HKSAR v. CHIMA PREETPAL SINGH

DCCC 1154/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1154 OF 2016

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REASONS FOR SENTENCE

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Charge

1.  The defendant pleaded guilty to a charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374.  The particulars of the offence are set out in the Summary of Facts admitted by the defendant.

Facts

2.  The accident location was at the traffic light-controlled junction of Jordan Road and D1A(N) Road, Tsim Sha Tsui.  The material section of D1A(N) is a three-lane one-way carriageway while Jordan Road is a five-lane two-way carriageway with temporary barriers between the three-lane westbound and two-lane eastbound directions.

3.  The speed limit was 50 km per hour.  At the material time, the traffic volume was normal with good visibility, being well-lit by streetlamps.  The weather was fine.  The road surface was dry and in good repair.

4.  Vehicle 1 (V1) was a taxi RA 2586 driven by PW1.  Vehicle 2 (V2) was a taxi KN 2535 driven by PW2 carrying two passengers, including PW3, Sharabany Shimshon aged 60.  Vehicle 3 (V3) was a private vehicle RA 7851 driven by PW4.  Vehicle 4 (V4) was a KMB bus driven by PW5.  Vehicle 5 (V5) was a private vehicle TR 9149 driven by the defendant.  His wife, IP2 (injured person No. 2) aged 32 and their baby girl aged 7 months were on board.

5.  At around 8:10 pm on 4 June 2016, V1 and V2 were stopped at the traffic light controlling D1A(N) Road on the first left lane and second left lane respectively.  V3 was the second vehicle on the right lane of D1A(N) Road. 

6.  The traffic lights on D1A(N) Road turned green.  V1 to V3 began to move forward when V5, which was travelling on the right lane of westbound Jordan Road, jumped the red light of westbound Jordan Road and travelled into the junction of Jordan Road and D1A(N) Road at high speed.  The front of V1 then hit the right side of V5.  V5 did not stop after the collision with V1, kept moving forward, and the front of V5 rammed into the left side of V2, which caused V2 to overturn. 

7.  The defendant was arrested and cautioned.  Under caution, he remained silent.

8.  Screen breath test was conducted with the defendant with zero reading. As clarified with Mr Chui, counsel for the prosecution, the motor vehicle examination of all vehicles showed no mechanic defects.

9.  Upon physical examination, the prosecution witnesses were found to have the following injuries as a result of the accident:-

(a) PW1 had neck and back tenderness.

(b) PW2 had abrasion over scalp and right elbow.

(c) PW3 had a superficial laceration on his right cheek, fractured fifth left rib, pneumothorax on his left lungs and fractured S3 spinous process. He received suturing for his laceration of right cheek and was admitted to cardio-thoracic surgery for drain insertion for his pneumothorax. He was finally discharged on 18 June 2016, two weeks after the accident. I was informed that PW3, an Israeli, had left Hong Kong.

(d) IP2 had left arm bruising and lip laceration.

10.  Upon questioning, Mr Chui informed the court that IP1 did not give consent to release his medical report to the police.

Antecedent

11.  The defendant’s antecedent statement was read into record.  No issue was taken on the contents.  It disclosed that the defendant, an Indian, was born in Hong Kong.  He is 32 years old, married with a 16-month-old daughter.  He received tertiary education.  He was a financial broker at the time of the arrest. 

Previous criminal conviction

12.  He has a previous criminal conviction of theft, for which he was in 2007 fined $4,000.  He also has three fixed penalty traffic offences, namely, first, driving in excess of speed limit by more than 15 km per hour but not more than 30 km per hour.  The conviction date was in September 2013.  Second, failing to comply with traffic signals.  The conviction date was in August 2013; and third, the same offence as in the second but the conviction date was in September 2013. 

Mitigation

13.  Mr Tang, solicitor for the defendant, submitted that the defendant was brought up in a decent family.  At the material time, he was a financial broker.  He later became a bodyguard.  He is suffering from asthma and dermatitis, and therefore he has ceased working since December 2016.  His wife is a primary school teacher and is now the sole breadwinner of the family.  Mr Tang described that the traffic record of the defendant was not bad at all.  As for the previous conviction of theft, he asked the court to simply ignore it. This I agree for the theft offence took place in 2007 when he was 22 years old.

14.  In respect of the present offence, Mr Tang submitted that the defendant was driving his private car on the way home.  His wife and their daughter then aged 7 months were in the car.  In the vicinity of the offence location, there were MTR construction works in progress, and therefore there were many barriers at the scene which blocked his vision.  As such, the defendant mistakenly thought that he was governed by traffic lights which were further down the road and which were at the time in his favour.  He then drove into the junction and caused the accident.  It was emphasised that the defendant was carrying his wife and his then 7-month-old baby girl in his car.  He would not have deliberately jumped the red traffic light.  It was a misjudgment and a momentary recklessness on his part.

15.  Mr Tang submitted three authorities for the court’s consideration: HKSAR v Ng Yuk Keung HKMA 1055 of 2001, HKSAR v Au-Yong Shong, Samuel HKMA 831 of 2006 and HKSAR v Ng Hap Shing DCCC 543 of 2016 and asked this court to call for a community service report.  Suffice it to say the facts of these three cases are very different from the present case.  It is not helpful to compare the seriousness of each of these cases for the purpose of assessing the appropriate sentence in this case.  Besides, they are not binding on me.  I consider that a prison term is inevitable.  Therefore, I will not call for a CSO.

Reasons for Sentence

16.  In passing sentence, I take into account all that has been urged upon me by Mr Tang as well as the authorities he has submitted.  I have also considered other authorities, including HKSAR v Lui Chung Tak CACC 221 of 2012, HKSAR v Lee Yau Wing CACC 282 of 2012 and SJ v Lau Sin Ting [2010] 5 HKLRD 318. 

17.  The maximum penalty for this offence is a sentence of 7 years’ imprisonment on conviction on indictment and a fine at level 5.  This is set out in section 36A(1)(a) of 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 person be disqualified for a shorter period or that the person not be disqualified.

18.  This is the defendant’s first conviction for an offence of causing grievous bodily harm by dangerous driving.  There is no tariff for this offence.  What is appropriate must depend on the facts and circumstances of each case. 

19.  In Secretary for Justice v Poon Wing Kay & Another [2007] 1 HKLRD 660, a case concerning causing death by dangerous driving, the Court of Appeal said that a number of general principles found in the judgment R v Cooksley & Others [2003] 3 All ER 40 can be stated as being equally applicable in Hong Kong and also applicable in an offence of causing grievous bodily harm by dangerous driving.  The court at page 668 said that:

“(3) It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.

(4) A sentencing court must however look at the overall circumstances and the overall culpability of the offender.

(5) One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers or with a degree of recklessness.”

20.  With the consent of the parties, I looked at the photographs taken at the scene, the sketch drawn by a police officer, and viewed the video footage in open court.  All parties confirmed that the computer printout, Photo No 1, depicted Jordan Road and the defendant was at that time travelling on the right lane.  Photo 5 depicted D1A(N) Road.

21.  Regarding the video footage, it showed that a KMB bus was stationary on the left lane of westbound Jordan Road for a few seconds before the defendant drove past it.  The defendant was driving on the right lane of westbound Jordan Road.  He then jumped the red light and travelled into the junction of Jordan Road and D1A(N) Road.  It rammed into V2 which caused V2 to overturn.  From what I saw in the footage, the defendant did drive fast along the westbound of Jordan Road and into the junction.  I consider that the defendant drove with a degree of recklessness.  He failed to keep a proper lookout of the traffic conditions at that time.  The manner of his driving, however, was not the worst of its kind in this type of cases.

22.  The principle that emerged from Poon Wing Kay and the subsequent cases is that a deterrent sentence is called for (see also HKSAR v Chan Chi Chiu Louis CACC 249 of 2012).

23.  Having considered all the circumstances of the case, including the fact that the defendant jumped the red light, that he has two previous traffic records of failing to comply with traffic signals, that he drove fast (I bear in mind that the Summary of Facts did not say that he was speeding at that time) and that the injuries suffered by the victims, in particular the serious injuries of PW3 who, as I was told by Mr Chui, has no permanent injuries, I am satisfied that the proper starting point after trial is 12 months’ imprisonment. 

24.  The defendant indicated his guilty plea on 5 January 2017 at the District Court plea-day hearing.  It shows that he is remorseful for what happened.  In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, I am satisfied that he is entitled to a full one-third discount.  Upon his guilty plea, the sentence is reduced to 8 months’ imprisonment.

25.  Obviously, a term of imprisonment will cause hardship to the defendant’s family.  However, this is not a mitigating factor.

26.  Mr Tang repeatedly asked this court to impose a suspended sentence.  He submitted that the defendant suffered breathing problem last night while he was in custody.  He also said that the CSD officers had taken care of the defendant’s problem.  It is strongly believed that the defendant’s health condition will be monitored and well taken care of by the CSD.

27.  Having considered all the circumstances of the case, including the defendant’s family circumstances and his health condition, I find that there are no exceptional circumstances which justify a suspended sentence.  The defendant has committed a serious offence.  

Disqualification

28.  There is mandatory disqualification of not less than 2 years for a first conviction of dangerous driving unless the court for special reasons decides not to make such an order.  Mr Tang made no submission on this.

29.  I find there are no special reasons.  As such, the defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years.  If the defendant drives during the disqualification period, he will commit an offence of driving whilst disqualified and any other offences which will usually attract a sentence of imprisonment.

30.  Pursuant to section 69A(2), I direct that the disqualification is not to start to run until the defendant has finished serving the term of imprisonment.  Also, I find that there are no special reasons not to make such a direction.  Besides, I find there are no special reasons against making an order under section 72A(1A) of the Road Traffic Ordinance, Cap 374 which provides that a court shall order a person convicted of causing grievous bodily harm by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.

31.  The defendant is ordered to attend and complete a driving improvement course at his own cost within the period of 3 months ending on the date on which the disqualification expires.  It is an offence not to attend and complete the driving improvement course, and that he remains disqualified until he attends and completes the course notwithstanding the disqualification period may already have ended.  So this is the sentence I impose on the defendant.