HKSAR v. LEUNG CHUN HO, BILLY

DCCC 945/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 945 OF 2014

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REASONS FOR SENTENCE
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1.  Billy Leung Chun Ho you have pleaded guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Chapter 374. This is a serious offence for which the maximum penalty is 7 years imprisonment.

2.  Full particulars of the offence are set out in the facts admitted by you on the 22 April.  In summary just before 0200 hours on the 13 December 2013 you were driving a Mercedes Benz private car displaying trade plates along Gillies Avenue in Hung Hom.  The speed limit was 50km/h.  As you approached the junction with Baker Street you were travelling at a speed of not less that 88km/h.  You jumped the red light and collided with a taxi. 

3.  The impact of the collision pushed the taxi against the secondary traffic light on the opposite side of the junction and a keep left traffic island bollard.  Mr Tang, a passenger in the taxi, was thrown out of the taxi. 

4.  Photographs taken at the time showing the damage to the vehicles, the secondary traffic light and the keep left traffic island bollardhave been submitted together with photographs taken in the day time showing the location of the accident.  A sketch of the junction and a traffic lights sequence and maintenance report have also been submitted. 

5.  As seen from the photographs the taxi was badly damaged.  The cost of repair I am told is $40,000.  The taxi driver sustained injury to his chest wall for which he was granted 5 days sick leave. 

6.  Mr Tang sustained very serious injuries as particularised in the facts admitted by you and in the medical reports submitted to court, in particular the update report of Dr Shen dated the 12 May 2015 from the Queen Elizabeth Hospital.  Mr Tang was hospitalized for just over 5 months during which time he underwent numerous operations between December 2013 and February 2014.  Mr Tang was last seen by the specialist outpatient clinic of the hospital on the 2 April 2015 when x-ray showed that all fractures gradually healed up except for the right tibial fracture.  Mr Tang was granted sick leave until the 31 January this year.  I am told that Mr Tang returned to work in February this year. 

Dangerous Driving

7.  In R v Boswell [1984] 3 All ER 35 the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death.  These factors were revised in R v Cooksley [2003] RTR 32.  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another [2007] 1 HKLRD 660 emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  

8.  I am satisfied this approach is equally appropriate to the offence of causing grievous bodily harm by dangerous driving(see HKSAR v Lee Yau Wing CACC 282/2012, paragraph 31).  This principle was repeated in Secretary for Justice v Lau Sin Ting CAAR 3/2010 where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice (see paragraph 36 of the judgment).

Aggravating features

9.  The aggravating features in this case are that you disobeyed a red light at a time when you were travelling well in excess of the speed limit.  In Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601, a case of dangerous driving causing death, the Court of Appeal said that the conscious disregard for traffic lights will likely put the case into the most serious category.    

10.  Film footage taken by a camera installed in the taxi and by CCTV installed outside a mahjong school on Gillies Avenue has been played in court.  The camera in the taxi clearly shows that the taxi driver entered the junction when the traffic light was green with the light changing to amber after he entered the junction and the accident occurring before the light changed to red. 

11.  Due to the quality of the CCTV footage it is not always easy to see the colour of the traffic lights on Gillies Avenue.  What however is clear is that the lights change to green about 8-10 seconds after you passed the main traffic light at the stop line. 

12.  Ms Lai submits that the accident occurred in a “moment of mistake” when you looked at the wrong set of traffic lights (see paragraph 12 of the written submission).  As seen on the CCTV as you went through the junction your view of the traffic lights on the left side of Gillies Avenue was blocked by a bus.  You however failed to see both the main and secondary lights on the right side of Gillies Avenue.  

13.  Ms Lai explains this is because you were travelling in the middle lane and mistakenly saw the traffic lights at the next junction which were showing green.  In support this was a moment of mistake Ms Lai submitted at the last hearing a photograph showing the lights as you saw them on that night.  Ms Lai submitted that the distance between the two junctions was at most 2-3 car lengths.  This did not appear to be correct therefore I adjourned the hearing for the prosecution to check the distance between the two sets of lights; if the traffic lights at Gillies Avenue junction with Baker Street were red whether the lights at the next junction would be green and for update medical reports.

14.  Mr Hui has today confirmed that if the traffic lights at Gillies Avenue junction with Baker Street were red then the lights at the next junction would be green.  A sketch prepared by the police shows the actual distance between the two stop lines is 102 meters, over 20 car lengths away. 

15.  Today Ms Lai has also submitted a photograph showing the two junctions in daylight for my consideration.  Accepting the distance is 102 meters between the two stop lines and not 2-3 car lengths away as submitted last time Ms Lai nevertheless submits this is still not a long distance for a car to travel and asks the court to accept you mistakenly looked at the wrong lights. 

16.  As indicated in court whilst I am prepared to accept that you may have looked at the wrong set of traffic lights and therefore did not consciously disregard the red light I do not accept the lights at the junctions were in anyway confusing and thereby contributed to your mistake.    You were travelling at a speed well in excess of the speed limit and in so doing failed to see both the main and secondary traffic lights on your right.   It is on this basis your culpability falls to be assessed.

17.  In Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability.  This has been adopted in Hong Kong (for example see Secretary for Justice v Liu Kwok Chun CAAR 3/2009).

18.  The degree of seriousness depends on the precise circumstances of the driving.  Greatly excessive speed was said in Cooksley to be highly culpable driving.  In Poon Wing Kay the court said that 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 with a degree of recklessness.

19.  Whilst it has been said that little purpose will be served by comparing sentences imposed on the basis of different facts a review of some cases gives the court an indication of the range of sentences imposed.  I will refer to two cases where high speed was involved.

20.  In HKSAR v Chan Chi Chiu Louis CACC 249/2012 the applicant whilst travelling at a speed of 30 or 40 km/h in excess of the speed limit of 50km/h failed to notice another private car emerge from a car park.  A collision occurred in which two passengers were seriously injured. 

21.  The Court of Appeal taking into account the speed of the applicant; the failure to notice the car emerging from the car park and that the driver of that car should himself have checked that it was safe to enter the major carriageway from the car park held that the driving did not fall within the very serious category of blatant disregard for the safety of other road users.  The court considered that it was a case of a serious error of judgment and that 2 years imprisonment was the appropriate sentence.  In my view the present case is more serious.

22.  In HKSAR v Ho Kwong Wai CACC 167/2012 (see February 2013 edition of the Criminal Appeals Bulletin for an English summary of the case) the applicant was driving a private car along Route Twisk uphill.  The speed limit for the road was 50 km/h and the road was marked with double white lines.  The applicant overtook a private car on a zigzag bend by accelerating to 80km/h and crossing the double white lines.  As a result he collided with a motor cycle head on.  The motor cyclist was seriously injured. 

23.  The Court of Appeal taking into account there was no evidence to show that the applicant had been speeding throughout the journey or he had crossed double white lines a number of times regarded the accident as a momentary dangerous error of judgment.  The court considered the appropriate sentence was 3 years imprisonment.  I regard this case as more serious.

24.  Travelling at a speed well in excess of the speed limit shows a disregard for the safety of other road users.  The failure to see the traffic lights whilst travelling at high speed shows a high degree of recklessness. I am satisfied in all the circumstances this places the driving at the higher end of intermediate culpability. 

Seat belt

25.  Ms Lai submits your culpability is reduced by the fact the passenger was not wearing a seat belt and had he done so he may not have been seriously injured.  In making this submission Ms Lai draws to the court’s attention the fact that the taxi driver was wearing his seatbelt and received relatively minor injuries which do not amount to grievous bodily harm. 

26.  Not only would the taxi driver have been wearing his seat belt throughout the night while driving his taxi the photographs clearly show the impact of the collision is at the rear passenger door of the taxi.  It is not difficult to imagine the force of the impact which caused Mr Tang to be thrown out of the taxi.  No doubt at the speed you were travelling had you collided with the driver’s door the taxi driver may well have sustained serious injuries. 

27.  Mr Hui confirms that Mr Tang was not wearing his seat belt but told the police that he had just got into the taxi and was about to buckle up when the accident occurred.  The film footage from the taxi shows the taxi stopping twice before the accident.  Mr Hui informs the court the first time is when a passenger alighted and the second time is when Mr Tang got on the taxi.  The film footage shows the taxi stopping for the second time at 01:58:42 and starting again at 01:58:50. 

28.  Seventeen seconds later at 01:59:07 the accident occurs.  The fact Mr Tang in that short time had not secured his seat belt is not, in my view, a factor which reduces your culpability. 

Injuries

29.  Mr Tang has sustained very serious injuries although fortunately most of the fractures have healed and he has after one year on sick leave returned to work.  No information is however available to the court as to whether Mr Tang may suffer any permanent disability.    Whilst the impact on people’s lives is to be taken into account when sentencing the Court of Appeal in Secretary for Justice v Poon Wing Kay said that in assessing the overall seriousness culpability is often the dominant factor.

30.  In considering the degree of injuries sustained I also note that said in HKSAR v Lui Chung TakCACC 221/2012that it is not helpful to compare the various injuries which amounted to grievous bodily harm save where a dramatic level of injury may have an impact on sentence.  In my view this is one such case where the injuries do have an impact on sentence.

Mitigating factors

31.  In passing sentence I take into account everything said on your behalf by Ms Lai in court and in her written submission together with your letters of mitigation and those from your family and friends, all of who speak very highly of you. 

32.  I accept that you are remorseful for what happened.  Not surprisingly you have suffered post-traumatic stress and depression as set out in the report of Dr Ronald Chen dated the 7 November 2014 and in the letters from your wife and sister.    

33.  I take into account that your father has cancer and that you accompany your father to hospital for medical treatment.  I take into account that since the accident your wife became pregnant and gave birth to a baby in December last year.  I also take into account that you have been a blood donor for over 10 years.   

34.  I take into account your impressive work record with Zung Fu where all your colleagues hold you in high regard as shown by all the letters submitted to court.

35.  I take into account your clear criminal and traffic record, with not even a fixed penalty ticket in over 10 years driving.  It is however worth remembering that saidin Poon Wing Kay:-

“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.”

36.  Taking into account that you failed to see the red light at a time when you were travelling in excess of the speed limit; and the serious injuries sustained by Mr Tang, I am satisfied that the proper starting point after trial is one of 2 years and 6 months imprisonment.  

37.  Giving you full credit for your plea of guilty reduces the sentence to 1 year and 8 months imprisonment.

Delay

38.  The accident occurred in December 2013.  You were charged and first appeared in court in June 2014.  The case was transferred to the District Court in November 2014 and set down for trial in January this year.  The first indication of a plea of guilty was by letter from your solicitors one week before the trial was due to commence.   

39.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; the size of the investigation and whether the time taken to bring the case to court was longer than necessary (see for example HKSAR v Cheung Suet Ting CACC 226/2009 and HKSAR v Chiu Chi Wing CACC 243/2012).

40.  Mr Hui has today submitted a chronology setting out the main events since the accident.  Cleary time is required to investigate these cases including the obtaining of a traffic accident reconstruction report.  Much of the time taken appears to have been waiting for medical reports on Mr Tang.  In view of the serious injuries this is not surprising. 

41.  From this chronology I am satisfied that there has been no delay by the police in investigating the matter or submitting the file to the Department of Justice for legal advice.  Nor do I find any delay in the giving of that advice.  I am satisfied there has been no undue delay in the proceedings.  In all the circumstances I am satisfied this is not an appropriate case to reduce the sentence by reason of the time taken to bring the case to court. 

42.  You are convicted and sentenced to 1 year and 8 months imprisonment.

Disqualification

43.  There is mandatory disqualification of not less than 2 years for causing grievous bodily harm by dangerous driving unless the court for special reasons decides not to make such an order.  I find there are no special reasons not to order you to be disqualified.  Taking into account the circumstances of the driving I am satisfied that a period of 4 years disqualification is appropriate. 

44.  You are disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years.  

45.  Section 72A(1A) of the Road Traffic Ordinance 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.  Again I find there are no special reasons not to order you to attend and complete a driving improvement course. 

46.  You are ordered to attend and complete a driving improvement course, at your own cost, within the period of 3 months ending on the date on which the disqualification expires. 

47.  You are also warned that it is an offence not to attend and complete the driving improvement course and that you remain disqualified until you attend and complete the driving improvement course notwithstanding the disqualification period may already have ended.