HKSAR v. CHAN KWAN CHUEN

DCCC 95/2024

[2024] HKDC 1234

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 95 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Chan pleaded guilty before me to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374. Particulars are that he, on 8 June 2023, at a signal-controlled pedestrian crossing, near Lamppost No EB6723, Chung Wa Road, Tseung Kwan O, New Territories, in Hong Kong, caused grievous bodily harm to Lau Ka Man by driving a motor vehicle, namely, a light goods vehicle bearing registration mark YD9895, on a road dangerously.

Facts admitted by Mr Chan

2.  On 8 June 2023, at about 1419 hours, Mr Chan was driving a light goods vehicle YD9895 (LGV)  along the 3^rd lane of Chung Wa Road (Southbound), heading Pui Shing Road, Tseung Kwan O, with a passenger on board.  PW1 Lau (aged 62)  was waiting on the pavement near Lamppost EB6723, Chung Wa Road, for the pedestrian traffic light to turn green.  When it turned, PW1 stepped onto the pedestrian crossing.  At this moment, Mr Chan on the LGV drove against the vehicular red light into the pedestrian crossing at 20-30 km/h and struck PW1 on the left side of his head and body.

3.  As a result, PW1 fell towards the flower bed and rebounded onto the ground.  PW1 lost consciousness immediately.  The LGV came to stop at a place beyond the pedestrian crossing.  An eye-witness PW2 promptly reported the matter to the police.

4.  No skid marks were found afterwards.

5.  PW1 was conveyed to Tseung Kwan O Hospital for treatment.  The medical reports revealed:-

(a)  The first diagnosis was acute traumatic closed fracture of right patella; operation was done on open reduction and fixation with wire to right patella on 15 June 2023; PW1 was given knee brace for 10 weeks in total;

(b)  The second diagnosis was a non-displaced fracture of left superior facet of C6 cervical spine; PW1 was given a neck collar for 6 weeks; and

(c)  Sick leave was granted to PW1 from the offence date to 30 October 2023.

6.  On 19 December 2023, police arrested Mr Chan for the subject offence.

7.  Mr Chan now admits that on the offence date, he caused grievous bodily harm to PW1 by driving the LGV dangerously in that he jumped a red light at the pedestrian crossing and failed to keep a proper lookout on the road, resulting in collision with PW1.

8.  Mr Chan admits the way he drove 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.

Criminal and traffic conviction records

9.  On his criminal record, Mr Chan has 3 previous convictions, none similar.

10.  On his road traffic record, Mr Chan has 6 previous convictions, 5 of which were for careless driving the last one of which was recorded in February 2017.  He has been disqualified from driving twice each for 6 months under the Driving-Offence Points Ordinance.

Antecedents

11.  Mr Chan is aged 36 (35 at the time of the offence), educated to F3 level.  He has been working as a truck driver for over 10 years.  He is divorced and lives with his daughter (13)  in public housing in Sau Mau Ping.

Mitigation

12.  Ms Kitty Tsang of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.  The following is a summary of the mitigation submissions.

13.  Mr Chan divorced in 2017 with the custody of her daughter (aged 13)  granted to him but with reasonable access given to his ex-wife.  Mr Chan’s parents both in their 60s are still working part-time.

14.  Before the offence, Mr Chan had been living with his daughter in public housing at a monthly rent of about $2,000.  Mr Chan, the sole breadwinner, worked hard as a driver earning about $20,000 a month.  He contributed around $10,000 to his parents for looking after his daughter.

15.  Even after Mr Chan was granted bail again in June 2024, he did not drive.  Instead, he began to take up two jobs as a lorry attendant in order to increase his income with little or no sleep for 2 days in a week.  As such, he was able to earn about $20,000 a month.  His hard working attitude reflects his genuine remorse and his devoted love and responsibility to his family.

16.  During remand, Mr Chan and his mother made up an excuse to the daughter in order to cover up the fact.  This was to avoid affecting the emotion of the child who was said to have very good school performance and who is active in participating in various competitions and social activities.  Some certificates have been submitted.

17.  Since the birth of the daughter in 2011, Mr Chan has not infringed against the law.

18.  There is no sentencing guideline for the present offence.  For the more serious offence of causing death by dangerous driving, there are authorities which frequently adopt the 4 categories of gravity of the offence as laid down in Cooksley.  If there are “no aggravating circumstances”, the probable sentencing guideline is 12 to 18 months.

19.  For the present offence, the maximum sentence is a fine at level 5 ($50,000)  and imprisonment for 7 years, plus disqualification for not less than 2 years on first conviction and attendance of driving improvement course at own cost.

20.  The court is urged to be lenient or adopt a starting point of 8 to 12 months’ imprisonment.

21.  The main mitigating factor is Mr Chan’s timely plea.  The court is urged to grant him the full 1/3 sentencing discount.

22.  Mr Chan had been working for long hours for a period of time.  On the day of the incident, Mr Chan made a serious mistake by misreading the traffic signal.  In fact, the green light was not for his lane.  He was driving at 20 km/h for making a right turn.  He did not realize he was driving against the signal when he drove over the subject location.

23.  Mr Chan regretted for his momentary mistake/error of judgement as a result of which he had caused serious injury to the victim.  He was not driving at high speed and he stopped immediately after the offence.  He was cooperative after arrest.

24.  The victim told the doctor at A&E of Tseung Kwan O Hospital that he was hit by a side mirror of the LGV and fell backwards by a few feet.

25.  Luckily, the victim has recovered satisfactorily and is able to walk unaided with normal gait; the fracture(s)  should have consolidated too.

26.  It was submitted by Ms Tsang that there is no aggravating factor in this case.

27.  Ms Tsang submitted on behalf of Mr Chan three mitigation letters written in Chinese respectively by Mr Chan himself, his father and his mother.  The contents are generally that the incident was caused by Mr Chan’s momentary negligence over long working hours; he is deeply regretful; that Mr Chan is sorry for what happened to the victim.  The letter writers asked for a lenient sentence and a chance for Mr Chan to reform himself such that he may return home early to take care of his family.

28.  Upon enquiry by the court, Ms Tsang said there are no special reasons why a disqualification order or an order to attend and complete a driving improvement course should not be imposed on Mr Chan.

Sentence

29.  In this class of case, the culpability of the defendant’s driving is the dominant factor in the sentencing exercise.

30.  There are three aggravating factors in this case.

31.  First, driving when knowingly deprived of adequate rest.  According to mitigation, Mr Chan had been working for long hours for a period of time.  In other words, Mr Chan was knowingly and habitually driving beyond his physical limit.  This has resulted, on this occasion, in his making a mistake in thinking that a green traffic light was for his lane when it was not.

32.  Second, the incident happened at a pedestrian crossing when the victim had every right and legitimate expectation to cross safely as long as he was crossing in accordance with the pedestrian traffic signal, as he had done in this case (see para 43(2)  of Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70, 83H-84B)  .

33.  Third, Mr Chan has a bad record of careless driving.  Over the course of 2½ years, Mr Chan has been able to accumulate for himself 5 careless driving convictions.  He had been disqualified twice under the “Points” system. Though, to be fair, the last of the careless driving convictions related to an offence committed in April 2016, ie over 8 years ago.

34.  I am of the view that Mr Chan belongs to the lower end of the Higher culpability category as defined in the table at para 40 of Secretary for Justice v Liu Kwok Chun at 82-83.  The reason is that there is the presence of one factor (no 8 – driving when knowingly deprived of adequate sleep or rest)  of highly culpable standard of driving.  This, coupled with the other two aggravating factors identified above, puts Mr Chan squarely into the Higher culpability category.

35.  The 4 to 5 years’ starting point suggested in Cooksley [2003] 3 All ER 40 for this category of culpability of course relates to the Causing death offence and not to the Causing GBH offence where the maximum prison term in Hong Kong is 70% of that for the Causing death offence (10 years here as in UK).  A reduction, though not necessarily by the same proportion, is, I believe, applicable to the starting point of sentence.

36.  Having weighed everything in the round, and bearing in mind that the Cooksley range of sentence has not been formally adopted as the tariff in Hong Kong, I shall take 27 months’ imprisonment as the starting point in the case of Mr Chan.

37.  Mr Chan pleaded guilty in good time.  For that, he shall be entitled to the full 1/3 sentencing discount.  I note that Mr Chan is the sole breadwinner of the family of two consisting of himself and his young daughter who is studying in the lower secondary form.  I shall temper justice with mercy by exceptionally granting him an additional one month off after the 1/3 deduction. There are no other mitigating factors of weight to justify any other reduction in sentence.

38.  On a conviction of this offence, disqualification and driving improvement course follow as a matter of course save where there are special reasons pointing otherwise.  There are none here.

(Mr Chan, please stand)

39.  The sentence for Mr Chan is 17 months’ imprisonment.

40.  In addition, I order that Mr Chan be disqualified from holding or obtaining any driving licence for a period of 2 years; that Mr Chan is to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period.  Mr Chan is not to hold or obtain a driving licence again until he has both (a)  served his disqualification period and (b)  attended and completed at his own cost the driving improvement course.

41.  I hereby warn Mr Chan that failure to attend and complete the driving improvement course at the time specified without reasonable excuse is itself an offence and can attract an imprisonment sentence.