HKSAR v. KU KA FAI

DCCC 343/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 343 OF 2012

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Reasons for Sentence

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1.  Ku Ka-fai, you have been convicted on your own pleas of the offences of causing grievous bodily harm by dangerous driving and failing to stop after an accident. These offences occurred in the early morning of Sunday, 13 November 2011, in Ice House Street, just after 6.30 am.

2.  After finishing his work, Mr Limbu Suman, the person you subsequently injured, was walking down Ice House Street with a fellow Nepalese colleague on their way to catch a bus home to Yuen Long.  They were walking on the roadway but near the kerb.  You were driving down Ice House Street behind them in a private car. 

3.  Without sounding any warning of your approach, you ran into Mr Limbu Suman from behind, knocking him down and causing him serious injury.  You then crashed into the roadside railing.  You were alone in the car at that time.  You initially stopped and told the injured person’s colleague that you would call the police.  He noticed that at that time you could not walk properly or stand straight.  And as you walked, you were shaking, and it seemed that you would fall down. 

4.  It appears that you made a call to some friends who came to the scene, and also three or four Nepalese friends of the companion of the injured person also came to the scene.  Suddenly, you ran away without leaving your particulars.  Fortunately, you were chased by the Nepalese friends of the injured person’s companion and you were intercepted at the junction of Duddell Street with Queen’s Road Central. 

5.  The police arrived and went to Duddell Street where you appeared to be dull and unable to communicate properly.  You were admitted to Queen Mary Hospital as it was believed that you were drunk. However, you were given a breath test at the hospital and the result showed that you had 12 milligrammes of alcohol in 100 millilitres of blood which was within the prescribed limit.  It was not alcohol that was the problem, but drugs.

6.  As I have said, the man you knocked down suffered serious injuries from which he remained in hospital and rehabilitation centre for 55 days; 11 days in hospital and 44 days in a rehabilitation centre. The most serious injuries from which he suffered were a small subarachnoid haemorrhage, a number of fractures to the bones in his left foot and a fracture of his right forearm.  Fortunately, it appears that he has now made a full recovery.

7.  Your driving that Sunday morning caused serious injury to a man who was simply on his way home after work.  I bear in mind that he was not walking on the pavement but on the roadway near the pavement, but that is not an extraordinary feature in the streets of Hong Kong.  Moreover, it was early on a Sunday morning when there was unlikely to be much traffic around.

8.  If you had been exercising even the most elementary care, you would have seen him as you approached and either sounded your horn or at least driven carefully so as to avoid him.  You did not, and the reason that you did not is the most serious aggravating feature in this case.    

9.  It is clear from your demeanour after the accident, coupled with the findings of a urine test at Queen Mary Hospital where you were taken after the accident, that you were suffering from drug induced intoxication.  That test revealed that you had been consuming methylenedioxy amphetamine, otherwise known as MDMA or ecstasy, methamphetamine amphetamine and cannabis.

10.  The offence under section 36A of the Road Traffic Ordinance of causing grievous bodily harm by dangerous driving is itself a serious one with a maximum term of imprisonment of 7 years.  But the section makes it clear that the offence is considerably more serious if the offender has any illicit drug, and that includes ecstasy or cannabis, in his blood or urine.  It provides that the maximum term of imprisonment in those circumstances is increased to 10½ years. 

11.  Mr Harris has conveyed to the court your instructions that you cannot explain how the ecstasy or methamphetamine amphetamine came to be in your body, but that you admit that you had shared a cannabis joint with friends during the course of the night.  Whether or not there is any truth in this explanation, it is abundantly clear that at the time you got into your car to drive that morning you knew you had consumed drugs and it should have been abundantly obvious to you that you were in no condition to drive a car.  You could not communicate properly and you were hardly able to walk.

12.  You were not somebody who was a stranger to the effect of drugs, having been convicted of possession of cannabis in April of the same year.  You had not learned the lesson of that conviction. 

13.  I have listened to all that Mr Harris has said on your behalf and taken into account the letters that have been submitted to the court. 

14.  I bear in mind that the accident appears to have taken place shortly after you started to drive.  I bear in mind that you had made an offer of compensation of $50,000 to the victim out of your own savings.  I am prepared to accept that you feel remorseful for what you had done.

15.  Having taken those matters into account, I am nonetheless satisfied that a sentence of immediate imprisonment is inevitable.  To drive in a state of drug induced intoxication as you did causing serious harm to Mr Limbu Suman was a very serious offence.  I am satisfied that the appropriate starting point for that offence is 2½ years’ imprisonment.

16.  You ultimately decided to plead guilty and are entitled to the usual discount of one-third to reflect your remorse.  I do not find any circumstances warranting any further discount. 

17.  On Charge 1, I therefore sentence you to 20 months’ imprisonment. 

18.  Insofar as the charge of failing to stop and provide your particulars are concerned, I bear in mind that your decision to abscond may have been partially at least prompted by the arrival of friends of the companion of the injured person. 

19.  I take into account that, like your driving, it was an offence that may well have had its origins in your drug induced intoxication rather than any rational desire to abscond.  I sentence you to 1 month’s imprisonment on that charge, to run concurrently with the sentence on Charge 1.  The total term of imprisonment is therefore 20 months.

20.  In view of your offer to pay $50,000 to the victim, Mr Limbu Suman, I make an order under section 73 of the Criminal Procedure Ordinance, Cap 221, that you pay 50,000 as compensation to him. 

21.  I bear in mind that that is likely to represent only a small amount of his loss for which I assume he will claim in civil proceedings, and I make the order so that at least in the meantime he can have some compensation. 

22.  I disqualify you from driving for 3 years or until you have attended and completed a driving improvement course at your own cost, whichever is the later.