HKSAR v. CHAN CHI CHIU, LOUIS

DCCC 1184/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1184 OF 2011

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

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

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

Reasons for Sentence

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

The charge

1. The defendant was charged and convicted of, after trial, a charge of dangerous driving causing grievous bodily harm. Such offence was contrary to s 36A of the Road Traffic Ordinance, Cap 374 (“RTO”).  At the beginning of the trial and upon plea taking, the defence counsel has indicated that the defendant intended to plead guilty of careless driving.

2. According to s 36A(1)(a) of the RTO, the maximum penalty for this offence is a fine at level 5 and 7 years imprisonment.  For the purpose of sentencing, only s 36A(1), (2), (3) and (4) of the RTO[1] are applicable.

Facts of the case

3. The accident locus was along the Sunny Bay Road which is a dual carriageway with two lanes in either direction (northbound and southbound).  This stretch of road is subject to a speed limit of 50 km/h.  Along this dual carriageway there is a Car Park junction where vehicles can enter to or exit from the carriageways. 

4. The defendant was driving with 4 other colleagues in his car on 16 April 2011 about 12.30 noon.  The weather was fine.  The traffic was light.  The surface of the road was dry and the driving conditions were good.  The journey commenced from the Disneyland World construction site along the Sunny Bay Road (southbound)towards the Sunny Bay MTR station.  Just before the accident locus, there was a 90º left hand bend along the route which proceeded downslope.  After the defendant had negotiated and passed the said left hand bend, the accident occurred in less than 100 m ahead outside the access of the said Car Park.

5. At that time the defendant was driving on the slow lane at a speed of 80-90 km/h, whereas PW1 was driving very slowly out of the Car Park access.  He had 3 other passengers with him.  The presence of PW1’s car at the passage of the Car Park leading to the carriageway should be noticeable to drivers who was 145 m preceding him on the Sunny Bay Road (southbound).

6. The impact of the collision between the two vehicles resulted in all the nine passengers being injured and taken to Princess Margaret Hospital for medical attention and/or treatment.  PW1 aged 36 and PW5 aged 28 suffered very serious injuries and underwent some major surgeries as a result.  They have yet to recover even a year after the accident.

7. Damage to the two vehicles was severe and extensive.

Background of the defendant and mitigation

8. The defendant, aged 47, was a supervisor in a construction site earning $30,000 p.m.

9. He is a divorcee with two sons now living with his ex-wife.  He contributes $11,000 p.m. to maintain them.

10. The defendant is a man of clear record with no conviction for driving offences in the past.

11. Two superiors of the defendant wrote in and asked for leniency on his behalf.  They spoke well of him and commented that the defendant was a responsible, trustworthy and reliable employee and colleague.

12. Upon conviction and in mitigation submission, the defence counsel expressed that the defendant was all along prepared to acknowledge and even in fact to admit his guilt to the present charge but for his legal advice.

13. At the trial, there was an obvious attempt on the defence part to shift most of the responsibility of this wholly avoidable accident to PW1.

Sentencing principles

14. In SJ v Liu Kwok Chun CACC 3/2009, the Court of Appeal recognized that:

“the defendant’s culpability should be the basis of the sentencing exercise and on this basis, an appropriate sentence is to be determined”.

15. In para 37 of the same case, it was held that:-

“In assessing the degree of culpability there are two extreme situations. The first is where the event occurred because of a momentary error of judgment. The other is the most serious one in that there is a selfish disregard by the driver for the safety of other road users or of his passengers or with a degree of recklessness.”

16. The Court of Appeal of England in R v. Cooksley & Ors [2003] 2 Cr App R 18 laid down sentencing guidelines for the offence of dangerous driving and careless driving causing death when under the influence of drink or drugs.  The maximum sentence in the UK at the time for the offence of dangerous driving causing death was 10 years.

17. The Court of Appeal in Hong Kong had nevertheless found the general principles and guidelines laid down in Cooksley & Ors to be of great assistance and had adopted the same[2]. There were some 16 aggravating factors enumerated together with some 6 mitigating factors.  In Poon Wing Kay (paragraph 10 of the Judgment) the Court of Appeal adopted the guidelines laid down by the Court of Appeal of England in Cooksley & Ors with observations  They were applicable to this case and are set out as follows:

“(1) In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly: R v Cooksley & Ors p 45J (paragraph 11). This is important to bear in mind because, while it may be true in some instances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light.

(2) Where death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased: R v Cooksley & Ors p 46A (paragraph 11). The impact on people’s lives ought to be taken into account when sentencing.

(3) 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: R v Cooksley & Ors p 46C-E (paragraph 11). 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.

(4) While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor: R v Cooksley & Ors p 47B (paragraph 14). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. In some cases (such as in the present case), the fact that only some aggravating factors exist but not others may still bring the case into a very serious category.

(5) 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 of his passengers (or, we would add, of pedestrians) or with a degree of recklessness: R v Cooksley & Ors p 46D-F (paragraph 12).”

18. The Court of Appeal in SJ v Lam Siu Tong and Wong Ton Fan CAAR 2/2009 and CAAR 4/2009 made the following additional observations:

“(1) Almost invariably in mitigation for the offence of dangerous driving causing death, the sentencing court is provided with details going to the good character of the accused. The court is also usually informed of the deep remorse that is expressed. The present cases provided no exception.

(2) And yet the one fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided. Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine. There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it. As Yeung JA remarked in HKSAR v Au Yeung Kwok-kin (CACC 21/2008, 25 August 2008) the courts will not show leniency to any driver who has endangered the lives and safety of other road users.

(3) In these circumstances, good character and remorse may count very little. These certainly count very little, or not at all, for the family and all those connected with a victim who has died as a result of an act or omission that could entirely have been avoided. The serious view that society holds for offences such as dangerous driving causing death is reflected by the increase in the maximum sentence for this offence from 5 to 10 years’ imprisonment for convictions on indictment.

(4) The Court must therefore be astute to bear in mind the above considerations when determining the appropriate sentence in any given case in the face of details provided to it about an accused and the remorse that is shown. This is not to say that remorse or good character are not relevant considerations in terms of sentencing – they must be – but in the context of the offence with which we are concerned, they must not be given undue prominence. Further, nothing of course detracts from the discount that ought to be given when a timely plea of guilty is entered.”

The relevant sentencing principles applicable to this case

19. This court is also guided by the aforesaid general principles and guidelines laid down by the Court of Appeal.

20. PW1 aged 36 expressed deep agony of the devastating consequences of this accident to himself and his family.  Although there was no death resulted from the dangerous driving, it is obvious that grave distress was caused to both PW1 and PW5 and their respective families (see para (2) of Poon Wing Kay’s guidelines).

21. Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine.  There is no acceptable excuse for dangerous driving.  This court will not show leniency to any driver who has endangered the lives and safety of other road users (see para (2) of Lam Siu Tong’s case).

22. It is necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving …… to ensure that all who can come into content with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered (see para (3) of Poon Wing Kay’s guidelines).

23. A sentencing court must look at the overall circumstances and the overall culpability of the defendant.  In assessing the overall seriousness of a crime, culpability of the defendant is often the dominant factor (see para (4) of Poon Wing Kay’s guidelines).

24. 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 of his passengers, or with a degree of recklessness (see para (5) of Poon Wing Kay’s guidelines).

25. In these circumstances, good character and remorse may count very little (see para (3) of Lam Siu Tong’s case).

26. This is not to say that remorse or good character are not relevant considerations in terms of sentencing – they must be – but in the context of the offence with which we are concerned, they must not be given undue prominence (see para (4) of Lam Siu Tong’s case).

Special features in this case

27. The defendant was taking 4 colleagues in his car.  They were travelling along the road with inherent hazards.  Nevertheless, the defendant failed and/or refused to take caution or precaution nor any proper lookout at all to alleviate the danger existed.  He aggravated the situation and created more danger to his passengers and other road users by his driving manner.  He drove at an excessive speed of about 80 km/h to 90 km/h with total disregard of the prescribed speed limit of 50 km/h.

28. This is not a momentary lapse of attention nor judgment error on the defendant’s part.

29. If the defendant had kept a proper lookout of the road conditions at the material time and driven in a competent and careful manner, he could not have failed to notice PW1’s car pulling out of the Car Park.  In which case, the defendant would have ample time and opportunity to stop his vehicle in time.  Had he not been travelling too fast, or had he taken all necessary cautions or precautions, the accident would have been avoided.

30. This is a case where the defendant had obviously appreciate the risk of his action which might cause danger to his own passengers and other road users, but consciously and irresponsibly went on to take it.  The defendant had blatantly disregarded the safety and well being of his passengers and other road users and had endangered their lives.

31. All the prevailing circumstances of the case showed that the manner of the defendant’s driving was obviously dangerous. Its consequences were severe.  Nine persons were injured, and two of them sustained very serious injuries and had not recovered even a year later.

Length of sentence

32. The present case falls within the most serious category in that there is a selfish disregard by the defendant for the safety of his passengers and other road users. 

33. Having considered the overall circumstances of the case, including the seriousness and criminality of the offence, its aggravating features, the culpability of the defendant, the mitigation put forward by the defence counsel and the previous good conduct of the defendant, this court considers a term of 3 years’ imprisonment to be appropriate under the circumstances.

Disqualification

34. According to the provision in the RTO, the period of disqualification is to run concurrently with the term of imprisonment.

35. The Court of Appeal in SJ v Hung Ling Kwok CAAR 7/2009:-

“ …… The main purpose of disqualification is “forward looking and preventive rather than backward looking and punitive”. It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads. The risk represented by the offender is reflected in the level of culpability which attaches to his driving, so that matters relevant to fixing the length of the driving disqualification are more or less the same as those factors relevant to determining the term of imprisonment.”

“14. First of all, we must point out that although matters relating to culpability which need to be considered when determining the term of imprisonment are more or less the same as those which need to be considered when fixing the length of the driving disqualification, according to sentencing principles, a sentence passed by the Court must have actual effect. Since the period of disqualification and the term of imprisonment are to run concurrently, if the period of disqualification is of the same length as or shorter than the term of imprisonment, then the period of disqualification may be devoid of any real significance. This is because the defendant can resume driving soon after he served his sentence of imprisonment. This is against the basic principle of sentencing.”

“16. We agree with the opinion expressed in Cooksley that when considering disqualification, the Court should not anticipate that the defendant will be granted remission of sentence due to his good conduct in prison and therefore can have an early release. The reason is that it is not certain that the defendant will have an early release because of his good conduct. We believe that the relation between the term of imprisonment and the period of disqualification must be a relevant issue.”

36. The Court of Appeal also considered wrong in principle in sentence, if most of the period of disqualification would merge into the term of imprisonment, as not only such disqualification period was too short but would not have any actual effect. 

37. Having taken into consideration of the whole circumstances of the case and the sentencing principle, this court disqualifies the defendant from holding or obtaining a driving license for all classes of vehicles for a period of 40 months.

Driving improvement course (“DIC”)

38. This court orders the defendant to attend and complete a mandatory driving improvement course within 3 months prior to the end of the disqualification period[3].