HKSAR v. Ip Kwok Keung and Another

DCCC 447/2022

[2023] HKDC 1480

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 447 OF 2022

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REASONS FOR SENTENCE

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A. Charges

1.D1 pleaded not guilty to Charge 1 of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Cap 374 (“the Ordinance”). The particulars are that D1, on 23 October 2021, near Chainage 17.5B, Tolo Highway, Tai Po (“the Scene”), caused grievous bodily harm to D2 by driving a motor vehicle, namely, a private car bearing registration mark LJ961, on a road dangerously.

2.D2 pleaded not guilty to dangerous driving, contrary to section 37(1)  of the Ordinance. The particulars are that on the same day in Hong Kong, D2 drove a motorcycle bearing registration mark TC8995 on a road dangerously.

3.They were convicted of their respective charge after trial.

4.Meanwhile D2 pleaded guilty to:

Charge 3 of using a motor vehicle not fitted with an approved speedometer, contrary to regulations 24(1)  and 121(1)  of the Road Traffic (Construction and Maintenance of Vehicles)  Regulations, Cap 374A (“the Regulations”), and

Charge 4 of using a vehicle without reflectors in accordance with the requirements specified in the Eighth Schedule, contrary to regulations 106 and 121(1)  of the Regulations,

admitted the relevant facts and was convicted of these 2 charges.

5.The particulars of Charge 3 are that D2 on the same day in Hong Kong used TC8995 on a road when it was not fitted with an approved speedometer.

6.The particulars of Charge 4 are that D2 on the same day in Hong Kong used TC8995 on a road without reflectors fitted in accordance with the requirements specified in the Eighth Schedule of the Regulations.

B. Facts

7.On 23 October 2021 at around 1045, a traffic accident, involving LJ961 and TC8995 driven by D1 and D2 respectively, occurred at the Scene.

8.At 1040, PW1 was driving a private car with registration mark UV2902 from Kwong Fuk Estate to Luen Wo Hui along the 2^nd left lane[1] of Tolo Highway at about 70 km/h towards Sheung Shui. The followings took place:

(a)  A few Harley Davidson motorcycles were traveling along the 3^rd and 4^th lanes of Tolo Highway.

(b)  D1’s car was traveling on the 3^rd lane at around 80 km/h, followed by D2’s motorcycle. The latter then cut into the 3^rd lane from the fourth in a distance of around 5 feet ahead of D1’s car, then immediately applied the brake with the brake lights on and moved very slowly.

(c)  Thereafter, D1 drove to the 4^th lane. Then D2’s motorcycle immediately changed to that lane in front of D1 and applied the brake with the brake lights on, preventing D1’s car from overtaking him.

(d)  D1’s car cut back into the 3^rd lane and then moved in front of D2’s motorcycle on the 4^th lane. There was 1 private car’s length between D1’s car and D2’s motorcycle behind when D1 was cutting into the 4^th lane.

(e)  D2 steered his motorcycle to the left of the rear of D1’s car, bumped into the latter’s rear and fell onto the ground; meanwhile, D1’s car stopped.

(f)  Before D2 bumped into D1’s car, the brake lights of D1’s car had been on.

9.PW2, D2 and 5 others, being Harley Davidson motorcycle enthusiasts, were driving along Tolo Highway. Their route was from Science Park, Tai Po, to San Tin. PW2 was driving his motorcycle with registration mark WB7780 at 70 km/h on the 4^th lane. On seeing Ds driving slowly, PW2 overtook them and drove along the 4^th lane at a constant speed. At the material times, he did not apply the brake at any stage, including the time when he was in front of D1’s car.

10.On that day at 1052 at the Scene, the road was dry and the view was clear.

11.At 1135, a breath test conducted on D1 yielded 0 microgram of alcohol.

12.PW1’s dash cam recording captured the followings:[2]

10:45:32	D1’s car appeared on the 3rd lane.
10:45:35	D2’s motorcycle appeared on the 3rd lane, closely following D1’s car.
10:45:38	PW2’s motorcycle appeared on the 4th lane to the right of D2.
10:45:41-10:45:44	D2’s motorcycle traveled to the 4th lane, in parallel with and on the nearside of PW2’s motorcycle on the same lane very closely together. Meanwhile, D1’s car was still on the 3rd lane to the left of D2.
10:45:45	D2’s and PW2’s motorcycles traveled ahead of D1’s car. D2’s motorcycle then traveled to the 3rd lane in front of D1’s car, while PW2’s motorcycle continued to travel on the 4th lane.
10:45:45-10:45:46	D2’s motorcycle moved to the 3rd lane in front of D1’s car, while PW2’s motorcycle continued to proceed along the 4th lane.
10:45:46-10:45:52	When D2’s motorcycle was traveling in front of D1’s car, the latter entered the 4th lane.
10:45:52-10:45:54	D2’s motorcycle also moved to the 4th lane and went in front of D1’s car. The latter then moved back to the 3rd lane.
10:45:57	There was no car in front of D1 on the 3rd lane. Then D1’s car overtook D2’s motorcycle on the 4th lane.
10:45:58-10:46:00	D1’s car traveled for a while in front of D2’s motorcycle which was following closely behind.
10:46:00-10:46:01	D2’s motorcycle suddenly turned to the left on the 4th lane.
10:46:01-10:46:02	D2’s motorcycle then hit the left rear of D1’s car. D2 fell off his motorcycle and crashed onto the ground on the 4th lane.
10:46:07	D1 stopped his vehicle.

13.The accident occurred soon after D1’s car had overtaken D2’s motorcycle on the 4^th lane.

14.D2 was admitted into the intensive care unit (ICU)  of Prince of Wales Hospital, after sustaining traumatic brain injury with cerebral contusions with intraventricular hemorrhage and subdural haematoma, fractured right clavicle and ribs, renal laceration/‌haematoma. He underwent emergency operation with insertion of ventricular catheter.

15.D2 was given sick leave certificates for these periods: 23 October 2021 to 14 December 2021, 14 to 17 December 2021, 17 to 31 December 2021, and 31 December 2021 to 30 January 2022.

16.D2 was tracheostomized on 28 October 2021 for slow neurological recovery.

17.D2 also had subdural, subarachnoid and intraparenchymal hemorrhage, fractures across the right sphenoid wing, pterygoid plates and zygomatic arch, cervical spondylosis with small avulsed marginal osteophytes, suprarenal and perinephric haematoma with trace arterial extravasation, and small right subcapsular haematoma with possible small ulceration. There was abdominal distension on the 2^nd day in the ICU and a self-limiting seizure on the 6^th day in the ICU.

18.D2 was referred to speech therapy by the neurosurgery department on 28 November 2021 for swallowing management. On the next day, he had severe dysphagia and global aphasia. On 14 December 2021, he was not able to tell age, place, person and time correctly. He also had mildly to moderately abnormal swallowing ability. On 20 December 2021, he had cognitive communication disorder. On 28 December 2021, he had difficulty in recalling detailed personal information.

19.D2 underwent in-patient physiotherapy and occupational therapy, and there was residual right elbow stiffness on 29 March 2022.

20.The steering, service brake and parking brake of D1’s car operated normally and there was no irregularity.

21.The steering and brake of D2’s motorcycle also operated normally. However, D2 had failed to install an approved speedometer which must be calibrated and marked in kilometres per hour, and failed to fit the motorcycle with a rear reflector. These irregularities are offences under the Regulation. Thus, D2 drove TC8995 which did not comply in all respects with the Regulation.

22.D1 drove dangerously as he drove far below what would be expected of a competent and careful driver, and that it would be obvious to such a driver that driving in the way D1 did would be dangerous in terms of injury to person or of serious damage to property on the following basis:

(a)  D1 cut into the 4^th lane to prevent D2’s motorcycle from overtaking him.

(b)  D1 did not signal the right indicator lights at any stage of his cutting into the 4^th lane.

(c)  He cut from the left side of D2’s motorcycle, against the Road Users’ Code[3].

(d)  When D1’s car was cutting into the 4^th lane, there was only 1 private car’s length between his car and D2’s motorcycle behind. This was not a safe distance given that they were traveling at about 70 to 80 km/h.

(e)  D1 had braked on the 4^th lane ahead of D2 before the collision to prevent D2 from overtaking him.

23.Before the collision, D2’s motorcycle had turned to the left indicating that he was going to cut into the 3^rd lane from the fourth. Nevertheless, the distance between him and D1’s car ahead was shortened abruptly because of the latter’s braking. This resulted in D2 having less, and hence inadequate, time and space to change lanes or to keep a safe distance from D1’s car, causing the front of D2’s motorcycle to collide with the rear of D1’s car.

24.Consequently, D2 fell onto the ground and was immediately admitted into the hospital where he was found to have sustained the above injuries. Accordingly, D1 caused grievous bodily harm to D2 by driving his car at the Scene dangerously.

25.D2 drove dangerously as he drove far below what would be expected of a competent and careful driver, and that it would be obvious to such a driver that driving in the way D2 did would be dangerous in terms of injury to person or of serious damage to property on the following basis:

(a)  D2 cut from the 4^th lane into the third in front of D1 in a distance of only about 5 feet when they were traveling at about 70 to 80 km/h. That was not a safe distance.

(b)  Immediately thereafter, D2’s motorcycle braked and moved very slowly to prevent D1 from overtaking him.

(c)  Then D2 drove to the 4^th lane in front of D1, braked and moved slowly, preventing D1 from overtaking him.

C. Criminal and traffic records

26.D1 has no criminal record and has one fixed penalty traffic record.

27.D2 has no criminal record. For traffic record, he has 2 convictions in 2014, one of careless driving and one of failing to stop after accident. In 2015, he attended driving improvement course. In 2020, he has one fixed penalty for speeding.

D. Mitigation

D1

28.D1 is 61 years old and married with a grown-up son. Before he retired in 2017, he was the chief customs officer of the Hong Kong Customs and Excise Department. Thereafter, he has been a part-time assistant customs.

29.Ms Ma for D1 submitted that ‘[o]verwhelmed by self-reproach and remorse, D1 continually blamed himself and expressed profound regret for the physical harm D2 has suffered.’ As a result of the accident, D1 has been diagnosed with post-traumatic stress disorder and major depressive disorder, and has to attend regular follow-up appointments and to take medication.

30.Mitigating letters of D1, his wife, brother, son and daughter-in-law, psychiatric report of D1, and his commendations from the Customs and Excise Department were submitted.

31.Ms Ma referred to, among others, the following cases which involved the same offence as Charge 1.

32.In HKSAR v Lau Chi Keung DCCC 374/2015, the defendant drove a public light bus with 14 passengers over speed limit, did not give way or slow down at double broken white lines of a roundabout, and traveled in the inner lane and then crossed the white line to the outer lane without paying attention to the traffic. The bus rammed into a taxi, resulting in the injuries of 4 passengers on the bus. A starting point of 15 months’ imprisonment was adopted.

33.In HKSAR v Chan Chi Hung DCCC 18/2018, the defendant swerved his medium goods vehicle into another lane and crashed into a taxi, resulting in the collisions of 7 other cars. A passenger on the taxi sustained serious injuries while 2 drivers of other cars had minor ones. 6 vehicles had severe damages. The court found that the defendant was driving too close to the vehicle in front and swerved into another lane too late without paying attention to the road condition. By doing so, he had a momentary dangerous error of judgment or a short period of bad driving. A starting point of 15 months’ imprisonment was adopted.

34.In HKSAR v Wong Ka Shing DCCC 86/2021, the defendant drove a taxi with 2 passengers over speed limit, crossed double white lines, and rammed into the crash cushion when he was trying to cut into a slip road. One passenger died and the other suffered grievous bodily harm. For the offence of causing grievous bodily harm by dangerous driving, a starting point of 2 years’ imprisonment was adopted.

D2

35.D2 is 48 years old and married. He has been wheel-chair bound after the accident. Thus, he has been financially relying on family and friends. 3 good character letters were submitted. Mr Laskey for D2 referred to R v Chak Shui Chung [1989] 2 HKLR 81 and argued that the serious injuries suffered by D2 in this case is a mitigating factor.

E. Sentence

D1

36.The maximum sentence for the offence of Charge 1 is a fine at level 5 and imprisonment for 7 years.

37.According to HKSAR v Lee Yau Wing CACC 282/2012:

(a)  The approach adopted in Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660 and the case law on the offence of dangerous driving causing death are equally appropriate to the offence of causing grievous bodily harm by dangerous driving, after making necessary allowance for the fact that no death was resulted from the dangerous driving.

(b)  The harm caused by the driving misconduct is an important matter for the sentencing judge to take into account, but greater prominence should be given to the culpability of the misconduct itself.

(c)  Because of the nature of the offence, a defendant does not receive the usual advantages of being a first offender and a person of good character. The court is also less concerned with imposing a rehabilitative sentence but a sentence that accommodates the principles of retribution, deterrence and denunciation.

(d)  Retribution means the punishment of the offender and addresses the victims and their relatives and friends’ expectation of justice.

(e)  The dominant principle is general deterrence. The severe sentences that are imposed to deter has a secondary purpose of educating the public the potential dangers to others involved in driving a motor vehicle and the social responsibility of all drivers to drive safely and with due regard to others.

(f)  Denunciation brings home to the offender, those affected by his conduct and the public generally that the punishments for drivers who drive dangerously are imposed because by their conducts they have fallen below the values that society has expected of them.

38.It was held in Secretary for Justice v Liu Kwok Chun CAAR 3/2009 that a good driving record without previous convictions is a mitigating factor.

39.Compared with the cases cited by Ms Ma, there are the following less serious features insofar as D1’s driving is concerned: he was not driving a public vehicle, his vehicle had no passenger, his driving did not exceed the speed limit, did not cause more than 1 person to injure or die, and did not result in damages of more than 2 cars.

40.That said, he did violate the following traffic rules: overtaking on the left side of D2’s motorcycle, changing lanes without signaling the indicator light and without keeping a safe distance from D2.

41.Importantly, he changed lane and braked in front of D2 for the purpose of preventing the latter from overtaking him.

42.Having considered all the circumstances of this case relating to D1 and the case authorities, I adopt a starting point of 15 months’ imprisonment for Charge 1. D1 has a good driving record without previous convictions, thus the sentence is reduced by 1 month. There is no other mitigating factor. Accordingly, I impose a sentence of 14 months’ imprisonment for Charge 1.

43.According to s36A of the Ordinance, the court must order D1 to be disqualified for not less than 2 years unless the court for special reasons orders that he be disqualified for a shorter period or not be disqualified. The Defence did not submit any special reason and I am satisfied that there is none. Hence, D1 is disqualified from holding or obtaining a driving licence for all classes of vehicles for 2 years.

44.Pursuant to s72A(1A)  of the Ordinance, I further order D1 to attend and complete a driving improvement course, at his own cost, within the last 3 months of the disqualification period.

D2

45.The maximum sentence for the offence of Charge 2 on conviction on indictment is a fine at level 4 and imprisonment for 3 years.

46.Having considered all the circumstances of this case relating to D2 and the case authorities, I adopt a starting point of 4 months’ imprisonment.

47.D2 argued that the sentence should be suspended but P disagreed.

48.In Secretary for Justice v Wade, Ian Francis CACC 1/2015, the defendant was charged with dangerous driving. He drove whilst his alcohol level was 3.36 times the legal limit and collided with four vehicles. The Court of Appeal considered 6 months’ imprisonment to be appropriate. Nonetheless, having regard to the low speed at which the defendant drove, the absence of injury to anyone, the relatively low level of damage caused to other vehicles and the age of the defendant who was 75 and of positive good character and in ill-health, the court suspended the sentence for 2 years.

49.In HKSAR v Ng Sheung Yee DCCC 328/2020, the defendant was charged with one charge of causing grievous bodily harm by dangerous driving. He was 76 and a person of good character and clear traffic record. His wife had Parkinson’s disease, dementia and chronic constipation which requires daily assistance. The court imposed a sentence of 9 months’ imprisonment suspended for 1 year.

50.I find that Charge 2 and the relevant facts in this case are less serious than those in the above authorities. Meanwhile, although D2 is younger than the defendants in those cases, he has also had poor health as a result of the subject accident.

51.Accordingly, it is appropriate to suspend the sentence for Charge 2 for 2 years on, particularly, the following basis:

(a)  D2’s traffic record is not the worst of its kind;

(b)  the culpability of his driving misconduct is not the worst of its kind;

(c)  the misconduct did not result in injury to anyone or damage to any property; and

(d)  D2 suffered grievous bodily harm in this case and consequently has had severe disabilities including being wheel-chair bound.

52.According to s37 of the Ordinance, the court must order D2 to be disqualified for not less than 6 months unless the court for special reasons orders that he be disqualified for a shorter period or not be disqualified. The Defence did not submit any special reason and I am satisfied that there is none. Hence, D2 is disqualified from holding or obtaining a driving licence for all classes of vehicles for 6 months.

53.According to s72A(1A)  of the Ordinance, the court must order D2 to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order. Despite D2’s injuries and disabilities, I agree with P that he should still be able to attend such a course. Besides, given D2’s driving misconduct in this case, it is in his and the public’s interests that he is to attend the course. Accordingly, I further order D2 to attend and complete a driving improvement course, at his own cost, within the last 3 months of the disqualification period.

54.For each of Charges 3 and 4, in view of D2’s financial means, I impose a fine of $1,000.

55.Hence, D2 is sentenced to 4 months’ imprisonment suspended for 2 years and a fine in the total sum of $2,000.

[1] All lanes are numbered from the left hereinafter.

[2] file 2021-10-23 10_45_23.144 (front view).

[3] ‘Overtake only on the right side of the other vehicle’, p 51.