HKSAR v. Ko Yun Sang

DCCC 297/2020

[2020] HKDC 1048

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 297 OF 2020

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Reasons for Sentence

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1.Defendant was charged with the following 4 offences:

(i)  Causing grievous bodily harm by dangerous driving; and

(ii)  Driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit;

both contrary to Road Traffic Ordinance, Cap. 374, section 36A and section 39A(1) respectively;

(iii)  Using a motor vehicle with an illegal visual display unit; and

(iv)  Using a vehicle without fitting with obligatory reflectors;

both contrary to Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374A, regulations 37, 106 and 121(1) respectively.

2.The relevant section of Dundas Street is a single-lane one-way road, and Nathan Road, a two-way road, both in Mong Kok, Kowloon, Hong Kong.  Nathan Road (south bound and north bound), each consisting of 3 lanes, are separated by concrete curbs and metal railings.  At the junction of Dundas Street (west bound) and Nathan Road (south bound), vehicles leaving Dundas Street (west bound) are required by the traffic regulation to only turn left into Nathan Road (south bound).

3.On 20 October 2019 (Sunday) at around 0400 hours, defendant was driving a private vehicle SF6800 along Dundas Street (west bound).  Defendant was the registered owner of the vehicle. When the vehicle reached the junction of Dundas Street (west bound) and Nathan Road (south bound), in breach of the traffic regulation, the vehicle went straight across the 3 lanes of Nathan Road (south bound) and then the 3 lanes of Nathan Road (north bound).  The vehicle could reach Nathan Road (north bound) because the metal railings separating Nathan Road (south bound) and Nathan Road (north bound) had been removed at the material time.  The vehicle eventually reached a signal-controlled pedestrian crossing at Dundas Street (east bound), which was showing green light for pedestrians.

4.A pedestrian, Ms Chan Sio-mui (female, aged 58), was walking (north bound) on the crossing which was showing green light for pedestrians.  When she had reached the middle of the crossing, she saw the vehicle on her right dashing across Nathan Road towards her.  Although she had immediately turned around in an attempt to leave the crossing and avoid collision with the vehicle, the left front part of the vehicle still hit her.  As a result of the collision, she was thrown up and then landed on the ground nearby.  Immediately after the collision, the vehicle slammed onto metal railings on the pavement of Dundas Street (east bound) and came to a halt.

5.Another male pedestrian witnessed the accident and made a report to the police.  He saw that the defendant alighted from the vehicle and stood nearby, appearing to be drunk. 

6.SPC52442 attended the accident scene at around 0500 hours.  Defendant told him that:

(i)  He had drunk 2 cups of white wine before driving the vehicle;

(ii)  He was trying to drive from Dundas Street (west bound) across Nathan Road to reach Dundas Street (east bound) on his way to Shanghai Street; and

(iii)  He suddenly saw a female and he tried to apply brakes. Despite braking, the vehicle still hit the female.

7.SPC52442 then conducted Screening Breath Test (“SBT”) on the defendant at 0507 hours.  The reading of alcohol concentration in breath was 84ug/100ml.  SPC52442 thus arrested defendant for “drink-driving” and brought defendant to Mong Kok Police Station for Evidential Breath Test (“EBT”).  After conducting EBT on the defendant, it was found that the reading of alcohol concentration in breath was 71ug/100ml (Tier III), 3 times over the prescribed legal limit.

8.At the time of the accident, the weather was fine and the road surface was dry.  The traffic volume was normal.  There was sufficient lighting at the material sections of Dundas Street and Nathan Road.  Speed limit of both Dundas Street and Nathan Road was 50 km/h.

9.There were 2 mechanical defects found on the vehicle upon vehicle examination on 21 October 2019.

(i)  A visual display unit (other than a visual display unit that may be installed under regulation 37(2) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap 374A) was installed at a point forward of the driver’s seat; and

(ii)  The vehicle was not fitted with the obligatory reflectors.

10.The vehicle examination also showed that the front bumper and the nearside front fender with rubber strip were damaged, the windshield glasses were cracked, the front wheel rims on both sides were deformed with deflated tyres, the nearside front suspension strut and arms were damaged and the nearside front transmission shaft was damaged.

11.Ms Chan was sent to Kwong Wah Hospital at around 0520 hours and was found to be suffering from left wrist deformity and tenderness, abrasion wound at right forearm, and bruise and mild tenderness over right shin. 

12.X-rays of left wrist showed fracture left distal radius.  Close reduction was performed on her left wrist with plaster cast later applied thereon.  She was discharged on the same day. 

13.She has then been receiving periodic follow-up treatments including physiotherapy, and she was granted seek leave from 20 October 2019 to 31 August 2020.

14.At the material time:

(i)  The defendant drove the vehicle with alcohol concentration in breath exceeding prescribed limit of 22 ug of alcohol in 100 ml of breath, namely 71 ug of alcohol in 100 ml of breath (2nd charge);

(ii)  A visual display unit (other than a visual display unit that may be installed under regulation 37(2) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374A) was installed at a point forward of the driver’s seat of the vehicle (3rd charge); and

(iii)  The vehicle was not fitted with the obligatory reflectors, not being in compliance with the requirements specified in the Eighth Schedule of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374A (4th charge).

15.At the material time, defendant drove the vehicle dangerously because:

(1)  Defendant had consumed alcohol shortly before driving the vehicle and at the material time of driving the vehicle, his alcohol concentration in breath exceeded the prescribed limit of 22 ug of alcohol in 100 ml of breath, namely 71 ug of alcohol in 100 ml;

(2)  In breach of traffic regulation, defendant drove from Dundas Street (west bound) straight across all 6 lanes of Nathan Road and eventually onto Dundas Street (east bound) as well as the crossing which was showing the green light for pedestrians;

(3)  Defendant failed to keep a proper lookout at the crossing when the crossing was showing green light for pedestrians and when Ms Chan was walking on the crossing. Due to the lack of proper lookout, defendant failed to stop the vehicle before the crossing, thus causing the vehicle to dash onto the crossing, hit her and slam onto the metal railings on the pavement of Dundas Street (east bound).

16.Defendant’s driving manner fell far below of what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.  His dangerous driving of the vehicle caused grievous bodily harm to Ms Chan (1st charge).

17.Defendant aged 42 and he had clear criminal and traffic record.  Mr Boyton for the defendant submits that defendant was a professional driver driving goods and documents to and from Mainland China.  He is married and has a 17-year-old daughter.  He also lived with his parents and contributed altogether about $8,000 to the family members.

18.Mr Boyton submitted that since defendant obtained driving licence in 1997, he had not got any traffic violation thereon.  After the incident, he even sold the vehicle and now started selling vegetables in Yuen Long for about $800 per day.  The defendant, in fact, only consumed small part of alcohol that did not affect his driving at all.  As the defendant was not familiar with that location and that the railing separated north and south bound of Nathan Road had been removed, he was then able to drive through Nathan Road, reaching the pedestrian crossing at Dundas Street.  It was submitted that the speed was not high, which can tell from the limited damage of the vehicle.

19.For Charges 3 and 4, that did not contribute to the accident and Mr Boyton also asks that just fine could be imposed.  For Charges 1 and 2, where mandatory disqualification order has to be made and it is accepted that there was no special reason to order otherwise.

20.Defendant’s wife, daughter and friends also submitted letters in support, telling that defendant is a responsible father and husband.

21.Causing grievous bodily harm by dangerous driving and drink driving are both serious offences.  In Secretary for Justice v Chu Wing Yin Christine CAAR 5/2018, the Court of Appeal stated the dominant factor to be considered in the offence of causing grievous bodily harm by dangerous driving was the defendant’s culpability, involved the objective dangerousness of the offender’s driving and the moral culpability of the offender.  The court should also consider the harm and impact caused to the victim, the nature and degree of the injury sustained.  The court would also have regard to any aggravating factors and that the normal sentence is immediate imprisonment.  In that case, the court also stated that, had there been evidence of deliberate jumping red light, a starting point of 24 months’ imprisonment could be adopted.

22.In the present case, the facts were serious in that defendant was not only in breach of the road sign to cross altogether 6 lanes of Nathan Road (north and south bound), but also reaching pedestrian crossing of Dundas Street when showing green lights for pedestrians, not to mention further that defendant had more than 3 times above the alcohol limit when driving and finally hit the pedestrian, causing her grievous bodily harm, where the pedestrian got sick leave for about 10 months, undergoing 16 times of physiotherapy and now still suffering from wrist pain.

23.Clearly, the driving manner of the defendant was very dangerous and the harm and injury caused to the victim was high and serious.  In the circumstances, I assess that a starting point of 3 years’ or more imprisonment could be adopted.  But for the clear criminal and traffic record and good character and background of the defendant, together with all the mitigating factors submitted, I consider that it is appropriate to adopt 2½ years’ imprisonment as starting point.  Upon guilty plea, that should be reduced to 20 months’ imprisonment, and that a disqualification of 5 years of driving should be imposed.

24.For the 2nd charge of drink driving, it was over the limit by more than 3 times, where a 71 microgram was found from the defendant over the limit of 22 microgram per 100 millilitres of breath.  According to section 39A(1A), it accords to Tier 3, where subsection 2A(a)(iii) stated that 2 years’ disqualification order should be imposed.  I further impose 3 months’ imprisonment of that charge upon guilty plea.  For Charges 3 and 4, fines should be imposed and each be fined $1,000.

25.Lastly, on totality principle, Charge 2 was clearly part and parcel of Charge 1 when considering the culpability of the defendant and therefore both charges could be sentenced concurrently.

26.Therefore, the sentence is as follows:

1st charge: 20 months’ imprisonment and 5 years’ disqualification order be made;

2nd charge: 3 months’ imprisonment and 2 years’ disqualification order be made;

The first 2 charges be made concurrent; and

3rd and 4th charges: each be fined $1,000, totalling $2,000.

Therefore, for all 4 charges, 20 months’ imprisonment and 5 years’ disqualification order be made, and fine $2,000 to be paid within 7 days.

27.And lastly, defendant also has to complete the driving improvement course by his own cost within 3 months of completion of disqualification period.