HKSAR v. Chiu Chun Ming

DCCC 873/2019

[2020] HKDC 180

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 873 OF 2019

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REASONS FOR SENTENCE

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1.This case concerns a fatal car accident – a head-on crash between a taxi and a private car driven by the defendant kills the taxi driver and injures two more (a taxi passenger and the defendant).

2.The defendant pleaded guilty before me to one count of dangerous driving causing death[1], one count of dangerous driving causing grievous bodily harm[2] and three other counts relating to the conditions of the defendant’s vehicle.

3.Shortly after mid-night on 26 April 2019, the defendant was driving his car along Ngau Pei Sha Street, described as a two-lane road with one lane for each direction and with broken white lines separating the opposing flow of traffic, in Shatin where the accident occurred.

4.The dashcam on the defendant’s car captured the accident. The footage showed the defendant was speeding (around 85 km/h) before turning into Ngau Pei Sha Street (speed limit of 50 km/h); after that with a lorry travelling ahead, he slowed down to 20 km/h and then picked up speed along the way to 52 km/h and remained at that speed until the moment before the collision.   

5.It was a long straight stretch of road where the accident occurred. Four seconds before the impact, the oncoming taxi well within its lane was clearly in sight but for reasons best known to him, the defendant’s car veered onto the path of the taxi. The force of the impact pushed the taxi backwards with its back hitting one of the stationary lorries parked on the side.

6.The injured persons were taken to the hospitals via ambulance – the taxi driver was certified dead about an hour later; the female taxi passenger was found to have suffered multiple injuries to the head and shoulder[3]; the defendant went into a coma for a couple of hours and the doctor attended to the defendant could smell alcohol on him. A blood sample was taken from the defendant with his consent at 4 a.m. the same morning and the result showed some alcohol in his blood[4].

7.A check on the defendant’s car discovered certain issues involving the number plate, the rear reflectors and the door windows; they were either not up to standard or fitted with unapproved materials (forming the subject matters for charges 3, 4 and 5). Suffice it to say these had nothing to do with the accident.   

8.The defendant, aged 34, has one previous record of triad-related offence back in 2007 for which he was ordered to do community services for 180 hours. Although he has no previous of careless or dangerous driving, he has 7 speeding violations over the past 7 years.

9.He is married with two young children (4-year-old son and 2-year-old daughter). The defendant is a district manager of a property agency for over 10 years earning around $45,000 a month; his wife, a stay-at-home mom, now has to face the reality looking for a job to support the family since her husband’s chances of going to prison are pretty good, counsel for the defendant Mr. Lee said.

10.Numerous letters from the defendant’s loved ones, friends and colleagues have been submitted to the court, they all spoke very highly of the defendant and pleaded leniency on his behalf.

11.When asked about the cause of ending up on the wrong side of the road, Mr. Lee stressed that this was not a case of overtaking nor was it drowsy driving, albeit the defendant had been working on the day before. Mr. Lee accepted that there was alcohol in the defendant’s blood but emphasized it was way below the legal limit (first tier – 50 milligrams of alcohol in 100 milliliters of blood), its effect on driving could be minimal. Mr. Lee suggested that this was a case of inattention.   

12.Mr. Lee urged the court to take into account the fact that the defendant himself also suffered injuries, it was submitted that the impact on the defendant, given his injuries suffered when he woke up from a coma from the accident, collectively could amount to at least mitigating circumstances.

13.The defendant’s medical report dated 27 June 2019 stated that CT brain showed no intracranial haemorrhage or skull fracture, CT scans of cervical spine, abdomen and pelvis also showed no major organ injury or fracture.While awaiting operation, Mr. Chiu’s (the defendant) GCS has significantly improved to obeying command. Hence operation was cancelled as it was no longer indicated at that juncture.Mr. Chiu was last followed up on 22 May 2019 in neurosurgical clinic. He reported symptoms of poor sleep quality and impaired attention and memory. Conservative treatment was provided. No regular follow-up was required.

14.As it is clear from the dashcam footage, violation was obviously on the defendant who was the only one to blame for the accident. The taxi was on the right side, on seeing the coming of the defendant’s car the taxi driver had no avenue of escape because on his left there was a line of lorries parked along the kerb and on his right the oncoming vehicle of the defendant with a lorry travelling ahead of it.

15.After the defendant’s car veered onto the wrong side, it remained there for four seconds before the impact. During those fewseconds there was nothing the taxi could do to avoid a head-on collision, but the defendant could; unfortunately, he didnothing and the tragic crash ensued.

16.The defence put it down to a momentary lapse of attention but were unable or unwilling to tell the court the cause of the inattention. From what Mr. Lee told the court his client had had two pints of beer for the evening and had stopped drinking at around 11 p.m.

17.It goes without saying that a head-on collision is among the most dangerous type of car accidents not least because the force of impact

would be doubled due to the travelling speed of each vehicle. So, when travelling on a single carriageway with opposing flow of traffic and without central barrier like the one in the present case, a driver should have all the more reason to be extra cautious by keeping his eyes on the road.

18.The defendant’s totally irresponsible driving behaviour on the night in question had resulted in one dead and one seriously injured. The female taxi passenger (aged 63) suffered multiple injuries mainly to her head and shoulder and in the victim impact report dated 23 March 2020, she described the difficulties she is facing in her everyday life.

19.Her field of vision has been significantly reduced because her right eyelid could not open, and thus she has to rely on her left eye all the time. Apart from the pain in the face, tears also keep running down her face from the right eye.  She could no longer raise her left hand as a result of the fracture to the left elbow. She lost her job as a cashier and is now being taken care of by one of her daughters.

20.It is not hard to imagine how a car accident could make a person’s life a misery; for those who have survived, recovery does not always mean the end of the agony. And for those unfortunate ones who lost their lives in a car accident, their problems are not over simply because they are dead - we all have family and friends.

21.The prosecution have given the court scant information about the taxi driver, not even his age. He might be the bread winner of the family and as a result of his death the family in all likelihood fell on hard times; or he might be a single parent with two young kids who would then be left to their own devices. Anyway, someone might be directly affected by his death.   

22.One of the aggravating factors listed in Cooksley[5] under the sub-heading “Highly culpable standard of driving at time of offence” is the consumption of alcohol, ranging from a couple of drinks to a motorized pub crawl. Clearly the defendant had failed to heed the warning “Don’t Drink and Drive”, but given its relatively low alcohol concentration in his blood, while I tend not to overemphasize its effect on his driving or judgment, it is always culpable to drink and drive.

23.Whichever way one looks at it, his driving was undoubtedly dangerous for he let his car travel on the wrong side of the road for 4 seconds during which time he was obviously not looking at the road resulting in a head-on crash which killed a person and injured another. There is a particular recklessness in the facts of the case.

24.Given such facts, I would take 3 and 2 years as the starting point for charges 1[6] and 2[7] respectively, and reduce it by one-third for his timely plea.

25.Regarding “The offender’s own injuries”, it is said in Cooksley that only very serious, or life changing, injury should have a significant effect on the sentence.  It is true to say the defendant went into a coma upon admission to the hospital, but his condition had quickly improved to such an extent that surgery, initially planned, was dispensed with eventually and judging from his medical report, there wasn’t any serious, let alone life changing, injury caused to him.

26.As there is nothing to justify a further reduction in sentence, the defendant is therefore sentenced to 24 months and 16 months of imprisonment for charges 1 and 2 respectively, and I order both terms to run concurrently with each other, the total term is one of 24 months’ imprisonment.

27.As regards disqualification[8], Mr. Lee agreed that there exist no special reasons, I therefore order that the defendant be disqualified from driving any class of vehicle for a period of 5 years and 2 years for charges 1 and 2 respectively. The ban is for a concurrent period and takes effect on the date of the order.

28.The defendant is also ordered to attend a Driving Improvement Course (DIC) at his own cost within the last 3 months before the expiry of the 5-year ban on driving.   To avoid repetition, DIC order is imposed for charge 1 only and there is no such order for charge 2.

29.For the rest of the charges, I think the matter could be dealt with by way of a fine. A fine of $500 for each charge, total fine is $1,500 (to be taken from his bail money).

[1] Contrary to section 36(1) of the Road Traffic Ordinance Cap. 374

[2] Contrary to section 36A of the Road Traffic Ordinance Cap. 374

[3] Including right upper and lower eyelids lacerations, intraorbital haematoma, soft tissue swelling and laceration over right forehead, periorbital and maxillary regions, left upper limb laceration and left shoulder fracture dislocation

[4] The defendant’s blood contained less than 20 milligrams of alcohol per 100 milliliters of blood

[5] R v Cooksley and Others〔2003〕3 All ER 40

[6] Charge 1 carries a maximum penalty of 10 years of imprisonment

[7] Charge 2 carries a maximum penalty of 7 years of imprisonment

[8] Charge 1 – minimum driving disqualification period for a first conviction- not less than 5 years and   Charge 2 - not less than 2 years