HKSAR v. Leung Ching Chung

DCCC 466/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 466 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has been convicted after trial on Count 1 of causing grievous bodily harm by dangerous driving. He pleaded guilty at the outset to Count 2 of using a motor vehicle failing to comply with safety glass or safety glazing regulation.

2.I do not intend to repeat the facts again.  I have given full reasons in my verdict delivered on 26 October, 2016.  On the evening of 21 October, 2015, at about 19.25 hours. PW1, Sze Kwok-wa was riding his motorcycle with registration mark RX 5016 along the West Kowloon Highway, in the second lane from the left, and the speed he was travelling at was approximately 83-86 Km/H.  His wife, PW2 Chin Ka-ka, was the passenger on his motorcycle. At the material time, the weather was fine and the road surface was dry.  The speed limit on that stretch of road was 100 Km/H.  At some time approximately between 19.25 and 19.30 hours, PW1’s motorcycle was hit from behind by an Audi Quattro with registration mark GB 27 driven by the Defendant.  As a consequence of the collision, PW1’s motorcycle was turned on its side, resulting in PWs 1 and 2 sustaining injuries amounting to grievous bodily harm.  They are both still on sick leave. The injuries they each sustained were very serious injuries as particularized in the various medical reports submitted in respect of each of them.  GB 27 was the car following behind a red car, and was seen by PWs 3 and 4 to be driving at a high speed and changing lanes at a high speed, and driving at a speed in excess of the speed limit on that stretch of road – GB 27 hit the motorcycle RX 5016 from behind when the motorcycle was travelling in the middle lane.  Tinted film had been attached to the windows of GB 27 reducing the light transmission into the vehicle.  The Transport Department required the minimum light transmission for the glass windows for the driver’s compartment to be 70%.  However, the light transmission here for the windows in the driver’s compartment of GB 27 was 25% and 27%, far below the required 70% for a vehicle to be driven on the road. The light transmission through the front windscreen was 63% which is still below the statutory requirement of 70%.  The vehicle was being driven at night, and although there was street lighting, the light being transmitted through the glass was less because of the tinted film attached to the glass. The Defendant had admitted Count 2 in respect of this. I did bear in mind that this by itself is not evidence of ‘dangerous driving’ per se.  But apart from the lowered light transmission because of the tinted film attached to the windows, driving in the manner that he did, changing lanes at as he did, and driving at an excessive speed in the circumstances as he did falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.  I therefore convicted him on Count 1, causing grievous bodily harm by dangerous driving.

Previous Convictions

3.The Defendant has a clear criminal record including a clear traffic record.  He was first issued with his driving licence on 22/11/2001. He has 3 fixed penalties, in 2010, 2011 and 2014  which was admitted by him.  None are similar to the convictions herein.  For the purposes of sentence, I attached no weight to his traffic record, and dealt with him as if he had a clear traffic and a clear criminal record.

Antecedent Statement & Mitigation

4.His Antecedent Statement was read into the record by Mr. Beel. No issue was taken on the contents.  The Antecedent Statement disclosed that the Defendant was born in Hong Kong and is now aged 34 years.  He had completed his tertiary education in Hong Kong.  He is a financial agent earning HK$100,000 a month.  He is in good health and is married and lives with his wife.

5.A letter was submitted in mitigation from the Defendant’s employer Liwa Petroleum & Technical Services, a company in the United Arab Emirates.  His employer confirmed that the Defendant had been employed by the company since September 2012 as the company’s Asia-Pacific Business Liaison Officer – he worked on a commission only basis, and had been extremely diligent in his work.  His duties included meeting new customers in the region as well as negotiating contractual terms with potential client companies. His work required him to chauffeur visiting clients and guests around Hong Kong on a regular basis.  None of the company’s clients or guests had ever made any complaints about the Defendant – on the contrary they had commended his exemplary hospitality. Mr. James B. Chan, the Senior Business Development Manager of the company and the author of the letter had himself been driven around by the Defendant and had no complaints of the Defendant’s driving manner.  The company was prepared to continue to employ him and sought leniency on his behalf.

6.In mitigation, Mr. Hon submitted that the Defendant’s culpability could be described as ‘intermediate culpability’ and the period of bad driving was a short period.  The aggravating feature was that more than one person was injured.  He submitted 2 authorities – R. v. Cooksley  [2003] 2 Cr App R 18 and HKSAR v. Pang Kun Wah, CACC 410/2013, wherein the Court of Appeal adopted Cooksley, supra.  Mr. Hon further submitted that the usual starting point for an offence of causing death by dangerous driving was 2 to 3 years’ imprisonment, and the starting point should be lower for an offence of causing grievous bodily harm by dangerous driving.  In respect of Count 2, Counsel submitted that the statutory requirement in respect of the front windscreen and the glass for the driver’s compartment was 70% whilst that for the rear windscreen and side windows behind the driver’s compartment was 44%.  The light transmission of the front windscreen was 63%, 7% less than the statutory requirement, whilst that of the side windows of the driver’s compartment was 25% and 27%.  The rear windscreen and side windows of the compartment behind the driver’s compartment ranged from 16% to 18%.  Mr. Hon submitted that what was relevant in relation to the collision was really the front windscreen and that was only 7% below the statutory minimum.  Therefore the Defendant’s breach would have minimal effect on the culpability of the Defendant. I do not accept this – light is transmitted into the vehicle not just from the windscreen but also through the windows.  It is for that reason that the law requires the light transmission for the front windscreen and the glass on the windows of the driver’s compartment to be 70%. Insofar as the injuries sustained by PWs 1 and 2, he submitted that they were still recovering and had not yet reached optimum recovery.

Sentence

7.The maximum penalty for offences of dangerous driving causing grievous bodily harm is 7 years’ imprisonment on conviction on indictment and a fine at level 5, namely $50,000. This is set out in Section 36A(1)(a) of the Road Traffic Ordinance, Cap. 374.  It is further provided in Section 36A(2) that a person convicted of the offence shall be disqualified for a period of not less than 2 years in the case of a first conviction, unless the court for special reasons orders that person be disqualified for a shorter period or that the person not be disqualified. This is the Defendant’s first conviction for an offence of causing grievous bodily harm by dangerous driving.

8.For offences contrary to Section 28(2) of the Road Traffic (Construction And Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374,  Section 121(1) of the said regulations provides that any person who uses on any road any vehicle which does not comply in all respects with the provisions of these regulations commits an offence and is liable to a fine of $10,000 and imprisonment for 6 months.

9.There is no sentencing guideline for the offence of causing grievous bodily harm by dangerous driving.  Each case must be decided on its own facts.  Road accidents can cause immense human suffering and bring about serious economic burdens both to the victim’s family and to society. Vehicles can be lethal if not driven and maintained in an appropriate manner.  Those who are in charge of vehicles owe other road users a heavy duty. The Court of Appeal in SJ v. Poon Wing Kay, [2007] 1 HKLRD 660 sets out the relevant sentencing principles and the matters that a sentencing court must take into account when considering an appropriate sentence.  Deterrence is a key sentencing principle as the law imposes a standard on a motorist to ensure that all who come into contact with motor vehicles are safe, be they motorists, passengers or pedestrians.  The court must look at the overall circumstances and overall culpability of the offender. A major aggravating factor justifying a heavy sentence is when a person has driven with selfish disregard for the safety of other road users or his passengers or of pedestrians.

10.The Defendant was driving at night at a speed well in excess of the speed limit and changing lanes at this high speed, albeit that the road in question was a straight stretch of road and the speed limit of that section of road was 100 Km/H, the weather was fine and the road surface dry and traffic was sparse.  Although the Prosecution did submit that the Defendant was racing with the red car that it was following, I was not satisfied to the requisite standard that the Prosecution had established that the two vehicles were racing.

11.In Cooksley, supra, four categories of culpability were adopted: where there are no aggravating circumstances, intermediate culpability, higher culpability and most serious culpability.  This has been adopted in Hong Kong (see for example SJ v. Liu Kwok Chun, [2011] 1 HKC 70).  The degree of seriousness depends on the precise circumstances of the driving.  It has also been held that the considerations for causing death by dangerous driving are equally applicable to causing grievous bodily harm by dangerous driving.

12.In SJ v. Liu Kwok Chun, supra, the Court of Appeal said:-

“37. 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. In between these two extremes, there are varying degrees of culpability depending on the presence of the aggravating factors which were referred to in Cooksley at para 15.”

13.Mr. Hon for the Defendant submitted that the Defendant’s culpability was the ‘intermediate culpability’ - there was a short period of bad driving, and more than one person was injured.

14.In my view, the Defendant’s culpability lies with his excessive speed and the manner of his driving and changing of lanes. Had he not been driving at an excessive speed in the circumstances, he would not have collided with the rear of PW1’s motorcycle which was ahead of him. Travelling at a speed well in excess of the speed limit shows a disregard for the safety of other road users.  It is not a momentary lapse of judgement or loss of concentration.  However, the facts before me are not the worst of its kind.  I am satisfied in all the circumstances that this places the driving at the higher end of the intermediate culpability. I consider that the circumstances herein are such that a non-custodial sentence would not be appropriate.

15.Little purpose will be served by comparing sentences imposed in other cases on the basis of different facts. I doubt one can find an identical case with identical circumstances.

16.PWs 1 and 2 sustained very serious injuries in this collision.  They are both still on sick leave, and both still receive outpatient physiotherapy and occupational therapy.  No information is available to the Court as to whether they may suffer any permanent disability. 

17.In passing sentence, I have borne in mind all that has been urged upon me by Counsel on behalf of the Defendant, as well as the authorities he has submitted and the contents of the letter from the Defendant’s employer.  The Defendant has been convicted after trial in respect of Count 1 – he has shown no remorse. 

18.Having considered the circumstances of the offences, including the degree of culpability, on count 1 of causing grievous bodily harm by dangerous driving, the Defendant is sentenced to 2 years’ (24 months) imprisonment. On count 2 of using a motor vehicle failing to comply with  safety glass or safety glazing regulation, after discounting the sentence by one-third to reflect his plea, he is sentenced to 1 month’s imprisonment, the sentences to run concurrently.

19.I can see no special reasons not to disqualify the Defendant. He is also disqualified from holding or obtaining a driving licence for all classes of vehicles for 2 years in respect of Count 1. What this means is that if the Defendant drives during the period of disqualification, he will commit an offence of driving whilst disqualified, an offence which will usually attract a sentence of imprisonment, and that is in addition to any other offences that would be automatically committed where he is driving whilst disqualified, such as driving without third party insurance. I also make an order under section 72A(1A) of the Road Traffic Ordinance, Cap. 374, there being no special reasons against the making of an order, that in respect of Count 1, he must at his own expense attend and complete a driving improvement course within the last three months of the expiration of the period of disqualification of 2 years.  The Defendant is also warned that it is an offence not to attend and complete the driving improvement course and that he remains disqualified until he attends and completes the driving improvement course, notwithstanding that the disqualification period may already have ended. I will also put on record my warning that the order places a duty on the Defendant to make arrangement to attend and complete the course on his own initiative.  No one will remind him to do so.