HKSAR v. KO YUN SANG

CACC 202/2020

[2022] HKCA 751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 202 OF 2020

(ON APPEAL FROM DCCC NO 297 OF 2020)

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R E A S O N S  F O R  J U D G M E N T

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.  The appellant was granted leave to appeal against an order disqualifying him from driving for a period of 5 years that arose when he pleaded guilty before District Court Judge Yiu (the Judge) and was sentenced for the following traffic offences:

(i)  Causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374 (the Ordinance), (Charge 1): sentenced to 20 months’ imprisonment and disqualified from driving for a period of 5 years.

(ii)  Driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, contrary to section 39A(1) of the Ordinance, (Charge 2): sentenced to 3 months’ imprisonment and disqualified from driving for a period of 2 years.

(iii)  Using a motor vehicle with an illegal visual display unit, contrary to regulations 37 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A, (Charge 3): fined $1,000.

(iv)  Using a vehicle without fitting with obligatory reflectors, contrary to regulations 106 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, (Charge 4): fined $1,000.

2.  So far as is material, the Judge ordered that the sentences on Charges 1 and 2 be served concurrently, and further ordered pursuant to section 72A(1A) of the Ordinance that the appellant complete a driving improvement course at his own cost within three months of completion of the disqualification period.

3.  At the conclusion of the hearing, we allowed the appellant’s appeal and only interfered with his sentence by reducing the disqualification period order in respect of Charge 1 from 5 years to 3 years. We said we would hand down our reasons for our decision in due course, which we now do.

The brief facts

4.  The location of the incident was at Dundas Street, a single lane one-way road and Nathan Road, a two-way road, in Mong Kok, Kowloon. The southbound and northbound sections of Nathan Road each consist of three lanes that are separated by concrete curbs and metal railings. At the junction of Dundas Street (westbound) and Nathan Road (southbound), vehicles leaving Dundas Street (westbound) are only permitted to make a left turn into Nathan Road (southbound).

5.  At around 4 am on 20 October 2019, the appellant was driving his private vehicle along Dundas Street (westbound). When he reached the junction with Nathan Road (southbound), he went straight across the southbound and northbound sections of Nathan Road. There were usually metal railings separating the carriageways of Nathan Road but they had been removed. The vehicle then reached a pedestrian crossing controlled by traffic lights at Dundas Street (eastbound), which was showing a green light for pedestrians.

6.  There was a pedestrian, a 58-year-old woman, walking northbound on the crossing at the time. When she reached the middle of the crossing, she saw the appellant’s vehicle on her right careering across Nathan Road towards her. She immediately turned around in an attempt to leave the crossing and avoid being hit by the vehicle, but the left front part of the vehicle hit her. As a result, she was thrown up into the air and landed on the ground nearby. The vehicle continued and slammed into the metal railings on the pavement where it came to a halt.

7.  At the time of the accident, the appellant’s alcohol concentration in breath exceeded the prescribed limit. His reading was 71 micrograms of alcohol in 100 millilitres of breath, which brought him within tier 3 in section 39A(1A), where the proportion of alcohol in a person’s breath exceeds 66 micrograms of alcohol in 100 millilitres of breath.

8.  The pedestrian was taken to hospital and was diagnosed as suffering from left wrist deformity and tenderness; abrasion wound at right forearm; and bruise and mild tenderness over right shin. X-rays of her left wrist showed left distal radius fracture. Close reduction was performed on her left wrist with plaster cast and she was discharged on the same day. She received periodic follow-up treatments, including physiotherapy, and was granted sick leave for 10 months.

9.  It was agreed that the appellant drove his vehicle dangerously because he was under the influence of alcohol and had driven his vehicle across Nathan Road and into a pedestrian crossing against the traffic lights, hitting the pedestrian and ramming his vehicle into the metal railings on the pavement.

The mitigation

10.  The appellant was 42 years old at the time of sentencing. He did not have any criminal conviction record,[1] nor any traffic contravention record since 1997 when he was granted a driving licence.[2]  At the time of the incident, the appellant was a professional driver earning around $40,000 per month.[3]  The vehicle was the appellant’s personal vehicle.[4]  The appellant was the main breadwinner of the family.[5]  As a result of the incident, he quit his job as a professional driver and sold his personal vehicle. He changed jobs and took up work as a vegetable seller at the local market.[6] 

11.  Defence counsel in advancing mitigation on behalf of the appellant accepted that driving whilst under the influence of alcohol and the fact that the incident took place at a pedestrian crossing were aggravating factors, and that the appellant drove his vehicle in contravention of traffic regulations. However, he submitted the accident was to a certain extent caused by the appellant’s unfamiliarity with the location. He also pointed out that it was at night with little traffic on the roads and the metal railings dividing the carriageway had been removed. He further submitted that the speed at which the appellant drove the vehicle was not high[7] and that after the incident the appellant had displayed significant remorse.[8]

12.  Defence counsel acknowledged that the punishment under Charges 1 and 2 carry with them a mandatory order to disqualify the appellant from driving, unless there were “special reasons”. He accepted that there were no “special reasons”, not to apply the statutory disqualification. He also acknowledged the fact that the appellant was a professional driver was not a “special reason”.[9]

The reasons for sentence

13.  Having reviewed the facts and circumstances of the case and reciting the mitigation advanced on behalf of the appellant, the Judge referred to the recent Court of Appeal authority of Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771 before sentencing the appellant in respect of the offence under Charge 1 of causing grievous bodily harm by dangerous driving. He assessed that the appellant’s driving was dangerous because (1) he had consumed alcohol shortly before driving his vehicle and his alcohol concentration in breath exceeded three times the prescribed limit; (2) he breached traffic regulations by driving across all six lanes of Nathan Road as well as crossing into Dundas Street and a pedestrian crossing, showing a green light for pedestrians; and (3) he failed to keep a proper lookout of the pedestrian crossing, showing a green light for pedestrians, when a pedestrian (whom he hit) was traversing the crossing, and slammed his vehicle into the metal railings on the pavement.[10]  

14.  The Judge adopted a starting point of 2 years and 6 months’ imprisonment on Charge 1, which he reduced by one third to 20 months’ imprisonment for the appellant’s guilty plea. He also ordered that the appellant be disqualified from driving for a period of 5 years.[11] 

15.  In respect of Charge 2, the offence of driving whilst under the influence of alcohol, the judge imposed a sentence of 3 months’ imprisonment, which he said was “upon guilty plea”, and also ordered that the appellant be disqualified from driving for a period of 2 years. As already noted, the sentences imposed on Charges 1 and 2 were ordered to be served concurrently.

Submissions

16.  The sole ground of appeal is that the disqualification period of 5 years in respect of Charge 1 was wrong in principle and manifestly excessive. In advancing this ground of appeal, it is argued:

“In imposing the Disqualification Period, the judge did not state sufficiently or clearly the basis or the reasons in support.

In addition to his consideration of the facts of the case, the judge failed to give sufficient weight to or properly consider the following matters:

(1)  The applicant’s impeccable driving record for about 23 years – the risk he poses to other road users; and

(2)  The applicant’s previous occupation and the adverse effects the Disqualification Period would have on the applicant upon his release from custody – additional hardship and counter-productivity.” 

17.  It is also complained that the judge did not provide reasons for imposing the disqualification period, which was in excess of the statutory minimum period, and in view of the whole of the circumstances and past cases, the disqualification period was manifestly excessive.

18.  The respondent submits that the disqualification period of 5 years was appropriate in the circumstances of the case. It is noted the offence of causing grievous bodily harm by dangerous driving has a maximum term of imprisonment of 7 years and a fine at level 5 upon conviction on indictment. The respondent refers to the authorities of Secretary for Justice v Liu Kwok-chun unrep., CAAR 3/2009, 2 September 2010, and Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, where the Court of Appeal identified factors in assessing the gravity of the offence of dangerous driving causing death and the culpability of the offender. In this regard, the respondent submits that the offence in the present case was aggravated by the appellant driving his vehicle whilst under the influence of alcohol, by his aggressive driving in crossing six lanes of a major carriageway, and by careering into a traffic controlled pedestrian crossing, causing serious injury to a pedestrian.

Discussion

19.  Where a person is convicted of an offence of causing grievous bodily harm by dangerous driving, section 36A(2) of the Ordinance provides that the sentencing court must order the person to be disqualified in accordance with subsection (3) or (4), unless the sentencing court for “special reasons” orders that the person not be disqualified or disqualified for a shorter period as specified. So far as material, the relevant subsections read:

“(3) Subject to subsection (4), the period for which the person is to be disqualified is—

(a) for a first conviction, a period of not less than 2 years; and

(b) for a second or subsequent conviction, a period of not less than 5 years.

(4) If the court or magistrate has ordered the person to attend and complete a driving improvement course under section 72A(1A), the period for which the person is to be disqualified is—

(a) for a first conviction, a period of not less than 2 years, or until the person has attended and completed the course at his or her own cost, whichever is the later; and

(b) for a second or subsequent conviction, a period of not less than 5 years, or until the person has attended and completed the course at his or her own cost, whichever is the later.

(5) For the purposes of subsection (2), a person to whom subsection (4) applies is disqualified for a shorter period if the period for which he or she is disqualified is—

(a) for a first conviction, a period of less than 2 years, or until the person has attended and completed the driving improvement course at his or her own cost, whichever is the later; and

(b) for a second or subsequent conviction, a period of less than 5 years, or until the person has attended and completed the driving improvement course at his or her own cost, whichever is the later.

(6) If an offence under subsection (1) is committed in circumstances of aggravation, the maximum fine and term of imprisonment for the offence as set out in subsection (1), and the minimum disqualification periods for the offence as set out in subsections (3) and (4), are each increased by 50% and subsection (5) must be construed accordingly.

(7) A person commits an offence under subsection (1) in circumstances of aggravation if at the time of committing the offence—

(a) the proportion of alcohol in the person’s breath, blood or urine is tier 3; or

(b) any concentration of a specified illicit drug is present in the person’s blood or urine.

(8) To avoid doubt and despite anything to the contrary in section 113C of the Criminal Procedure Ordinance (Cap. 221), the maximum fine for an offence under subsection (1) committed in circumstances of aggravation is the monetary amount derived by multiplying by 1.5 the maximum fine for the offence as set out in subsection (1).

(9) The court or magistrate may deal with the conviction of an offence as a first conviction if, as at the date on which the offence was committed, at least 5 years have passed since the person’s last conviction under subsection (1).

(10) A person is to be regarded as driving dangerously within the meaning of subsection (1) if—

(a) the way he or she drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

(11) A person is also to be regarded as driving dangerously within the meaning of subsection (1) if it would be obvious to a competent and careful driver that driving the motor vehicle concerned in its current state would be dangerous.

(12) For the purposes of subsections (10) and (11), dangerous refers to danger either of injury to any person or of serious damage to property.

(13) For the purposes of subsections (10) and (11), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard must be had to all the circumstances of the case including—

(a) the nature, condition and use of the road concerned at the material time;

(b) the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.

(14) In determining for the purposes of subsection (11) the state of the motor vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.

…”

20.  “Special reasons” is defined under section 2 of the Ordinance and means:

“special reasons relating to the offence, and in exceptional circumstances special reasons relating to —

(a)  the offender; and

(b)  such other circumstance that the court or magistrate may consider to be relevant.”

21.  Whilst disqualification forms part of the penalty to be imposed upon an offender for the offence of dangerous driving causing grievous bodily harm, it is designed to protect road users in the future from an offender who has shown himself to be a real risk on the roads and its main purpose is “forward looking and preventative rather than backward looking and punitive”.  See R v Cooksley [2003] 2 Cr App R 18, 275, at [40]. The matters relating to culpability which need to be considered when determining the term of imprisonment for the driving are more or less the same as those which need to be considered when fixing the length of the driving disqualification, but also include the offender’s conduct on the roads on other occasions, which shows him to be a real risk on the roads. The period of disqualification should run concurrently with the term of imprisonment that has been imposed because of the dangerous driving and should have actual effect by being longer than the prison sentence.  See R v Cooksley, at [42]; Secretary for Justice v Hung Ling Kwok [2010] 4 HKLRD 365, at [10]-[13]; and HKSAR v Wong Mun Ming [2016] 1 HKLRD 1057, at [29]-[48].

22.  At the heart of the sanction of disqualification from driving is the need to protect road users from the real risk of the defendant’s bad driving in the future.

23.  The penalty and related provisions under section 36A of the Ordinance address the issue of the disqualification order in the following terms. The statutory minimum duration of disqualification for a first conviction is 2 years, and for a second or subsequent conviction is 5 years. If the court finds special reasons, it can either make no disqualification order or make a disqualification order for a shorter period. Absent special reasons, a disqualification order should be made of a duration of at least 2 years for a first conviction and 5 years for a second or subsequent conviction.

24.  Under subsection (9), the court may deal with the conviction of the offence as a first conviction if, as at the date of the offence, at least 5 years have passed since the offender’s last conviction for this offence. This would relate to the classification of the conviction and would not bar a court from considering previous traffic convictions, beyond the previous 5 years as at the date of the offence, when fixing the length of the driving disqualification for the offence. Bearing in mind that the statutory minimum for a second or subsequent conviction is 5 years, the duration of disqualification for a first conviction would normally fall within the range of 2 to 5 years, but could exceed 5 years where the circumstances were so serious that they warranted a greater duration.

25.  Under subsection (6), if the offence is committed “in circumstances of aggravation”, the penalties, including the minimum disqualification periods, are to be increased by 50 percent. Subsection (7) provides that a person commits an offence “in circumstances of aggravation” if at the time of the offence (a) the proportion of alcohol on the person’s breath, blood or urine is tier 3; or (b) any concentration of a specified illicit drug is present in the person’s blood or urine.

26.  Whilst the Judge was very thorough in addressing the sentencing of the appellant, he did not explain, nor give reasons, for arriving at a disqualification period of 5 years for Charge 1. It would appear that the parties did not address the Judge as to the appropriate duration of disqualification, except to the extent that defence counsel acknowledged that there were no “special reasons”. There was no reference to the increase of the disqualification period by 50 percent for the fact that the appellant had committed a tier 3 drink-driving offence.

27.  A court should invite submissions as to whether a disqualification order should be made by addressing the question of “special reasons”. If the court finds there are no “special reasons”, it should also invite submissions as to the length of the disqualification period, over and above the statutory minimum term. Whatever order the court decides to make, it is preferable that it provides reasons for its decision, particularly where the disqualification order is in excess of the statutory minimum term. See HKSAR v Wong Mun Ming, at [34]-[36].

28.  Mr Tony Li, on behalf of the appellant, does not contend there are “special reasons” not to make a disqualification order or to make it for a duration of less than the statutory minimum term. As we have already noted, the appellant committed this offence “in circumstances of aggravation” because the proportion of alcohol in his breath was tier 3. This warranted the statutory minimum term for disqualification to be increased by 50 percent to 3 years. We have taken into account the following matters in determining the appropriate duration of the disqualification order:

(1)  The culpability of the appellant’s driving was serious and he undoubtedly poses a risk to other road users if he continues to drink and drive. It resulted in him driving his vehicle across the traffic lanes of Nathan Road and hitting a pedestrian on a pedestrian crossing.

(2)  The appellant was a professional driver with a clear record, who had held a driving licence for 23 years and has not committed a traffic offence in that period. The appellant’s impeccable driving record is a factor in his favour as a risk to other road users in the future.

(3)  We have been informed that the appellant is likely to return to his work as a professional driver after the expiry of his disqualification period and completion of a driving improvement course. We have borne in mind the appellant needs his driving licence to earn a living and to provide for those who are dependent upon him, and as a consequence the duration of disqualification would be of additional hardship to him.

(4)  The appellant is required to serve a total term of imprisonment of 20 months, and the statutory minimum duration of disqualification in the circumstances of this case is 3 years. This duration will give actual effect to the disqualification order and address the risk he poses to other road users in the future.

29.  We are of the view that the disqualification period of 5 years was manifestly excessive, bearing in mind that the appellant was a professional driver who had been driving for a period of 23 years with an impeccable driving record; and that the level of risk he poses to other road users in the future may not be very high. We are also of the view that the Judge, whilst placing emphasis on the seriousness of the offence, did not look at the preventative and future aspect of the disqualification order when determining the period he imposed.

30.  Taking all the circumstances into account, particularly the matters that we have mentioned, we are persuaded that an appropriate duration of disqualification should be 3 years.

Conclusion

31.  For the reasons we have given, we reduced the disqualification period on Charge 1 from 5 to 3 years. Otherwise, the rest of the sentence imposed on the appellant by the Judge stands. Having received submissions on costs, we ordered costs to the appellant in the sum of his legal aid contribution.