HKSAR v. Chow Man Ho

DCCC 218/2018

[2018] HKDC 848

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 218 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A(1) of the Road Traffic Ordinance, Cap 374.

2.The facts of the case are as follows.  At about 8 pm on 29 July 2017, the defendant was coming home from work, driving his private car, inside Tin Yuet Estate, Tin Shui Wai, New Territories, where he lived, heading to the car park.  It was an unnamed road with many speed bumps.  It was quiet.  There was also a pedestrian crossing up ahead of him.

3.The victim and her husband had crossed the road ahead of the defendant from right to left.  They were not at the pedestrian crossing but in fact in front of it, but also just in front of a speed bump.  The victim’s husband was walking just in front of her.  Just as her husband reached the pavement and just as the defendant reached the speed bump, the defendant accelerated over the speed bump instead of braking over that speed bump, and unfortunately he hit the victim, who was still on the road, as she had not yet reached the pavement.

4.She bounced off the front of his vehicle and his windscreen before falling onto the road.  I have seen the video footage of the accident that was taken from the defendant’s own car camera.  I have also seen photographs of the vehicle as well as the speed bumps and the distance from the vehicle to the pedestrian crossing.

5.The defendant immediately got out of his vehicle and called the police and an ambulance.  He told the victim’s husband that he had stepped on his accelerator instead of his brake by accident.  When the police arrived, without being cautioned, he told the police that he had hit the victim with his vehicle.  Under caution, he then told the police that he had pressed his accelerator by accident when he went to brake, and that is how he hit the female pedestrian.

6.The forensic evidence later determined that his vehicle was moving under 25 kilometres per hour.

7.The medical reports show that when the victim was rushed to hospital, she was suffering from the following injuries:  head injuries, spinal injuries, a lung injury, and she needed an urgent brain surgery to drain the fluid to relieve a blood clot.  She remained in hospital for six weeks.  When she was discharged from the hospital on 11 September, the report says that she was forgetful and inattentive as a result of the accident.  She had a residual complete third nerve palsy which meant her vision in one eye was affected.  She required assistance in basic daily activities and was able to walk with a stick and mild assistance for more than 30 metres.

8.I have been informed today that her situation has improved, but she still has some vision issues in her right eye.  She still requires a stick to walk and is still suffering from some forgetfulness.  There is no up-to-date medical report, but I will take from the information I have received that there has been improvement from September 2017, and she is still receiving treatment at Tuen Mun Hospital from specialists.

9.I have heard very full mitigation from defence counsel, Mr Fung, today.  He has said all he can say in mitigation on the defendant’s behalf.  It appears he has gone over and beyond his duty as counsel.  He says the defendant has been traumatised by the accident and has often turned to him in despair.  He has tried to reassure him that despite his mistake and despite the consequences that he must face, he is a young man who has made a mistake who must face his responsibilities but nonetheless still has a bright future ahead.  The defendant should take comfort in Mr Fung’s words.  In other words, there will be a future.

10.The defendant is now 24 years old.  He has had a driving licence for four years.  In that time he has only one fixed penalty speeding ticket.

11.He is a man with a clear record.  I have heard he is also the only son of a loving family.  They are all here today to support him.  He attended an IVE course in engineering in Hong Kong, which is a higher diploma course, and managed to attain a distinction, and then obtained a scholarship to an English university, Swansea University, which is no mean feat.  He studied for a masters in engineering and obtained a first class honours.  He is now an assistant engineer and his parents should be very proud of him.  Not only has he done very well academically; I have had sight of numerous certificates which have been awarded to the defendant for his volunteering services on behalf of the Social Welfare Department as well as his participation in peer counselling activities when he was studying at IVE. There are also many mitigation letters from members of the defendant’s family, his peers, teachers, colleagues and family friends.  All ask the court for leniency on the defendant’s behalf.

12.I have no doubt from those mitigation letters and hearing mitigation that the defendant is a fine young man who has made a terrible mistake, a one-off monumental error and lapse of judgment behind the wheel of a vehicle.  The courts have said time and time again that vehicles can become lethal weapons in literally a blink of the eye.

13.Culpability is the most important consideration when considering sentencing.  The degree of harm and injury to the victim is important, but the dominant sentencing consideration is culpability.  I have referred myself to the authority of HKSAR v Lee Yau Wing CACC 282/2012.  I have also taken into account the authorities submitted by defence counsel as well as prosecution.

14.The maximum for this offence is 7 years’ imprisonment and $500,000 fine, as well as a mandatory disqualification of 2 years.  For each case, sentencing should be decided on their own facts for each case.  The Court of Appeal in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 did set out the relevant sentencing principles and matters that I should take into account when considering an appropriate sentence, and that authority reiterates that deterrent sentences are called for because of the grave consequences that flow from this offence, and in looking at whether there are any aggravating factors, the only aggravating factor in this case is the injury to the victim.  The accident did not occur on the pedestrian crossing, which was up ahead.  However, the pedestrian and her husband were very visible, and the defendant should have been very aware of them; and although he did not drive in a prolonged and deliberate bad manner and only one aggravating factor does exist, a custodial sentence is inevitable.

15.Her injuries were serious, but not life-threatening.  I am satisfied she is recovering and is not reliant on anyone for her basic daily needs, but she does still walk with a stick, and still is forgetful at times.  But she has improved and hopefully will continue to improve.

16.I have considered the Cooksley range of culpability that has been adopted in the Hong Kong courts.  Mr Fung has urged me to adopt the lowest category.  Cooksley tariffs have not been adopted in Hong Kong and, as I reiterate, sentencing should be considered on the facts of each case.

17.Defendant, please stand up.  I have taken into account the mitigation put forward, and that includes a clear record and all the mitigating letters, as well as the obvious genuine remorse.  I have also taken into account the facts of the accident and how it happened, and I accept it was a momentary error and a lapse of judgment.

18.Therefore, I am satisfied it falls within the lower end of the range of sentence.  I consider a starting point of 15 months’ imprisonment appropriate.

19.Because you have pleaded guilty, you are entitled to a discount of one-third.

20.After that is applied to the starting point, you are, for this offence, sentenced to 10 months’ imprisonment.  Do you understand?

DEFENDANT: Understand.

21.Under section 36A(2) you are disqualified for a period of 2 years.  That applies to all classes of vehicle.

22.Under section 72A(1)(a) of the same ordinance, you are ordered to complete a driving improvement course at your own expense within the last 3 months of the expiration of the period of disqualification.

23.It is also an offence not to attend and complete the driving improvement course.  You remain disqualified until you attend and complete that course, notwithstanding that the disqualification period may already have ended.  Nobody will contact you and remind you that the disqualification period is coming up and you are to arrange and apply for a driving improvement course.