HKSAR v. SHING CHUN PING

DCCC 617/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 617 OF 2014

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Reasons for Sentence

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1. The defendant pleads guilty to one charge of causing grievous bodily harm by dangerous driving.

2. At about 4 pm on 30 December 2013, Miss Lau Pong-chung, PW1, aged 49, a gardening supervisor, was engaged in grass-cutting work with her colleagues at an unnamed road in Sai Kung, New Territories.  Next to the unnamed road were some parking spaces.  The traffic flow was light and speed limit of the road was 50 kilometres per hour.  Prior to the accident, PW1 was taking photographs of the grass slope at the unnamed road and she was wearing a fluorescent yellow reflective safety vest.  Her right-side body was suddenly struck by the rear part of a private car which was reversing. The defendant was the driver.  PW1 fell onto the ground and was unconscious for a while.  As a result of the collision, a large dent mark was found at the nearside rear of the car.

3. During investigation, the defendant stated that he had earlier driven past a female pedestrian who was standing on the roadside using a mobile phone or a camera.  As there was no available parking space, he drove backward by reversing the car, intending to drive to another car park.  He was driving at a speed of about 20 kilometres per hour.  After driving backward for a distance of about four vehicles’ length, he heard some sounds from the nearside rear of the car.  He stopped the car and saw PW1 lying on the ground. He claimed that when he was reversing the car, he had checked the mirrors.

4. The car was examined by a vehicle examiner who confirmed that there was no mechanical defect.  The reverse parking sensor equipped on the car was found to be functioning properly, ie it would emit warning sound when the rear of the car is close to a barrier. 

5. PW1 sustained fracture of multiple ribs, the right clavicle and right forearm as well as lung, shoulder and neck injury. She was hospitalised for 16 days and was discharged from hospital on 15 January 2014.  She was granted sick leave since 30 December 2013 up until now.

6. The defendant is aged 54.  He has a very old criminal record back in 1975.  He also has a traffic conviction for using vehicle without insurance in 2006 and a record for three fixed penalty tickets. 

7. In mitigation, Mr Fung, counsel for the defendant, tells the court that the defendant is married with three children. He is living with his mother, his wife and his children.  He is a decoration worker.  On the day in question, before the accident, the defendant learnt that his mother was not feeling well.  He was driving home in a rush to see his mother.  However, at the end, his mother did not need to seek medical attention. 

8. Mr Fung submits four mitigation letters which were written by District Board members, a village clansman, the defendant’s wife and children.  I have duly considered all these letters.  A letter written by a psychologist is also handed up to prove that the defendant has suffered symptoms of post-traumatic stress disorder and mild depression subsequent to the car accident in this case.  

9. Mr Fung draws my attention to eight Court of Appeal cases on sentencing in relevant charge.  It is submitted that although there is no sentencing guideline, it is safe to say that immediate custodial sentence has always been imposed.  The usual sentence for causing grievous bodily harm by dangerous driving ranges from 10 months to 2 and a half years. It is submitted by Mr Fung that the starting point in the present case should be between 15 to 20 months.  

10. The maximum penalty for causing grievous bodily harm by dangerous driving on conviction on indictment is a fine at level 5 and to imprisonment for 7 years.  In a dangerous-driving case, the offender’s culpability is a dominant factor in the sentencing exercise whilst the outcome of the offence is also an important matter for the sentencing judge to take into account.

11. R v Cooksley [2003] 3 All ER 40 set out a number of aggravating and mitigating factors in sentencing dangerous-driving cases.  The Court of Appeal in Lee Yau Wing CACC 282/2012, a case cited by Mr Fung, considered that the approach discussed in R v Cooksley is equally appropriate to the offence of dangerous driving causing grievous bodily harm.  I bear in mind that it is always important for the 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 in the sentence.  It is fair of Mr Fung to accept the seriousness of the charge in suggesting a range of sentence from 15 to 20 months as the starting point. 

12. For my part, I would, however, take a more lenient view of the case.  The cases referred to by Mr Fung are not of much assistance to this court and need not be discussed here.  Suffice it to say that the circumstances of these cases are just far more serious than the present one.  The defendant in this case is not a professional driver.  There is no evidence that he was contravening any traffic signs or signals.  While the large dent mark at the rear of the car would indicate that the defendant was reversing at a high speed, there is no evidence of driving in excess of the speed limit.  I would certainly find that, accepting the defendant’s claim, reversing at a speed of about 20 kilometres per hour in the circumstances of the case was a very dangerous act.  The culpability of the defendant was his reversing the car in high speed and failing to keep a proper lookout.  It was, however, not a prolonged and persistent bad driving nor was it a case of complete disregard for safety of pedestrian.  I do not find any aggravating features as listed in Cooksley.

13. Moreover, the defendant’s previous traffic record was not too bad.  His only criminal conviction was recorded almost 40 years ago when he was about 15 years old.  I would treat him as if he is a person of good character.

14. The injury sustained by the victim was indeed serious.  There is, however, at the moment no evidence of permanent disability.  In all the circumstances and with respect to Mr Fung’s fairness, I find that imprisonment is appropriate but the starting point I take is 6 months’ imprisonment.   

15. I have considered whether the sentence should be substituted by a community service order.  I accept that the defendant is now remorseful.  However, given the seriousness of the defendant’s dangerous driving, the serious injuries sustained by the victim and the need to deter such driving, I find that community service order is not an appropriate option.  An immediate custodial sentence is inevitable.  Suspended sentence is not a proper option. 

16. I will give the defendant a full discount for his plea of guilty.  The defendant is therefore sentenced to 4 months’ imprisonment.

17. 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 that there are no special reasons not to order defendant to be disqualified. 

18. A copy of letter written by the defendant to the Transport Department is submitted to this court.  In the letter, the defendant applied for permanent disqualification of his driving licence.  Whether the defendant would wish to drive again is a matter for him.  As far as this court is concerned, I am satisfied that a period of 3 years’ disqualification is appropriate.  He is disqualified from holding or obtaining a driving licence for all classes of vehicle for a period of 3 years.  The order is to take effect from today. 

19. The defendant is also ordered to attend and complete a driving-improvement course at his own cost within the last three months of the disqualification period.  He shall remain disqualified until he has finished the course.