HKSAR v. TSUI KWOK CHEUNG

DCCC 659/2017

[2018] HKDC 400

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 659 OF 2017

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

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

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

Reasons for Sentence

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

1.  The defendant has pleaded guilty to three offences: firstly, causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance; secondly, using a defective vehicle, contrary to the regulations under that ordinance; and finally, driving a motor vehicle with alcohol concentration in blood exceeding the prescribed limit.

2.  All the offences relate to driving that occurred on the same day - that is, 23 October 2016 - and all relate to a traffic accident that occurred on that date.  The briefest summary would be that the defendant drove through a red light and crashed into another vehicle, causing serious injuries to the driver of the other vehicle; and, whilst doing so, the defendant had alcohol concentration in his blood that was almost three times the legal limit.

3.  The facts go into more detail than that, and the body of the facts agreed by the defendant spends considerable time dealing with the road condition and layout of the junction.  The junction where this accident occurred was the junction of Canton Road and Austin Road in Tsim Sha Tsui in Kowloon.  There were two cars involved.  There was a private car driven by Mr Lai, who was the first prosecution witness, and another private car driven by the defendant.  The car driven by PW1 is referred to as “V1” and the car driven by the defendant is referred to as “V2”.

4.  The “Road Condition” paragraphs indicate or show that the junction is controlled by traffic lights, and suffice it to say that when a car driven by PW1 - that is, V1 - entered the junction, he would do so on a green light, and at that time the traffic light controlling the defendant’s entry to the junction in car V2 would be a red light.  All the traffic lights were working correctly on the day in question.

5.  The accident occurred in the early hours of 23 October 2016, so it was dark.  At around 3.52 am, PW1 was driving his vehicle, V1, in the third left lane eastbound of Austin Road.  His governing traffic light was green as he approached the junction, so he drove into the junction.  Three seconds after his vehicle entered the junction, the right side of his vehicle was heavily crashed into by the front of the defendant’s vehicle, V2.  He appears to have blacked out at that time.  He regained consciousness after being hit, and climbed out of the driver’s seat to the rear passenger seat, but became unconscious again.

6.  The accident was witnessed by another witness, PW2, who is a taxi driver.  He was stopped at a traffic light.  He saw V1 being driven into the junction and saw the defendant’s vehicle drive into the right side of the vehicle, pushing the car across the junction and hitting a lamppost, and it is admitted in the facts that at the time V2 - that is, the defendant’s vehicle - was entering the junction, he was entering the junction against the red light traffic signal governing his lane.

7.  Police came to the scene and investigated.  They immediately suspected the defendant had been drinking alcohol as the smell of alcohol was detected, and a screening breath test was initially conducted. When the defendant was transferred to hospital for treatment, he consented to an evidential blood test.  This confirmed that the defendant’s blood sample was found to contain, at that time, 145 milligrams of alcohol per 100 millilitres of blood.  The prescribed limit is 50 milligrams of alcohol in 100 millilitres of blood.

8.  PW1 was hospitalised for medical treatment from 23 October 2016 to 16 December 2016.  He continued on sick leave until 10 March 2017.  He suffered superficial abrasions of the right arm and right thigh, a closed fracture of both sides of the pelvis.  There was an elective operation for closed reduction and fixing of a screw.  He was able to start weight-bearing walking exercise from four weeks after the operation. Fortunately, x-rays of the pelvis show the fractures have healed with the implant in situ.

9.  There was an examination of the vehicle that disclosed the 2nd offence - namely, the window glass on both sides of the rear windshield had tinted film that reduced the ability of the glass to transmit light.

10.  The defendant is aged 38.  He has appeared in court before.  In 2009 he received 120 hours’ community service for an offence of assault occasioning actual bodily harm.  He has a number of fixed penalty speeding offences and has in the past been ordered to attend a driving improvement course.  He has an offence of failing to comply with traffic signals in 2016 and has been disqualified from driving in 2017.

11.  I also obtained a probation officer’s background report on the defendant.  This goes beyond what we know from the basic antecedents and shows what I can describe as a positive view of the defendant. He is married, and has a son who is aged 7.  They live in their own flat that they have bought, and the defendant is an adherent to the faith of Buddhism and he provides what looks like a good life for both his wife and child.  He has worked in his father’s company for a number of years and assists the business of that company.  He originally worked for Standard Chartered, but eventually came to work for his father.  He is a manager and earns a salary of around $28,000 a month.  He handles clients, and he says that these offences, he believes, arose out of his entertaining of clients; I think it was in Lantau.  He maintains he does not have a drinking habit, but he needed to drink with clients for business purposes.  He had been drinking with clients that evening, obviously had drunk to excess, and then made the fateful decision to drive his vehicle home, and the defendant is clearly remorseful about that.  He is deeply sorry for what he has done, and my impression is that that is an entirely genuine expression of feeling by the defendant.  The defendant also realises this throws a large burden on his family.

12.  Part of the defendant’s mitigation is that he is actively involved in charitable organisations.  I have received details of his charitable donations and involvement.  Again, this is entirely genuine.  I see it as arising out of the defendant’s desire to do good to others.  He is particularly highly spoken of by people from the Bunny Charity Club, which is a private charitable organisation with which the defendant has been involved in some role or other for some 20 years.

13.  The probation officer concludes the defendant has learned a hard lesson.  The defendant worries about his young son and his aging father, and he is sorry for what he has done.  He offers an apology to the court and the victim.

14.  The defendant has expressed a desire to compensate the victim.  There is of course no application for compensation in this matter at this stage simply because these matters are dealt with by insurance.

15.  I turn to the question of sentence in this matter.  It is often the case, or largely the case, that people come before the courts for these offences who would not ordinarily come before the courts, but certainly the 1st and 3rd offences to which the defendant has pleaded guilty are serious offences.  The 1st offence is particularly serious.  There is a maximum penalty of 7 years’ imprisonment for this offence.

16.  The courts have set out a number of factors that are relevant to sentencing.  In as early as the case of R v Boswell, the Court of Appeal set out a number of aggravating and mitigating factors which are relevant to both dangerous driving and dangerous driving causing death. These were looked at again in the case of R v Cooksley, an English case, [2003] RTR 32, which set out a number of features which would aggravate these cases.  It was applied in Hong Kong in the case of Secretary for Justice v Poon Wing Kei and Another [2006] HKCA 425, where it was emphasised that the sentencing court must look at the overall circumstances and overall culpability of the offender.  This is the approach that also should be adopted in cases involving dangerous driving causing grievous bodily harm. Hong Kong courts have also emphasised the need for deterrent sentences in cases involving dangerous driving.

17.  The case of Cooksley identified four categories of culpability.  These are broadly described as where there are no aggravating circumstances; there is an intermediate culpability; a category of higher culpability; and then the final category of most serious culpability. The court must, of course, identify the level of culpability of the defendant in sentencing, as that is considered to be the most important factor in respect of sentencing, and the court must also be aware that extremely grave consequences can flow from acts of dangerous driving.

18.  The acts of driving by which the defendant’s driving fell far below that of a competent, careful driver relate to his disregard of the traffic lights, and secondly, the defendant’s consumption of alcohol.  It appears to me that the defendant’s consumption of alcohol in this case is a serious aggravating factor in the consideration of the sentencing here.  The defendant’s consumption of alcohol was what objectively can be seen to be a large amount and would clearly render his capacity and standard of driving to be compromised, and that has to be reflected in the determination of the starting point for sentence in this case, especially when considering the relative severity of the defendant’s culpability.

19.  In determining the starting point for sentence in each of these charges, I bear in mind the defendant’s plea of guilty, his exemplary family life, and his regard and care for other people shown through his charitable giving and activities.  Nevertheless, the determination for starting point must reflect the seriousness of these offences, the need for deterrence, and the particular aggravating feature of sentencing that exists in this case.

20.  I turn now to the 1st charge.  As I have said, the maximum sentence for this offence is 7 years’ imprisonment.  I consider the nature of the defendant’s driving, to fail to recall that the traffic light he was approaching was a red light, and to do that whilst having consumed a large quantity of alcohol, as is reflected by his blood alcohol reading, puts this into what I would describe as a category of higher culpability.  That must be reflected in the starting point for sentence, but that starting point must also reflect the mitigating factors I have also elucidated and also the fact that after a longish convalescence, the victim appears to have made a good recovery, which is a fortunate factor for the defendant.

21.  I consider that taking all these factors into consideration, the appropriate starting point for sentence on the 1st offence should be one of 3 years’ imprisonment.  The defendant has pleaded guilty. That will lead to a one‑third discount from that original figure to a sentence of 2 years’ imprisonment.  There will also be a 3‑year disqualification from driving, and the defendant must take and complete a driving improvement course within the final 3 months of that disqualification from driving.

22.  On the 2nd charge - that is, the charge relating to the maintenance of the construction of the vehicle - there will be a fine of $1,000, which I understand can be met from the bail money.

23.  The 3rd offence is a serious offence in its own right.  I consider, having regard to the consequences of his excessive drinking, that a starting point of 12 months’ imprisonment should be adopted. After deduction for plea of guilty, that leads to a sentence of 8 months’ imprisonment.  This is a tier 2 disqualification, so there will be a 12‑month disqualification from driving in relation to this matter.

24.  The sentences of imprisonment and/or disqualification, as on Charges 1 and 3, will be served concurrently.

25.  That is an overall sentence of 2 years’ imprisonment and an overall disqualification from driving for 3 years.