HKSAR v. Chung Hoi To

DCCC 402/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 402 OF 2014

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REASONS FOR SENTENCE

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Introduction

1.The defendant pleads guilty to three charges, namely causing grievous bodily harm by dangerous driving (Charge 1); possession of a dangerous drug (Charge 2); and driving a motor vehicle with any concentration of a specified illicit drug (Charge 3).

2.Briefly stated, the defendant’s private car knocked down an 85 years old jogger on the pavement and came to a halt after crashing into a lamp pole. At the time, the defendant had methamphetamine in his blood at the level of 0.28 μg/ml. Besides, he was also in possession of 0.22 gramme of a crystalline solid containing methamphetamine hydrochloride. As a result of the accident, the victim suffered multiple injuries including laceration, bone fractures and a dislocated shoulder. He was admitted to the intensive care unit for 3 days and then the normal ward for 76 days. I was informed by the prosecution that, fortunately, the accident does not leave the victim with any permanent injury. The victim is now receiving follow-up treatment half-yearly and it is expected that he would be able to fully recover in two years’ time.

3.With the consent of the parties, I viewed the footage of the road-side CCTV cameras which recorded the accident.  The footage shows that the defendant was travelling uphill at the time and was negotiating a right bend.  The bend was not a sharp one at all and the defendant was not driving fast. However, it appears that the defendant was unable to sufficiently control his car so that it ran onto the pavement and caused the accident.

Antecedent

4.The defendant is now aged 27. He received education up to Form 3.  He works as a clerk in a construction firm and earns about $10,000 a month. He is living with his daughter from a former marriage, his parents and 2 elder sisters. 

5.As regards the defendant’s criminal records, he is not of good character.  He has 6 previous court appearances involving a total of 13 convictions, of which six were robbery, one was a triad related offence and the others were violence related offences. His last convictions on 1 December 2010 were ones of criminal intimidation and possession of offensive weapon, for which offences he was sentenced to suspended sentence for 36 months. 

6.Furthermore, I am told that the defendant has pleaded guilty to another case of possession of offensive weapons in the Magistrates’ Court, the sentence of which has been adjourned on 30 July 2014 to December 2014 pending community service, psychiatric and psychology reports.  Mr Chung for the prosecution says that the magistrate was not informed of the present case when he called for the reports.  The prosecution is now invited to inform the magistrate about this case and the defendant’s sentence as soon as possible.

7.In view of the fact that the magistrate has called for psychiatric and psychology reports, I enquired with Mr Shin who acts for the defendant whether he has any instruction that the defendant has any psychiatric or psychology conditions and, if so, whether the defence would put them forward as mitigation in the present case.  Mr Shin replied that he has firm instruction that the defendant does not have such conditions and is not relying on any such conditions. As such, in the present case there are no justifications to call for any reports.

8.As regards the defendant’s traffic record, I am told that the defendant obtained his driving licence on 16 September 2013.  Yet, he committed an offence of dangerous driving on 15 October 2013 for which he was on 7 March 2014 fined $2,000, disqualified for 6 months and ordered to attend a driving improvement course.

9.In view of the fact that the defendant had committed a serious driving offence just about a week before he committed the present case, I asked for and (with the consent of the parties) was provided with the Summary of Facts of the dangerous driving case.  In short, that case was about the defendant’s car suddenly, without any warning, cutting from the 4th lane of Canton Road into the 3rd lane when it was just two meters in front of the car of the witness in that case.  Subsequently, both the defendant’s car and the car of the witness stopped on the 1st lane for the traffic light.  When the traffic light turned green, the defendant’s car did not move.  That caused the witness to move his car to the 2nd lane on the defendant’s right with a view to overtake the defendant.  Then, all of a sudden, the defendant’s car turned right, crossed the 2nd lane and stopped at an angle in front of the car of the witness, causing the latter to brake instantly to avoid a collision.

10.Although I recited the facts of the defendant’s previous case in some detail, it has to be stressed that the defendant has already been punished for that case and he is not to be sentenced on the basis of his previous case.  The Court asked for the facts of the previous case in order to be better informed of the defendant’s driving habit.

Mitigation

11.Mr Shin said that the defendant had a drinking session with his friends the night before. The defendant knew that he should not drive because of the drink and therefore he took a rest in the bar for some 4 hours without sleeping. Mr Shin said that the defendant consumed the dangerous drug as he foolishly believed his friends that the dangerous drug would ameliorate the effects of alcohol and help to keep him alert.  As to why the defendant chose to drive that morning, his explanation was that he had to drive his lady friend home and to work. Mr Shin said that the defendant is now remorseful.

12.Mr Shin referred the Court to sentencing authorities including HKSAR v Chan Chi Chiu Louis (CACC 249/2012), Secretary for Justice v Chan Hon Hoi [2011] 1 HKLRD 808; and HKSAR v Lui Chung Tak (CACC 221/2012).

13.Mr Shin also submitted the mitigation letters written by the defendant and his parents. One of the letters is addressed to the victim seeking his forgiveness. However, that letter has yet to be sent to the victim and therefore the Court is unable to gauge the attitude of the victim.

14.Mr Shin confirmed that the defendant’s work does not require him to drive.

Sentence

Charge 1

15.Because of the presence of a specified illicit drug in his blood, the maximum sentence for this offence is increased by 50% to imprisonment for 10½ years and a fine of $75,000.  The period of mandatory disqualification is also increased to not less than 3 years: see s 36A(6) of Cap 374.

16.There is no tariff for this offence and the appropriate sentence depends on the facts and circumstances of the accused of each case.  Nevertheless, the Court of Appeal has said in HKSAR v Lee Yau Wing [2013] 1 HKC 572 that the prominent factor for the sentencing judge to take into account is the culpability of the driving misconduct, even though the harm caused is also important.   The Court of Appeal has emphasized that the dominant sentencing principle is general deterrence.  However, the severe sentences that are imposed in order to deter also have a secondary purpose of educating the public as to the potential dangers to others involved in driving a motor vehicle and the social responsibility that rests on the shoulder of all drivers to drive safely and with due regard to others.  As a result of the aforesaid sentencing approach, mitigating factors like clear record and general good character carry little weight: HKSAR v Chan Chi Chiu Louis.

17.In the present case, the fact that the defendant felt the need to drive his lady friend home is no mitigation at all.   It is only fortunate that the victim did not suffer a more serious injury, especially in view of his age.  I take into account that there was no speeding, racing or disobedience of traffic signals.  Nevertheless, the culpability of the defendant lies on the fact that he chose to drive when he was simply physically incapable to do so.  This can be seen from the fact that he had fallen into asleep at the time of the accident and that he had failed to safely negotiate a slight right bend. It does not assist the defendant that he had consumed alcohol and had not slept the night before, although he said he had taken some rest in the bar. The fact that the defendant had consumed a dangerous drug before the accident is an aggravating factor.  In short, the defendant’s conduct was not only foolish but also irresponsible.  I do not accept that the present case involves just a momentary misjudgement.  In my view, the defendant’s conduct exhibits a blatant disregard for the safety of other road users.  As aforesaid, the present case is about deliberately risk taking when the defendant knew that he should not be driving at all.

18.Having regard to the seriousness of the offence and having considered sentencing cases like HKSAR v Lee Yau Wing; HKSAR v Chan Chi Chiu Louis; HKSAR v Ho Kwong Wai (CACC 167/2012) (in Chinese); HKSAR v Lui Chung Tak; and HKSAR v Pang Ho Yin Patrick (CACC 283/2013), I take 24 months’ imprisonment as the starting point for Charge 1, on top of which another 12 months are added for the aggravating factor.  Therefore, the sentence for Charge 1, before any deduction for mitigation, is one of 36 months’ imprisonment.

19.There being no justification to further reduce his sentence, after the customary one-third discount for plea, the sentence is 24 months’ imprisonment.

20.I have found no special reasons not to order disqualification.  Therefore, apart from the imprisonment term, the defendant is also disqualified for a period of 3 years.

21.In view of the fact that this was the second time in the same month that the defendant was involved a serious traffic incident, that he had just obtained his driving licence in the previous month, that he has not driven a car ever since the imposition of the disqualification order on 7 March 2014, that he is going to serve a term of imprisonment and after which there is a disqualification period of 3 years, I see no point ordering him to attend a driving imprisonment course on this occasion.  Instead, I order that he be re-tested for driving after the expiry of the 3-year disqualification period: s 70 of Cap. 374.

Charge 2

22.The quantity of the dangerous drug involved is only 0.22 gramme of a crystalline solid.  The net weight of the narcotic is not specified in the Government Chemist’s Certificate and I take it to be minimal.  I adopt 3 weeks’ imprisonment as the starting point, which is reduced to 2 weeks’ imprisonment for the plea.

Charge 3

23.The maximum sentence for this offence is 3 years’ imprisonment and a fine of $25,000. The case of SJ v Chan Hon Hoi [2011] 1 HKLRD 808 was about driving under the influence of drugs by a taxi driver with very bad criminal and traffic records. In the present case, the defendant is not a taxi driver and his records are as bad as the respondent in that case.  Here, I take 18 months’ imprisonment as the starting point, which is reduced to 12 months’ imprisonment for the plea.

24.Similarly, I see no special reasons not to order disqualification for this offence.  The defendant is disqualified for 3 years under this charge.

Totality

25.I order that the imprisonment terms of Charge 1 and 3 be served concurrently, as the charges are about the same driving misconduct.  Moreover, the fact that the defendant had a specified illicit drug in his blood has already been taken into account in the sentence of Charge 1.

26.As regards Charge 2, it is different in nature from the traffic offences but is factually linked with the latter.  In view of totality, I order that the sentence on Charge 2 is to run concurrently to the combined sentence of Charges 1 and 3, thus making a total sentence of 24 months’ imprisonment.

27.The disqualification orders under Charge 1 and 3 are to run concurrently: R v Bain [1973] RTR 213. The disqualification period is not to start to run until the defendant finishes serving the term of imprisonment, there being no special reasons to order the otherwise: see  s69A of Cap 374. After that, he has to be retested for driving.