HKSAR v. Kan Ka Chun

DCCC 466/2020

[2020] HKDC 1053

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 466 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleads guilty to two charges of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance[1]. This is a serious offence for which the maximum penalty is 7 years’ imprisonment.

2.In summary in the early hours of 22 September 2019 the defendant was driving medium goods vehicle MW 3359 for his employer PRH Logistics Limited when he collided with the rear of medium goods vehicle NB 1112 resulting in injury to Mr So Ka Hang, his colleague and to Mr Wong Chun Leung, the driver of NB 1112. 

3.Sentence was adjourned to today for update medical reports and victim impact statements from both Mr So and Mr Wong. 

4.Full particulars of the offences are set out in the facts admitted by the defendant on 8 October 2020.  At around 3:50 a.m. on 22 September 2019 Mr Wong, the driver of medium goods vehicle NB 1112, was travelling along the Tsing Kwai Highway (Kowloon Bound).  The Tsing Kwai Highway is a three-lane carriageway with a hard shoulder on the nearside. 

5.When Mr Wong heard some noise emitting from the back of his vehicle he pulled over and stopped in the hard shoulder.  Mr Wong turned on the hazard lights and went to the back of the vehicle to do an inspection.   

6.While Mr Wong was inspecting his vehicle, the defendant, who was driving medium goods vehicle MW 3359 in the first lane, failed to see the presence of NB 1112 stationary in the hard shoulder and rammed into the rear of NB 1112. 

7.The accident was captured on the in-car camera of the defendant’s vehicle.  I have had the opportunity of seeing the footage.  Photographs showing the scene of the accident and the damage to the two vehicles have been submitted to court.

8.Around ten minutes later the police arrived.  Mr Wong was sitting on the hard shoulder with his left leg detached and Mr So, who had fallen asleep while sitting in the front passenger seat of the defendant’s vehicle, was found lying on the ground unconscious[2].

9.Both Mr Wong and Mr So sustained very serious injuries and were admitted to the Intensive Care Unit of the Princess Margaret Hospital. 

10.Both medium goods vehicles were examined and both were found to be operative with no mechanical defects. 

Mitigation

11.In passing sentence, I have carefully considered the oral and written submissions of Mr Wong, including that the defendant, aged 33, is single, lives with his father and step-mother and has worked as a driver for PRH Logistics Limited for the last three years[3]. 

12.I have read the letter written by the defendant’s employer, who describes the defendant as hard working, polite, responsible and trustworthy.  I note the defendant’s mother and elder sister are in court to lend their support to the defendant.

13.I take into account that the defendant’s traffic record has one unrelated traffic conviction and several fixed penalties including failing to comply with traffic signs in 2018 and two for speeding in 2019.  I also note the only criminal conviction was when the defendant was 16. 

Dangerous Driving

14.In R v Boswell the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death[4].  These factors were revised in R v Cooksley[5] and have been adopted in Hong Kong[6]. 

15.In R v Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another the court emphasised that a sentencing court must look at the overall circumstances and the overall culpability of the offender[7].

16.I am satisfied this approach is equally appropriate to the offence of causing grievous bodily harm by dangerous driving[8].  In Secretary for Justice v Chu Wing Ying Christine the Court of Appeal stated that the dominant factor to be considered in sentencing is the defendant’s culpability, which involves two related assessments, the objective dangerousness of the defendant’s driving and the moral culpability of the defendant[9].

17.In Secretary for Justice v Lau Sin Ting the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice[10].

18.In R v Cooksley four categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability, which categories have been adopted in Hong Kong[11].

19.In HKSAR v Lee Yau Wing, the court emphasised that the focus on the culpability of the driving has been adopted notwithstanding that it is sad feature of these cases that the offender is usually not a person of a criminal background but is a law abiding citizen of good character[12].

20.Mr Wong submits that the collision occurred because of a “small lapse of concentration for a matter of seconds”[13]. Mr Wong explains that about three months before the accident the defendant’s father was diagnosed with cancer.  The whole family, including the defendant, were naturally very worried.  Mr Wong says that at the time of the offence the defendant’s mind was occupied with his father’s illness and momentarily distracted him a little and lowered his concentration. 

21.I have read the mitigation letter written by the defendant’s father together with two medical reports detailing the father’s illness as at April this year. 

22.In addition, Mr Wong submits that the road was not brightly lit and that it was not easy to see that NB 1112 was stuck out onto the first lane and invites the court to view the in-car camera footage. 

23.Having viewed the footage, I disagree with Mr Wong that the road was not brightly lit and that it was not easy to see NB 1112.  As the defendant leaves the tunnel the road is straight and brightly lit.  The hazard lights of NB 1112 come into view at least seven seconds before the collision.   The defendant had more than sufficient time in which to see NB 1112 and avoid the collision.  

24.In his written submission Mr Wong says about two feet of NB 1112 was sticking out on the first lane[14]. In court Mr Wong also refers to the sketch which shows part of the offside of NB 1112 in the first lane[15]. Mr Wong today has submitted a screen capture from the in-car camera in support of his submission that the rear of the vehicle was sticking out on the first lane by two feet.  

25.The in-car camera footage shows only part of the rear offside tyre is marginally over the white line.  By pausing the footage just before the collision this can clearly be seen just as in the screen capture submitted by Mr Wong.  The rear of the vehicle is not however seen to be clearly over the white line.  I do not agree the rear of the vehicle was sticking out on the first lane by two feet.   If the rear of the vehicle is said to be sticking out on the first lane, then again this is marginal and in no way affects a driver driving within his lane.

26.In my view, a driver keeping within his lane would not have collided with NB 1112. Furthermore, the final position of the defendant’s vehicle as shown in the sketch shows part of the defendant’s vehicle was in the hard shoulder indicating that the defendant had failed to keep his vehicle in his lane and collided with NB 1112 in the hard shoulder.  The photographs submitted to court also show the defendant’s vehicle in the hard shoulder[16]. 

27.I do however accept the submission that the in-car camera footage does not show erratic driving prior to the collision and that this is not a case of the defendant failing to see Mr Wong at the rear of NB 1112. 

28.Mr Wong cannot be seen on the in-car camera footage.  The footage shows that after the impact the defendant’s vehicle continues to move forward and therefore NB 1112 would have been pushed forward as a result of the collision.  The photographs of the bloodstains indicate that Mr Wong was most likely on the nearside of his vehicle near to the rear and was injured as his vehicle was pushed forward by the collision[17].

29.I am satisfied by reason of the defendant’s lack of concentration resulting in his failing to keep a proper lookout; failing to keep in lane and failing to avoid a collision, the defendant’s driving falls into higher end of the least culpable dangerous driving range.

Injuries

30.In HKSAR v Lui Chung Tak the Court of Appeal said that it is not helpful to compare the various injuries which amounted to grievous bodily harm save where a dramatic level of injury may have an impact on sentence[18]. 

31.In my view this is one such case where the injuries do have an impact on sentence, in particular the injuries sustained by Mr Wong.  The following is a summary of the injuries[19].

Mr Wong Chun Leung

32.As a result of the collision Mr Wong’s left leg was detached.   Left above knee amputation was performed. 

33.Physical examination showed deformity of the right forearm.  Closed reduction operation was performed followed by open reduction and internal fixation of the right radius and ulna.  The left forearm was also fractured.  There was also fractures of the spine and left and right ribs. 

34.Computer tomography of the brain showed fractures of the forehead, the cheek bone, the nasal bone and the eye socket.  Computer tomography of the body showed lacerations of the left kidney.      

35.In his statements dated 14 October 2020 and 9 November 2020 Mr Wong details his rehabilitation since returning home for recuperation in March this year.  Mr Wong continues to receive occupational therapy and physiotherapy every week. Further time is needed for Mr Wong to get used to the chronic pain in his right forearm and left upper leg.  Mr Wong also visits a bone setter for stretching and relaxing the tendons throughout his body. 

36.Mr Wong is of the view he has made a good recovery and that his mental status has been assessed as fine[20]. Mr Wong cannot return to work at the moment and that having lost his left leg he will not be able to work again as a transport worker or porter.   

Mr So Ka Hang

37.Computer tomography of the brain showed fractures of the skull, the jaw and the nasal bone.  Computer tomography of the body showed a fractured pelvis, fractured ribs and a fracture of the left upper arm.  Fracture reduction of the pelvis and fixation of the left shoulder were performed. 

38.In his statements dated 16 October 2020 and 10 November 2020 Mr So details his rehabilitation since returning home for recuperation in October 2019.  Mr So has made a good recovery and now only attends follow-up medical consultation at the Orthopaedics Department of the Princess Margaret Hospital.  Mr So’s mental condition has been assessed as good and free of emotional trauma. 

39.Screws were fixed in Mr So’s left shoulder and pelvis which cause discomfort when Mr So is sleeping.  Mr So has been advised that lifting heavy objects with his left hand will be relatively difficult.  Mr So has yet to return to work but believes he can do so shortly.  Mr So thinks he will be able to perform clerical work but for transportation or porterage work he may have to work slowly. 

40.I take into account the submission of Mr Wong that Mr So may not have been so seriously injured had he been wearing a seat belt.When the court asked how Mr So came to be lying on the ground unconscious Mr Au-Yeung replied that Mr So said in his witness statement that he was not wearing his seat belt.  Mr Au-Yeung also stated that as a result of the collision Mr So went through the windscreen. 

41.Whilst the impact on people’s lives is to be taken into account when sentencing the Court of Appeal in Secretary for Justice v Poon Wing Kay said that a sentencing court must look at the overall circumstances and the overall culpability of the offender and that in assessing the overall seriousness culpability is often the dominant factor[21].

Sentence

42.Mr Wong submits that the defendant’s culpability being at the very low end the court may consider this to be an exceptional case for which a non-custodial sentence or a very short term of imprisonment, may be warranted[22].

43.In support Mr Wong refers the court to the Reasons for Sentence in HKSAR v Lee Yeung Chi, Richard[23]; HKSAR v Lam Lap Fung[24] and HKSAR v Tong Shiu Yan, Tommy[25] in which the court ordered community service.   The facts of these cases are very different.  With respect, in my view, the sentences are lenient, in particular the cases where the dangerous driving involved the failure to stop at a pedestrian crossing when the traffic light was red.     

44.As stated by the Court of Appeal in HKSAR v Chan Chi Chiu, Louis what is an appropriate sentence must depend on the facts and circumstances of each case and not much assistance will be derived from an examination and comparison of the facts of other cases[26].   

45.In Secretary for Justice v Chu Wing Yin Christine the Court of Appeal stated that a judge will proceed on the basis that the normal sentence is one of immediate imprisonment and that other sentencing options would only be available in exceptional cases dependent upon the circumstances of the offence and of the offender[27].

46.I am satisfied there are no exceptional circumstances to impose a community service order or other non-custodial sentence.

47.In Secretary for Justice v Poon Wing Kay the Court of Appeal stated[28]: -

“It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

48.In Secretary for Justice v Tsang Ho Pong the respondent driving a medium goods vehicle collided with the back of a motorcycle and a container truck, killing the motorcyclist.  The cause of the collision was the respondent closing his eyes for 2 seconds.  The Court of Appeal describing the respondent as having an extremely poor driving record and having no respect for traffic laws held that the case fell within the lower categories of seriousness and that a starting point of 2 years’ imprisonment was appropriate[29].

49.In HKSAR v Lam Ying Yu the applicant failed to comply with a stop sign at a road junction and collided with a taxi which in turn hit three workers on the road, unfortunately killing one and injuring the other two.  The applicant was distracted by personal problems and failed to see the stop sign due to not concentrating and failing to keep a proper lookout.  The Court of Appeal held that the applicant’s dangerous driving placed her culpability at the higher end of the least culpable dangerous driving range for which the appropriate sentence was 18 months’ imprisonment[30].

50.As stated earlier I am satisfied by reason of the defendant’s lack of concentration resulting in his failing to keep a proper lookout; failing to keep in lane and failing to avoid a collision, the defendant’s driving falls into higher end of the least culpable dangerous driving range.

51.Taking into account the circumstances of the collision; both Mr Wong and Mr So were seriously injured, in particular Mr Wong who had his left leg amputated and that both Mr Wong and Mr So have not returned to work over one year after the accident, I am satisfied that the proper starting point after trial is 15 months’ imprisonment on charge 1 and 12 months’ imprisonment on charge 2. 

52.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 10 months’ imprisonment on charge 1 and 8 months’ imprisonment on charge 2.  I am satisfied concurrent sentences are appropriate. 

Disqualification

53.There is mandatory disqualification of not less than 2 years for causing grievous bodily harm by dangerous driving unless the court for special reasons decides not to make such an order.  I find there are no special reasons.  Taking into account the circumstances of the driving I am satisfied that a period of 2 years’ disqualification is appropriate. 

54.The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years, concurrent on each charge.

55.Section 72A(1A) of the Road Traffic Ordinance provides that a court shall order a person convicted of causing grievous bodily harm by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again I find there are no special reasons.

56.The defendant is ordered to attend and complete a driving improvement course, at his own cost, within the period of 3 months ending on the date on which the disqualification expires, concurrent on each charge. 

57.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 the disqualification period may already have ended.