HKSAR V Chung Ngan Fa

DCCC 1093/2020

[2021] HKDC 1454

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1093 OF 2020

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REASONS FOR SENTENCE

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1.The defendant was charged with one count of causing grievous bodily harm by dangerous driving, contrary to Section 36A of the Road Traffic Ordinance, Cap. 374, Laws of Hong Kong (Charge 1)  and one count of driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit, contrary to Section 39A(1)  of the Road Traffic Ordinance, Cap. 374, Laws of Hong Kong (Charge 2). She pleaded not guilty to Charge 1 and guilty to Charge 2. Defendant indicated that she intended to plead guilty to careless driving but her plea was not accepted by the prosecution and trial of Charge 1 proceeded. The defendant was acquitted of the charge of causing grievous bodily harm by dangerous driving after trial but she was convicted of careless driving, contrary to Section 38 of the Road Traffic Ordinance.

Facts

2.Most of the facts of the case were not disputed.  In gist, defendant was driving a private vehicle in the early hours of 16 May 2020 travelling along the southbound lane of Sha Tau Kok Road, Wo Hang, in the direction to Fanling when her car collided with Madam Ng whom at that time was pushing a trolley walking on the carriageway along the same direction where the defendant’s vehicle was moving.  The subject carriageway was dimly lit with lamp posts and in the vicinity of the accident location there were trees going along which obstructed the light emerged from the lamp post and created a shade on the road surface.  A speed limit of 50 kilometres per hour is imposed in that area.  The defendant was assessed to be driving at a speed of 56 kilometres per hour plus or minus 6 when the accident took place.  After the collision, defendant drove her vehicle forward for another 10 seconds before she returned to the accident location.  An alcohol screening breath test was conducted by a police officer with defendant at the scene with a result of 60 milligrams per 100 millilitres.  She was arrested for driving a motor vehicle with alcohol concentration in breath above the prescribed limit. 

3.Under caution, defendant admitted that she had consumed two to three cans of beer.  A further test was conducted by another officer later and the result was 53 milligrams per 100 millilitres which is over the prescribed limit of 20 milligrams per 100 millilitres.  That is the Tier 2 offence under the Ordinance.

4.The entire incident was captured by the camcorder installed on the defendant’s vehicle. 

5.Madam Ng suffered from traumatic ruptures and multiple fractures at various parts of her body and she was admitted to hospital for over a month. She has recovered satisfactorily save in except she still felt a bit painful while walking and is still receiving physiotherapy treatment. 

6.I found that there was no evidence that the defendant’s driving was affected or appeared to be affected by alcohol.  I also found that even if the defendant was driving at a much slower speed or not under any influence of alcohol, she could not have sufficient time to avoid the accident as the location was dim and dark and Madam Ng only appeared at the defendant’s line of vision for one second before the impact.  The mere fact that the defendant was unable to avoid the collision with Madam Ng, given the facts that I had found, was not an obvious case to a competent and careful driver that her driving must be dangerous.  The basis of a conviction of a charge of careless driving was that the defendant failed to reduce her speed when she realised that the lighting was insufficient.

Background

7.Defendant is 50 years old.  She was born in Hong Kong and received education up to Form 3 level.  She has been married for over 20 years and has one son who is now 15 years old.  Her husband, being the sole breadwinner of the family, is working in the construction field and earns around HK$40,000 per month.  Defendant has a clear record.  She obtained her driving licence in 1995 and has no traffic convictions until she was convicted of the present offences. 

Mitigation

8.Mr Davies, counsel for the defendant, submitted that the facts of the case are not so serious to attract immediate custodial sentence.  Defendant did return to the scene very shortly after the accident and she was fully cooperative since then.  She frankly admitted to the police that she drank two to three cans of beer at the scene.  She pleaded guilty at the earliest opportunity and showed that she was remorseful.  A number of mitigation letters written by the defendant, her husband, her niece and her younger brother and sisters were submitted for my consideration.  All the letters spoke highly of the defendant as a caring and responsible person and the members of her family all noticed that the defendant has suffered enormous stress as a result of the accident.  They all pray to this court to impose a lenient sentence. 

9.I had obtained a Community Service Order suitability and background report before sentence.  In the report, it was stated that the defendant had undergone an assessment through the Alcohol Abuse Prevention Treatment Service organised by the Tung Wah Group of Hospitals and she was assessed to be not alcoholic-dependant and she has also since the accident refrained from consuming any alcohol. 

10.The Probation officer was impressed by the defendant’s genuine remorse and a clear record and considered that she is a suitable candidate for CSO and made a recommendation of CSO with total hours in the range of 160 to 200 hours. 

11.Regarding Disqualification Order and Driving Improvement Course, Mr Davies informed this court that the defendant took no issue with that. 

Consideration

12.The maximum sentence for the offence of careless driving is a fine at Level 2 and 6 months’ imprisonment.  There are no sentencing tariffs for the offence of careless driving.  For the offence of drunk driving, pursuant to Section 39A(1)(a)  of the Road Traffic Ordinance, the maximum sentence is a fine at Level 4 and imprisonment for 3 years on indictment.  For Tier 2 proportion of alcohol, a disqualification of not less than 12 months should be imposed. 

13.No doubt, driving shortly after alcoholic consumption is an aggravating factor for the offence of careless driving.  In determining the defendant’s culpability, I have considered that her carelessness was at the low rung of the ladder of culpability as referred in HKSAR v Leung Chiu Yu [2012] 2 HKLRD 313 as she was only driving at a speed not suitable to the road condition and the driving manner, neither the speed nor the consumption of alcohol contributed to the accident.  Having said that, it is necessary to impose a sentence with deterrent effect to remind drivers that they should not drive after drinking so as to protect any road users and themselves from unnecessary harm.  I am satisfied that a CSO, being a substitute to a term of imprisonment is sufficient to reflect the defendant’s culpability and the consequences of her act. 

14.For Charge 1, the defendant is sentenced to a CSO for a total duration of 200 hours.  For Charge 2, the defendant is sentenced to a CSO for a total duration of 200 hours.  She will be disqualified for driving for 12 months and has to complete the Driving Improvement Course by her own cost within three months of completion of the disqualification period.  The sentence of Charge 1 will run wholly concurrently with the sentence of Charge 2.