HKSAR v. KO YUN SANG

CACC 202/2020

[2021] HKCA 1182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 202 OF 2020

(ON APPEAL FROM DCCC NO 297 OF 2020)

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J U D G M E N T

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Introduction

1.  This is an application by the applicant for leave to appeal against an order disqualifying him from driving for a period of 5 years that arose when he pleaded guilty before District Court Judge Yiu and was sentenced for the following traffic offences:

(i)  Causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374, (Charge 1): sentenced to 20 months’ imprisonment and disqualified from driving for a period of 5 years.

(ii)  Driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance, (Charge 2): sentenced to 3 months’ imprisonment and disqualified from driving for a period of 2 years.

(iii)  Using a motor vehicle with an illegal visual display unit, contrary to regulations 37 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A, (Charge 3): fined $1,000.

(iv)  Using a motor vehicle without fitting with obligatory reflectors, contrary to regulations 106 and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, (Charge 4): fined $1,000.

2.  So far as material the judge ordered that the sentences on Charges 1 and 2 be served concurrently, and further ordered pursuant to section 72A(1A) of the Road Traffic Ordinance that the applicant complete a driving improvement course at his own cost within three months of completion of the disqualification period.

The brief facts

3.  The location of the incident was at Dundas Street, a single lane one-way road and Nathan Road, a two-way road, in Mong Kok, Kowloon.  The southbound and northbound sections of Nathan Road each consist of three lanes that are separated by concrete curbs and metal railings.  At the junction of Dundas Street (westbound) and Nathan Road (southbound), vehicles leaving Dundas Street (westbound) are only permitted to make a left turn into Nathan Road (southbound). 

4.  On 20 October 2019, at around 4 am, the applicant was driving his private vehicle along Dundas Street (westbound). When the vehicle reached the junction with Nathan Road (southbound), the vehicle went straight across the southbound and northbound sections of Nathan Road.  At the material time the metal railings separating the carriageways of Nathan Road had been removed.  The vehicle then reached a traffic lights controlled pedestrian crossing at Dundas Street (eastbound), which was showing a green light for pedestrians.

5.  A pedestrian, a 58-year-old woman, was walking northbound on the crossing at the time.  When she reached the middle of the crossing, she saw the vehicle on her right careering across Nathan Road towards her.  Although she immediately turned around in an attempt to leave the crossing and avoid collision with the vehicle, the left front part of the vehicle hit her.  As a result of the collision, she was thrown up into the air and landed on the ground nearby.  The vehicle slammed into the metal railings on the pavement and came to a halt.

6.  At the time of the accident, the applicant’s alcohol concentration in breath exceeded the prescribed limit, which was 71 micrograms of alcohol in 100 millilitres of breath.  This brought him within tier 3 in section 39A(1A), where the proportion of alcohol in a person’s breath exceeds 66 micrograms of alcohol in 100 millilitres of breath.

7.  The pedestrian was taken to hospital and was diagnosed as suffering from left wrist deformity and tenderness; abrasion wound at right forearm; and bruise and mild tenderness over right shin.  X-rays of her left wrist showed left distal radius fracture.  Close reduction was performed on her left wrist with plaster cast and she was discharged on the same day.  She received periodic follow-up treatments, including physiotherapy, and was granted sick leave for 10 months.

8.  It was agreed that the applicant drove his vehicle dangerously because he was under the influence of alcohol and had careered his vehicle across Nathan Road and into a pedestrian crossing against the traffic lights, hitting a pedestrian and ramming the vehicle into the metal railings on the pavement.

The mitigation

9.  The applicant was 42 years old.  He did not have any criminal conviction record,[1] nor any traffic contravention record since 1997 when he was granted a driving licence.[2] 

10.  At the time of the incident, the applicant was a driver by profession earning around $40,000 per month.[3]  The vehicle was the applicant’s personal vehicle.[4] The applicant was the main breadwinner of the family.[5] 

11.  Counsel for the applicant accepted that driving whilst under the influence of alcohol and that the incident took place at a pedestrian crossing were aggravating factors.  Having accepted that the applicant drove in contravention of traffic regulations, he submitted the accident was to a certain extent caused by the applicant’s unfamiliarity of the location.  He pointed out that the speed at which the applicant drove the vehicle was not high[6] and that after the incident he had shown significant remorse.[7]

12.  Counsel submitted the punishment under Charges 1 and 2 carry with them a mandatory order to disqualify the applicant from driving, unless there were “special reasons”.  He accepted that there were no “special reasons”, not to apply the statutory disqualification.  He also acknowledged that the applicant being a professional driver was not a “special reason”.[8]

The reasons for sentence

13.  Having reviewed the facts and circumstances of the case and reciting the mitigation advanced on behalf of the applicant, the judge referred to the recent Court of Appeal authority of Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771 before sentencing the applicant in respect of the offence under Charge 1 of causing grievous bodily harm by dangerous driving.  He adopted a starting point of 2 years and 6 months’ imprisonment on Charge 1, which he reduced by one third to 20 months’ imprisonment for the applicant’s guilty plea. He also ordered that the applicant be disqualified from driving for a period of 5 years.[9] 

14.  In respect of Charge 2, the offence of driving whilst under the influence of alcohol, the judge imposed a sentence of 3 months’ imprisonment, which he said was “upon guilty plea”, and he also ordered that the applicant be disqualified from driving for a period of 2 years.  As already noted, the sentences imposed on Charges 1 and 2 were ordered to be served concurrently.

Discussion

15.  The sole ground of appeal is that the disqualification period of 5 years in respect of Charge 1 was wrong in principle and manifestly excessive.  In advancing this ground of appeal it is argued:

“In imposing the Disqualification Period, the judge did not state sufficiently or clearly the basis or the reasons in support.

In addition to his consideration of the facts of the case, the judge failed to give sufficient weight to or properly consider the following matters:

(1) The applicant’s impeccable driving record for about 23 years – the risk he poses to other road users; and

(2) The applicant’s previous occupation and the adverse effects the Disqualification Period would have on the applicant upon his release from custody – additional hardship and counter-productivity.” 

16.  It is also complained that the judge did not provide reasons for imposing the disqualification period, which was in excess of the statutory minimum period, and in view of the whole of the circumstances and past cases, the disqualification period is manifestly excessive.

17.  The respondent submits that the disqualification period of 5 years was appropriate in the circumstances of the case.  It is noted the offence of causing grievous bodily harm by dangerous driving has a maximum term of imprisonment of 7 years and a fine at level 5 upon conviction on indictment.  The respondent refers to the authorities of Secretary for Justice v Liu Kwok-chun unrep., CAAR 3/2009, 2 September 2010, and Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, where the Court of Appeal identified factors that go to assess the gravity of the offence and the culpability of the offender.  In this regard, the respondent submits that the offence in the present case was aggravated by the applicant driving his vehicle whilst under the influence of alcohol, by his aggressive driving in crossing 6 lanes of a major carriageway, and by careering into a traffic controlled pedestrian crossing, causing serious injury to a pedestrian.

18.  Where a person is convicted for an offence of causing grievous bodily harm by dangerous driving, section 36A(2) provides that the sentencing court must order the person be disqualified in accordance with subsection (3) or (4), unless the sentencing court for “special reasons” orders that the person not be disqualified or disqualified for a shorter period as specified.  Subsections (3) and (4) read:

“(3) Subject to subsection (4), the period for which the person is to be disqualified is—

(a) for a first conviction, a period of not less than 2 years; and

(b) for a second or subsequent conviction, a period of not less than 5 years.

(4) If the court or magistrate has ordered the person to attend and complete a driving improvement course under section 72A(1A), the period for which the person is to be disqualified is—

(a) for a first conviction, a period of not less than 2 years, or until the person has attended and completed the course at his or her own cost, whichever is the later; and

(b) for a second or subsequent conviction, a period of not less than 5 years, or until the person has attended and completed the course at his or her own cost, whichever is the later.”

19.  The Court of Appeal in Secretary for Justice v Hung Ling Kwok [2010] 4 HKLRD 365, has provided guidance to a sentencing court when imposing a driving disqualification order.  The Court explained that the main purpose of disqualification from driving was “forward-looking and preventative rather than backward-looking and punitive”. It was designed, as stated by the Court, to protect road users in the future from an offender who had shown himself to be a real risk on the roads.  The Court also noted that matters relating to culpability which need to be considered when determining the term of imprisonment were more or less the same as those which need to be considered when fixing the length of the driving disqualification.  To this end it is important that the disqualification period has actual effect.

20.  I am satisfied that the applicant’s ground of appeal is reasonably arguable.  It raises for consideration whether the disqualification period of 5 years was manifestly excessive, bearing in mind that the applicant was a professional driver who had been driving for a period of 23 years with a very good driving record; and that the level of risk he poses to other road users in the future may not be very high.  It is also pointed out by the applicant that the judge, whilst placing emphasis on the seriousness of the offence, did not look at the preventative and future aspect of the disqualification order when determining the period he imposed.

Conclusion

21.  For the foregoing reasons, I grant the applicant leave to appeal against his sentence in respect of the disqualification order.

[1]  Appeal Bundle (AB), p 16, at [17].

[2]  AB, p 23, at [5].

[3]  AB, p 22, at [2]. 

[4]  AB, p 22, at [3]. 

[5]  AB, p 23, at [7]. 

[6]  AB, p 24, at [13]-[16]

[7]  AB, p 23, at [8]-[10]. 

[8]  AB, p 25, at [19] and [20].

[9]  AB, pp 17-18, at [21]-[23].