, Madam Lin was transferred to another hospital for rehabilitation. 

4.  The defendant was arrested.  In subsequent interviews, the defendant admitted under caution that he saw Madam Lin with some other pedestrians standing on the roadway of the unnamed road going downhill near the entrance of Fung Tak Estate.  He noticed Madam Lin walking very slowly.  He drove on in between the people and drove into the wrong lane.  It was his fault for not giving way to Madam Lin before making the right turn. 

5.  At the time of the accident, the traffic was light, visibility was good, road surface was dry. There was no defect of the Car.  The car camera installed in the Car captured the incident. 

Mitigation

6.  The defendant is aged 50, divorced with a 15-year-old daughter and a 4-year-old son.  He is living with the daughter while his ex-wife has the custody of the son.  He has been working as a driver earning about $13,000 to $15,000 per month.  He has to pay $1,500 as maintenance for his son.  His ex-wife has been unemployed for the past 3 months and the defendant has been supporting her by giving her $5,000 per month. 

7.  Mr Chan submitted that the defendant has obtained his driving licence since 1986.  For the last 4 years, the defendant has been working for the same company as a driver.  Given that he only had some fixed penalty records, his traffic record could be regarded as quite good.  Further, although the defendant has 2 previous conviction records, they are not of the same nature as the present offence and all these records are in 1987.  Mr Chan submitted that the defendant should be treated as having a clear record for the purpose of sentencing.

8.  Mr Chan referred to the principles set out in HKSAR v Chan Chi Chiu Louis [2013] 5 HKC 162 and submitted that the most important consideration is the culpability of the defendant.      

9.  Mr Chan submitted that on the night in question, the defendant forgot to take his mobile phone and he was therefore in a hurry returning home to get the phone before he started his work that night.  As a result, the defendant tried to cut corner to save time. Mr Chan submitted that apart from the defendant failing to pay proper attention to the presence of Madam Lin, there was no other aggravating feature in this case.  Although the injuries sustained by Madam Lin were serious, she is now recovering.  Further, after the accident, the defendant promptly asked passer-by to report to the police so that Madam Lin could have medical treatment as soon as possible.  While the defendant understood that immediate custodial sentence is usually inevitable in this type of cases, the defendant did ask for a chance to be sentenced for community service order.  Mr Chan urged this court to impose a lenient sentence on the defendant given his remorse. 

10.  Mitigation letters from the defendant, his ex-wife and his employer show that the defendant is a responsible person.  He is remorseful and they all ask for a lenient sentence on the defendant.

Sentence

11.  The maximum sentence for this offence is fine of $50,000 and imprisonment for 7 years.  There is also a mandatory period of disqualification for not less than 2 years for a first offender.  This is the defendant’s first conviction for causing grievous bodily harm by dangerous driving. 

12.  There is no sentencing guideline for this offence as obviously each case must be decided on its own facts.  The Court of Appeal in SJ v Poon Wing Kay [2007] 1 HKLRD 660 set out the relevant sentencing principle and the matters that a sentencing court must take into account when considering an appropriate sentence.  The sentencing principle is one of deterrence for the law imposes a standard on a motorist to ensure that all who came into contact with motor vehicles were safe, be they motorist, passengers and pedestrians.  The court must look at the overall circumstances and overall culpability of the offender.  Culpability is often the dominating factor.  Major aggravating factor justifying a heavy sentence is when a person had driven with selfish disregard for the safety of other road users or his passengers or of pedestrians.

13.  The Court of Appeal has repeatedly stated that there is no excuse for driving dangerously since it involves taking risk whilst in control of a potential lethal machine (see SJ v Lam Siu Tong [2009] 5 HKLRD 601).  Further, motorists are required to exercise the utmost care when approaching pedestrian crossings for the obvious reason that it is highly likely that people will be crossing the road there, whatever the time of day or night.  Accordingly, if motorists approach pedestrian crossings at high speed or disregard traffic lights, there is a high risk that an accident will occur.  And where a collision takes place, fatalities are common. 

14.  Before sentencing, I have the opportunity of watching the recording of the incident captured by the camera installed in the defendant’s car.  I have also been assisted by the sketch plan marked with the route taken by the defendant’s car.  It can be seen from the video that shortly after the defendant’s car passed the drop bar, the defendant made a right turn without slowing down the vehicle. 

15.  In this case, although the accident did not occur at a pedestrian crossing, the defendant was well aware of the presence of pedestrians, mostly elderly people, before he made the right turn.  He also noticed that Madam Lin was walking very slowly at the accident location.  Therefore, he should have taken extra care when making the right turn.  As he admitted, he was at fault in not giving way to Madam Lin before making the right turn and thereby causing the accident.   

16.  Having said that, I accept this is not a prolonged, persistent and deliberate course of very bad driving.  There is no evidence of aggressive driving. The defendant was not under the influence of drugs or alcohol.  Nevertheless, the defendant, who was aware of the presence of Madam Lin, did take the risk of making the right turn without reducing his speed and driving onto the wrong lane.  I consider the circumstances of this case to be serious such that non-custodial sentence is not appropriate.

17.  The injuries sustained by Madam Lin are serious.  She was hospitalized from 8 August to 30 September 2015.  She was transferred to a day hospital for rehabilitation.  According to the prosecution, the condition of Madam Lin is stable but she still has to attend regular follow-up treatments.  Further, she has to walk with the aid of a walking stick and is now living in an elderly home while prior to the accident she lived in Fung Tak Estate and could walk normally without any aid. It is quite clear that the injuries have caused much inconvenience to Madam Lin.

18.  Taking into consideration the facts of this case, I am satisfied that this case falls into the lower end of the range of sentences.  I considered the proper starting point is 15 months’ imprisonment.  Given the defendant’s guilty plea, he is entitled to the usual 1/3 discount for his plea.  The sentence is reduced to 10 months’ imprisonment.  I do not see any other mitigating factors justifying a further reduction of the sentence.  I do not see any grounds to suspend the sentence. 

19.  Pursuant to section 37(2), I order that defendant be disqualified for a period of 2 years for all classes of vehicles. 

20.  The defendant is also ordered to attend and complete a driving improvement course, at his own costs, within the last 3 months of the disqualification period.