HKSAR v. Ho Chung-yinHKSAR v. Ho Chung Yin

DCCC 1088/2017

[2018] HKDC 1096

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1088 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to a charge of causing grievous bodily harm by dangerous driving. He drove a vehicle along Man Nin Street in Sai Kung and hit a male pedestrian, Mr Ho Wan-kwong, age 91 years old.

2.This accident occurred on 16 May 2017 at about 4 pm on a fine, dry day whilst the defendant was driving along Man Nin Street, Sai Kung at only about 20 to 30 kilometres per hour.  It was a straight road but to his right was Yi Chun Street and the defendant was looking to his right towards that street to see if there was any available parking.

3.The defendant had a camera installed in his vehicle and the camera footage recorded the accident.  It showed the victim walking across Man Nin Street and in front of the defendant’s vehicle without hesitating or looking towards the vehicle.  It appeared the defendant did not notice the victim.  He did not slow down.  There was a collision and the victim sustained injuries to his head, elbow and left eye.

4.The victim was taken to hospital and the medical report describes a bilateral acute subdural haematoma, a bilateral small subarachnoid haematoma, small haemorrhagic contusion at the right temporal region and the temporal parietal bone fracture; hence, the charge of causing grievous bodily harm by dangerous driving.

5.There is no dispute that there were vehicle traffic lights and a pedestrian crossing about 30 metres up ahead from the accident location.  In mitigation, I have heard that the defendant immediately called the police and an ambulance.  He fully co-operated with the police and told them very frankly under caution that he had at that moment looked right for a parking space and did not notice the victim.

Mitigation and Sentence

6.The defendant is 22 years old and at the time of the accident had only had his driving licence for three months.  He had a clear record and no traffic record.  He is an only child and lives with his parents in Sai Kung.  They are both here in court as is his girlfriend supporting him and clearly other friends and family.  Defence counsel told me of his exemplary academic achievements and voluntary work.  He is a graduate of Hong Kong Shue Yan University; he read psychology and counselling.  He obtained a Bachelor of Social Sciences degree.

7.A bundle of mitigation documents was placed before me; I have considered and noted their contents.  They include letters from his parents, a social worker of the youth centre where he volunteers, his primary school principal who he later worked for as an intern during his degree course and a professor who lectured him.  The defendant’s own letter expresses genuine remorse and sympathy towards the victim and his family.  Mr Fan has said all he can say on behalf of the defendant in mitigation.

8.I have reminded myself of the sentencing principles set out in the Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 by the Court of Appeal and the importance of a deterrent effect when sentencing dangerous drivers.  A sentencing court must bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just.  I must also consider the pain and hardship caused to the victim as a result of his injuries.  The victim actually passed away some three to four months later but from pneumonia.  There is no evidence he died as a result of the injuries he sustained from this accident.

9.Defence counsel has quite rightly mitigated on the basis that I will consider the defendant’s culpability.  He emphasises that there are no aggravating factors, no evidence of speeding or deliberate disobedience of traffic-light directions.  I accept that it was a momentary lapse of attention by the defendant.

10.I did call for a community service order report at the urging of defence counsel who stressed that the defendant was tailor-made for such an order.  However, I did remand the defendant in gaol custody whilst such a report was prepared because I was of the initial view that it would not be an appropriate sentence.  Defence counsel urged me to call for such a report before I considered sentence because the defendant had a clear record and driving record, came from a very supportive family, had a very good work record and was socially aware and involved.  He showed genuine remorse by his plea and presented very little risk of re-offending.  

11.The report did support the mitigation by counsel and the letters submitted.  The defendant worked hard at school from a very young age and was an active participant in extracurricular activities at school as well as at a youth centre.  He graduated from a local university with a Bachelor’s degree and was working part-time whilst studying for that degree. He continues to work in that same job and it would appear that the supervisor at this present workplace who passes favourable comments on his performance will offer him a full-time opportunity.

12.I do not intend to repeat the contents of the report but clearly you come from a very loving family and you have their full support.  You are a community-spirited person.  You already have an abundance of experience in voluntary service.  You are genuinely remorseful for this offence.  Your employer knows about this offence and not only will they offer you a full-time opportunity but will accommodate a community service order if it is imposed.  The probation officer recommends this order as reparation for your misdeeds in this present offence.  She recommends 240 hours.

13.After careful consideration, I take the view that a community service order can be an appropriate punishment for this case. I sentence you to 240 hours of community service.

14.In addition to this order, I make a disqualification order for a period of 2 years.  You are disqualified from driving all types of vehicles for 2 years from today. You must attend and complete a mandatory driving-improvement course at your own expense within the last three months of the disqualification period.

15.It is an offence not to attend and complete that course, and you will remain disqualified until you do so, notwithstanding that the disqualification period may already have ended.  No one will remind you to attend this course.

16.You are also warned that if you do not complete these 240 hours of this community service order to the satisfaction of the probation officer, the probation officer will inform this court.  Then this court has the power to re-sentence you, and if I am satisfied that you did not perform the unpaid work properly and to the satisfaction of those supervising you and if that should happen, then you should be under no illusion that the only sentence this court would consider appropriate would be an immediate custodial sentence.