HKSAR v. MOK TSZ FUNG, STEVEN

DCCC 251/2018

[2018] HKDC 983

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 251 OF 2018

----------------

----------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.  The defendant pleaded guilty to one count of “causing grievous bodily harm by dangerous driving”, contrary to section 36A of the Road Traffic Ordinance, Cap. 374 and one count of “driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit”, contrary to section 39A(1) of the same ordinance.

Facts

2.  The accident occurred near the junction of Castle Peak Road – Yuen Long and Tai Tong Road, Yuen Long.  Castle Peak Road – Yuen Long was a dual carriageway where roadworks were ongoing on the left 2nd lane.  The roadworks site was separated from the traffic flow by traffic cones.  A shadow vehicle with a flashing “Keep Left” arrow sign was stopped before the roadworks site.   

3.  At the time of the accident, the weather was fine with good visibility.  Street lamps were lit along the way.  The traffic flow was sparse.  The speed limit was 50 km/h.  The road surface was dry. 

4.  At around 2:32 a.m. on 17 August 2017, the defendant was driving a private car bearing registration mark PS8416 (“the Car”) at a speed of around 46km/h near the junction of Castle Peak Road – Yuen Long and Tai Tong Road.  The Car hit the roadworks site and knocked down 4 workers working inside the site.  At the material times, these workers were all working with their back facing the road.  They were all wearing reflective clothing and safety helmet at the material time.  Amongst the 4 workers, Mr Mak Lai Leung suffered from multiple injuries including multiple lacerations and fractures, lung contusion, haemorrhage and haematoma.  He was admitted to hospital for 15 days.  He is currently still on sick leave and has to attend physiotherapy and regular follow-up.  He was diagnosed to be suffering from post-traumatic stress disorder and depression. There were scars over his right face and neck, pulling on right angle of mouth, with occasional drooling of saliva at right angle of mouth when eating.  Mr Au Yat Cheung lost consciousness after being hit.  He sustained ligament and meniscus tear, swelling and tenderness to his left knee and neck tenderness.  He was admitted to hospital for 10 days.  He is currently still on sick leave and has to attend physiotherapy, occupational therapy and regular follow-up.  He was diagnosed with adjustment disorder.

5.  Screen breath test revealed that the defendant’s alcohol concentration was 84 micrograms in 100 millilitres of breath.  Evidential breath test revealed the defendant’s alcohol concentration was 73 micrograms in 100 millilitres of breath. 

6.  The defendant was arrested. Under caution, the defendant admitted that he drank alcohol as he just broke up.  He knew that he had knocked someone down.  He rammed into the roadworks because he was drunk. 

7.  The car camera of another private car and the CCTV camera of Tai Tong Light Rail Station captured the defendant’s driving as follows:  

(a) The Car, with no headlamp, was travelling along Yuen Long Tai Yuk Road and jumped the red light signal.

(b) The Car drove into the opposite lane by cutting the double white lines, with the right indicator light on.

(c) The Car travelled back to the correct lane cutting the double white lines.

(d) The Car braked abruptly at times when the road ahead was clear.

(e) The Car made a right turn into Castle Peak Road – Yuen Long.

(f) The Car was traveling astride on the left 1st and left 2nd lanes.

(g) The Car, with no headlamp, suddenly stopped on the left 2nd lane with the right indicator light flashing.

(h) The Car travelled past a shadow vehicle which had a flashing “Keep Left” arrow.

(i) The Car hit the traffic cones of the roadworks site and knocked down the 4 workers.

(j) The Car travelled for a few seconds and then stopped on the left 1st lane shortly thereafter.

8.  At the material times, the relevant traffic signals were functioning normally.  

9.  As a result of the accident, the Car was damaged. 

Mitigation

10.  The defendant is aged 22, single and lives with his family.  He works as a chef earning about HK$20,000 per month.  He contributes HK$15,000 for family expenses.  He is the sole breadwinner of the family.  His father is suffering from cancer and other illnesses and requires regular follow-up.  He has no criminal conviction record prior to this case.

11.  In mitigation, it was submitted that the defendant normally did not drink or drive stupidly.  The defendant bought the car on the request of his former girlfriend.  He mainly drove the car when dating his former girlfriend or taking the father for medical appointment.  A few days before the incident, the former girlfriend broke up with him.  The defendant was upset and he drank on the date of incident.  He committed the offences under the influence of alcohol.  It was submitted that it was an unfortunate incident which was inconsistent with the defendant’s lifestyle. After the incident, the defendant was very upset and sorry and had frequent nightmare.  He was very remorseful.  He would not drive again and he even had the car dismantled after the incident.  Defence counsel pointed out that no speeding was involved.  Given the defendant’s guilty plea and the background of the defendant, defence counsel urged the court to consider calling report for community service order or impose a suspended sentence on the defendant.     

12.  Defence counsel made no submissions in relation to the period of mandatory disqualification and the order for driving improvement course in respect of both offences.

Sentence

13.  When the defendant committed the offence in charge 1, the proportion of alcohol in his breath was in tier 3.  This is an aggravation which increases the maximum sentence for charge 1 by 50% to imprisonment for 10.5 years and a fine of HK$75,000.  The minimum period of mandatory disqualification is also increased by 50% to 3 years.

14.  There is no sentencing tariff for the offence in charge 1.  The Court of Appeal in HKSAR v Lee Yau Wing [2013] 1 HKC 572 pointed out that the dominant sentencing consideration was the culpability of the defendant’s driving misconduct although the harm caused was also important.  The Court of Appeal also emphasized that the dominant sentencing principle is general deterrence.  Given the serious nature of the offence, I do not consider community service order is an appropriate sentencing option.

15.  Before sentencing, I have the opportunity of watching the recording of the incident captured by the cameras showing the manner of the driving as detailed above.  According to the background report, the defendant drove to the bar and had drinks with his ex-colleague.  The fact that the defendant consumed alcohol before the accident is an aggravating factor.  All these plainly show the defendant’s conduct was irresponsible and was a blatant disregard for the safety of other road users.  As a result of which, serious injuries were caused to Mr Mak and Mr Au who are still on sick leave and have to attend regular follow-up and treatment.  The consequence of the defendant’s dangerous driving in the present case is considered to be serious.

16.  I have considered the information disclosed in the background report of the defendant.  The report revealed that the defendant had been working hard all along to take good care of his family.  He was remorseful and was willing to shoulder up his responsibility. 

17.  In view of the circumstances of the case and the background of the defendant, I consider the appropriate starting point to be 2 ½ years’ imprisonment.  The sentence is reduced to 20 months’ imprisonment given the defendant’s plea. 

18.  With regard to charge 2, the amount of alcohol in his breath was found to fall within tier 3.  I consider the appropriate starting point to be 12 months’ imprisonment.  Given his plea, the sentence is reduced to 8 months. 

19.  It is also revealed from the mitigating letters that the defendant did regularly take part in volunteer work prior to the present case.  I consider this to be evidence of positive good character and am prepared to grant him an additional discount of 2 months for each charge. Apart from that, I do not see other mitigating factor justifying further reduction of sentence.  Whilst I have sympathy for the family of the defendant for the difficulties that may be caused to them upon the defendant being imprisoned, I do not consider family hardship to be a factor justifying suspension of sentence in a case like this.    

20.  Disqualification is mandatory for both offences.  I find no special reasons not to order disqualification.  Although the minimum period of disqualification for both charges are different, as the disqualification period for both charges will be ordered to run concurrently and in order not to cause confusion, I consider it more appropriate to impose same period of disqualification in respect of both charges.  I therefore order that for each charge, the defendant is disqualified from holding or obtaining a licence to drive in respect of all classes of vehicles for 3 years.  The defendant is also ordered to attend a driving improvement course at his own costs for both charges.  The disqualification orders are to run concurrently. 

21.  Given the offences arose from the same incident, in view of totality, I order the sentences for the two charges to run concurrently.  Therefore, the defendant is sentenced to a total sentence of 18 months’ imprisonment.