HKSAR v. Abdul Latif Khan

DCCC 371/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 371 OF 2014

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REASONS FOR SENTENCE

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1.Abdul Latif Khan you have pleaded guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance, Chapter 374.

2.Full particulars of the offence are set out in the summary of facts admitted by you on the 19 August.  In summary at about 16:31 hours on the 18 September last year you drove a blue coloured “ISUZU” light goods vehicle, registration mark HX 152, from Gough Hill Road down Magazine Gap Road and onto Garden Road when you were involved in an accident. 

3.The accident was captured by a camera mounted on the rear window of another light goods vehicle which was travelling ahead of you down Garden Road.  The camera footage has been played in court and I have had the opportunity of viewing the footage in considering sentence.

4.The camera footage first shows you travelling down Garden Road in the second lane from the left.  Shortly before Garden Road becomes three lanes your speed appears to increase as you pass a private car which is travelling on the inside lane. You are then seen veering into the inside lane just in front of the private car. Unable to control the vehicle you are seen swerving back into the second lane and ramminginto a private car, which was travelling down Garden Road in the third lane, pushing the private car on to the pavement. 

5.Soon after you came to a stop when your vehicle turned upside down having hit a line of private cars that had stopped behind the traffic lights.  The camera footage only shows your vehicle turned upside down and not how that occurred.     

6.Madam Chung aged 64, who was a passenger in your car, sustained serious personal injuries to her face and right hand.  A total of seven cars were damaged with three drivers sustaining injuries, which are described as not serious. 

7.Subsequent investigation revealed that your vehicle was 8.36% overloaded and at the time of the accident you were travelling at a speed in excess of the speed limit. Brake efficiency tests were conducted and both the service brake and parking brake met the legal requirements. 

Dangerous Driving

8.From the video what is clear is that when your vehicle appeared to pick up speed you were unable to keep in lane.  You lost control of the vehicle and rammed into a private car in the third lane.    

9.I note you told the police at the time that the brakes failed.  I do not accept this as the vehicle examination shows that the service brake efficiency when the vehicle was overloaded was 57%, which is above the legal requirement.  Had you applied the brakes you would have been able to stop although because your speed was increasing and your vehicle was overloaded the stopping distance would be greater.  Further had there been any problems with the brakes then surely this would have become apparent as you drove down Magazine Gap Road.

10.A competent and careful driver would when travelling down Garden Road have been able to keep his vehicle under control and within the speed limit so that he could slow down and stop according to the prevailing road conditions.  I have no doubt that being unable to control the overloaded vehicle as your speed increased your driving fell far below what is expected of a competent and careful driver and was obvious to a competent and careful driver that driving in that way would be dangerous. 

Grievous bodily harm

11.Madam Chung, who was a passenger in your vehicle, suffered a laceration to the face; an abrasion to the eye lid and a fracture of the right wrist.  Regrettably full medical reports in particular detailing the laceration to the forehead are not available nor are there any photographs of the injuries.  Nevertheless I am satisfied that the fracture of the wrist, which was conservatively treated by plaster and physiotherapy, amounts to grievous bodily harm. 

12.Quite fortuitously Madam Chung was not more seriously injured.  Fortunately as seen from the medical report dated 6 August 2014 the fracture has healed and Madam Chung has minimal pain and a good recovery overall.  This is confirmed by Madam Chung’s letter submitted by Ms Manek stating that after taking medication for sometime her health has gradually improved whereby she has recovered to how she was prior to the accident.

Guidelines

13.In R v Boswell [1984] 3 All ER 35 the Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death.  These factors were revised in R v Cooksley [2003] RTR 32.  Whilst in Boswell the court said that the presence of one or more aggravating features will generally necessitate a custodial sentence, the court in Cooksley as applied in the Secretary for Justice v Poon Wing Kay & another [2007] 1 HKLRD 660 emphasised that a sentencing court must however look at the overall circumstances and the overall culpability of the offender.  

14.I am satisfied this approach is equally appropriate to the offence of causing grievous bodily harm by dangerous driving(see HKSAR v Lee Yau Wing CACC 282/2012, paragraph 31).  This principle was repeated in Secretary for Justice v Lau Sin Ting CAAR 3/2010 where the Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice (see paragraph 36 of the judgment).

15.That the circumstances may vary greatly can be seen in the two cases cited by Ms Manek in support of her submission that the present case is less serious than both these cases and therefore a lower starting point than was taken in those cases is appropriate. 

16.The first case is HKSAR v Wong Yiu Po DCCC 188/2010 where the vehicle was overloaded.  I was the sentencing judge and adopted a starting point of 12 months imprisonment.  Whilst in that case a police motor cyclist lost his leg and therefore the injury is more serious than the present case the circumstances of the dangerous driving were very different. 

17.The police motor cyclist suspecting a slow moving vehicle was overloaded put on the flashing lights indicating the vehicle to follow him.  Not only was the vehicle overloaded the brakes were defective meaning that a longer stopping distance was required.  The road surface was wet and the defendant failing to keep a safe distance ran into the rear of the motor cycle. 

18.The case was however one of dangerous driving the accident being prior to the enactment of the offence of causing grievous bodily harm by dangerous driving. In sentencing for the offence of dangerous driving, where the maximum sentence is three years imprisonment, a court must have regard to the maximum sentence and to the need to reflect the degree of culpability within the available range of sentence (see R v Petit [2010] EWCA Crim 2107). 

19.Had the charge in that case been one of causing grievous bodily harm by dangerous driving, where the maximum sentence is seven years imprisonment, the sentence may well have been higher. Whilst always endeavouring to achieve, as far as possible, consistency in sentencing this case has therefore limited assistance. 

20.The second case Ms Manek refers to is that of Lee Yau Wing where the injury was similar in that there was also a fracture from which there was full recovery.  A 75 year old lady sustained a fracture of the knee, which seemed to have healed without leaving any residual disability.  A starting point of 15 months imprisonment was upheld in circumstances where there was a conscious disregard for traffic lights at a pedestrian crossing.  Ms Manek submits this is a higher degree of culpability than in the present case. 

21.The circumstances of that case were however described as “very unusual” including that the applicant was travelling uphill; that he gradually slowed down to 15 kmh prior to the point of impact whereby he could bring his vehicle instantly to a stop; and that he did not actually knock down the old lady.  The force of impact was however sufficient to cause the fracture of the knee. 

22.That the degree of seriousness depends on the precise circumstances of the driving can also be seen from the case of HKSAR v Lui Chung Tak CACC 221/2012 where a higher sentence was said to be appropriate notwithstanding the court held the driving was not a conscious disregard for traffic lights.

Mitigating factors

23.In passing sentence I take into account everything said on your behalf by Ms Manek together with all the letters submitted to court and the background report.  I accept that you are remorseful for what happened and that your imprisonment will cause hardship to your family, in particular your wife who suffers from anaemia and needs help in looking after your two young children.   

24.I also take into account that you have only a minor criminal conviction for gambling eight years ago and two fixed penalties.  As I said in Wong Yiu Po sentencing decisions in these cases are by their nature difficult the courts not dealing with criminals but normally law-abiding drivers, who apart from their involvement in the offence, can be individuals who would not otherwise dream of committing a crime.

25.The courts have however stressed that deterrent sentences are to be imposed.  As was said in Poon Wing Kay:-

“It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”

26.Ms Manek referring to the witness statement of your employer Mr Liu explains that prior to the day of the accident you had only driven the vehicle a short distance.  For 7-8 days you had worked for Mr Liu in removing construction waste to the goods vehicle which involved you reversing the vehicle 10-20 meters to the collection point and dumping the construction waste.

27.On the day of the accident Mr Liu drove the vehicle from To Kwa Wan to Gough Hill Road.  However as Mr Liu had to attend a business appointment and you had a driving licence you were asked to drive the vehicle back to To Kwa Wan.  Without attempting to excuse your responsibility for checking whether the vehicle was overloaded Ms Manek also explains that there were no facilities provided to check this. 

28.This being the first time you drove the vehicle over a long distance, aggravated by the fact the vehicle was overloaded which would mean the vehicle would need more time to stop, may perhaps partly explain why you were unable to control the vehicle as it picked up speed going down Garden Road.  

29.I accept this is not a prolonged, persistent and deliberate course of very bad driving.  I take into account that the vehicle was not greatly overloaded and that the speed was not far in excess of the speed limit.  In all the circumstances I am satisfied the failure to control the overloaded vehicle as the speed increased when travelling down Garden Road places the driving in the middle to the lower end of the range of seriousness.

30.Whilst Madam Chung has made a full recovery I cannot overlook three other drivers were injured and seven vehicles damaged, some extensively as shown in the video and the photographs.  Again quite fortuitously no one else was seriously injured. 

31.However as stated in Poon Wing Kay as applied in Lee Yau Wing in assessing the overall seriousness culpability is often the dominant factor.  Further in considering the degree of injuries sustained I also note that said in Lui Chung Tak that it is not helpful to compare the various injuries which amounted to grievous bodily harm save where a dramatic level of injury may have an impact on sentence. 

32.Taking into account that you were driving an overloaded vehicle in excess of the speed limit; you were unable to control the vehicle as you travelled down Garden Road; this was not a prolonged, persistent and deliberate course of very bad driving; the injury to Madam Chung; three other drivers were injured and seven vehicles damaged, I am satisfied that the proper starting point after trial is one of 18 months imprisonment.

33.Giving you full credit for your plea of guilty you are convicted and sentenced to 12 months imprisonment.  I am satisfied there are no grounds to suspend the sentence or impose a community service order.

Disqualification

34.There is mandatory disqualification of not less than 2 years for causing grievous bodily harm by dangerous driving unless the court for special reasons decides not to make such an order.  I find there are no special reasons not to order you to be disqualified.  Taking into account the circumstances of the driving I am satisfied that the minimum period of 2 years disqualification is appropriate. 

35.You are disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years.  

36.Section 72A(1A) of the Road Traffic Ordinance provides that a court shall order a person convicted of causing grievous bodily harm by dangerous driving to attend and complete a driving improvement course unless the court for special reasons decides not to make such an order.  Again I find there are no special reasons not to order you to attend and complete a driving improvement course. 

37.You are ordered to attend and complete a driving improvement course, at your own cost, within the period of 3 months ending on the date on which the disqualification expires.