HKSAR v. CHOW PAK YUEN

DCCC 12/2019

[2020] HKDC 590

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 12 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of causing grievous bodily harm to Mr Ho Sai Cheong by dangerous driving, contrary to section 36A of the Road Traffic Ordinance[1]. This is a serious offence for which the maximum penalty is 7 years’ imprisonment.

2.  In the early hours of 23 February 2018 the defendant was driving a Porsche Cayenne, registration mark SK 415, with at least two passengers on board when he collided with a taxi at the junction of Lai Chi Kok Road and Yen Chow Street in Sham Shui Po causing grievous bodily harm to Mr Ho, who was a passenger in the taxi. 

3.  Full particulars of the offence are set out in the facts admitted by the defendant on 16 June 2020.  

4.  In summary at around 4 a.m. on 23 February 2018 Mr Ng was driving taxi TM 9378.  Mr Ho, aged 60, was the only passenger on the taxi.  When the taxi was crossing the junction of Lai Chi Kok Road and Yen Chow Street the defendant suddenly and without sounding the horn crashed into the back of the taxi causing the taxi to collide with the railings and turn over on its side. 

5.  The defendant continued to drive forward and hit a van in the middle lane and a coach which was parked on the left lane before coming to a stop.  The defendant left the scene.  

6.  Both the taxi and the Porsche were seriously damaged.  The offside front of the van was also damaged in the collision.  Photographs have been submitted to court showing the damage to the Porsche and the final position of all four vehicles involved in the collision.

In car camera footage

7.  The accident was captured on the in car camera in the Porsche.  I have had the opportunity of viewing the footage[2]. The footage shows that the defendant had been driving for around three minutes before the collision with the taxi.  During these three minutes the defendant had driven on the opposite side of the road; jumped eight red traffic lights; failed to comply with a stop sign and disobeyed a no U-turn sign. 

Speed

8.  The speed limit of all the roads was 50km/h.  The in car camera of the Porsche shows the speed the defendant was driving throughout the journey.  A table showing the course of the journey and the speed of the car from the in car camera has been admitted[3].

9.  Dr Tam, forensic scientist, examined the footage and is of the opinion that the average speed of the defendant prior to the collision was between 118 km/h and 132 km/h[4].

Injuries

10.  As a result of the collision Mr Ng felt dizzy and Mr Ho fainted.  Mr Ng and Mr Ho were taken to hospital.  No one on the van was injured and there was nobody on the coach. 

11.  Mr Ng sustained injuries to his neck, right knee and right index finger and was discharged the same day. 

12.  Mr Ho sustained injuries to his spine, neck, right knee, left upper limb, left hand and back as particularised in the various medical reports submitted to court[5].  Mr Ho was treated with neck collar, physiotherapy and analgesics and was admitted to the Orthopaedic ward for further treatment.  Mr Ho remained in hospital for 11 days and was discharged on 5 March 2018.    

Arrest

13.  The defendant surrendered to the police the same day at 2020 hours.  Under caution the defendant admitted he was the driver of the Porsche and crashed into a taxi. 

14.  Sentence was adjourned for the preparation of update medical reports; a victim impact statement and a full transcript of the in car camera footage.  

Mitigation

15.  In passing sentence, I have carefully considered the oral and written submissions of Ms Lai, including that the defendant, aged 35, is married with a young son aged 1 and his wife is expecting their second child in January next year[6].  

16.  I have read the letter from the Legislative Councillor Mr Or Chong Sing detailing the defendant’s participation in voluntary work since 2017 including during the outbreak of Covid-19.  I have also read the letter from the defendant’s employer who describes the defendant as a unique individual with a positive attitude.

17.  The defendant cannot be given credit for a clear record.  The defendant has a poor criminal record including a conviction for trafficking in dangerous drugs in 2011 for which he was sentenced to 8 years and 6 months’ imprisonment. 

18.  The defendant also does not have a good traffic record having committed offences of dangerous driving, careless driving and speeding[7]. The defendant has been disqualified under the Road Traffic (Driving-offence Points) Ordinance and for dangerous driving. 

Dangerous Driving

19.  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[8].  These factors were revised in R v Cooksley[9]and have been adopted in Hong Kong[10].  

20.  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another[11] emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  I am satisfied this approach is equally appropriate to the offence of causing grievous bodily harm by dangerous driving[12]. 

21.  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[13].

22.  In Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability.  This has also been adopted in Hong Kong[14].

23.  The degree of seriousness depends on the precise circumstances of the driving.  In Poon Wing Kay the court said that one major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or with a degree of recklessness.  

Aggravating features

24.  Aggravating features in this case are that the driving was a prolonged, persistent and deliberate course of very bad driving.  The defendant drove at very high speed, well above the speed limit.  The defendant jumped red traffic lights at speeds of up to 145km/h[15].  At one stage the defendant reached a speed of 150 km/h, 100 km/h in excess of the speed limit[16].   At the time of the collision the defendant’s speed was 112 km/h as shown on the in car camera footage. 

25.  The defendant while exceeding the speed limit and often well in excess of the speed limit jumped no less than eight red lights and at times drove on the opposite side of the road.  The defendant also failed to comply with road signs and road markings albeit within the speed limit.    

26.  This was not a momentary dangerous error of judgment[17].

27.  On the in car camera footage, just before the collision, someone is heard shouting “Hey, crash” followed by someone else saying “I’m not afraid to die” [18]. 

28.  Having viewed the in car camera footage I directed that a full transcript be prepared of what was said during the journey.

29.  The transcript reveals that the passengers repeatedly asked the driver to slow down and drive carefully.  The driver responds by saying it is exciting and asks whether the passengers were scared[19]. The driver is told he is crazy jumping red lights [20].   

30.  After the female passenger expresses that she is scared a male is heard saying “Are you afraid to die?”  This is followed by “Hey, crash” and “I am not afraid to die”[21].

31.  Having indicated to Mr Cheung that the court was of the view “Are you afraid to die?” and “I am not afraid to die” was said by the driver Mr Cheung took instructions from the defendant.  The defendant said he had no recollection of the exact conversation he had with the male passenger and therefore could not identify whether he said this.  Asked by the court if the defendant could not recognise his own voice from the footage Mr Cheung again took instructions from the defendant.  The defendant said he was unable to confirm from the voice.

32.  I am satisfied “Are you afraid to die?” and “I am not afraid to die” were said by the driver.  It is abundantly clear that the defendant was on a thrill seeking drive with total disregard to traffic laws and the safety of his passengers and other road users.

33.  Driving in this manner put all other road users at risk, including risk of serious injury, which risk was foreseeable.  A collision was simply waiting to happen. I am satisfied driving in this manner falls into the most serious culpability category.     

Irresponsible behaviour

34.  Irresponsible behaviour includes failing to stop and committing offences while on bail[22]. 

35.  The defendant left the scene of the accident and only surrendered later that day. Ms Lai explained that the defendant was scared because the car did not belong to him but after talking to his family he decided to surrender. 

36.  Mr Hui informed the court that when the defendant surrendered to the police, the police were unaware of the identity of the driver.  The police had earlier contacted the registered owner who told them he was not the driver and that he had lent the car to someone else but did not tell the police to who he had lent the car.  Only the next day when the police interviewed the registered owner did the registered owner tell them the defendant was the driver. 

37.  The defendant was convicted of dangerous driving in August 2018 which was after the commission of the present offence[23]. The traffic record shows that the dangerous driving was committed on 6 October 2017 prior to the present offence. 

38.  The defendant was not however placed on bail.  The case was dealt with by way of summons.  The summary of facts reveal that the defendant knocked down a pedestrian at a traffic light controlled pedestrian crossing and that the police made enquiries of the driver at the scene of the accident and took a record of interview from the defendant[24].

39.  The defendant was therefore aware at the time he committed the present offence that he was under investigation for dangerous driving to which he later pleaded guilty.     

Grievous bodily harm

40.  As noted earlier Mr Ho sustained injuries to his spine; right knee, left upper limb, left hand, neck and back as particularised in the various medical reports submitted to court. 

41.  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 in assessing the overall seriousness culpability is often the dominant factor.

42.  In considering the degree of injuries sustained I also note that said in HKSAR v Lui Chung Tak 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[25].

43.  I am satisfied this is such a case. 

44.  The medical reports show that there was tenderness over the lower cervical spine with restricted neck range of motion; limb power over the left side of the body was reduced and there was numbness over the left arm.   MRI showed prolapsed intervertebral disc.  There was however no fracture of the spine. 

45.  Physical examination of the right knee and left hand showed tenderness but active range of motion was full and there were also no fractures of the pelvis, left wrist or right knee. 

46.  Mr Ho was treated with neck collar, physiotherapy and analgesics and was admitted to the Orthopaedic ward for further treatment.  Mr Ho remained in hospital for 11 days and was discharged on 5 March 2018.     

47.  Mr Ho has attended regular follow-up, the last appointment being on 24 April 2020, over two years after the collision[26].

48.  The neck collar was removed on 6 April 2018.  The neck pain gradually decreased without neurological deficit.  The weakness and numbness subsided.  Mr Ho completed both physiotherapy and occupational therapy with good improvement[27]. 

49.  In his report dated 14 October 2019 Dr Ip noted that Mr Ho reported to have fair endurance and strength over upper limbs which hindered his ability to return to work. 

50.  In his latest report dated 24 June 2020 Dr Ip also noted that Mr Ho complained of left shoulder pain on follow-up on 16 August 2019.  The pain decreased with physiotherapy.

51.  Mr Ho has also received psychological and psychiatric treatment. 

52.  Mr Ho was first referred to a clinical psychologist on 6 April 2018 for his stress reactions after the accident.  Mr Ho was impressed to suffer from symptoms of Posttraumatic Stress Disorder and Major Depressive Disorder.  Mr Ho has undergone Cognitive-behavioural Therapy and made steady progress with the treatment [28].

53.  In his latest report dated 7 July 2020 clinical psychologist V.W.Cho said that he had seen Mr Ho three times since October 2019 during which time Mr Ho reported subsidence in distress, no more nightmares and improved sleep.  In view of his stable condition and with his consent the case was closed[29]. 

54.  Mr Ho was also referred to the West Kowloon Psychiatric Centre where he was first seen on 7 May 2019.  Mr Ho was diagnosed as suffering from adjustment disorder with depressed mood and posttraumatic stress features[30].

55.  In the latest psychiatric report dated 13 July 2020 it is noted that for the past year Mr Ho’s mental condition has improved.  He was less anxious and less depressed.  His response was quicker, thought clearer and sleep better.  Mr Ho continues to receive medication and his next appointment is 1 September 2020. 

Victim impact statement

56.  Prior to the accident Mr Ho, who is now 62, was a taxi driver.  Mr Ho has been told that he is still mentally unfit for working and has therefore not resumed work as a taxi driver[31]. I note in the latest psychological report Mr Ho said he was considering resuming work as a taxi driver[32].

57.  Physically Mr Ho is able to lift his left arm to the level of his shoulder but has found his loss of memory has worsened resulting in him often missing his medical appointments[33]. In the latest psychiatric report dated 13 July 2020 it is noted that Mr Ho could now recall things more readily but was still weak in remembering familiar routes, which of course would be very important for a taxi driver.

58.  Unable to work has brought much stress to Mr Ho who sometimes wakes up from a nightmare and cannot get back to sleep afterwards[34].

59.  While Mr Ho has improved in the two years since the collision he still has not returned to work as a taxi driver.  The impact on his life has been significant.

Sentence

60.  In Secretary for Justice v Poon Wing Kay the Court of Appeal further said that[35]: -

“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.”

61.  Ms Lai refers the court to the sentence imposed in HKSAR v Ngai Sing Keung where the court adopted a starting point of 3 years’ imprisonment for both dangerous driving and causing grievous bodily harm by dangerous driving[36].   

62.  I have considered the facts of that case which have some similarities to the present case in that the defendant’s driving in that case was also a prolonged, persistent and deliberate course of very bad driving after which he left his vehicle.  In my view the sentence appears to be lenient.

63.  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[37].   

64.  Taking into account all the circumstances including that the accident occurred in the early hours of the morning when the roads were not as busy; the defendant embarked on a prolonged course of very bad driving; the defendant left the scene of the accident and only surrendered later the same evening; at the time the defendant was under investigation for dangerous driving to which he subsequently pleaded guilty and the impact of the injuries on the daily life of Mr Ho in the two years since the collision, I am satisfied the proper starting point after trial is one of 4 years and 6 months’ imprisonment.    

65.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 years’ imprisonment.

Voluntary work

66.  Although not a person of good character I am satisfied some credit should be given for the defendant’s participation in voluntary work as particularised in the letter from the Legislative Councillor. 

67.  In the circumstances I further reduce the sentence by 1 month to 2 years and 11 months’ imprisonment.  The defendant is convicted and sentenced to 2 years and 11 months’ imprisonment. 

Disqualification

68.  By virtue of Section 69 of the Road Traffic Ordinance 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 not to order the defendant to be disqualified. 

69.  Taking into account the circumstances of the driving I am satisfied that a period of 4 years’ disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years.  

70.  Section 69A of the Road Traffic Ordinance provides that where a person is convicted of a relevant scheduled offence and that is the person’s second conviction of a relevant scheduled offence the court must order that the disqualification is not to start to run until the person finishes serving the term of imprisonment unless the court for special reasons decides not to make such an order.   

71.  Causing grievous bodily harm by dangerous driving is a relevant scheduled offence.  This is the defendant’s second conviction of a relevant scheduled offence, the offence of dangerous driving being the defendant’s first conviction of a relevant scheduled offence.

72.  I find there are no special reasons not to make the order.  I order the disqualification is not to start to run until the defendant has finished serving the term of imprisonment. 

Re-testing

73.  Section 70 of the Road Traffic Ordinance provides that a court may order that a person be disqualified until he has passed the test of competence to drive. 

74.  Re-testing is designed to protect road users from an offender who has shown himself a real risk on the roads[38]. I am satisfied a re-test order is appropriate.  I order that the defendant cannot drive after the disqualification period until he has passed a test of competence to drive.

75.  Having made an order of re-testing I do not order the defendant to attend and complete a driving improvement course pursuant to section 72A (1A) of the Road Traffic Ordinance.