HKSAR v. Kan Pak To

DCCC 303/2018

[2018] HKDC 997

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 303 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of “causing grievous bodily harm by dangerous driving” contrary to section 36A(1) of the Road Traffic Ordinance, Cap. 374 and one count of “using a motor vehicle with an illegal visual display unit”, contrary to regulations 37(3) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374A.

Facts

2.The accident was situated at Hiram’s Highway near Hebe Haven Car Park, Sai Kung (“the Location”). The Location is an undivided two-lane roadway with one lane on each bound, divided by continuous double white lines.

3.The accident happened at around 12:18 pm on 14 September 2017. At the material time, the traffic volume was normal, the weather was fine and the road surface was in good repair. The speed limit of the Location was 50km/h.

4.At the material time, the defendant was driving light goods vehicle TG6129 at the Sai Kung-bound direction of the Location, while Mr Ho Chi Lung was driving light goods vehicle TH1189 at the opposite side (Kowloon-bound direction). When the two vehicles reached the Location, the defendant’s vehicle suddenly swayed to the right, crossing the dividing continuous double white lines, reached the opposite direction and hit the front of Mr Ho’s vehicle.

5.As a result of the accident, Mr Ho sustained multiple injuries to his head and right leg including an open wound with deformed and contaminated right leg wound and multiple fractures including fracture at left 4th rib and right lower limb.  Right through knee amputation was performed. 

6.After the accident, the defendant was medically examined.  The defendant explained he had a loss of consciousness before the accident. When the defendant was first admitted to the Accident and Emergency Department, there was no evidence of arrhythmia.  Throughout the defendant’s stay in hospital, there was no further episode of syncope.

7.SPC 45900 arrived at the Location at 12:40 pm on the day of the incident.  The defendant told him that when he drove near the Location, he was blacked out until after the collision.  No tyre marks were found at the Location.

8.In the written record of interview, the defendant stated that he suddenly blacked out at the time of the traffic accident, afterwards the collision with the vehicle on the opposite side occurred, he only regained consciousness after the collision, that the DVD display installed at the front of the defendant’s vehicle was borrowed from his friend and he installed the display himself.

9.Examination of the defendant’s vehicle revealed multiple damage due to the accident and that there was an installed Visual Display Unit at the forward of the driver’s seat which did not meet the legal requirement.

Mitigation

10.The defendant is aged 26, single and lives with his family.  His father resides and runs a small business in the Mainland.  His mother is a sales manager of health product.  His elder brother is a clerical staff of a government department.  Prior to the offence, the defendant has been working as a driver cum delivery worker earning around HK$13,000 to HK$15,000. He contributes around HK$3,000 to HK$4,000 for family expenses.

11.The defendant has 2 previous conviction records which are not similar to the present offences.

12.In mitigation, it was submitted that after the defendant completed the sentence of imprisonment in 2014, he had turned over a new leaf and had been working hard to earn a living.  At the material time, the defendant had just finished the delivery for the morning session. He was not sleepy.  He did not have any illness at that time.  All of a sudden, he blacked out and swayed to the opposite side hitting the victim’s vehicle.  After medical examination, the defendant was not found to suffer any abnormal condition.  The defendant believed he might have been working hard and suffering from fatigue, as a result of which he lost concentration for 1-2 seconds and hence the accident.  The defendant was very sorry for the serious injuries caused to the victim.  He was willing to shoulder the responsibility by pleading guilty to the charges.  As a result of this case, his plan to get married with his girlfriend has to be postponed.  Defence counsel referred to several cases[1] and submitted that there was no aggravating feature in this case and the overall culpability of the defendant fell within the lower end of the sentence.  The court was urged to impose a lenient sentence on the defendant. 

13.Defence counsel made no submissions in relation to the period of mandatory disqualification and the order for driving improvement course in respect of charge 1.

Sentence

14.There is no sentencing tariff for the offence in charge 1.  The Court of Appeal in HKSAR v Lee Yau Wing [2013] 1 HKC 572 pointed out that the dominant sentencing consideration was the culpability of the defendant’s driving misconduct although the harm caused was also important.  The Court of Appeal also emphasized that the dominant sentencing principle is general deterrence.  Since the focus is on the culpability of the defendant’s driving, clear record and general good character carries little weight. 

15.Regarding the current condition of the victim Mr Ho, it is confirmed that Mr Ho is still on sick leave and suffers from issues arising from his amputated leg. 

16.In this case, I accept this is no aggravating feature such as speeding or jumping of red light.  Further, I accept there is no evidence of prolonged period of bad driving. 

17.Having considered the circumstances of the case and the background of the defendant, I consider the appropriate starting point to be 15 months’ imprisonment.  The sentence is reduced to 10 months’ imprisonment given the defendant’s plea.  Apart from that, I do not see other factor justifying further reduction of sentence.  The defendant is therefore sentenced to 10 months’ imprisonment for charge 1.

18.Disqualification is mandatory for charge 1.  I find no special reasons not to order disqualification.  I therefore order that the defendant is disqualified from holding or obtaining a licence to drive in respect of all classes of vehicles for 2 years.  The defendant is also ordered to attend a driving improvement course at his own costs pursuant to section 72A(1) of the Road Traffic Ordinance, Cap. 374. 

19.For charge 2, the defendant is fined HK$2000.