HKSAR v. EAV KINSON MING KEONG

DCCC 682/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 682 OF 2015

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REASONS FOR SENTENCE

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1.  The Defendant has been convicted after trial of one count on the indictment of causing grievous bodily harm by dangerous driving, contrary to Section 36A of the Road Traffic Ordinance, Cap. 374.

2.  I do not intend to repeat the facts again.  I have given full reasons in my verdict delivered on 25 November, 2016.  PW1 on the Schedule of Prosecution Witnesses, Mr. Yeung Tin-lok, Patrick, was riding his motorcycle, RW 5129, in the evening of 30 December, 2014 along the 2^nd lane of Tong Mi Road, southbound.  On reaching the junction with Argyle Street, he stopped in front of the white stop line to comply with the red traffic signal for traffic in his direction.  When the traffic light changed, he drove across the white stop line and entered the yellow box junction of the intersection. The Defendant, driving a private car, BT 189,   suddenly appeared from PW1’s left, namely from Argyle Street, westbound, and drove into the said intersection in contravention of the red traffic signal for traffic in his direction. PW1’s motorcycle was hit by the private car BT 189 driven by the Defendant.  As a consequence of the collision, PW1’s motorcycle was turned on its side on the ground, and PW 1 sustained serious injuries amounting to grievous bodily harm  as particularized in the various medical reports submitted in respect of PW1.  At the material time, the road surface was dry. The speed limit at the junction of Tong Mi Road southbound and Argyle Street westbound was 50 Km/H.   The collision was captured by the video cameras that had been installed in the taxi DY 1397  and the bus RS 1792 and footages from these videos that captured the accident were played in Court during the trial. I was satisfied beyond all reasonable doubt that driving as he did at the material time and place, the Defendant’s driving manner fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.      I therefore convicted him on Count 1, causing grievous bodily harm by dangerous driving.

Previous Convictions

3.  The Defendant has a clear criminal record.  His driving licence was first issued to him in Hong Kong on 26/8/2005.  Although in the course of the trial I was told he had a clear record, his traffic record shows he has one previous driving conviction on 14/12/2005  for an offence of driving in excess of the speed limit by more than 45 Km/H,  for which he was fined $1,300 and disqualified from driving for 6 months.  He also had 2 fixed penalties for speeding, in 2011 and 2013.  These were admitted.  In the course of the trial, evidence was led by the Defence that although his driving licence in Hong Kong was issued in 2005, he had been driving in the UK when he had been living in the UK before he returned to Hong Kong.

Antecedent Statement & Mitigation

4.  The Antecedent Statement was read into the record by the Prosecution. It disclosed that the Defendant is now aged 41 years. He was born in Hong Kong.  He had completed his Masters Degree in the United Kingdom.  He was a merchant and earned about $170,000 each month.  He is of good health. He is single and lives alone.  No issue was taken by the Defence on the contents of the Antecedent Statement, save that Counsel submitted that the Defendant now suffered from depression because of the collision.

5.  Defence Counsel asked the Court to consider calling for reports before sentence in light of the background of the case, and asked the Court to consider a non-custodial sentence, and to consider calling for a Community Service Order Report.  I did indicate to the Defence that I did not think a Community Service Order was appropriate for offences of this nature, but I did accede to the Defence request and     adjourned this matter until Friday, 9 December, 2016, calling for a Background, Community Service Order, Psychiatric and Psychologist Reports, remanding the Defendant in custody, and reminding the Defendant that the Court kept all options of sentence including an immediate custodial sentence open to itself.  Counsel reserved mitigation until the reports were available.  The reports that I have called for are now before me. Mr. Tse indicated that he had explained the contents of all the reports to the Defendant and the Defendant had also read all the reports himself and there was no objection to the contents of any of the reports. After hearing mitigation from Counsel, I adjourned the matter until today for sentence.

6.  Mr. Brook submitted the victim impact statement from PW1 with its English translation – Mr. Tse had no objection to the statement. The statement was dated 5 December, 2016 and described PW1’s current physical situation.  As a result of the accident, PW1 was in a coma for about 2 months. He was discharged from the hospital on 8 October, 2016, and is currently still on sick leave – he has been granted sick leave until 24 February, 2017, but expects to be on prolonged sick leave beyond that.  Before the accident, he had been physically fit and able to move around, but since the accident, he has been wheelchair bound, and can stand only with the aid of a walking frame. He can stand for one or two minutes and walk 10 to 15 metres before he needs to rest.  Neurotrauma has impaired his ability to think and recall past memories. He has balance disorder, double and blurred vision, slurred speech and drooling. He takes painkillers on occasion, and attends physiotherapy and regular follow-up. He has been told that his physical condition will not improve much.

7.  I was informed by Mr. Brook that he had been unable to obtain an up-to-date medical report of PW1.

8.  PW1 had written a letter to the Court dated 27-11-2016  which was delivered by his wife, together with its English translation,  expressing that he felt sorry for the Defendant and his family and he and his wife and daughter had already forgiven the Defendant, and the Defendant had apologized to them. He sought leniency on behalf of the Defendant.

9.  Both Mr. Brook and Mr. Tse were unaware that PW1 had written to the Court, and copies of PW1’s letter were provided to them

10.  Mr. Tse emphasized to the Court that the Defence had not procured the letter from PW1- they had never suggested the writing of such a letter and believed PW1 and his wife had done so out of the goodness of their hearts and thanked them for their kindness on behalf of the Defendant.  I accept that the letter from PW1 was not written by PW1 at the behest of the Defence.

11.  In his mitigation, Mr. Tse emphasized that the Defendant fully accepted his responsibility for the accident and the injury suffered by PW1 and felt very guilty for what had happened.  He informed the Court that a meeting had been set up after the verdict had been delivered, with the full knowledge of the Department of Justice, at which meeting he was present – he described it as a conciliatory meeting for the Defendant to apologize to PW1 and explain to PW1 that because of the bail conditions, he had not been able to do so previously.  His apology had been accepted by PW1 and his family. The apology by the Defendant to PW1 had been referred to in paragraph 7 of the Psychologist’s Report.

12.  Mr. Tse submitted that the Defendant had a very supportive family.  They were in Court to show their support of the Defendant, even his mother who had suffered a stroke in 2010.  He submitted that the time the Defendant had spent in custody was particularly difficult for him and had taught him a harsh lesson. The Defendant had a promising life and career, and was from a well-to-do family.  Counsel also submitted a file containing letters from the Defendant, his family members and friends seeking leniency on behalf of the Defendant, as well as the medical report on the Defendant’s mother.

13.  It was also submitted that the Defendant would no longer drive. Mr. Tse asked the Court to consider the circumstances of the offence – there was no excess speed, no drugs, no alcohol, it was not a case of road racing, the Defendant was not a professional driver, this was an isolated and out of character incident, there was no evidence that the Defendant had jumped a red light before, no evidence of a prolonged period of bad driving, the Defendant had not run away after the accident.  This was a complicated intersection, as evidenced in the report of the Defence expert.  The likelihood of the Defendant re-offending was also extremely low.

14.  Mr. Tse sought a suspended sentence for the Defendant and drew to the Court’s attention a number of authorities.  He referred to the English authority of Cooksley [2003] 2 Cr App R 18, which set out the 4 categories of culpability, and has been adopted by the courts in Hong Kong in Secretary for Justice v. Liu Kwok Chun, CAAR 3/2009 & CACC 34/2009 and Secretary for Justice v. Poon Wing Kay [2007] 1 HKLRD 660.  He submitted that the Court must determine the category of culpability and submitted that the Defendant’s culpability herein fell in the first category of no aggravating circumstances such as drugs, alcohol or a long period of bad driving and such.

15.  Mr. Tse submitted that it was appropriate to suspend any sentence of imprisonment – the Court had the discretion to do so – the Court had to have regard to all the circumstances of the commission of the offence and of the Defendant to determine whether it was appropriate to exercise its power to suspend the operation of any sentence of imprisonment - he referred to what the Court of Appeal said in paragraph 46 of Secretary for Justice v. Wade, Ian Francis, CAAR 1/2015. He submitted that the courts in Hong Kong had a wider discretion because of the circumstances of the roads here, referring to Secretary for Justice v. Lau Sin Ting, [2010] 5 HKLRD 318 at paragraphs 36 and 37 and the test was not one of ‘exceptional circumstances’.

16.  Mr. Tse also submitted that while the court was entitled to take into account the physical disability  of the victim, the court should not give it undue prominence – the main consideration was the level of culpability of the driver and not the injury to the victim (see HKSAR v. Lee Yau Wing, CACC 282/2012).

17.  All the reports before the Court were positive reports and Mr. Tse submitted that this was not a case that warranted an immediate custodial sentence.  He submitted that the Defendant had been willing to admit to his carelessness from the outset.

Sentence

18.  The maximum penalty for offences of dangerous driving causing grievous bodily harm is 7 years’ imprisonment on conviction on indictment and a fine at level 5, namely $50,000. This is set out in Section 36A(1)(a) of the Road Traffic Ordinance, Cap. 374.  It is further provided in Section 36A(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 years in the case of a first conviction, unless the court for special reasons orders

that that person be disqualified for a shorter period or that the person not be disqualified. This is the Defendant’s first conviction for an offence of causing grievous bodily harm by dangerous driving.

19.  There is no sentencing guideline for offences of this nature. Each case must be decided on its own facts. Road accidents can cause immense human suffering and bring about serious economic burdens both to the victim’s family and to society. Vehicles can be lethal if not driven and maintained in an appropriate manner.  Those who are in charge of vehicles owe other road users a heavy duty. The Court of Appeal in SJ v. Poon Wing Kay, supra, sets out the relevant sentencing principles and the matters that a sentencing court must take into account when considering an appropriate sentence.  Deterrence is a key sentencing principle as the law imposes a standard on a motorist to ensure that all who come into contact with motor vehicles are safe, be they motorists, passengers or pedestrians.  The court must look at the overall circumstances and overall culpability of the offender. A major aggravating factor justifying a heavy sentence is when a person has driven with selfish disregard for the safety of other road users or his passengers or of pedestrians.

20.  In Cooksley, supra, four categories of culpability were adopted: where there are no aggravating circumstances, intermediate culpability, higher culpability and most serious culpability.  This has been adopted in Hong Kong (see for example SJ v. Liu Kwok Chun, supra).  The degree of seriousness depends on the precise circumstances of the driving.  It has also been held that the considerations for causing death by dangerous driving are equally applicable to causing grievous bodily harm by dangerous driving.

21.  In SJ v. Liu Kwok Chun, supra, the Court of Appeal said:-

“37. In assessing the degree of culpability there are two extreme situations. The first is where the event occurred because of a momentary error of judgment. The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness. In between these two extremes, there are varying degrees of culpability depending on the presence of the aggravating factors which were referred to in Cooksley at para 15.”

22.  Mr. Tse for the Defendant submitted that the Defendant’s culpability was the lowest one of ‘no aggravating circumstances’ – I find myself unable to accept that submission - here there are aggravating circumstances – there was very serious injuries caused to PW1 as well as irresponsible behaviour at the time of the offence by the Defendant by driving into a very busy intersection in contravention of a red traffic signal.  The Court of Appeal in HKSAR v. Lee Yau Wing, supra, at paragraphs 32 and 35 said that the sentencing consideration was the level of culpability of the offender’s driving. In addition, the Court of Appeal emphasized that given the nature of the offence, the sentencing court should be less concerned with the rehabilitation of the offender, who in most cases would otherwise be a law-abiding citizen, than with general deterrence. The Court of Appeal in that case upheld, on a guilty plea, a prison term of 10 months for a first 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”.

23.  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 weapon.  Motorists are required to exercise the utmost care when approaching pedestrian crossings and busy intersections for the obvious reason that people may be crossing the road there, whatever the time of day,  even in contravention of pedestrian traffic lights and even where pedestrians are not allowed to cross the road.  A viewing of the footages that were played in Court during the trial clearly showed people crossing the road where they were not supposed to be crossing. Therefore if motorists approach pedestrian crossings and busy intersections at high speed or disregard traffic lights, obviously there is a high risk that an accident will occur.  And when a collision occurs, fatalities and serious injuries are not uncommon.

24.  I accept, as submitted by Mr. Tse, an absence in the present case of the more serious aggravating factors such as road racing, excessive speed, drugs, alcohol, failing to stop at a road block or ferocious driving to avoid lawful apprehension, etc. But there are factors the Court must consider in assessing the degree of culpability on the part of the Defendant.  He was approaching a very busy intersection, one he had been driven through on previous occasions, and the presence of pedestrians, albeit they were not supposed to be there, must have been a matter that should have been within his contemplation. The intersection was controlled by traffic lights and the Defendant entered the intersection in contravention of the red traffic signal.  Vehicles travelling in the same direction that he was travelling as well as vehicles that were to turn right had already come to a stop in the lanes beside his. He should have been able to see that the traffic signal for traffic travelling on Argyle Street westbound was red if he had been keeping a proper lookout.  From the video footages that were played in Court, it is quite clear that the Defendant did not slow down as he crossed the intersection or even reduce his speed so that he could deal with any emergency that could arise. In the video footage that was played in Court, pedestrians can be seen on foot on the intersection although pedestrians were not supposed to be there, albeit that this was not at the time of the collision.

25.  That PW1 suffered very injuries that resulted in his being hospitalized for almost 2 years is an undeniable fact – that he continues to suffer from the injuries he sustained as a result of the collision is unarguable.  While the injuries sustained by a victim is not the most important sentencing consideration, the serious injuries he did sustain demonstrate the clear and obvious risk of severe injuries that can arise when traffic signals are disobeyed.

26.  The Defendant claimed that his view of the primary traffic signals governing the intersection had been obstructed and he had thought that the traffic light for traffic travelling in his direction was green – he had been misled by the green traffic light governing traffic travelling along Tong Mi Road southbound. I did not believe him.  The Defendant, knowing that his view of the traffic lights at the intersection was incomplete, did not slow down and did not keep a proper lookout.  Had he done so, he could not have failed to see that all the vehicles in the other lanes, i.e. 3 other lanes, had already come to a halt. PW1 had travelled some distance into the intersection before the collision occurred.  I accept that there is no evidence of 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.  He does have a clear criminal record.

27.  In my view, the Defendant’s culpability lies with his failing to keep a proper lookout and slowing down when approaching a busy intersection and entering the intersection in contravention of the red traffic signal.  It is not a momentary lapse of judgement or loss of concentration.  However, the facts before me are not the worst of its kind.  I am satisfied in all the circumstances that this places the driving at the higher end of the intermediate culpability.

28.  Little purpose will be served by comparing sentences imposed in other cases on the basis of different facts. I doubt one can find an identical case with identical circumstances.

29.  In passing sentence, I have borne in mind all that has been urged upon me by Counsel on behalf of the Defendant, as well as the authorities he has submitted and the contents of the mitigation letters as well as the contents of the various reports I had called for.  I accept that the Defendant regrets very much the injuries that PW1 has sustained as a result of his driving and that PW1 and his family have forgiven the Defendant. I have borne in mind too the very positive Background Report, the assessment that his risk of re-offending of any crimes was low. I accept that a custodial sentence will be difficult for someone such as the Defendant. The Psychiatric Report indicates he does not suffer from any psychiatric ailment and the Psychologist Report also indicates there are no psychological problems that necessitate psychological follow-up. I consider that the circumstances herein are such that a non-custodial sentence would not be appropriate. Although community service has been recommended, I do not think that it is appropriate in the circumstances of the offence and the Defendant.

30.  Having considered the circumstances of the offence, including the degree of culpability, on the count of causing grievous bodily harm by dangerous driving, the appropriate sentence is 18 months imprisonment. Evidence has been led before me of the positive good character of the Defendant. I have also considered the forgiveness of PW1 and the remorse felt by the Defendant for the injuries he had caused to PW1.   I am prepared to reduce the sentence by a further 3 months. I do not see any other mitigating factors to justify a further reduction of sentence. The Defendant is sentenced to 15 months’ imprisonment. I have considered whether there are grounds to warrant my suspending this sentence.  I do not find any.

31.  I can see no special reasons not to disqualify the Defendant. He is also disqualified from holding or obtaining a driving licence for all classes of vehicles for 2 years in respect of Count 1. What this means is that if the Defendant drives during the period of disqualification, he will commit an offence of driving whilst disqualified, an offence which will usually attract a sentence of imprisonment, and that is in addition to any other offences that would be automatically committed where he is driving whilst disqualified, such as driving without third party insurance. I also make an order under section 72A(1A) of the Road Traffic Ordinance, Cap. 374, there being no special reasons against the making of an order, that he must at his own expense attend and complete a driving improvement course within the last three months of the expiration of the period of disqualification of 2 years.  The Defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course, notwithstanding that the disqualification period may already have ended. I will also put on record my warning that the order places a duty on the Defendant to make arrangement to attend and complete the course on his own initiative.  No one will remind him to do so.