HKSAR v. CHAN CHI CHIU LOUIS

CACC 249/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 249 OF 2012

(ON APPEAL FROM DCCC NO. 1184 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Chu JA giving the Reasons for Judgment of the Court:

1.  The applicant was convicted after trial in the District Court of one count of causing grievous bodily harm by dangerous driving, contrary to section 36A(1) of the Road Traffic Ordinance, Cap. 374. On 30 May 2012, he was sentenced by Deputy District Court Judge H F Woo to three years’ imprisonment. The applicant was further ordered to be disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 40 months and to attend and complete a mandatory driving improvement course within three months prior to the end of the disqualification period.

2.  The applicant applied for leave to appeal against conviction and sentence.  By notice dated 26 September 2012, he abandoned the application in respect of conviction, which was accordingly dismissed by the Court. In relation to the application on sentence, after hearing counsel, we allowed the application and treated the application as the appeal proper. We allowed the appeal limited to the extent of substituting two years’ imprisonment for the sentence of three years’ imprisonment.  Our reasons appear below.

The facts

3.  The case involves a collision that took place on 16 April 2011 at about 12:38 hr on Sunny Bay Road, Lantau Island near the entrance/ exit of Ada’s Car Park. Sunny Bay Road is a dual carriageway with two lanes in either direction (northbound and southbound).  The entrance/exit of the car park leads directly onto Sunny Bay Road.  The speed limit for that stretch of the road is 50 km/h, which is prominently displayed by traffic signs and also by road markings.  About 620 m prior to the place of collision is a 90 degrees left-hand bend about 530 m long.  On the day, the weather was fine and the road was dry.  The traffic at the place of collision was light.

4.  The applicant drove a Honda private car bearing registration no. NA7546 with four passengers on board.  He travelled along the southbound carriageway on the slow lane, after leaving the Disney World construction site, and was heading for the Sunny Bay MTR station.  His speed was approximately 80 or 90 km/h.

5.  When the applicant reached the exit of Ada’s Car Park, the front of his car collided with the side of a Mercedes Benz private car bearing registration no. PJ8537.  It was driven by PW1 with three passengers on board. PW1 had come out of the car park, turned left and entered the southbound carriageway of Sunny Bay Road at a very slow speed.  At the time of collision, the side of PW1’s car had reached the dividing line between the slow and fast lanes.   

6.  As a result of the collision, all the people on board the two cars were injured. In particular, grevious bodily harm was caused to PW1 and a passenger on the applicant’s car (PW5).  PW1 sustained severe multiple injuries to his skull, legs, pelvis, shoulders, spine, ribs and urinary tract and had undergone three surgeries.  PW5 sustained severe injuries to his left hip and had undergone one surgery.  At the time of the sentencing of the applicant, which was one year after the accident, both PW1 and PW5 had not fully recovered from their injuries.

The findings of the trial judge

7.  The trial judge found that when the applicant was 145 m away from the place of collision, PW1’s car had already appeared at the entrance/ exit of the car park and this was within the vision of, and noticeable to, a driver who had been keeping a proper lookout.  The applicant, however, continued at a speed of about 80 or 90 km/h and did not reduce his speed or apply the brake as he approached the car park entrance/exit. The trial judge further found that had the applicant kept a proper look out, he could not have failed to notice PW1’s car coming out of the car park and that but for his speed and failure to take all necessary precautions, the collision could have been avoided.  She concluded that this was not a case of momentary lapse of attention or error of judgment; rather the applicant’s manner of driving was such as to create an obvious and serious risk of causing physical injuries to other road users and his passengers and that it was a case of blatant disregard on the applicant’s part for the safety of other road users and the passengers on his car.     

Mitigation

8.  The applicant is aged 47, divorced with two children.  He worked as a construction site supervisor with a monthly income of $30,000.  He has a clear criminal record.  In 2010, he was given a fixed penalty of $450 for an offence of speeding.  Other than this, he has no previous conviction for driving offences.  His superiors had written to the court to ask for leniency on his behalf. 

Sentence

9.  In sentencing the applicant, the trial judge referred to Secretary for Justice v. Liu Kwok Chun (unreported) CAAR3/2009 & CACC34/2009, Secretary for Justice v. Poon Wing Kay & Anor [2007] 1 HKLRD 660, which adopted the approach discussed in R v. Cooksley & Ors [2003] 2 Cr App R 18, and Secretary for Justice v. Lam Siu Tong [2009] 5 HKLRD 601. She considered that the defendant’s culpability should be the dominant factor in the sentencing exercise and that the case fell into the most serious category in that there was a selfish disregard by the defendant for the safety of his passengers and other road users.  Having regard to the overall circumstances of the case, she sentenced the applicant to three years’ imprisonment in addition to a disqualification order and an order for mandatory driving course.

The grounds of appeal

10.  The applicant does not seek to overturn the disqualification order and the order for mandatory driving course. In respect of the term of imprisonment, there are two main grounds of appeal.  Firstly, it is said that the trial judge failed to pay any or any sufficient consideration to the following: (a) the applicant was on the main road with priority to use it whereas PW1 should only have emerged onto the road when it was clear and safe to do so; (b) the accident was the result of the applicant’s failure to consider the possibility of PW1’s car emerging onto the road; and (c) apart from speeding, there was no other aggravating feature in the applicant’s manner of driving as would place the case within the most serious category of dangerous driving.  Secondly, it is said that the trial judge, having convicted the applicant on the basis of his speed and failure to keep a proper lookout of the road conditions, erred in relying on the applicant’s speed as an aggravating feature when it was the act of dangerous driving itself.

Section 36A offence

11.  Section 36A of the Road Traffic Ordinance was recently enacted in 2010.  In HKSAR v. Lee Yau Wing (unreported) CACC 282/2012, 13 December 2012, this Court (Cheung JA & McWalters J) examined the legislative context and observed (at paragraphs 24 and 25):

“24. Thus within the Road Traffic Ordinance there are now 3 offences of dangerous driving. They are, in order of ascending gravity, dangerous driving simpliciter (section 37); causing grievous bodily harm by dangerous driving (section 36A) and causing death by dangerous driving (section 36). The maximum penalties for each of these offences upon conviction on indictment are as follows:

Dangerous driving – a fine at level 4 and imprisonment for 3 years.

Causing grievous bodily harm by dangerous driving – a fine at level 5 and imprisonment for 7 years.

Causing death by dangerous driving – a fine at level 5 and imprisonment for 10 years.

25. Clearly the enactment of new offences containing additional elements to reflect the harm caused by the driving, either grievous bodily harm or death, and providing greater maximum penalties for them, reflects an intention of the legislature that these offences should be punished more severely.  That, of course, must be reflected in the sentences of the courts.”

12.  The court in Lee Yau Wing (paragraphs 26 - 31) further considered that the approach discussed in R v. Cooksley is equally appropriate to the offence of dangerous driving causing grevious bodily harm.  The defendant’s culpability should be the dominant component in the sentencing exercise, even though the outcome of the offence is also an important matter for the sentencing judge to take into account.  In determining the culpability of a defendant’s dangerous driving, the body of case law on the other dangerous driving offences in the Road Traffic Ordinance that has developed since Secretary for Justice v. Poon Wing Kay is equally applicable, while making allowance for the fact that no death flows from the dangerous driving in a section 36A offence. 

The culpability of the applicant

13.  In the present case, the trial judge found the applicant’s manner of driving to be dangerous in that he had failed to keep a proper lookout of the road conditions, had driven at excessive speed and further failed to slow down or brake as he approached the entrance/exit of the car park.  Mr Lawrence Lok SC, who appeared for the applicant together with Mr Derek Hu, submitted that the trial judge had failed to consider that PW1 was emerging from a minor road and entering a major carriageway and that the real cause of the collision was the applicant’s failure to consider the possibility of PW1 driving out from the exit onto the road.  We see the force of this submission.  In as much as the applicant should be able to notice PW1’s car at the entrance/ exit of the car park at 145 m away, PW1 should also have seen the approach of the applicant’s car.  It would be incumbent upon him to ensure that it was safe to enter the major carriageway and, more importantly, to cross the slow lane to proceed to the fast lane.  Although the trial judge did not accept the defence case that PW1’s car suddenly came out of the car park, the manner in which PW1 drove out of the car park and proceeded directly to the fast lane of the carriageway is a relevant factor when assessing the culpability of the applicant’s act of dangerous driving. 

14.  Mr Edmond Lee, who appeared for the respondent, argued that there were aggravating features that justify placing the case in the very serious category. In particular, he referred to the fact that the road was going down slope with a right-angle bend and a speed limit of 50 km/h as amounting to inherent hazards.  We do not agree that the layout of the stretch of the road in question is such as to amount to inherent hazards or an aggravating feature in the case.  Mr Lee also referred to the fact that PW1’s car entered the carriageway at a very slow speed and that the collision took place at the dividing line between the slow and fast lanes.  In our view, all these point to the fact that the applicant was at fault in driving in excess of the speed limit.  They do not amount to additional aggravating factors. Apart from speeding, there is no other aggravating feature in the case. 

15.  Mr Lok SC also argued that as speeding was part of the act of dangerous driving, the trial judge was in error to use this as an aggravating factor when sentencing the applicant.   In our view, a judge in sentencing is entitled to take into account the defendant’s speed and to regard it as an aggravating factor where the speed is dangerously excessive in the light of the circumstances of the case.  Here, although the applicant had exceeded the speed limit, we will not say that it is such as to amount to an aggravating factor as will justify putting the case in the most serious category or calling for a higher sentence.        

16.  We are of the view that the applicant’s manner of driving, when assessed against the overall circumstances of the case, including the manner in which PW1 drove out of the car park and proceeded directly to the fast lane of the road, does not fall within the very serious category of blatant disregard for the safety of other road users and the passengers on the car.  We consider that this is a case of a serious error of judgment on the applicant’s part.

The appropriate sentence

17.  Mr Lok SC drew our attention to a number of authorities (HKSAR v. Ho Wai Yip (unreported) CACC 445/2009, HKSAR v. Ngai Sing Keung (unreported) DCCC 1138/2011, HKSAR v. Sheung Kun Hoo Daniel (unreported) CACC 56/2010, HKSAR v. Lei Tin Seng (unreported) CACC 271/2009 and HKSAR v. Lam Shen-hruing Gilbert (unreported) DCCC 978/2009) in an attempt to demonstrate that the level of culpability and criminality in the present case did not warrant three years’ imprisonment. He submitted an appropriate sentence would be in the region of 1½ years to 2 years.

18.  What is an appropriate sentence must depend on the facts and circumstances of each case.  We do not think much assistance will be derived from an examination and comparison of the facts of the authorities cited.      

19.  As emphasized in HKSAR v. Lee Yau Wing, since the focus is on the culpability of the defendant’s driving, his clear record and general good character carries little weight.  The dominant sentencing principle is general deterrence with principles of retribution and denunciation being also of relevance. Bearing these principles in mind and having regard to the applicant’s culpability, the serious injuries to the passengers and the overall circumstances of the case, we consider two years’ imprisonment to be an appropriate sentence.