HKSAR v. YU JIE

DCCC 579/2020

[2022] HKDC 179

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 579 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant stands convicted after trial of one charge of causing grievous bodily harm to Huber Christian by dangerous driving, contrary to section 36A of the Road Traffic Ordinance [1].

2.  Full particulars of the offence are set out in my reasons for verdict handed down today.  In summary at about 3:25 p.m. on 9 January 2020 private car PU 2102 driven by the defendant and motorcycle LL 8276 driven by Mr Huber with his wife, Madam Li, sitting behind him, collided on Nam Fung Road.  

3.  At the point of collision Nam Fung Road is a two-way road with three lanes, two uphill and one downhill with a continuous double white line separating the uphill and downhill lanes. 

4.  Mr Huber was riding his motorcycle uphill in the second left lane when suddenly he saw in the middle of the road private car PU 2102 making a U-turn and blocking his lane.  Mr Huber being unable to brake in time collided with the private car.  Both Mr Huber and Madam Li sustained injuries.  Mr Huber’s injuries amounted to grievous bodily harm.

5.  I was satisfied that the defendant made the U-turn from the layby/bus stop area on the opposite side of the road contrary to the double white lines and without paying attention or sufficient attention to the traffic on the uphill lanes resulting in the collision.  I was satisfied the defendant’s driving fell far below what would be expected of a competent and careful driver and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.

Mitigation

6.  I have carefully considered everything said on behalf of the defendant by Mr Khattak including that the defendant is a full time mother looking after two children aged 13 and 15 and that imprisonment would have a devastating effect on the family [2].  I take into account the defendant has no criminal and traffic conviction record.

7.  I have read the mitigation letter written by the defendant in which she expresses her remorse and regret for what she had done and that she struggles to sleep, feeling sad and depressed, always blaming herself for causing injuries to the couple. The defendant asks for forgiveness and asks for leniency so that she can continue to take care of her children. 

8.  I have read all the letters written by the defendant’s husband, her three children, friends and neighbours, family doctors and the person responsible for maintaining the defendant’s car[3]. The letters speak of the defendant’s remorse and variously describe the defendant as kind-hearted, thoughtful and caring; a devoted and dedicated mother and a good driver. 

9.  The family have since the accident noticed a change in the defendant who has become depressed.  This has been noticed also by friends and neighbours.  The defendant has been prescribed with antidepressants for long term use. 

Discussion

10.  Causing grievous bodily harm by dangerous driving is a serious offence for which the maximum penalty is 7 years’ imprisonment.  In Secretary for Justice v Chu Wing Yin Christine the Court of Appeal stated that a judge will proceed on the basis that the normal sentence for an offence of causing grievous bodily harm by dangerous driving is one of immediate imprisonment and that other sentencing options would only be available in exceptional cases dependent upon the circumstances of the offence and of the offender[4].  

11.  In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[5].  These factors were revised in R v Cooksley[6] and have been adopted in Hong Kong.  In Secretary for Justice v Chu Wing Yin Christine, a case of causing grievous bodily harm by dangerous driving,the court listed thirteen aggravating factors, including the extent and nature of the injuries inflicted[7].

12.  In R v Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another the court emphasised that a sentencing court must look at the overall circumstances and the overall culpability of the offender[8]. 

13.  In Secretary for Justice v Chu Wing Ying Christine the Court of Appeal stated that the dominant factor to be considered in sentencing is the defendant’s culpability, which involves two related assessments, the objective dangerousness of the defendant’s driving and the moral culpability of the defendant and having assessed culpability the court should consider the harm and impact caused to the victim, which involved an assessment of the nature and degree of the injuries sustained[9].

14.  In Secretary for Justice v Lau Sin Ting the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[10].

15.  In R v Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability, which categories have been adopted in Hong Kong[11].

Injuries

16.  Mr Huber sustained a pelvic fracture, bowel injury and splenic laceration.  Mr Huber underwent several operations after which he was put on a wheelchair for six weeks.  Mr Huber was discharged from hospital on 11 March 2020.

17.  Two medical reports of Mr Huber were admitted at trial[12].  One from the Accident & Emergency Department detailing the medical findings on admission to Queen Mary Hospital and one from the Department of Orthopaedics & Traumatology detailing the treatment of Mr Huber’s injuries up to 23 April 2020 the date of Mr Huber’s last follow up prior to the writing of the report.

18.  No update medical reports have been submitted to court.  In evidence Mr Huber described that he attends follow up not only at the Department of Orthopaedics & Traumatology but also the colorectal surgery department, the gastrointestinal department, the endocrinology department and the pain management department.

19.  Mr Huber detailed further operations after his discharge from hospital to remove the screws from his pelvis and to repair an incisional hernia.  Starting from the end of July 2020 Mr Huber said he was able to walk again without using a walking aid.

20.  Mr Huber stated that his injuries had not recovered 100% and that his injuries still require medical attention.  Mr Huber told the court how the injuries have affected his daily life including lifelong consequences for example the removal of parts of his intestine causes chronic diarrhoea, very painful cramps and difficulties in digesting fatty foods such as butter, cream and cheese for which he will have to take medication for the rest of his life.

21.  In HKSAR v Lui Chung Tak the Court of Appeal said that it is not helpful to compare the various injuries which amounted to grievous bodily harm save where a dramatic level of injury may have an impact on sentence[13].  In Secretary for Justice v Chu Wing Ying Christine the court said that really serious injury which impacts on the victim will be an important factor in the sentencing exercise[14]. I am satisfied the injuries sustained by Mr Huber are really serious and which have impacted upon his life. 

22.  Whilst the impact on people’s lives is to be taken into account when sentencing the Court of Appeal in Secretary for Justice v Poon Wing Kay said that a sentencing court must look at the overall circumstances and the overall culpability of the offender and that in assessing the overall seriousness culpability is often the dominant factor[15].

23.  In HKSAR v Lee Yau Wing, the court emphasised that the focus on the culpability of the driving has been adopted notwithstanding that it is sad feature of these cases that the offender is usually not a person of a criminal background but is a law abiding citizen of good character[16].

Sentence

24.  Mr Khattak has referred the court to various cases.  I have carefully considered these cases[17]. As stated by the Court of Appeal in HKSAR v Chan Chi Chiu, Louis what is an appropriate sentence must depend on the facts and circumstances of each case and not much assistance will be derived from an examination and comparison of the facts of other cases[18].   

25.  In Secretary for Justice v Poon Wing Kay the Court of Appeal stated:[19]

“It is important for 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 when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians)  are safe and that their lives are not endangered.”

26.  I take into account the section of Nam Fung Road is divided by double white lines. The double white lines separate traffic where the view of the road is limited. Clearly the limited view for the defendant was of the downhill lane.  Mr Khattak submits the driving was a moment of negligence.  I do not agree.  The defendant deliberately disobeyed the double white line and in doing so did not pay attention or sufficient attention to the vehicles on the uphill lanes.  I am satisfied the defendant’s driving falls within the lower end of the intermediate category of culpability. 

27.  Taking into account all the circumstances of the driving and the injuries sustained by Mr Huber, I am satisfied that the proper starting point after trial is 15 months’ imprisonment.  

28.  Mr Khattak asks the court not to rule out other sentence options such as community service.  As noted already the normal sentence for an offence of causing grievous bodily harm by dangerous driving is one of immediate imprisonment and that other sentencing options would only be available in exceptional cases dependent upon the circumstances of the offence and of the offender.  I am satisfied the family circumstances of the defendant do not amount to exceptional circumstances. 

29.  The defendant is sentenced to 15 months’ imprisonment.

Disqualification

30.  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 there are no special reasons. 

31.  Taking into account the circumstances of the driving and the defendant’s good traffic record, I am satisfied that the minimum period of 2 years’ disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years.     

32.  Section 72A (1A)  of the Road Traffic Ordinance provides that a court shall order a person convicted of causing grievous bodily harm by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again I find there are no special reasons not to order the defendant to attend and complete a driving improvement course.

33.  The defendant is ordered to attend and complete a driving improvement course, at her own cost, within the period of 3 months ending on the date on which the disqualification expires. 

34.  The defendant is warned that it is an offence not to attend and complete the driving improvement course and that she remains disqualified until she attends and completes the driving improvement course notwithstanding the disqualification period may already have ended.