HKSAR v. Wong Wai Chun

DCCC 638/2021

[2022] HKDC 461

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 638 OF 2021

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REASONS FOR SENTENCE

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1.Mr Wong pleaded guilty before me to all charges on a Charge Sheet as follows.

2.Charge 1 is Causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on 14 November 2020, near Lamppost No E9354, Choi Hung Road, Wong Tai Sin, Kowloon, in Hong Kong, caused grievous bodily harm to Chui Chi Wah by driving a motor vehicle, namely, a private car bearing registration mark SS1489, on a road dangerously.

3.Charge 2 is Failing to report an accident involving personal injury to another person, contrary to section 56(3)  and (6)  of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on same date, at same place, being the driver of the same vehicle, and an accident had occurred owing to the presence of the said vehicle on a road whereby personal injury was caused to Chui Chi Wah, Lam Man Yin and Chung Wai Man, failed to report the said accident in person at the nearest police station or to a police officer as soon as reasonably practicable, and in any case not later than 24 hours after the said accident.

4.Charge 3 is Using a motor vehicle which failed to display standard registration mark, contrary to regulations 8(2)(c)  and 60(1)  of the Road Traffic (Registration and Licensing of Vehicles)  Regulations, Cap 374E. Particulars are that he, on same date, in Hong Kong, without reasonable excuse, used the same motor vehicle when the registration mark displayed on the back of the said vehicle did not comply with the requirements specified in the Schedule 4 of the Road Traffic (Registration and Licensing of Vehicles)  Regulations, Cap 374E as to the form of display or colours.

5.Charge 4 is Using a motor vehicle failing to comply with safety glass or safety glazing regulation, contrary to regulations 28(2)  and 121(1)  of the Road Traffic (Construction and Maintenance of Vehicles)  Regulations, Cap 374A. Particulars are that he, on same date, in Hong Kong, used the same motor vehicle on a road when the offside first and both rear windows glass were adhered with tinted films that reduced the ability of the glass to transmit light.

Facts admitted by Mr Wong

6.Choi Hung Road near Lamppost No E9354 was a dual carriageway consisting of 4 lanes in one direction (towards Po Kong Village Road)  and 3 lanes in the opposite direction (towards Shatin Pass Road).  The opposite lanes were separated by a central divider.  The speed limit of the material section was 50 km/h.

7.On 14 November 2020, at about 2:40 am, Mr Wong was driving his SS1489 (“the Car”)  along the first left lane in the direction of Po Kong Village Road (P1 lane).  At about the same time, Chui (PW2)  was driving a taxi along the 3^rd left lane in the direction of Shatin Pass Road (S3 lane)  whereas Lam (PW3)  was driving a public light bus (“PLB”)  along the 2^nd left lane in the same direction (S2 lane).  Chung (PW4)  was a passenger of the PLB.

8.Mr Wong was travelling along P1 lane at a speed of 106+/-11 km/h.  After travelling past a curved section of the road, the Car swerved towards the right in a spinning motion, crashed into the central divider, spun off the road, went across the central divider, hit the taxi (on S3 lane)  and then the PLB (on S2 lane), and came to a complete halt.  Mr Wong and his two passengers alighted from the Car and left the scene.

9.As a result of the incident, the Car and the taxi were severely damaged; the iron railings on the central divider were also damaged.

PW2’s injuries and present condition

10.Immediately after the incident, PW2 lost consciousness.  Upon admission to Queen Elizabeth Hospital, he was found to have sustained right distal clavicle fracture, right shoulder tenderness, decreased range of movement, 2 cm laceration on right scalp, right orbit abrasions, and multiple abrasions and lacerations on right hand.  He was hospitalized for 3 days and was discharged on 17 November 2020.  Sick leave was granted to him from 14 November 2020 to 3 January 2022.

11.PW2 was referred to Yan Chai Hospital for physiotherapy in November 2021.  He received a total of 19 physiotherapy sessions and his treatment was completed on 16 July 2021.

12.At an intermediate follow-up medical appointment on 18 January 2021, PW2 reported having residual pain and stiffness of right shoulder, as well as sleep disturbance and depressed mood.  Thus, he was referred to the Department of Psychiatry for further assessment of his mental state.  PW2 suffered from sleep disturbance and memory loss, and became nervous when he saw vehicles on the street.  He was referred to West Kowloon Psychiatric Centre and has attended 5 medical appointments since June 2021.

13.From the day of the incident to February 2022. PW2 had stopped driving. Since February 2022, PW2 has resumed driving taxi and he works about 8 hours a day as opposed to 12 hours a day before the incident.

PW3’s medical findings

14.As a result of the incident, PW3 was admitted to Queen Elizabeth Hospital for medical treatment.  He was found to have sustained right thigh contusion.  He was discharged on the same day and was granted sick leave from 14 to 18 November 2020.

PW4’s medical findings

15.As a result of the incident, PW4 was admitted to Queen Elizabeth Hospital for medical treatment.  He suffered from right leg pain and was found to have sustained right shin abrasion.  He was discharged on the same day and was granted sick leave on 14 November 2020.

Arrest and caution

16.At 10:40 pm on 14 November 2020, Mr Wong surrendered himself to the police.  At 11:05 pm the same day, he was arrested.  Under caution, he admitted to be the driver of the Car at the material time.

Motor vehicle examination

17.Upon motor vehicle examination, the Car had the following defects:-

(a)  The display of registration mark and plate on the rear did not comply with the legal requirements, namely that (i)  there was additional silver and black colour displayed on the background of the rear registration mark and plate and (ii)  the colour of the numerals and letters was not black only; and

(b)  The offside first and both rear windows glass were adhered with tinted films that reduced the ability of the glass to transmit light.

Conclusion

18.At all material times, Mr Wong drove in excessive speed; he did not reduce speed when driving along a curved section of the road; and he failed to control the Car.  His driving manner was dangerous in that it fell far below 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.  Moreover, Mr Wong failed to report the accident involving personal injury to other persons and used a motor vehicle which failed to display standard registration mark and which failed to comply with safety glass or safety glazing regulation.

Criminal and Road Traffic conviction records

19.Mr Wong has clear criminal and road traffic conviction records.

Antecedents

20.Mr Wong is aged 36 (35 at the time of the offences), educated to technician certificate level.  He is working as a clerk.  He is divorced and has a son (12).  Mr Wong is living with his parents in Wong Tai Sin.

Mitigation

21.Mr Lambert Lee of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Wong.  The following is a summary of the mitigation submissions.

22.Mr Wong made frank admission to the police.  He pleaded guilty at the first opportunity.  He has a clear criminal record.  He is engaged in gainful employment earing around $15,000 a month.  He pays monthly maintenance of $5,000 for his son now aged 13 studying F1.  He was not the registered owner of the car involved.  Being a car fanatic, he failed to resist the temptation of driving a luxury car when opportunity knocked.  Unfortunately, accident occurred as a result of his failure to control the car which was travelling at an excessive speed.

23.Mr Lee acknowledged that imprisonment is inevitable and asked for 1/3 discount on sentence for guilty pleas.

24.Mr Lee referred to two authorities on Causing grievous bodily harm by dangerous driving, namely, HKSAR v Chan Chi Chiu Louis [2013] 5 HKC 162; and Secretary for Justice v Chu Wing Yin Christine [2020] 1 HKLRD 771.

25.Mr Lee submitted a mitigation letter written in Chinese by the Chairman of a voluntary organization certifying Mr Wong’s participation in voluntary work; a lighter sentence was asked for so that Mr Wong could return to do more of such work.

26.On the topic of special reasons for not imposing orders of disqualification and for taking a driving improvement course, Mr Lee has no submission to make.

Sentence

27.I have seen the video footage taken from the PLB’s carcam (footage not kept by the court).  I was told by the prosecution that the Car which Mr Wong drove was a Maserati GranTurismo Sport.  It was severely damaged after the incident.

28.The maximum sentence for an offence of dangerous driving causing grievous bodily harm is 7 years’ imprisonment.  A conviction also carries mandatory disqualification for a period no less than a specified minimum together with mandatory attendance and completion of a driving improvement course unless special reasons exist.

29.The maximum sentence for an offence of failure to report an accident of the specified type carries a fine of $25,000 and 6 months’ imprisonment.

30.The maximum sentence for an offence Using a motor vehicle which failed to display standard registration mark is a fine of $2,000.

31.The maximum sentence for an offence of Using a motor vehicle failing to comply with safety glass or safety glazing regulation carries a fine of $10,000 and 6 months’ imprisonment.

32.In Chan Chi Chiu Louis (supra), Chu JA in giving the judgment of the Court of Appeal said that a judge in sentencing is entitled to take into account the defendant’s speed and to regard it as an aggravating factor where the speed is dangerously excessive in the light of the circumstances of the case.

33.Here, whereas the scene concerned was an urban area with a speed limit of 50 km/h, Mr Wong was travelling at a speed of 106+/-11 km/h on P1 lane when he negotiated a curved section of the road (curved to the left as I was told by the prosecution).  This was double the speed limit.  Having passed that section, his Car somehow swerved towards the right in a spinning motion, apparently traversing three other lanes before crashing into the central divider; then it became airborne and flew across to the opposite lanes first hitting the taxi on S3 lane and then the PLB on S2 lane before it rested.  The movement of the Car resembled a stunt scene in an action movie.  I have seen the photographs provided by the prosecution. 

34.In Chu Wing Yin Christine (supra), Zervos JA said, at para 75, that “the assessment of dangerousness of the driving will be affected by the extent of the risk of danger which the driving created, as well as by the extent of potential harm should the risk materialize”.  Viewed either objectively or subjectively in the eyes of Mr Wong, it should have been obvious that driving at double the speed limit when negotiating a curved section on the slow lane of a 4-lane carriageway (in one direction)  would create an enormous risk of substantial harm to life and property.

35.Later in his judgment, Zervos JA helpfully summarized the steps and considerations (detailed earlier by Macrae VP in the same case)  that a sentencing judge should go through:-

“78. First, the dominant factor to be considered is the offender’s culpability which will involve two related assessments:

(1)  The objective dangerousness of the offender’s driving (see paragraphs 48-50 of the judgment of Macrae VP); and

(2)  The moral culpability of the offender (see paragraphs 51 and 52 of the judgment of Macrae VP).

79. Secondly, closely allied to culpability is the harm and impact caused to the victim(s)  (see paragraph 56 of the judgment of Macrae VP). This will involve an assessment of the nature and degree of the really serious injury to the victim or victims.

80. Aggravating factors may include:

(i)  the extent and nature of the injuries inflicted;

(ii)  the number of people put at risk;

(iii)  the degree of speed;

(iv)  the extent of intoxication or of substance abuse (see section 36A(7)  of the RTO);

(v)  whether there was erratic or aggressive driving;

(vi)  whether there was competitive driving or showing off;

(vii)  the length of the journey during which others were exposed to risk;

(viii)  whether there was any ignoring of warnings;

(ix)  whether the offender was escaping police pursuit;

(x)  the degree of sleep deprivation;

(xi)  whether the offender failed to stop;

(xii)  the fact that the offence took place at a pedestrian crossing (see Secretary for Justice v Lam Siu Tong [2009] 5 HKLRD 601); and

(xiii)  whether the offender was driving a public service vehicle (see HKSAR v Man Chun Pun (Unrep., CACC 83/2018, 30 August 2019)).

81. Thirdly, the normal sentence for this type of offence is an immediate custodial sentence. The length of the sentence will be determined by an assessment of the two factors of culpability and harm, bearing in mind that the maximum sentence for the offence is 7 years’ imprisonment on indictment. Only in exceptional circumstances would other sentencing options be available and this will be dependent upon the circumstances of the offence and of the offender.

82. Fourthly, the sentencing court will evaluate any mitigating factors with an appropriate adjustment to the sentence.

83. Fifthly, the sentencing court must consider the imposition of any other consequential orders, such as disqualification from driving, the completion of a driving improvement course and compensation.”

36.Back to the present case, I have already dealt with the objective dangerousness of Mr Wong’s driving when looking at the authority of Chu Wing Yin Christine (supra).  On his moral culpability, I was told in mitigation that “[b]eing a car fanatic, [Mr Wong] failed to resist the temptation of driving a luxury car when opportunity knocked.  Unfortunately, accident occurred as a result of his failure to control the car which was travelling at an excessive speed.”  I can readily see the aggravating factor of “showing off” being present here and it goes to Mr Wong’s moral culpability which itself forms part of the offender’s culpability.

37.Next, I consider the harm and impact caused to PW2, the victim of the dangerous driving causing grievous bodily harm.  He had suffered bone fracture and various lacerations and abrasions.  Although he did not stay in hospital long, the long term effects seem to have been severe: he had been granted sick leave for over 13 months resulting in loss of income for the same period; he went through 19 physiotherapy sessions; he has suffered from sleep disturbance and memory loss; and his working capacity was decreased by 1/3 even after he has resumed work as a taxi driver since February 2022.

38.I am satisfied having regard to the above-referred to dicta of Chu JA in Chan Chi Chiu Louis (supra) that the speed of Mr Wong was dangerously excessive; and this counts as an aggravating factor.

39.Luckily for Mr Wong and other potential road users, although the incident happened on a Saturday, it happened in the small hours of the day where the traffic flow was not as heavy as it otherwise would have been. Perhaps this explains why there was no collision with any vehicles while Mr Wong’s Car was still on the carriageway heading towards Po Kong Village Road.

40.I note that Mr Wong has a clear criminal record as well as a clear road traffic conviction record.  However, I also acknowledge what was held in Chan Chi Chiu Louis (supra) that since the focus was on the culpability of a defendant’s driving, his clear record and general good character carried little weight; that the dominant sentencing principle was general deterrence with the principles of retribution and denunciation being also of relevance.

41.Taking all circumstances together, I am convinced that imprisonment sentence is the only option for Charge 1.

42.Bearing in mind the aggravating factor of dangerously excessive speed (with showing off), I regard Mr Wong’s culpability as belonging to the category of Higher Culpability as tabled in para 40 of Secretary for Justice v Liu Kwok Chun [2011] 1 HKC 70, 82.  I do recognize that the suggested sentences contained in that table related to the offence of causing death (and not grievous bodily harm)  by dangerous driving in England which have not been adopted as the tariff in Hong Kong.

43.Taking into account also the harm and impact element, I am of the view a starting point of 3 ½ years’ imprisonment would be appropriate for Charge 1.

44.As for Charge 2, after the collisions, Mr Wong irresponsibly left the scene with his passengers.  Fortunately, as it turned out, it did not cause much delay in the reporting of the incident to the emergency services. However, given the seriousness of the collisions, I am of the view that a term of imprisonment is the only sentencing option.  I shall adopt a starting point of 60 days’ imprisonment.

45.Mr Wong pleaded guilty in good time, earning for himself a 1/3 discount on imprisonment sentences.  I can see no other mitigating factors of weight to justify any other reduction in sentence.

46.For Charges 3 & 4, I am satisfied that I can impose fines in respect thereof.  The quantum for each has already taken into account Mr Wong’s respective pleas to them.

47.For Charges 1 and 2, failing to report was not an offence concomitant to the driving offence.  I will not impose wholly concurrent sentences.  Taking also into consideration the totality principle, I will impose partially concurrent sentences.

(Mr Wong, please stand)

48.For Charge 1, Mr Wong is to go to prison for 28 months.

49.For Charge 2, Mr Wong is to go to prison for 40 days.

50.For Charge 3, Mr Wong is fined a sum of $400, to be taken from his bail money.

51.For Charge 4, Mr Wong is fined a sum of $600, to be taken from his bail money.

52.I order that one month of the sentence on Charge 2 is to run consecutively to the sentence on Charge 1, making an aggregate imprisonment term of 29 months.

53.In addition, under Charge 1, Mr Wong is disqualified from driving all classes of vehicle for a period of 2 years; and he is to attend and complete a driving improvement course at his own cost within the last 3 months of the disqualification period.  Mr Wong is not to drive again until the expiry of the disqualification period or until he has attended and completed the said driving improvement course, whichever is the later.