HKSAR v. CHAN CHI HUNG

DCCC 18/2018

[2018] HKDC 1063

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 18 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant Chan Chi Hung pleaded guilty before me to one charge of Causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374.

2.  Particulars of offence are that he, on 27 March 2017, near Lamppost No 47835, Island Eastern Corridor, Sai Wan Ho, in Hong Kong, caused grievous bodily harm to Chiu Siu Mei by driving a motor vehicle, namely, a medium goods vehicle bearing registration mark UB 2594, on a road dangerously.

Admitted facts

3.  The facts admitted by Mr Chan may be summarized as follows.

4.  The Island Eastern Corridor was a dual carriageway with 6 lanes, with 3 lanes in each of eastbound and westbound directions.  The speed limit in the relevant stretch of the corridor was 70 km/h.

5.  On 27 March 2017, at about 8:49 am, the weather was fine and there was daylight and the visibility was good; the road surface was dry and in good repair.

6.  The incident happened in the westbound lanes towards the entrance of the Eastern Harbour Tunnel where the traffic flow was light.

7.  At that time, a line of traffic had formed going into the Eastern Harbour Tunnel.  Mr Chan was driving a medium goods vehicle (a refuse truck to be more precise) with registration mark UB2594 (MGV) in the second lane westbound.  For unknown reason, Mr Chan steered right into the third lane. However, this action caused the MGV to crash severely into a stationary taxi with registration mark LV3020 in the third lane (which had remained stationary for about 6-7 seconds before the collision) rendering a passenger Ms Chiu Siu Mei in the back seat unconscious.  The taxi in turn hit a private car with registration mark RT4887 in front before spinning to a stop facing the opposite direction.  The RT4887 in turn hit another private car with registration mark UF1423 in its front.  The UF1423 then hit another private car in its front with registration mark RC7986 whose nearside front was also hit by the MGV.  After colliding with the taxi, the MGV temporarily returned to the second lane before moving again to the third lane and crashing into the parapets on the right side of the westbound carriageway at high speed and then hitting the rear of yet another private car with registration mark TD3602 situated in front of RC7986. The TD3602 in turn hit another private car with registration mark PF8081 in front which then hit another private car PS3318 in its front.  Having moved forward about 50 metres, the MGV came to a stop.

8.  After the MGV crashed into the parapets, stone fragments came off and fell onto the road underneath the Island Eastern Corridor (Westbound) and hit the front of a passing private car with registration mark RD9566.

9.  A total of 9 vehicles (including the MGV) were involved in the incident with severe damage noted at the following locations:-

(a) The front of RD9566;

(b) The entire rear and left side of the taxi;

(c) The rear of RT4887;

(d) The front bumper of RC7986;

(e) The rear of PF8081; and

(f) The right rear of TD3602.

10.  After the incident, Ms Chiu was sent to the hospital where she was diagnosed to have suffered head injury with loss of consciousness for 3 to 4 minutes but she had regained consciousness upon arrival.  She also sustained an abrasion wound at the right side of forehead and it was found that the pupil of the right side was bigger than that of the left side.  She complained of blurred vision of right eye, neck pain and left chest pain.

11.  At the Intensive Care Unit, CT scan showed right periorbital/high parietal soft tissue swelling, fractured left 5^th to 7^th ribs and atelectasis of bilateral lungs.  Eye examination revealed right lower lid laceration 10 mm in length and 5 mm away from lid margin, and right temporal subconjunctival haemorrhage.  Right lower lid suturing was performed by the ophthalmologist.

12.  Ms Chiu was hospitalized for 4 days and was discharged with follow-up physiotherapy treatments scheduled.  To date, Ms Chiu has not suffered any permanent injuries and has not needed to attend any follow-up outpatient visits in 2018.

13.  The drivers of the taxi and UF1423 also suffered minor injuries but were discharged on the same day after treatment.

Criminal record

14.  The agreed criminal record shows Mr Chan has 5 previous convictions one of which was for drink driving in 2008.

15.  As for the agreed road traffic conviction record, he has 3 previous convictions one of which was for careless driving in 2010.

Antecedents

16.  The agreed antecedents statement shows that Mr Chan is aged 56 (55 at the time of the offence).  He reached primary school level education.  Mr Chan primarily worked as a lorry driver and started working as a garbage truck driver for a private company since 2015.

17.  Mr Chan lives in Shek Wai Kok Estate in Tsuen Wan.

Mitigation

18.  Ms Karen Cheung of counsel mitigated on behalf of Mr Chan.

19.  The following is a summary of the mitigation submissions.

20.  Mr Chan had been a professional driver for 20 odd years.  Since 2015, he drove a garbage truck for a sub-contractor under the Environmental and Hygiene Department of the HK Government earning $18,000 a month.  He was injured in the accident by having bruises all over his body although they were not serious injuries.  Since the accident, he had only been collecting sick leave payment until October 2017 when he was dismissed.  Since then, he worked as a construction worker earning $500 a day.  On average he earned $14,000 a month. He has to pay monthly maintenance to his divorced wife and son to the tune of $2,500 a month.

21.  Ms Cheung submits that if Mr Chan goes to prison, he won’t be able to maintain his wife and son.

22.  As regards the circumstance of the accident, Mr Chan was driving in the second lane at 60 km/h but he came too close to the truck in front which obstructed his view of the vehicles in the third lane.  He suddenly realized he had to change to the third lane in order to use the Eastern Harbour Tunnel to go to Kowloon before it was too late.  So he cut into the third lane abruptly without observing that there was a line of stationary vehicles there.

23.  Mr Chan pleaded guilty to the charge and he admits that he was negligent.  There was no evidence of speeding and there was no evidence of the use of alcohol or mobile phone.

24.  As regards that chain collision, Ms Cheung submits that it should not have happened but it’s really a chain reaction.  Ms Cheung accepts that Mr Chan knew he was driving a heavy vehicle and should have been more careful than the average driver.

25.  Ms Cheung refers to the case of HKSAR v Chan Chi Chiu Louis, CACC 249/2012 (reported in [2013] 5 HKC 162) and tried to draw parallel between the facts of that case and the present facts and suggested that that case was more serious and resulted in a sentence of 2 years’ imprisonment after trial on appeal.

26.  Ms Cheung has no particular comments on the mandatory disqualification order or the need to take the driving improvement course.

Sentence

27.  I have considered the mitigation submissions made by and the case of HKSAR v Chan Chi Chiu Louis, supra, referred to by Ms Karen Cheung.

28.  I have seen the photos of the damage to the vehicles, and a video footage of the course of the incident captured by a viewcam installed on a vehicle travelling behind the MGV, both without objection from Ms Cheung.

29.  I have considered the degree of seriousness of the injuries sustained by Ms Chiu.

30.  The maximum sentence for a section 36A offence is a fine of $50,000 and an imprisonment for 7 years.  A conviction also carries a mandatory disqualification for a specified minimum period unless special reasons exist.

31.  There is no sentencing tariff for this type of offence.

32.  As is said in the case of HKSAR v Lee Yau Wing [2013] 1 HKC 572, a case of dangerous driving causing grievous bodily harm, and this is taken from the holding no 2, “Rather than trying to discern from other cases, the court found it was more helpful to identify the sentencing principles that must be accommodated when sentencing for an offence of this nature and level of seriousness, namely, the principles of retribution, deterrence, and denunciation.  In order to maintain public confidence in the sentencing system, a judge should bear the principles in mind when considering the appropriate level of punishment for the offender.  Then the sentence imposed should be a balanced, proportionate and just one.  However, the dominant sentencing principle for this offence was general deterrence but the severe sentences that were imposed in order to deter also had a secondary purpose of educating the public as to the potential dangers to others involved in driving a motor vehicle and the social responsibility that rested on the shoulders of all drivers to drive safely and with due regard to others.”

33.  In HKSAR v Chan Chi Chiu Louis, supra, a case of dangerous driving causing grievous bodily harm, it was held that the defendant’s culpability should be the dominant component in the sentencing exercise even though the outcome of the offence was also an important matter for the sentencing judge to take into account; it was also held that since the focus was on the culpability of the defendant’s driving, his clear record and general good character carried little weight; that the dominant sentencing principle was general deterrence with principles of retribution and denunciation being also of relevance.

34.  In HKSAR v Wu Yat Cheung, CACC 450/2012, a case of dangerous driving causing grievous bodily harm (as well as causing death), before emphasizing that the offences in that case called for deterrent sentences, the Court of Appeal endorsed the observations made by the sentencing judge:-

“Road accidents can cause immense human suffering. Vehicles are potential lethal machines. Those who are in charge of vehicles must bear in mind the duty they owe to other road users.”

35.  In Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70, a case of dangerous driving causing death, the Court of Appeal after referring to the case of Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, and R v Cooksley & others [2003] 3 All ER 40 (again a case of dangerous driving causing death when the maximum sentence was then 10 years’ imprisonment) said in para 37:-

“In assessing the degree of culpability there are two extreme situations. The first is where the event occurred because of a momentary error of judgment. The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness. In between there are varying degrees of culpability depending on the presence of the [16] aggravating factors which were referred to in Cooksley at para 15.”

36.  At para 39, the Court of Appeal listed the 6 mitigating factors that the sentencing court must take into account, namely:-

(a) A good driving record;

(b) The absence of previous convictions;

(c) A timely plea of guilty;

(d) A genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);

(e) The offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence); and

(f) The fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.

37.  The Court of Appeal then at para 40 drew out a table of sentences considered by Cooksley in respect of four categories of culpability not as tariff but as a cross-checker.  It must be emphasized that this table of sentences are for the offence of dangerous driving causing death where the maximum sentence in England at that time was 10 years’ imprisonment.  For the first category of no aggravating circumstances, the range of sentences is 12-18 months.  For the second category of intermediate culpability: momentary dangerous error of judgment or a short period of bad driving aggravated by a habitually unacceptable standard of driving, by the death of more than one victim or serious injury to other victims or by the offender’s irresponsible behavior at the time of the offence, the range of sentences is 2-3 years.  For the third category of Higher culpability where the standard of the offender’s driving is more highly dangerous, eg the presence of one or more factors of (1) to (9) [listed in para 38 of Liu Kwok Chun], the range of sentences is 4-5 years.  For the fourth category of Most serious culpability, the range of sentences is 6 years onwards.

38.  I have considered the overall criminality of Mr Chan’s conduct in the circumstances in which he found himself and the overriding need for deterrence in this type of case.  I am satisfied that immediate custodial sentence is the only realistic option.

39.  In the present case, I am satisfied that at the time of or before the incident, Mr Chan was driving too close to the vehicle in front and swerved right into the third lane too late without paying attention to the road condition there.  By doing so, Mr Chan was suffering from a momentary dangerous error of judgement or a short period of bad driving.

40.  There is an aggravating factor in this case in that Mr Chan’s dangerous driving action, apart from causing grievous bodily injury to Ms Chiu and minor injuries to 2 other drivers, had caused severe property damage to 6 other vehicles.

41.  With the above aggravation in mind, I am satisfied that the nature of Mr Chan’s driving belongs to somewhere between the first category of No aggravating circumstances and the second category of Intermediate culpability range of seriousness.  I am satisfied that a notional starting point of about 22 months’ imprisonment would not have been too high had the offence been dangerous driving causing death.  However, the offence here is not that but is dangerous driving causing grievous bodily harm and therefore an allowance must be made to take account of the lower maximum sentence and obviously the less serious consequences flowing from the dangerous driving conduct.

42.  I consider that a starting point of 15 months would fit Mr Chan in the overall circumstances of the offence.  He pleaded guilty in good time which entitles him to a 1/3 discount in sentence.  I cannot discern any other mitigating factors of sufficient weight to warrant him a further discount.

[Mr Chan, please stand]

43.  Mr Chan will go to prison for 10 months.  In addition, he is disqualified from driving all classes of vehicles for a period of 2 years; and he is to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period.