HKSAR v. IP CHI HO

DCCC 826/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 826 OF 2013

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Reasons for Sentence

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1. Defendant, you have pleaded guilty to one offence of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374. You admitted the Brief Facts, and I convicted you.

2. What occurred is this.  At about 0024 hours on 16 February last, PW1, who is aged 43, was driving his motor vehicle, which was in fact a motorcycle, along the northbound of Castle Peak Road at Hung Shui Kiu.  On reaching the traffic light controlled T-junction with Tin Ha Road, he stopped his motorcycle at the third lane of northbound Castle Peak Road, Hung Shui Kiu, behind the T-junction, as the light was red.

3. You drove your car out from Tin Ha Road against the flow of traffic direction, and crashed straight into the nearside of the motorcycle with PW1 astride.

4. As a result, PW1 was thrown to his offside. Your vehicle kept dashing forward to run through the central metal divider of Castle Peak Road, Hung Shui Kiu.  Your vehicle knocked down a barrier before stopping across the pavement.

5. The nearside of the motorcycle and the front of your car were seriously damaged.  PW1 sustained serious injuries and was admitted to hospital.  The findings were as follows:

(a) the fracture of two ribs;

(b) lung contusion;

(c) fracture of trochanter of left femur and dislocation of right hip; and

(d) traumatic subarachnoid haemorrhage and effacement of the right-sided sulci. He was in hospital until 19 April of this year, and sick leave was extended to 9 January, and I understand the recent update is that he is still on sick leave. Follow-up treatment and medical checks are still required, and from the supplemental statement provided by the prosecution, it seems the prognosis for a full recovery is very poor.

6. I deal with your initial statement.  Police Constable 3355 arrived at the scene at 0031 hours on 16 February.  You stated that you were in a bad mood and felt sleepy at the material time.  You steered your car right onto Tuen Mun bound carriageway at the Castle Peak Road, Hung Shui Kiu, from Tin Ha Road, and hit the motorcycle which was stopped at the red signal.

7. You were sent to hospital for treatment, as you complained of chest injury.  You complained to the doctor that you wanted to commit suicide by crashing your car into others.  As you spoke and behaved abnormally, you were transferred to Castle Peak Hospital.  You were assessed by a psychiatrist and diagnosed with acute psychosis.

8. Urine toxicology done on 16 February found amphetamines and methamphetamine in your urine.  A doctor at Castle Peak Hospital confirmed you to be known to the Mental Health Service since 2008.  You were diagnosed to have amphetamine intoxication.  No psychiatric follow-up was arranged.

9. On the day of your admission, you were noted to have irrelevant speech with floridly psychotic symptoms, including hallucinations and poor insight.  Low dose antipsychotic was prescribed. Withdrawal symptoms of methamphetamine was noted.  The psychotic symptoms improved.  You were conscious and orientated to time, place and person.  Your insight remained poor, but he did not consider that you were suffering from mental illness.  The doctor noted you suffered from drug‑induced psychosis which had improved with abstinence.

10. Your vehicle was found to have no defects.  The road surface was dry and in good repair.  Traffic was light and the scene well illuminated.  You were calculated to be travelling at 38 to 46 kilometres per hour when you hit PW1.

11. You admitted to 12 previous convictions on five occasions.  None were similar.  Additionally, you had one traffic conviction and some fixed penalties.  This is in fact the first time that the quality of your driving has been called into account.

12. In view of the facts, including your hospital treatment, I adjourned the case for the preparation of various reports.  These comprise a probation officer’s background report, a psychologist’s report, and two psychiatric reports.

13. Whilst a hospital order is not recommended, outpatient psychiatric and psychological treatment is.

14. Were you to drive again, you are considered to be a danger to the public.

15. Mr Lo indicated that you accepted the contents and recommendations of those reports.  Dealing first with your personal circumstances, he told me you are 32, divorced, with a daughter of 5 from that marriage.  You have a current girlfriend, with whom you have a second daughter, aged 2.  You were poorly educated, only to Form 2, and worked casually in construction prior to remand, earning about $8,000 a month.

16. Mr Lo has submitted that culpability is the main factor to consider in this case.  Your main fault was to drive whilst you were in a bad and sleepy mood, but you were driving but a short distance from your girlfriend’s home to your own home, which would be about a 10-minute drive. This is when the accident occurred.

17. Mr Lo has submitted there were no aggravating features.  You simply did a dangerous act.  The mitigating points were as follows:

(1) the driving distance was short;

(2) there was no jumping a red light, merely a lapse of attention;

(3) your car had no defects;

(4) at the time of the accident you were not speeding, doing some 38 to 46 kilometres per hour in a 50 kilometre per hour limit;

(5) that after the accident you behaved very responsibly at the scene in assisting the victim by removing his helmet, ensuring that he was breathing comfortably, and comforting him;

(6) when the police arrived, you made an instant admission of guilt;

(7) whilst accepting the gravity of the victim’s injuries, there was no death resulting;

(8) that the drugs found in your urine were a result of you foolishly taking such drugs after the accident and before going to hospital. For the purpose of sentence, I accept that.

18. He referred also to your timely plea of guilty. Mr Lo then referred me to a letter you had written.  In that letter you apologise to the victim and to his family and you express your deep remorse for what you have caused.  It is of note that the letter does not ask for leniency, and that in itself goes to your credit.  You promise never to drive again.  Mr Lo said that whilst you have previous convictions, this is the first time that the quality of your driving has been called into question.

19. This section is a fairly recent section.  There are few decided authorities, but Mr Lo submitted the case of HKSAR v Li Yau Wing CA Cr App No 282/2012.  In that case, the Court of Appeal did not interfere with a sentence imposed by my colleague, Judge Lam, who took a starting point of 15 months reduced to 10 months in a situation where the defendant deliberately jumped a red light and struck an elderly pedestrian.  Mr Lo then concluded by running through the mitigation, emphasising your remorse, and he told me he had no representations to make on the length of any disqualification, nor on the position of a driving improvement course.

20. I turn now to the sentence.  You are a man with a poor criminal record, but I note that your record of driving is light.  I do note that this is the first time that the quality of your driving has been called into question, that you have had a relatively troubled life, and the reports make mention of this.  It seems that many of the problems that you have faced have stemmed from your misappropriate use of dangerous drugs. Tragically, the victim was and continues to be grievously injured as a result of your poor driving.  You chose to drive when you were in no fit state to do so, and the result, as I have said, was tragic.

21. The danger lay in your inattention to your driving.  I note and accept that it is your intention, as you have articulated yet again, never to drive again.  I accept also that your remorse is profound and genuine, and I also accept the mitigating factors so clearly set out by Mr Lo on your behalf.  For the record, these are the short journey you were undertaking; there was no jumping of a red light; your car was roadworthy; there was no speeding; it is to your credit that you rendered assistance to the victim and comfort at the scene, that you were co‑operative with the police and made admissions from the outset; and I do accept that the drugs found in your system were administered after the accident, not prior.

22. However, as I have said, the accident has had serious and tragic consequences for the victim, whose prognosis is poor, and whose life could well be ruined.

23. I note the authority provided by Mr Lo on your behalf.  What that authority says is that 10 months in the circumstances was not excessive.  The Court of Appeal was not answering the question as to whether it was the correct sentence, but simply as to whether or not it was excessive.

24. I am of the opinion that a slightly higher starting point is called for in this case.  Giving you full credit for all I have mentioned, the starting point I take is one of 18 months’ imprisonment reduced to 12.  There is a condition that you should receive psychiatric and psychological treatment whilst serving your sentence.  Also, you will be disqualified from holding or obtaining a driving licence in respect of all classes of vehicle for a period of 4 years.  This means that if you drive any vehicle on any public road or any place to which the public has access, you will commit a very serious offence which will almost inevitably result in further disqualification and imprisonment.

25. I also impose a condition that you are to take a driving improvement test.  Whilst noting your intention never to drive again, if you decide that you wish to do so, this will normally be taken within the last 3 months of the period of your disqualification.